EXHIBIT 10.16
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is effective as of June 1,
2001 ("Effective Date"), by and between TANGIBLE ASSET GALLERIES, INC., a Nevada
corporation (the "Company"), and Xxxxxxx XxXxxxxx, an individual ("Executive").
RECITALS
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A. Subject to the terms and provisions of this Agreement, the Company
has offered to Executive the position of Chief Executive Officer of the Company,
and Executive accepts such offer.
B. The Company and Executive desire to enter into a formal arrangement
as set forth herein.
AGREEMENT
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NOW, THEREFORE, in accordance with the recitals set forth above and AS
CONSIDERATION for the representations, warranties, covenants and agreements set
forth in this Agreement, as well as for other good and valuable consideration
the receipt and sufficiency of which hereby are acknowledged, the Company and
Executive hereby agree as follows:
1. RECITALS AN INTEGRAL PART OF AGREEMENT. The recitals set forth above
are and for all purposes shall be interpreted as being an integral part of this
Agreement, constituting acknowledgments and agreements by and among the parties
hereto, and are incorporated in this Agreement by this reference.
2. EMPLOYMENT. Subject to the terms and conditions set forth in this
Agreement, the Company hereby employs Executive, and Executive hereby accepts
employment with the Company, as the Company's Chief Executive Officer ("CEO").
3. TERM. The term of Executive's employment under this Agreement shall
commence as of the Effective Date and shall continue until December 31, 2004
(the "Term"), unless earlier terminated as herein provided or by operation of
law. This Agreement may be terminated earlier as hereinafter provided.
4. DUTIES AND SERVICES. Executive shall perform such duties and
functions as Executive is reasonably instructed to perform from time to time by
the Board of Directors of the Company (the "Board of Directors") that are
reasonably within the scope of the job descriptions of CEO. In the performance
of Executive's duties, Executive shall work full-time and shall comply with the
policies of the Company and be subject to the direction of the Board of
Directors.
At all times during the Term, Executive shall perform Executive's
duties and obligations under this Agreement faithfully and diligently, shall
devote all of Executive's business time, attention, abilities and efforts
exclusively to the business of the Company and shall not accept other employment
or engage in any other outside business activity that interferes with the
performance of Executive's duties and responsibilities under this Agreement or
involves actual or prospective
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competition with the business of the Company. Executive shall perform
industriously Executive's duties under the supervision of and report to the
Board of Directors and shall accept and comply with all directions from and all
policies from time to time established by the Board of Directors.
Executive shall not directly or indirectly render any service of a
business, commercial or professional nature to any other person, entity or
organization, for compensation, without the prior consent of the Board of
Directors: PROVIDED, HOWEVER, that the foregoing shall not preclude Executive
from (a) serving on boards of trade associations and/or charitable organizations
(subject to reasonable approval by the Board of Directors); (b) engaging in
charitable activities and community affairs, provided that such directorships
and activities do not interfere with the proper performance of Executive's
duties and responsibilities under this Agreement; and (c) engaging in business
related activity of a personal nature in managing the tangible and financial
assets of the Executive, including the buying and selling of such assets,
provided that such activity is not competitive with the activities of the
Company as now constituted, it being understood that any activity wholesale in
nature or the buying and selling of such assets through dealers or brokers or
auctioneers is deemed not to be competitive with the activities of the Company.
If the Executive is not already serving as a member of the Company's
Board of Directors, the Company shall nominate Executive to be elected to the
Company's Board of Directors and the Executive agrees to serve on the Company's
Board of Directors as the Chairman. Executive shall serve in such capacity
without additional compensation, except that Executive may receive such
directors' fees or similar compensation as the Board of Directors may, in its
sole and absolute discretion, establish from time to time. At the request of the
Board of Directors or the board of directors of one or more subsidiaries of the
Company (individually, a "Subsidiary," and, collectively, "Subsidiaries") or of
any affiliate of the Company (individually, an "Affiliate," and, collectively,
"Affiliates"), Executive shall serve during the Term as a director of any such
Subsidiary or Affiliate without additional compensation, except that Executive
may receive such directors' fees or similar compensation as the board of
directors of the Subsidiaries or Affiliates may, in their sole and absolute
discretion, establish from time to time; and, in the performance of such duties,
Executive shall comply with the policies of the board of directors of each such
Subsidiary and Affiliate. Unless the context otherwise requires, for the
purposes of this Agreement, the term "Company" shall be deemed to include the
Company's Subsidiaries, if any, and the Company's Affiliates, if any.
5. BASE SALARY. As compensation for the services rendered by Executive
under this Agreement, including all services rendered by Executive as an officer
or director of the Company (as applicable), the Company agrees to pay to
Executive, and Executive agrees to accept, a base salary at the annual rate of
Three Hundred Twenty Five Thousand Dollars ($325,000.00) (the "Base Salary"),
payable on the Company's regular payroll dates for salaried executives, and
subject to such withholdings and deductions as are required by law. The annual
rate for the Base Salary shall be adjusted every January 1st during the Term, by
a percentage equal to 110% of the percentage increase in the Consumer Price
Index of the Bureau of Labor Statistics of the U.S. Department of Labor for
Urban Wage Earners and Clerical Workers, Los Angeles-Anaheim-Riverside,
California ("CPI").
