EXHIBIT 10.16
EXECUTION VERSION
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of January 31. 2003 (this
"AGREEMENT"), is entered into by and between Stanford Venture Capital Holdings,
Inc., a Delaware corporation (the "CONSULTANT"), and Tangible Asset Galleries,
Inc., a Nevada corporation (the "COMPANY")
RECITALS:
WHEREAS, the Company desires to retain the Consultant to render certain
financial consulting and advisory services; and
WHEREAS, the Consultant is willing to perform such consulting services
on the terms and subject to the conditions herein contained.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. ENGAGEMENT
The Company hereby engages the Consultant, and the Consultant hereby
accepts such engagement, as a consultant to render the consulting services set
forth below, as requested by the Company, and in furtherance of the business
goals of the Company.
2. CONSULTANT DUTIES
a. The Consultant shall, at the request of the Company, provide
financial consulting and advisory services with respect to matters including,
but not necessarily limited to, the following: (a) possible re-capitalization
and reverse stock split; (b) alternative capital structures and additional
funding requirements; (c) market makers and financial public relations
specialists; and (d) strategic transactions that the Company may consider from
time to time.
b. The Consultant may also provide additional services at the request
of the Company upon terms and conditions to be mutually agreed upon by the
parties at the time of such additional engagement.
c. The Consultant agrees to use commercially reasonable efforts to
provide the aforesaid consulting services at the direction of the Company and to
perform such duties that may be required of the Consultant pursuant to the
express and explicit terms of this Agreement to the reasonable satisfaction of
the Company.
d. The Consultant shall not be required to devote a minimum number of
hours to the services rendered hereunder.
3. TERM
The term of this Agreement during which such consulting services shall
be provided hereunder shall commence on April 1, 2003 and continue for a period
of three (3) years.
4. COMPENSATION
As compensation for the services to be rendered by the Consultant
hereunder, the Company shall pay the Consultant a fee of $60,000 per year,
payable quarterly in advance in equal installments of $15,000, with the first
such installment due on April 1, 2003. The fee may be paid in cash or common
stock at the option of the Company. The Consultant shall also receive or be
reimbursed for its reasonable travel and other out-of-pocket expenses directly
related to its agreed upon activities in the course of performing its consulting
duties. If the Company chooses to pay any portion of the fee in common stock,
the per-share value of the common stock issued shall be equal to the lowest of
(i) the average of the closing prices for the Company's common stock for the 20
Trading Days (as defined below) immediately preceding the due date for the
relevant installment payment if such stock is publicly traded, (ii) the lowest
issuance price for the Company's common stock during the three-month period
immediately preceding the due date for the relevant installment payment, or
(iii) a per-share price determined by the Company's Board of Directors in good
faith and agreed to by the Consultant. As used herein, "Trading Day" means any
business day on which (A) the market on which the Company's common stock trades
is open for business and (B) the Company's common stock actually trades on such
market. In the event that the Company and the Consultant fail to agree on the
per-share price, the Company shall make the relevant installment payment in
cash.
5. CONFIDENTIAL INFORMATION
a. The Company agrees to promptly provide and fully disclose to the
Consultant any and all information regarding the Company which the Consultant
deems pertinent to its engagement hereunder.
b. The Consultant hereby acknowledges that any and all confidential
knowledge or information concerning the Company and its affairs obtained by it,
its principals, employees and/or contractors in the course of its engagement
hereunder will not be disclosed by the Consultant to other persons and entities,
including, but not limited to, competitors of the Company, except (1) as
required by law, court order or other legal proceeding, or (ii) to authorized
employees, officers or directors of the Company or the Consultant or to such
persons to whom disclosure is necessary or appropriate in connection with the
Consultant's performance of its duties hereunder.
c. As used herein, confidential knowledge or information means: (a) all
information regarding the Company which is not generally available to the
public; and (b) all information regarding the Company which was received by the
Consultant from a source with confidentiality obligations to the Company.
d. The covenant of the Consultant under this Section 5 shall not apply
to information or knowledge which (i) at the time of disclosure is in the public
domain; (ii) after such disclosure, becomes a part of the public domain
otherwise than through the Consultant's breach of its obligations under this
Section 5; or (iii) was lawfully in the possession of the Consultant.
