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Exhibit 10.16
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT, dated as of February 3, 2000, is made and entered into
by and between PREMIER CONCEPTS, INC., a Colorado corporation ("Company"), and
XXXXX X'XXXXX ("Employee").
WITNESSETH
WHEREAS, Company and Employee are parties to a certain Employment
Agreement dated February 26, 1999 (the "Original Employment Agreement"),
pursuant to which Employee currently serves as Chief Operating Officer of
Company.
WHEREAS, Company is contemplating entering into an Agreement and Plan
of Merger ("Merger Agreement") with XxxxxXxxxx.xxx Inc. ("AMZE"), pursuant to
which Company would be required, among other things, to (a) form a new
corporation under the laws of the State of Delaware ("Premier"), which would be
a wholly owned subsidiary of Company, (b) transfer and assign to Premier
substantially all businesses, rights, warranties, privileges, properties and
assets (of every kind, nature and description whatsoever, real, personal or
mixed, tangible or intangible and wherever situated), used or useful in the
business of Parent as then conducted or proposed to be conducted (such transfer
and assignment, the "Drop-Down") and (c) issue additional shares of Company's
common stock and a new class of preferred stock as part of the consideration for
the merger of AmazeMerger Co., a Delaware corporation and wholly-owned
subsidiary of Company, with and into AMZE (such merger, the "Merger").
WHEREAS, subject to the terms and conditions set forth in this
Amendment, the parties have agreed that, as part of the Drop-Down, Company shall
assign all of its rights and interests in and to the Original Employment
Agreement to Premier and that Employee shall continue to serve as the Chief
Operating Officer of Premier in accordance with the terms set forth in the
Original Employment Agreement, as amended by this Amendment (the "Employment
Agreement").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinbelow set forth, the parties agree as follows:
1. GRANT AND ISSUANCE OF ADDITIONAL STOCK OPTIONS. The Merger Agreement
contemplates the adoption by Company of a certain Stock Option Plan, conditioned
on the consummation of the Merger. As consideration for entering into this
Amendment, Company agrees that, if the Merger is consummated, Company will grant
and issue to Employee on the date of the Merger incentive stock options pursuant
to said Stock Option Plan to purchase, exercisable at any time after the vesting
of such options but prior to fifth (5th) anniversary of such vesting, an
aggregate of 20,000 shares of Company's common stock, par value $.002 per share
("Common Stock"), at a price per share equal to the closing price of Common
Stock on The Nasdaq SmallCap Market on the last trading day immediately
preceding the date of issuance of said options. The options granted to Employee
under this Amendment shall vest as follows:
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(a) If before February 25, 2001 Premier makes an "Extension"
(as defined in paragraph 2 below), the option to purchase fifty percent (50%) of
said shares of Common Stock shall vest on February 25, 2001 and Employee's
option to purchase the remaining fifty percent (50%) of said shares of Common
Stock shall vest on February 25, 2002.
(b) If as of February 25, 2001 Premier has not made an
"Extension" (as defined in paragraph 2 below), the option to purchase all shares
of Common Stock shall vest on February 25, 2001.
In the event Employee's employment with Premier is terminated by Premier without
"Cause" (as defined in the Original Employment Agreement) prior to the vesting
of the options described in this paragraph 1, then and in such event those
options shall be deemed automatically to have vested and become exercisable by
Employee in accordance with their respective terms and conditions. Said options,
to the extent vested, may be exercised in whole or in any one or more parts, at
any time prior to their expiration as set forth in said Stock Option Plan.
The options to be granted and issued to Employee pursuant to this paragraph 1
are in addition to, not in replacement of, any other options granted or other
benefits accorded to Employee by Company, whether pursuant to the Original
Employment Agreement or otherwise.
2. EXTENSION OF THE TERM. Employee hereby grants Premier the right to
extend the "Term" (as defined in the Original Employment Agreement) for an
additional period of one year (i.e., through February 25, 2003), but with a
cost-of-living adjustment in Employee's salary in proportion to the change in
the Denver Metropolitan Area Consumer Price Index (all items) for All Urban
Consumers as published from time to time by the United Sates Department of
Labor, Bureau of Labor Statistics (or, if at the relevant time such index has
been discontinued or replaced, such other governmental index or computation with
which it has been replaced that would yield substantially the same result as
would have been obtained had such index not been discontinued or replaced) from
February 25, 2001 to February 25, 2002. An extension of the Term pursuant to
this paragraph 2 is referred to herein as an "Extension."