6. ADDITIONAL COMPENSATION
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(a) NONQUALIFIED STOCK OPTIONS. In addition to the Base Salary, within
thirty (30) days of the date on which the Company and Executive execute and
deliver this Agreement (the "Execution and Delivery Date"), the Company shall,
pursuant to Tangible Asset Galleries, Inc. 2000 Omnibus Stock Option Plan
("Plan"), grant to Executive nonqualified stock options ("Stock Options") to
purchase Five Hundred Thousand (500,000) shares of the Company's common stock
("Common Stock"), with an exercise price equal to the closing sales price of
Common Stock on the Execution and Delivery Date. The Stock Options shall vest in
thirty-six (36) equal monthly installments after the Execution and Delivery
Date, provided that Executive is employed by the Company on each such vesting
date. All Stock Options shall be exercisable for a period of five (5) years from
the date on which the Stock Options become exercisable, subject to earlier
termination or expiration as provided in this Agreement or any related stock
option agreement. All Stock Options shall be subject to all of the terms,
provisions and conditions of the Plan; PROVIDED, HOWEVER, the terms and
provisions of this Agreement shall supercede and control any inconsistency or
contradiction between the Plan and this Agreement. With respect to any Common
Stock issued or issuable to Executive upon exercise of Stock Options, Executive
shall execute all "market standoff" or "lock-up" agreements required by the
Company's underwriters to be executed by the Company's directors and officers
generally.
(b) BONUS.
(i) PROFIT BONUS. Subject to the terms and conditions hereof,
Executive shall be entitled to an annual bonus ("Profit Bonus") based on a
certain percentage of the then Base Salary when Consolidated Annual Pre-Tax
Income (as defined below) equals amounts as follows:
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Consolidated Annual Pre-Tax Income Percentage of Base Salary
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Up to $250,000 5.0%
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$250,001 to $500,000 7.5%
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$500,001 to $1,000,000 10.0%
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$1,000,001 to $1,500,000 15.0%
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$1,500,001 to $2,000,000 20.0%
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$2,000,001 to $3,000.000 30.0%
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$3,000,001 to $4,000,000 40.0%
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$4,000,001 and up 50.0%
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The Profit Bonus shall be earned on December 31 of each fiscal year during the
Term. The Profit Bonus shall be payable within one hundred twenty (120) days
after the end of each fiscal year for which the Profit Bonus is earned.
Executive shall be entitled to receive the Profit Bonus only if Executive is
employed at such time as the Profit Bonus is earned; PROVIDED, HOWEVER, that if
the Executive is employed with the Company for less than twelve (12) months
during such fiscal year, the Executive shall be entitled to a prorated portion
of the Profit Bonus that would be payable if the Executive were employed for the
entire fiscal year.
For the purposes of this Agreement, "Consolidated Annual Pre-Tax
Income" means the Company's consolidated annual income from operations before
provision for (benefit from) any taxes and excluding all extraordinary earnings
and losses, as such term defined under GAAP. The Company shall determine the
Consolidated Annual Pre-Tax Income based on the Company's annual audited
consolidated financial statement as audited by a nationally-recognized
accounting firm and determined within one hundred twenty (120) days after the
end of the fiscal year.
(ii) ONE-TIME MARKET ACHIEVEMENT BONUS. Subject to the terms
and conditions hereto, Executive shall be entitled to a one-time bonus ("Market
Achievement Bonus") equal to twenty-five percent (25%) of the then Base Salary,
all payable in Common Stock of the Company (valued as of the date of payment),
at such time as the Company's market capitalization first exceeds Fifty Million
Dollars ($50,000,000); PROVIDED, HOWEVER, that the Company maintains such
capitalization for thirty (30) consecutive calendar days and that during such
period and any 90-day period encompassing such 30-day period, the average daily
volume of the Common Stock traded on a national exchange or NASDAQ divided by
the average total outstanding shares of the Common Stock exceeds 0.3%. The
Market Achievement Bonus shall be payable within sixty (60) days after the
satisfaction of the requirements under this subsection. Upon receipt of the
Market Achievement Bonus, Executive shall receive an additional cash bonus in an
amount equal to the tax liabilities assessed for such grant of the Common Stock.
(ii) MARKET CAPITALIZATION BONUS. Subject to the terms and
conditions hereto, Executive shall be entitled to an annual bonus ("Market
Capitalization Bonus"), all payable in the Common Stock (valued as of the date
of payment), equal to five percent (5%) of the Base Salary for each and any
fiscal year in which the average of the Company's market capitalization is
twenty percent (20%) above that of the preceding fiscal year ("Base Year");
PROVIDED, HOWEVER, that the Company's average market capitalization for that
Base Year exceeds Thirty Million Dollars ($30,000,000). Upon receipt of the
Market Capitalization Bonus, Executive shall receive an additional cash bonus in
an amount equal to the tax liabilities assessed for such grant of the Common
Stock. The Market Capitalization Bonus shall be earned at the end of each fiscal
year during the Term hereof and payable within ninety (90) days after the end of
the fiscal year for which the Market Capitalization Bonus is earned. Executive
shall be entitled to receive the Market Capitalization Bonus only if Executive
is employed at such time as the Market Capitalization Bonus is earned; PROVIDED
HOWEVER, that if the Executive is employed with the Company for less than twelve
(12) months during such fiscal year, the Executive shall be entitled to a
prorated portion of the Profit Bonus that would be payable if the Executive were
employed for the entire fiscal year.