6. CONSULTANT STATUS
The parties acknowledge. that the Consultant is providing services
hereunder as an independent contractor. Accordingly, the Consultant agrees that
any taxes associated with the performance of its services hereunder shall be its
sole responsibility. The parties further agree that nothing herein shall create
a relationship of partners or joint venturers between the Consultant and the
Company and, except as otherwise set forth herein, nothing herein shall be
deemed to authorize the Consultant to obligate or bind the Company without the
prior written consent of the Company in each instance.
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7. INDEMNIFICATION
a. The Company shall hold harmless and indemnify the Consultant, its
affiliates, and each of the directors, employees, agents, partners,
stockholders, and members of the foregoing from and against any and all damages,
losses, liabilities, obligations, fees, costs and expenses, including, but not
limited to, the payment and advancement of reasonable attorney's fees (including
for appellate proceedings) (collectively, the "Indemnified Liabilities"),
resulting from, or incurred in connection with any claim made against the
Consultant relating to the performance of its duties hereunder.
b. Notwithstanding the foregoing, the Company shall have no obligation
to hold harmless and indemnify the Consultant from claims made against the
Consultant which arise out of, or in connection with, the Consultant's gross
negligence or willful misconduct in the performance of its duties hereunder,
c. To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
d. The provision of this Section 7 shall survive termination of this
Agreement.
8. ASSIGNMENT
The Consultant shall not have the right to assign, sell, pledge, or
dispose of in any way this Agreement or its rights and obligations hereunder
without, and then only in accordance with, the Company's prior written consent.
9. TERMINATION OF AGREEMENT
The termination of this Agreement for any reason, whether initiated by
the Consultant or the Company, shall not release the Consultant or the Company,
as the case may be, from their respective obligations under this Agreement which
by their terms shall continue beyond such termination, including, without
limitation, the Consultant's obligations under Section 5 ("Confidential
Information") and the Company's obligation under Sections 4 ("Compensation") and
7 ("Indemnification"). Notwithstanding the foregoing, the Company shall no
longer be obligated to pay any remaining fees under Section 4 ("Compensation")
if the Consultant terminates this Agreement.
10. ENTIRE AGREEMENT
This Agreement contains the complete arrangement between the parties
with respect to the subject matter hereof. The parties stipulate that neither
has made any representation with respect to the subject matter of this Agreement
or the execution or delivery hereof or any other representations except such
representations as are specifically set forth herein, and each of the parties
hereto acknowledges that it has relied on its own judgment in entering into this
Agreement.
11. WAIVER OR AMENDMENT
No waiver, amendment or modification of this Agreement or any condition
or limitation contained herein shall be valid unless in writing and duly
executed by the party to be charged therewith and no evidence of any waiver,
amendment or modification shall be offered or received in evidence or in any
proceeding, arbitration or litigation between the parties hereto arising out of
or affecting this Agreement, or the rights or obligations of the parties
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hereunder, unless such waiver or modification is duly executed in writing. The
parties further agree that the provisions of this section may not be waived
except as set forth herein.
12. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida, without regard to its
principles of conflict of laws. Each party consents to the jurisdiction of the
federal courts in Florida or the state courts of the State of Florida in
connection with any dispute arising under this Agreement or any of the
transactions contemplated hereby, and hereby waives, to the maximum extent
permitted by law, any objection, including any objections based on FORUM NON
CONVENIENS, to the bringing of any such proceeding in such jurisdictions.
13. VALID OBLIGATION
This Agreement has been duly authorized, executed, and delivered by the
Company and is a legal, valid, and binding obligation of the Company.
14. WAIVER OF JURY TRIAL
THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
PARTIES ENTERING INTO THIS AGREEMENT.
15. ATTORNEYS' FEES AND COSTS
If either party seeks to enforce its rights or remedies hereunder by
litigation, arbitration, or otherwise, the prevailing party shall be entitled to
reasonable attorneys' fees, expenses, and costs incurred in connection
therewith.
16. COUNTERPARTS
This Agreement may be executed in separate counterparts, each of which
so executed and delivered shall constitute an original, but all such
counterparts shall together constitute one and the same instrument.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.)
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[SIGNATURE PAGE TO CONSULTING AGREEMENT]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
STANFORD VENTURE CAPITAL TANGIBLE ASSET GALLERIES, INC.
