EXHIBIT 10.20
INVESTOR RELATIONS AGREEMENT
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This Agreement is made as of this 30th day of December, 2004, by and between
Superior Galleries, Inc. (the "Company" or "Superior"), a corporation duly
organized and existing under the laws of the State of Delaware, having its
principal place of business at 0000 X. Xxxxxxx Xxxx., Xxxxxxx Xxxxx, Xxxxxxxxxx
00000, and American Capital Ventures, Inc. (the "Consultant"), a corporation
duly organized and existing under the laws of the State of Florida, with offices
at 0000 X.X. 000xx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000.
WHEREAS, the Company is a public company that acts as a dealer and auctioneer in
rare coins and collectibles;
WHEREAS, the Consultant is experienced in providing investor relations advice to
publicly-traded companies and;
WHEREAS, the Company wishes to retain the services of the Consultant on a
non-exclusive basis on the following terms and conditions:
1. The Company hereby retains the services of the Consultant for a period of
eighteen months (the "Initial Term"), which shall automatically be renewed for
successive one-year terms (the "Successive Terms"). During the Initial Term,
either party has the right to terminate the Agreement after the initial ninety
(90) days, and subsequently, either party has the right to terminate the
Agreement with thirty (30) days written notice. The cancellation and termination
of this Agreement shall not impact the rights of the parties as set forth in any
other agreements the Consultant and the Company have executed or may execute in
the future, said agreements shall remain in full force and affect.
2. In exchange for the Consulting Services (as that term is defined below)
rendered during the Initial Term, the Consultant shall receive a fee of $10,000
per month which will be paid monthly commencing on January 1, 2005. The
Consultant shall also be reimbursed actual reasonable travel and other out of
pocket expenses which will be billed in arrears and are due payable upon receipt
of xxxx. The Consultant shall also receive a fee of 180,000 shares of common
stock ("Shares"), issued as soon as is practical after the effective date of
this Agreement, and to be registered for resale with under the Securities Act of
1933, as amended (the "Act") thereafter. Consultant represents and warrants that
the Shares are being purchased for investment and not with a view to the
unregistered distribution thereof. Subject to compliance with all applicable
securities laws, 60,000 Shares of the 180,000 Shares shall be reallocated to up
to 6 mutually agreed upon third parties, each of whom must be an accredited
investor, as such term is defined under the Securities Act of 1933, as amended.
If such reallocation cannot be effected within 18 months in compliance with
applicable securities laws, such shares shall be returned to the Company.
Certificates for the Shares
will be delivered to Consultant as follows: certificates representing 6,667
shares shall be delivered to the Consultant each month for 18 months starting on
January 1, 2005, and with respect to the 60,000 reallocated Shares, certificates
will be delivered at mutually agreed times. If the Agreement is terminated prior
to the end of the initial Term, the remaining shares not delivered to the
Consultant shall be forfeited to the Company, and the Company shall be under no
obligation to deliver any certificates that were not delivered to the Consultant
prior to the date of notice of termination.
3. By no later than 30 days after the commencement of this Agreement, the
Company should have prepared and filed any registration statements in connection
with any securities of the Company held by its shareholders, and the Company
agrees to include in such registration statement the underlying common stock
issued pursuant to this Agreement. The Company shall bear all fees and expenses
incurred by the Company in connection with the preparation and filing of such
registration statement(s). The Consultant shall exercise the "piggy-back" rights
provided for herein by giving written notice, within ten (10) days of receipt of
the Company's notice of its intention to file a registration statement. The
Company must keep any registration statement current for nine (9) months.
4. The Consultant shall provide the following services to the Company: (a)
assist the Company in making presentations to interested brokerage firms, hedge
funds and institutional investors that buy and follow auction related and
collectible stocks, (b) assist and facilitate the Company's initial listing
application to trade its shares of common stock on the American Stock Exchange
("AMEX") or Nasdaq National Market System or SmallCap Market ("Nasdaq"), and
introduce the Company to one or more qualified specialists on the AMEX trading
floor or market markers in connection with Nasdaq trading, (c) coordinate
meetings with analysts to cover the Company's stock and help disseminate the
Company's investment profile to these analysts, as well as brokerage firms,
hedge fund managers and institutional investors through a variety of electronic
and manual sources, (d) a review of public relations and marketing materials
that have been, or may be, distributed to the U.S. financial community and make
appropriate suggestions as to how these materials can or should be changed, (e)
advise the Company on symposium presentations, as well as investor conferences,
(f) assist the Company through Consultant's existing and future relationships in
areas relating to future financings, mergers, acquisitions and potential
buyouts; the parties agree that any such transaction will be subject to a
separate fee agreement between the parties and limited to transactions generated
by the Consultant, excluding any transactions generated by other parties for
which the Consultant will not be entitled to compensation, (g) at the
appropriate time, have the Company deliver presentations to the staff of the
Consultant, as well as the offices of other brokerage firms with whom the
Consultant maintains a relationship, and (h) through media contacts, attempt to
initiate interviews for the Company on news shows such as CNBC, CNN and
Bloomberg. The services referred to in this paragraph shall be known as the
"Consulting Services."