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(c) AUTOMOBILE ALLOWANCE. During the Term, the Company shall provide a
monthly automobile expense allowance up to One Thousand Five Hundred Dollars
($1,500) ("Automobile Allowance") for lease payment for an automobile leased by
the Company for Executive's business use, and any other related automobile
expenses; PROVIDED, HOWEVER, if the monthly automobile expenses exceeds the
Automobile Allowance, then Executive shall promptly reimburse the Company the
full amount of such excess in accordance with Company policy. The Company shall
retain any and all right to purchase the leased automobile upon termination of
and pursuant to the automobile lease.
7. OTHER BENEFITS. During the Term, Executive shall generally be
eligible to participate in other benefits (if any) provided by the Company to
its senior management personnel or its employees generally. Such benefits may
include benefits provided under any profit sharing plan, 401(k) plan, stock
option plan, stock purchase plan, pension plan, short and long-term disability
insurance plan, hospital insurance plan, major medical insurance plan, dental
insurance plan, retirement plan and group life insurance plan in accordance with
the terms of such plans, as such plans may be in effect from time to time. The
Company shall pay all health care continuation fees in connection with the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, incurred by
Executive until Executive becomes eligible for full health care benefits as
provided in this Section 7. The Company reserves the right, in its sole and
absolute discretion, to amend, modify or discontinue any of such benefits for
all employees generally, in accordance with applicable law.
8. VACATION. Unless for any given calendar year during the Term a
longer period of vacation for Executive is approved by the Board of Directors,
Executive shall accrue four (4) weeks of paid vacation each calendar year during
the Term in accordance with and subject to Company policy.
9. INDEMNIFICATION INSURANCE; INDEMNIFICATION. During the Term, for the
period in which Executive is a director and/or officer of the Company, the
Company shall provide Executive with director's and officer's liability
insurance to the extent that such insurance is provided to other directors and
officers of the Company and is available at commercially reasonable premiums.
Such insurance shall be in such form, and shall provide for such coverage and
deductibles, as shall be commercially reasonable and standard for companies in
businesses and circumstances similar to those of the Company.
10. REIMBURSEMENT OF EXPENSES. During the Term, the Company shall, upon
presentation of appropriate vouchers or receipts in accordance with the
Company's customary policies and practices, reimburse Executive for reasonable
and necessary out-of-pocket expenses paid for by Executive on behalf of the
Company in connection with the performance of Executive's duties under this
Agreement.
11. TERMINATION.
(a) TERMINATION BY THE COMPANY FOR DEATH, DISABILITY AND CAUSE.
Executive's employment under this Agreement shall be terminated upon the death
of Executive and also may be terminated by the Company giving appropriate
written notice of termination and effective
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immediately upon receipt of such notice by Executive upon the occurrence of any
of the following events:
(i) THE DISABILITY OF EXECUTIVE. For the purposes of this
Agreement, the term "Disability" shall mean the inability of Executive, due to
illness, accident or any other physical or mental impairment, to perform the
essential functions of Executive's position under this Agreement with reasonable
accommodation for a period of One Hundred Twenty (120) consecutive days, during
any twelve (12) consecutive months during the Term. The determination of whether
Executive is unable to perform the essential functions of Executive's position
with reasonable accommodation shall be made by an independent physician mutually
selected by the Company and Executive within five (5) days after the Company's
written request that Executive undergo an examination for such purpose. If the
Company and Executive are unable to agree within that time on the identity of
the physician who shall perform such examination, then the Company and Executive
each shall immediately appoint a physician experienced in evaluating the
disability at issue, and the two (2) appointed physicians together shall within
ten (10) days after such appointment mutually select and appoint a third
physician, similarly qualified, to conduct such examination. If the physicians
appointed by the Company and Executive are unable to agree upon such third
physician within such ten (10) days, then the appointment of such third
physician to examine Executive shall occur in accordance with the procedural
rules of JAMS referred to in subsection 16(a) of this Agreement. The Company
shall treat any and all medical information regarding Executive as confidential,
in accordance with applicable law. The Company and Executive acknowledge and
agree that, should Executive have a Disability as herein defined, continued
employment of Executive would constitute an undue hardship for the Company.
(ii) THE DETERMINATION THAT CAUSE EXISTS FOR SUCH TERMINATION.
For the purposes of this Agreement, the term "Cause" or "For Cause" shall mean
any of the following:
(A) Executive's material breach of any provision or
covenant of this Agreement, provided that Executive first
shall have received prior written notice from the Board of
Directors expressly addressed to Executive stating with
specificity the nature of such material breach and affording
Executive a reasonable opportunity, as soon as practicable,
but in no event more than thirty (30) days, to initiate
appropriate action to cure the material breach complained of;
or
(B) Executive's material failure or refusal to
perform Executive's duties as determined by the Board of
Directors consistent with Section 4, provided that Executive
first shall have received prior written notice from the Board
of Directors expressly addressed to Executive stating with
specificity the nature of such material failure or refusal and
affording Executive a reasonable opportunity, as soon as
practicable, but in no event more than thirty (30) days, to
initiate appropriate action to correct the acts or omissions
complained of; or
(C) Executive's material breach of any provision or
covenant of the Proprietary Information and Invention
Assignment Agreement referred to in Section 14 of this
Agreement and attached hereto as Exhibit C; or
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(D) Executive's conviction of, admission of guilt to,
or plea of NOLO CONTENDRE or similar plea (which, through
lapse of time or otherwise, is not subject to appeal) with
respect to any felony; or
(E) Executive's conviction of, admission of guilt to,
or plea of NOLO CONTENDRE or similar plea (which, through
lapse of time or otherwise, is not subject to appeal) with
respect to any crime or offense of theft, embezzlement, fraud,
misappropriation of funds or other act of dishonesty by
Executive involving money or other property of the Company or
any Subsidiary or Affiliate committed after the date of this
Agreement; or
(F) Executive's material violation of any Company
material policy, including, without limitation, any Company
policy relating to discrimination or harassment; or
(G) Executive's willful engagement in any violation
of law in Executive's capacity as CEO of the Company or any
breach by Executive of Executive's duty of loyalty to the
Company.