HOLDINGS, INC.
By: /S/ XXXXX XXXXX By: /S/ XXXXXXX XXXXXXXX
-------------------------------- -------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxxx XxXxxxxx
Title: President Title: Chief Executive Officer
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EXHIBIT 10.17
INDEPENDENT CONTRACTOR AND
PROPRIETARY INFORMATION AGREEMENT
This Agreement dated as of July 1, 2003, is by and between Superior Galleries,
Inc., a Delaware corporation, (the "Company"), and Xxxxxxx Xxxxx, Inc., a
California corporation, (the "Contractor"), as follows:
1. CONTRACTOR STATUS. The parties agree that Contractor is acting as an
independent contractor to assist the Company to manage the Company's
public auctions of rare coins. Contractor does not have an employment,
joint venture, or partnership relationship with Company, and shall not
represent to any third party that Contractor has authority to bind the
Company to any contract or commitment other than consignment agreements
subject to the approval of the Company.
2. INSTRUCTIONS/CLIENT PROTECTION. Contractor shall have the discretion to
decide how he performs any work for the Company. However, Contractor
shall not obligate the Company to any price, credit, commission or
other terms with clients without the Company's approval, and in
addition (a) Contractor shall not make any unfair, deceptive or
misleading statements to clients regarding the Company and its
products, or (b) omit any material facts so as to make literally true
statements deceptive or misleading. Without limiting the generality of
the foregoing, Contractor agrees to comply fully with California
Business and Professions Code ss.17511 et seq. (the "telephonic seller"
law), and 16 C.F.R.ss.310 et seq. (the FTC's Telemarketing Sales Rule)
in any transactions with the Company'S actual or prospective customers,
and to adhere to the Company's Due Diligence policies as adopted from
time to time during the term of this Agreement. Contractor agrees to
indemnify the Company for any loss or damage (including attorney's
fees) incurred by it as a result of any violation of Contractor's
obligations under this Paragraph.
3. TRAINING. Contractor shall not be required to attend any training
sessions with Company personnel, and Company relies upon Contractor's
prior experience and contacts in the rare coin marketplace.
4. CONTROL/EXPENSES. Contractor acknowledges that his services are not
controlled by Company, and that Company's success in business is not
dependent upon those services. Company does not require Contractor to
work only during fixed hours or at Company's place of business, or to
conform strictly to routines, schedules and work patterns established
by Company. Rather, Contractor is free to work at his own schedule, and
to use such equipment and assisting personnel as he deems necessary (at
his own expense). The Company agrees to provide Contractor with leads
and marketing support and reimbursement for actual and reasonable
out-of-pocket travel and entertainment expenses incurred by Contractor
directly in connection with his services for the Company, but
Contractor is solely responsible for any office and/or employee
expenses connected with his services consumed outside of the personnel
and offices that may be made available from time to time by the
Company.
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5. COMPENSATION. Contractor shall be paid compensation as follows: (a) a
monthly fee of $19,250, payable in two equal installments on the 15th
and 30th of each month hereunder, and (b) a commission equal to five
(5.0%) percent through August 31, 2003 and ten percent (10.0%)
thereafter of the Company's Net Commissions and Buybacks excluding
commissions earned from the sale of Superior owned inventory. For
purposes of this Agreement, "Net Commissions and Buybacks" shall be
defined as the Company's gross commissions plus buyback fees earned
from rare coin auctions minus finder's fees paid by the Company.
6. TERM/TERMINATION. This Agreement shall continue for a term of twelve
(12) months. Either party may terminate this Agreement on 60 days'
written notice to the other. In the event of termination, each party
agrees to pay the other promptly any sums due under this Agreement, and
Company specifically agrees that Contractor shall be entitled to
commissions in accordance with Paragraph 5 for any auctions taking
place within 60 days following the effective date of the termination.
7. NON-DISCLOSURE OF INFORMATION. Contractor acknowledges that the list of
Company's customers, as it may exist from time to time, and Company's
policies and processes are valuable, special and unique assets of
Company's business. Accordingly, Contractor will not, during or after
the term of his relationship with Company, disclose the list of
Company's customers or any part thereof, or any numismatic policy or
process employed by Company, to any other person, firm, corporation or
any other entity for any reason or purpose whatsoever.