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5. The Consultant shall be an independent contractor and shall have no right or
authority to assume or create any obligations or responsibility, express or
implied, on behalf of or in the name of the Company, unless specifically
authorized in writing by the Company. No provision of this Agreement shall be
construed to preclude the Consultant, or any officer, director, agent,
assistant, affiliate or employee of the Consultant from engaging in any activity
whatsoever, including, without limitation receiving compensation for managing
investments, or acting as an advisor, broker or dealer to, or participate in,
any corporation, partnership, trust or other business entity or from receiving
compensation or profit therefore. The Consultant shall have no obligation to
present any business combination to the Company and shall incur no liability for
its failure to do so.
6. The Consultant (including any person or entity acting for or on behalf of the
Consultant) shall not be liable for any mistakes of fact, errors of judgment,
for losses sustained by the Company or any subsidiary or for any acts or
omissions of any kind, unless caused by the gross negligence or intentional
misconduct of the Consultant or any person or entity acting for or on behalf of
the Consultant.
7. (a) The Company agrees to indemnify and hold harmless the Consultant and its
present and future shareholders as well as its and their officers, directors,
affiliates, associates, employees, shareholders, attorneys and agents (each, a
"Consultant Indemnified Party") against any loss, claim, damage or liability
whatsoever (including reasonable attorneys' fees and expenses), to which such
Consultant Indemnified Party may become subject as a result of (i) any material
misstatement or omission set forth in any report or other document filed by the
Company under the Securities Exchange Act of 1934, in any press release issued
by the Company, or in another written document provided to Consultant by the
Company for purposes of carrying out his duties hereunder; (ii) any breach by
the Company of this Agreement, or (iii) any violation of law or regulation by
the Company.
(b) The Consultant agrees to indemnify and hold harmless the Company and its
present and future officers, directors, affiliates, associates, employees,
shareholders, attorneys and agents (each, a "Company Indemnified Party") against
any loss, claim, damage or liability whatsoever (including reasonable attorneys'
fees and expenses), to which such Company Indemnified Party may become subject
as a result of: (i) any material misstatement or omission made by the Consultant
regarding the Company, other than one contained in any report or other document
filed by the Company under the Securities Exchange Act of 1934, in any press
release issued by the Company, or in another written document provided to
Consultant by the Company for purposes of carrying out his duties hereunder;
(ii) any breach of this Agreement by Consultant or (iii) any violation of law or
regulation by consultant
(c) In case any action, suit or proceeding shall be brought or threatened, in
writing, against any party that is to be indemnified pursuant to clause (a) or
(b) above (an "Indemnified Party"), the Indemnified Party shall notify the party
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obligated to provide indemnification (the "Indemnifying Party") within five (5)
days after the Indemnified Party receives notice of such action, suit or such
threat. The Indemnifying Party shall have the right to appoint the Indemnifying
Party's counsel to defend such action and to direct the defense of such action,
suit or proceeding, provided that such Indemnified Party consents to such
representation by such counsel, which consent shall not be unreasonably
withheld, and provided further that if the defendants in any such action, suit
or proceeding include both the Indemnified Party and the Indemnifying Party and
the Indemnified Party shall have reasonably concluded that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party, the Indemnifying Party shall not have
the right to direct the defense of such action on behalf of such Indemnified
Party and such Indemnified Party shall have the right to select separate counsel
to defend such action on behalf of such Indemnified Party. In any event, the
Indemnified Party shall, at its sole cost and expense, be entitled to appoint
counsel to appear and participate as co-counsel in the defense thereof. The
Indemnified Party, or its co-counsel, shall promptly supply the Indemnifying
Party's counsel with copies of all documents, pleadings and notices that are
filed, served or submitted in any of the aforementioned. No Indemnified Party
shall enter into any settlement without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
8. This Agreement shall be binding upon the Company and the Consultant and their
respective successors and assigns. This Agreement may not be assigned by the
Consultant, without the Company's consent.
9. If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever; (i) the validity, legality
and enforceability of the remaining provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby; and (ii) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held, invalid illegal or unenforceable.
10. No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both parties hereto. No waiver of any other
provisions hereof (whether or not similar) shall be binding unless executed in
writing by both parties hereto nor shall such waiver constitute a continuing
waiver.
11. This Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original but all of which shall
constitute one and the same Agreement.
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12. This Agreement shall be governed by the laws of the State of California. The
parties agree that, should any dispute arise in the administration of this
Agreement, the dispute shall be resolved through arbitration under the rules of
the American Arbitration Association.
13. This Agreement contains the entire agreement between the parties with
respect to the services to be provided to the Company by the Consultant and
supersedes any and all prior understandings, agreement or correspondence between
the parties.
IN WITNESS WHEREOF, the Company and the Consultant have caused this Agreement to
be signed by their duly authorized representatives as of the day and year first
above written.
SUPERIOR GALLERIES, INC. AMERICAN CAPITAL
VENTURES, INC.
By: /S/ XXXX BIBERKRAUT By: /S/ XXXXXX XXXXXXXXX
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Name: Xxxx Biberkraut Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer Title: President
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