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE. Subject to the
obligations under Section 12(c) of this Agreement and notwithstanding anything
herein to the contrary, the Company may terminate Executive's employment at any
time by written notice to Executive. Termination of Executive's employment under
this Section 11(b) shall be effective thirty (30) days after Executive's receipt
of such termination notice.
(c) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate
Executive's employment under this Agreement, for Good Reason or without Good
Reason, effective thirty (30) days after Executive's delivery to the Company of
written notice of such termination. For the purposes of this Agreement, "Good
Reason" means and shall exist if:
(i) The Company relocates its principal employee offices
outside the area within a radius of fifty (50) miles from Newport Beach,
California, without the express consent of Executive, and Executive gives the
Company written notice of Executive's objection to such relocation within five
(5) days of being informed of such contemplated relocation; or
(ii) Without Executive's express consent, the Company
substantially reduces Executive's duties and responsibilities such that it
results in a material adverse reduction in Executive's position, authority or
responsibilities, and the Company fails to cure such reduction in duties and
responsibilities within twenty (20) days after Executive gives to the Company
written notice specifying the particular acts objected to and the specific cure
requested; or
(iii) The Company's material breach of any provision or
covenant of this Agreement, provided that the Company first shall have received
prior written notice from Executive stating with specificity the nature of such
material breach and affording the Company a reasonable opportunity, as soon as
practicable, but in no event more than thirty (30) days, to initiate appropriate
action to cure the material breach complained of.
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(d) MERGER, CONSOLIDATION, REORGANIZATION OR SALE OF ASSETS. This
Agreement shall not be terminated either (i) upon or by any merger,
consolidation, reorganization or similar transaction in which the Company is not
the surviving or resulting corporation or entity or (ii) upon or by any transfer
of all or substantially all of the assets of the Company. Upon any such merger,
consolidation, reorganization or similar transaction, or upon any such transfer
of assets, the terms and provisions of this Agreement shall be binding on and
shall inure to the benefit of the surviving or resulting corporation or other
entity or the corporation or other entity to which such assets are so
transferred.
(e) RESIGNATION AS OFFICER AND DIRECTOR. In the event of any
termination under this Section 11 of Executive's employment under this
Agreement, Executive shall be deemed to have resigned voluntarily as an officer
and director of the Company or any of its Subsidiaries or Affiliates if
Executive was serving in such capacity at the time of termination.
(f) TERMINATION CERTIFICATION. On the date of termination of
Executive's employment with the Company under this Agreement, Executive shall
sign and deliver to the Company the "Termination Certification" attached hereto
as Exhibit A.
(g) SURVIVAL. The termination of Executive's employment under this
Agreement shall not affect the enforceability of Sections 12, 13 and 14 of this
Agreement.
12. COMPENSATION UPON TERMINATION.
(a) UPON TERMINATION FOR CAUSE, DISABILITY OR DEATH. If the Company
terminates Executive's employment for death, Disability or For Cause in
accordance with subsections 11(a), 11(a)(i) and 11(a)(ii) of this Agreement,
then Executive shall receive payment of Base Salary earned, payment of any
unused accrued vacation through and including the date of termination, plus
reimbursements, under Section 10 of this Agreement, for business expenses
incurred by Executive up to the date of termination (the "Termination Payment").
The Termination Payment shall constitute Executive's sole right and
exclusive remedy in the event of such termination of Executive's employment, and
upon payment by the Company of the Termination Payment, all other rights or
remedies otherwise available shall cease immediately, and the Company shall have
no further obligations to Executive under this Agreement, except that Executive
shall have the right to exercise all benefits that have vested as of the date of
termination to which Executive is entitled under any compensation or employee
benefit plan of the Company in accordance with the terms and provisions of such
compensation or employee benefit plan, all other documents and agreements that
give rise to or otherwise govern such vested benefits and all applicable laws
and regulations.
Upon termination of Executive by the Company for death or Disability,
all Stock Options, to the extent not theretofore exercised, shall terminate upon
expiration of twelve (12) months from the date of termination. Upon termination
of Executive by Company for For Cause, all Stock Options, to the extent no
theretofore exercised, shall terminate upon expiration of three (3) months from
the date of termination.
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(b) UPON VOLUNTARY TERMINATION BY EXECUTIVE. If Executive voluntarily
terminates Executive's employment in accordance with subsection 11(c) of this
Agreement for Good Reason, then, in exchange for execution of a general release
and California Civil Code section 1542 waiver (a copy of which is attached
hereto as Exhibit B), the Company shall pay Executive an amount (the "Severance
Payment") equal to twelve (12) months' Base Salary in effect on the date of
termination, payment of base salary earned and payment of any unused accrued
vacation through and including the date of termination plus reimbursement, under
Section 10 of this Agreement, for business expenses incurred by Executive up to
the date of termination. The Severance Payment shall be paid upon the Company's
receipt of the executed general release and California Civil Code section 1542
waiver.
If Executive voluntarily terminates Executive's employment in
accordance with subsection 11(c) of this Agreement without Good Reason, then
Executive shall receive the Termination Payment. Upon any termination by
Executive, all Stock Options, to the extent not theretofore exercised, shall
terminate upon expiration of three (3) months from the date of termination.