8. RETURN OF DOCUMENTS AND RECORDS. Contractor agrees that upon
termination of this Agreement it shall return to the Company any
documents, records, notebooks, computer software or diskettes, and any
other repositories of or containing any information obtained in
connection with Contractor's relationship with Company, including any
and all copies thereof, then in Contractor's possession, whether
prepared by Contractor or third parties.
9. NON-SOLICITATION OF CUSTOMERS. Contractor agrees that during the term
of this Contract it shall not directly or indirectly solicit or accept,
or assist in the solicitation or acceptance of, any business involving
the purchase or sale of rare coins from any customer or prospective
customer of the Company except in accordance with this Agreement.
Contractor further agrees that for a period of one (1) year after the
termination of this Agreement, it shall not directly or indirectly
solicit or accept, or assist in the solicitation or acceptance of, any
business involving the purchase or sale of rare coins from any person
who was a customer or prospective customer of the Company at the time
of termination, PROVIDED, HOWEVER, that Contractor shall be free to do
business with any customer or prospective customer of whom it became
aware other than through the Company, or which it generated through its
own leads during the term hereof or those customers that the Xxxxxxx
Xxxxx, the President of Contractor has had a business relationship
prior to July 6, 2001 or those customers common to the rare coin trade.
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10. NON-INTERFERENCE WITH BUSINESS. The parties mutually agree that during
the term of this Agreement and for a period of one (1) year thereafter,
neither shall attempt to or disrupt, damage, impair or interfere with
the other's business whether by way of interfering with or soliciting
its employees, soliciting relationships with independent contractors,
agents, representatives, vendors and customers, or otherwise, of the
Company.
11. BREACH OF RESTRICTIVE COVENANTS. Violation of any of Paragraphs 7-10
hereof will cause the other party irreparable harm and loss which
cannot be reasonably or adequately compensated by damages in an action
at law. Accordingly, in the event of a breach or threatened breach by
either party of any of the provisions of said paragraphs, the other
party shall be entitled to injunctive and other equitable relief to
prevent or cure any breach or threatened breach thereof.
Notwithstanding the foregoing, the parties shall have other legal
remedies as may be appropriate under the circumstances including, but
not limited to, recovery of damages occasioned by such breach. In the
event that a court of competent jurisdiction determines any of the
provisions of Paragraphs 7-10 hereof to be unreasonable in scope, time
or geographic reach, that court is hereby authorized by Contractor and
the Company to enforce the same in such narrower scope, shorter time or
smaller geographic reach as the court determines to be reasonable under
all the circumstances.
12. ENTIRE AGREEMENT/AMENDMENT. This Agreement constitutes the entire
agreement of the parties with respect to its subject matter and
supersedes all prior and contemporaneous agreements and understandings
of the parties. This Agreement cannot be modified, waived, assigned, or
transferred without the express written consent of both parties.
13. BINDING ON SUCCESSORS/NO ASSIGNMENT. This Agreement is binding upon the
parties thereto and their affiliates, subsidiaries, parents,
successors, and representatives. This Agreement may not be assigned by
either party without the other's express written consent and any
purported assignment without consent shall be null and void.
14. SEVERABILITY. If any provision of this Agreement is found invalid or
unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in
force.
15. CALIFORNIA LAW/FORUM. This Agreement shall be construed and enforced in
accordance with California law, excluding choice of law rules. Any
dispute arising under or relating to this Agreement shall be submitted
to arbitration under the Commercial Arbitration Rules of the American
Arbitration Association, with venue in Beverly Hills, California, and
the parties agree that the prevailing party shall be entitled to an
award of its attorney's fees and costs, whether or not those are
otherwise recoverable by statute. Judgment on any arbitration award may
be entered in any court of competent jurisdiction.
16. AUTHORITY. Those persons executing this Agreement do so with proper
authority from their respective principals.
17. COUNTERPARTS. This Agreement may be executed by facsimile or in
counterparts, which each shall be deemed an original hereof.
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Superior Galleries, Inc.
By: /S/ XXXX BIBERKRAUT
-----------------------
Its Chief Financial Officer
Xxxxxxx Xxxxx, Inc.
By: /S/ XXXXXXX XXXXX
----------------------
Its President
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