3. SEVERANCE PAYMENTS. Employee shall be entitled to receive, as
severance, continued payment of salary for the six-month period immediately
following Employee's termination of employment with Premier (at the rate in
effect at the time of termination) if and only if such termination occurs,
without "Cause" (as defined in the Original Employment Agreement):
(a) on February 25, 2002, if Premier has not made an
Extension;
(b) on February 25, 2003, if Premier has not made Employee a
reasonable offer to extend Employee's employment with Premier after such date
pursuant to a written employment agreement; or
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(c) within six months before the expiration of the Term on
February 25, 2002 (if Premier does not exercise its right to make an Extension
pursuant to paragraph 2) or February 25, 2003 (if Premier does exercise its
right to make an Extension pursuant to paragraph 2).
Notwithstanding the foregoing, any severance payments due pursuant to this
paragraph 3 shall be reduced, if applicable, by any "Termination Payments"
received by Employee pursuant to Section 3.11 of the Original Employment
Agreement.
4. WAIVER OF RIGHTS PURSUANT TO "CHANGE OF CONTROL" PROVISIONS. Section
8.4 of the Original Employment Agreement (which states the definition of the
term "Change of Control") is hereby amended to insert the following before the
period at the end of such section:
; provided, however, no "Change of Control" shall be deemed to
have occurred by virtue of the consummation of any transaction
contemplated by the Agreement and Plan of Merger to which
Company and XxxxxXxxxx.xxx, Inc. are or may become parties.
Employee acknowledges that the intent and effect of this paragraph 4 is for
Employee to waive any and all rights under the Original Employment Agreement
arising upon the occurrence of a "Change of Control" (including, without
limitation, the right to voluntarily terminate employment pursuant to Section
3.8 of the Original Employment Agreement) by virtue of the consummation of
transactions contemplated by the Merger Agreement. Employee represents and
warrants that Employee's waiver in this paragraph 4 has been made knowingly,
intelligently and voluntarily and that Company's covenant to issue additional
options as set forth in paragraph 1 and to pay severance upon certain events as
set forth in paragraph 3 of this Amendment constitutes adequate consideration
for Employee's waiver pursuant to this paragraph 4.
5. ASSIGNMENT OF COMPANY'S RIGHTS UNDER ORIGINAL EMPLOYMENT AGREEMENT.
Company intends, as part of the Drop-Down, to transfer and assign to Premier all
of Company's rights and interests in and to the Employment Agreement. Employee
acknowledges that Company has the right to effect such transfer and assignment
without Employee's consent. Upon and after such transfer and assignment, all
references to "Company" under the Original Employment Agreement shall mean and
refer to Premier, rather than Company, and Premier shall be substituted for
Company as a party to the Original Employment Agreement; provided, however, all
references to "Company" in Section 2.4 of the Original Employment Agreement
(i.e., the provisions relating to Company's Incentive Stock Option Plan and
common stock) shall continue to refer to Company.
6. EFFECT OF THIS AMENDMENT ON ORIGINAL EMPLOYMENT AGREEMENT. This
Amendment is intended to amend the Original Employment Agreement and, therefore,
to the extent of any inconsistency between the terms of the Original Employment
Agreement and the terms of this Amendment, the terms of this Amendment shall
control. The Original Employment Agreement, as amended by this Amendment, shall
remain in full force and effect.
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7. EMPLOYEE'S INDEPENDENT COUNSEL. Employee acknowledges that counsel
to Company has advised Employee to seek the advice of her own separate counsel
in connection with entering into this Amendment. Employee represents that
Employee is entering into this Amendment after obtaining or having the
opportunity to obtain such advice.
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
Company: PREMIER CONCEPTS, INC., a Colorado
corporation
By:_________________________________
Employee: ____________________________________
XXXXX X'XXXXX
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