In either event, the Severance Payment or the Termination Payment, as
the case may be, shall constitute Executive's sole right and exclusive remedy in
the event of such termination of Executive's employment, and upon payment by the
Company of either the Severance Payment or the Termination Payment, as the case
may be, all other rights or remedies otherwise available shall cease
immediately, and the Company shall have no further obligations to Executive
under this Agreement, except that Executive shall have the right to exercise all
benefits that have vested as of the date of termination to which Executive is
entitled under any compensation or employee benefit plan of the Company in
accordance with the terms and provisions of such compensation or employee
benefit plan, all other documents and agreements that give rise to or otherwise
govern such vested benefits and all applicable laws and regulations.
(c) UPON TERMINATION WITHOUT CAUSE BY THE COMPANY. If Executive's
employment is terminated pursuant to subsection 11(b) of this Agreement, then,
in exchange for execution of a general release and California Civil Code section
1542 waiver (a copy of which is attached hereto as Exhibit B), the Company shall
pay Executive the Severance Payment. The Severance Payment shall be paid upon
the Company's receipt of the executed general release and California Civil Code
section 1542 waiver.
The Severance Payment shall constitute Executive's sole right and
exclusive remedy in the event of such termination of Executive's employment, and
upon payment by the Company of the Severance Payment, all other rights or
remedies otherwise available shall cease immediately, and the Company shall have
no further obligations to Executive under this Agreement, except that Executive
shall have the right to exercise all benefits that have vested as of the date of
termination to which Executive is entitled under any compensation or employee
benefit plan of the Company in accordance with the terms and provisions of such
compensation or employee benefit plan, all other documents and agreements that
give rise to or otherwise govern such vested benefits and all applicable laws
and regulations.
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Upon termination of Executive by for any reason under this subsection,
all Stock Options, to the extent no theretofore exercised, shall terminate upon
expiration of three (3) months from the date of termination.
(d) EXCLUSIVITY OF PAYMENTS. Upon termination of Executive's employment
under this Agreement, Executive shall not be entitled to any severance payment
or severance benefit from the Company other than the payments and benefits
provided in this Section 12.
(e) WITHHOLDING OF TAXES; TAX REPORTING. The Company may withhold from
any amount payable under this Agreement all such federal, state, city and other
taxes and may file with appropriate governmental authorities all such
information, returns or other reports with respect to the tax consequences of
any amount payable under this Agreement as may in the Company's reasonable
judgment be required.
(f) SECTION 280G. Anything in this Agreement to the contrary
notwithstanding, Executive's payments and benefits under this Agreement and all
other arrangements or programs shall not, in the aggregate, exceed the maximum
amount that may be paid to Executive without triggering golden parachute
penalties under Section 280G and related provisions of the Internal Revenue Code
of 1986, as amended, as determined in good faith by the Company's independent
auditors. If Executive's benefits must be cut back to avoid triggering such
penalties, then Executive's benefits shall be cut back in the priority order
that Executive designates or, if Executive fails to designate promptly such an
order, in the priority order that the Company designates. Executive and the
Company shall cooperate reasonably with each other in connection with any
administrative or judicial proceeding about the existence or amount of golden
parachute penalties on payments or benefits that Executive receives from the
Company. This Section 12(h) shall not be applicable if the Executive's payments
and benefits triggering the golden parachute penalties of Code Section 280G were
approved by the shareholders of the Company as required by Code Section
280G(b)(5)(b), and the Company shall undertake its reasonable best efforts to
obtain such shareholder approval.
13. COVENANTS NOT TO COMPETE.
(a) During the Term hereof Executive shall not, directly or indirectly,
as an employee, agent, advisor, independent contractor, officer, director,
manager, member, partner, owner, consultant or otherwise, (i) compete with the
Company or with any of its Subsidiaries or Affiliates, (ii) solicit for
employment or any other capacity any employee or executive of the Company or of
any of its Subsidiaries or Affiliates, (iii) induce or attempt to induce any
employee of the Company or of any of its Subsidiaries or Affiliates to leave the
employ of the Company or of any of its Subsidiaries or Affiliates, (iv) solicit
any actual or prospective customer of the Company or of any of its Subsidiaries
or Affiliates for any business that competes directly or indirectly with the
Company or any of its Subsidiaries or Affiliates, (v) divulge any of the
Company's Proprietary Information (as that term is defined in the Proprietary
Information and Invention Assignment Agreement) in an attempt to solicit any
employees, contractors, licensees or customers of the Company or of any of its
Subsidiaries or Affiliates or (vi) interfere with, disrupt or attempt to disrupt
the relationship, contractual or otherwise, between any customer, client,
licensor, licensee, supplier, consultant or employee of the Company or of any of
its Subsidiaries or Affiliates. An
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activity competitive with an activity engaged in by the Company or by any of its
Subsidiaries or Affiliates shall include, without limitation, becoming an
employee, agent, advisor, independent contractor, officer, director, manager,
member, partner, owner, consultant or other assistant or representative of, or
being an investor to any extent or in any manner in, any entity or person
engaged in any business that is competitive with the business of the Company or
the business of any of its Subsidiaries or Affiliates, or is the same as or
similar to the business of the Company or that of its Subsidiaries or
Affiliates, (in each case) as conducted or proposed to be conducted.
