AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Second Amendment") made
effective as of January 27, 2006, by and between Premier Exhibitions, Inc., a
corporation organized under the laws of the State of Florida and having a place
of business at 0000 Xxxxxxxxx Xxxx XX, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000
("Premier") and Xxx Xxxxxx, a resident of the state of Georgia (Executive).
WHEREAS, PREMIER and Executive are parties to an Employment Agreement
dated August 4, 2003(the "Agreement"); and
WHEREAS, PREMIER and Executive desire to modify certain provisions of
the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Amendment, the parties hereto agree to modify the provisions
as follows:
1. Section 1(b) shall be amended such that the Term of this
agreement shall now extend and remain in effect for a period of
three years commencing on the date of this Amendment.
2. In addition to the stock options already granted to the
Executive, the Executive or his assigns is entitled to options to
purchase 100,000 shares of the common stock of Company. Options
to acquire 100,000 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.
3. Section 5(d) shall be added as follows: "If the Company
terminates Executive's employment for any reason other than
"Cause" as defined in Section 5(a) of the Agreement, Executive
shall be entitled to an immediate lump sum payment equal to not
less than 100% of the Executive's Base Salary until one year from
the date of this Amendment, 200% of the Executive's Base Salary
until two years from the date of this Amendment, and 299% of the
Executive's Base Salary thereafter.
4. The following Change of Control provision shall be added to the
Agreement:
(1) 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 five 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.
(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 as set forth therein, and (ii)
continue employee benefits as set forth therein 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 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 his Agreement.
(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.
5. All other provisions and conditions in the Exhibition Agreement not
revised or modified by this Amendment remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment and
affixed their hand and seal the day and year first above written.
PREMIER EXHIBITIONS, INC. EXECUTIVE
By:____________________________ By:____________________________
Date:_____________ Date:______________