Notwithstanding any of the foregoing, for the purposes of this Agreement, the
following activities shall not be deemed to be competition with the Company or
with any of its Subsidiaries or Affiliates: (a) the beneficial ownership by
Executive of less than a one percent (1.0%) interest in any publicly-traded; and
(b) engaging in business related activity of a personal nature in managing the
tangible and financial assets of the Executive, including the buying and selling
of such assets, it being understood that any activity wholesale in nature or the
buying and selling of such assets through dealers or brokers or auctioneers is
deemed not to be competitive with the activities of the Company or with any of
its Subsidiaries or Affiliates.
(b) ENFORCEABILITY. The covenants set forth in subsections 13(a) and
(b) of this Agreement shall be construed as an agreement independent of any
other provision of this Agreement, and the existence of any claim or cause of
action of Executive against the Company or against any of its Subsidiaries or
Affiliates, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of any of such covenants.
Executive expressly waives any right to assert inadequacy of consideration as a
defense to enforcement of any of the provisions of this Section 13. Executive
and the Company hereby acknowledge that it is the desire and intent of Executive
and the Company, and Executive and the Company hereby agree, that the terms and
provisions of this Section 13 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought.
14. PROPRIETARY INFORMATION AND INVENTION ASSIGNMENT AGREEMENT. As a
material inducement to the Company to execute and deliver to Executive this
Agreement, and as a condition to the enforceability of this Agreement against
the Company, concurrently with Executive's execution and delivery to the Company
of this Agreement, Executive shall execute and deliver to the Company a
Proprietary Information and Invention Assignment Agreement substantially in the
form attached hereto as Exhibit C (the "Proprietary Information and Invention
Assignment Agreement").
15. UNIQUE NATURE OF SERVICES; RIGHT TO INJUNCTION. Executive
acknowledges and agrees that Executive's services under this Agreement are
unique and of extraordinary character and that it would be extremely difficult
or impossible for the Company to replace such services or determine the damages
that would result from the loss of such services. Executive therefore agrees
that the Company's remedies at law are inadequate in the event of any breach of
this Agreement by Executive, and Executive consents to the issuance of a
temporary restraining order, preliminary and permanent injunction and other
appropriate relief to restrain any actual or threatened violation of this
Agreement, without limiting any of the other remedies that the Company may have
at law or in equity. If Executive violates or threatens to violate any of the
provisions of this Agreement, then, in addition to all other rights and remedies
that the Company may have under the terms of this Agreement and all applicable
law, the Company shall have the right to seek and obtain equitable
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relief in the form of a temporary restraining order and permanent injunction
against Executive and any corporation, business, firm, partnership,
limited-liability company, association, consortium, group, other form of entity
or individual participating in such violation or threatened violation, without
the proof of actual damages.
16. MEDIATION, ARBITRATION AND CONSENT TO JURISDICTION.
(a) MEDIATION AND ARBITRATION.
(i) If a dispute, claim or controversy arises between the
Company and Executive with respect to any provision of this Agreement, or the
interpretation or performance of this Agreement, and such dispute, claim or
controversy is declared by written notice from one party hereto to the other,
then the Company and Executive shall negotiate in good faith toward resolution
of such dispute, claim or controversy. If such dispute, claim or controversy
cannot be resolved within a period of sixty (60) days (or such shorter period as
may be specified herein) after such notice is given, then the Company and
Executive first shall endeavor to settle such dispute, claim or controversy in
an amicable manner by mediation administered by JAMS under JAMS' employment
dispute resolution mediation rules, before resorting to arbitration. Thereafter,
any remaining unresolved dispute, claim or controversy arising out of or
relating to this Agreement, or the breach thereof, shall be settled by binding
arbitration in Orange County, California, under the laws of the State of
California, in accordance with the binding arbitration rules of JAMS unless and
except if in conflict with this Agreement. The arbitration tribunal shall
consist of one (1) arbitrator. The determination of the arbitrator shall be
conclusive and binding on the Company and Executive. The identity of the
arbitrator shall be mutually acceptable to both the Company and Executive, and
he or she shall preside and decide the dispute, claim or controversy unless the
Company and Executive agree in writing to the contrary. If the Company and
Executive fail to agree on the identity of the arbitrator, then the Company and
Executive shall accept an arbitrator appointed by JAMS.
(ii) The award of the arbitrator may be, alternatively or
cumulatively, for monetary damages, an order requiring the performance of
non-monetary obligations (including specific performance) or any other
appropriate order or remedy. The arbitrator may issue interim awards and order
provisions or measures that should be taken in order to preserve the respective
rights of the Company and Executive.
(iii) Any award rendered by the arbitrator shall be in
writing, setting forth the reasons for the award, and shall be the final
disposition on the merits. Judgment upon the award may be rendered in any court
having jurisdiction, or application may be made to any such court having
jurisdiction, or application may be made to any such court for a judicial
acceptance of the award and an order of enforcement, as the case may be. The
Company and Executive waive any right that they may enjoy under any federal or
state law to apply to any federal or state court for relief from the provisions
of this paragraph or from any decision of the arbitrator made before the award.
THE COMPANY AND EXECUTIVE ACKNOWLEDGE AND AGREE THAT EACH OF THEM IS WAIVING THE
RIGHT TO A JURY TRIAL.
(iv) The party that prevails in the arbitration shall be
entitled to recover from the party that loses in the arbitration all expenses,
including, without limitation, reasonable
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attorneys' fees and expenses, incurred in ascertaining such party's rights and
in preparing to enforce and/or defend and in enforcing and/or defending such
party's rights under this Agreement.
(v) The procedure set forth in this subsection 16(a) shall be
the exclusive remedy available to the Company and Executive to resolve any
dispute, claim or controversy arising under this Agreement or out of Executive's
employment with the Company.
(b) CONSENT TO JURISDICTION. Notwithstanding anything to the contrary
contained in subsection 16(a) of this Agreement, each of the Company and
Executive hereby irrevocably submits to the exclusive jurisdiction of the
Superior Court of the State of California, Orange County, or to the exclusive
jurisdiction of the United States District Court, Central District of California
(Southern Division), only for the purposes of either (i) obtaining relief not
within the jurisdiction or powers of the arbitrator, in connection with any
suit, action or other proceeding brought by any party hereto or any of its
respective heirs, successors or assigns, as applicable, arising out of or
related to Sections 13, 14 and 15 of this Agreement or (ii) the enforcement of
the arbitrator's determination as provided in subsection 16(a) of this
Agreement; and each of the Company and Executive agrees not to assert by way of
motion, as a defense or otherwise, in any such suit, action or proceeding, any
claim that such party hereto is not subject to the jurisdiction of the
above-named courts, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement may not be enforced in or by such courts. Executive
agrees that all actions and proceedings permitted to be instituted under this
Agreement by Executive or Executive's successors or assigns in a forum other
than arbitration arising out of or related to this Agreement or the transactions
contemplated by this Agreement shall be commenced only in the courts having a
situs in Orange County, California.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS OF EXECUTIVE. In order to
induce the Company to enter into and perform this Agreement, Executive
represents and warrants that Executive is not a party to any contract, agreement
or understanding that prevents or prohibits Executive from entering into this
Agreement or fully performing all of Executive's obligations under this
Agreement and that Executive's performance of all of the terms of this Agreement
and Executive's employment by the Company does not and shall not breach any
agreement to keep in confidence proprietary information acquired by Executive in
confidence or in trust before Executive's employment by the Company.
18. VOLUNTARY EXECUTION AND DELIVERY; LEGAL COUNSEL. Executive
acknowledges that Executive has read carefully this Agreement and understands
its terms and that Executive voluntarily is executing and delivering this
Agreement. Executive acknowledges that the Company's legal counsel is not legal
counsel to Executive and has not advised Executive in any way in connection with
or regarding this Agreement. Executive represents, warrants and acknowledges to
the Company that Executive has been given and had the opportunity to be
represented by independent legal counsel in connection with this Agreement and
has consulted with such legal counsel or has waived Executive's right to do so.
19. MISCELLANEOUS.
(a) GOVERNING LAW. The validity, construction, interpretation and
enforceability of this Agreement shall be determined and governed by the laws of
the State of California.
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Notwithstanding the foregoing, if any law or set of laws of the State of
California requires or otherwise dictates that the laws of another state or
jurisdiction be applied in any proceeding involving this Agreement, then such
law or laws of the State of California shall be superseded by this subsection,
and the remaining laws of the State of California nonetheless shall be applied
in such proceeding.
(b) SEVERABILITY. If any court of competent jurisdiction determines
that any provision of this Agreement is, but for the provisions of this
subsection, illegal or void as against public policy, for any reason, then such
provision shall automatically be amended or modified to the extent (but only to
the extent) necessary to make it sufficiently narrow in scope, time and
geographic area that such court shall determine it not to be illegal or void as
against public policy. If any such provision cannot be amended or modified to
the extent provided in the immediately-preceding sentence hereof, then such
provision shall be severed from this Agreement. In either event, all other
remaining terms and provisions of this Agreement and of each other agreement
entered into pursuant to this Agreement shall remain in full force and effect
and shall remain binding on the Company and Executive as if such severed
provision had not been contained herein. Any such amendment, modification or
severance shall apply only with respect to the operation of this Agreement in
the particular jurisdiction in which such determination of illegality or
unenforceability is made.
(c) NOTICES. Any notice or communication required or permitted under
this Agreement shall be in writing and shall be deemed to have been received by
the party to whom such notice or communication is addressed (i) upon delivery,
if delivered personally, or (ii) upon receipt by the TRANSMITTING party, if
transmitting such notice or communication via telex or facsimile machine, of an
acknowledgment of receipt of such notice or communication transmitted by the
receiving party to the transmitting party via telex or facsimile machine, or
(iii) twenty four (24) hours after deposited, prepaid, in a Federal Express or
similar depository for expedited overnight delivery or (iv) ten (10) business
days after deposited in the United States mail, registered or certified, postage
prepaid, return receipt requested, addressed as follows:
If to the Company: Tangible Asset Galleries, Inc.
Attn: Secretary
0000 Xxx Xxxx
Xxxxxxx Xxxxx, XX 00000
FAX: 949/000-0000
If to Executive: Xxxxxxx XxXxxxxx
00000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000
or to such other persons or addresses as either of the Company or Executive from
time to time may provide in writing to each other.
(d) WAIVER. No failure on the part of either party hereto to exercise,
and no delay in exercising, any right, power or remedy under this Agreement
shall operate as a waiver thereof or as a waiver of any other right, power or
remedy under this Agreement or the performance of any
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obligation under this Agreement of either party hereto; and no single or partial
exercise by either party hereto of any right, power or remedy under this
Agreement shall preclude any other or further exercise thereof or the exercise
of any other right, power or remedy.
(e) AMENDMENT AND MODIFICATION. Subject to applicable law and upon the
approval of the Board of Directors, this Agreement may be amended, modified and
supplemented with respect to any of the terms of this Agreement by written
agreement by and between the Company and Executive. The provisions of this
Agreement shall not be extended, varied, changed, modified, amended or
supplemented other than by an agreement in writing approved by the Board of
Directors and executed by both a duly authorized officer of the Company and
Executive.
(f) ASSIGNABILITY AND BINDING EFFECT. This Agreement shall inure to the
benefit of and be binding on the heirs, executors, administrators, successors
and legal representatives of Executive and shall inure to the benefit of and be
binding on the Company and its successors and assigns, but the obligations of
Executive under this Agreement may not be delegated by any purported assignment
of this Agreement by Executive.
(g) CAPTIONS AND HEADINGS. The captions and headings used in this
Agreement are for convenience of reference only and do not constitute a part of
this Agreement and shall not be deemed to limit, characterize or in any way
affect any term or provision of this Agreement, and all terms and provisions of
this Agreement shall be enforced and construed as if no captions or headings
appeared in this Agreement.
(h) INTERPRETATION AND CONSTRUCTION. If any provision of this Agreement
requires interpretation by an arbitrator or court, then such interpretation or
construction shall not apply a presumption that the terms hereof shall be more
strictly construed against the Company by reason of the rule of construction
that a document is to be construed more strictly against the person or agent of
such person who prepared the same, it being hereby acknowledged and agreed by
both the Company and Executive that both of them participated in the negotiation
and preparation of this Agreement.
(i) FURTHER ASSURANCES. Each of the Company and Executive shall execute
and deliver all such further instruments and take such other and further actions
as reasonably may be necessary or appropriate to carry out the provisions of
this Agreement.
(j) LIMITATIONS ON ACTIONS. Executive agrees not to commence any action
arising out of or in any way related to this Agreement or to Executive's
employment with the Company more than six (6) months after the termination of
Executive's employment. Executive agrees that six (6) months is a reasonable
amount of time in which to commence any such action and expressly waives any
statute of limitations to the contrary.
(k) ENTIRE AGREEMENT AND BINDING EFFECT. This Agreement and the
Proprietary Information and Invention Assignment Agreement (collectively, the
"Agreements") constitute the entire agreement of the parties hereto and
supersede all prior understandings, agreements or representations by or between
the parties hereto, whether oral or in writing, that may have been related to
the subject matter of the Agreements in any manner. No restrictions, promises,
warranties,
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covenants or undertakings exist relating to the subject matter of the Agreements
other than those expressly provided for in the Agreements.
(1) COUNTERPART EXECUTION. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original of this Agreement,
but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement to be effective as of June 1, 2001.
The "Company": "Executive":
TANGIBLE ASSET GALLERIES, INC.
a Nevada corporation /s/ Xxxxxxx XxXxxxxx
-----------------------------
Xxxxxxx XxXxxxxx, an individual
By /s/ signature
----------------------
Name: President
Title: illegible
XxXxxxxx Employment
Agreement
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EXHIBIT A
TERMINATION CERTIFICATION
I hereby certify that I do not have in my possession, and I have not
failed to return to the Company (as defined below), devices, records, data,
notes, reports, proposals, lists, customer lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property or reproductions of any of the aforementioned items
belonging to TANGIBLE ASSET GALLERIES, INC., a Nevada corporation ("Tangible"),
its Subsidiaries, its Affiliates, its successors or its assigns (together,
collectively, the "Company").
I hereby further certify that I have complied in all material respects
with all of the terms of that certain Employment Agreement, effective as of
April 30, 2001, by and between Tangible and me (the "Employment Agreement").
I further certify that I have complied in all material respects with
all of the terms of that certain Proprietary Information and Invention
Assignment Agreement, effective as of April 30, 2001, by and between Tangible
and me, including the reporting of inventions and original works of authorship
conceived or made by me (solely or jointly with others).
I further certify that I shall comply in all material respects with all
provisions of the Employment Agreement and the Proprietary Information and
Invention Assignment Agreement that survive the termination of my employment
with the Company, including, without limitation, Sections 12, 13 and 14 of the
Employment Agreement.
Dated:___________________ ___________________________________
Name
EXHIBIT B
WAIVER AND RELEASE
For full and valuable consideration, I, Xxxxxxx XxXxxxxx, hereby agree
to the following Waiver and Release provision relating to my employment and its
termination with TANGIBLE ASSET GALLERIES, INC. (the "Company"):
I hereby release and discharge the Company and its divisions,
affiliates, parents, subsidiaries, predecessor and successor corporations, and
the past and present directors, officers, management committees, shareholders,
agents, servants, employees, representatives, administrators, partners, general
partners, managing partners, limited partners, benefit plan fiduciaries and
administrators, assigns, heirs, successors or predecessors in interest,
adjusters and attorneys, from all rights, claims, causes of action and damages,
both known and unknown, in law or in equity, concerning and/or arising out of my
employment with the Company before the date of this Waiver and Release that I
now have, or ever had, including, without limitation, all rights, claims, causes
of action or damages arising under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, the Older Workers' Benefit
Protection Act, Employee Retirement Income Security Act, the Americans with
Disabilities Act, the California Fair Employment and Housing Act and the
California Labor Code.
I specifically waive and relinquish all rights and benefits afforded by
California Civil Code section 1542. I understand and acknowledge the
significance and consequences of this specific waiver of section 1542.
California Civil Code section 1542 states as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
Dated: ____________________ ________________________________
Name
EXHIBIT C
FORM OF PROPRIETARY INFORMATION AND INVENTION
ASSIGNMENT AGREEMENT
