EXHIBIT 10.6
EMPLOYMENT AGREEMENT OF XXXX BIBERKRAUT
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
27th day of December, 2002, between TANGIBLE ASSET GALLERIES, INC., a Nevada
Corporation (the "Company" or "TAGZ"), and XXXX BIBERKRAUT, with reference to
the following:
Company desires to employ Mr. Biberkraut as TAGZ's Chief Financial
Officer and Mr. Biberkraut desires to accept such employment, on the terms and
conditions set forth hereinafter in this Agreement.
NOW, THEREFORE, in consideration of the respective promises of each
party made to the other in this Agreement and other good and valuable
consideration, the receipt of which is hereby acknowledged by each of the
parties, it is agreed as follows:
1. EMPLOYMENT AS CHIEF FINANCIAL OFFICER.
1.1 EMPLOYMENT AS CHIEF FINANCIAL OFFICER. TAGZ hereby employs
Mr. Biberkraut as Chief Financial Officer, and Mr. Biberkraut hereby accepts
such employment and agrees to serve in that position, on a full time basis, in
accordance with the terms and subject to the conditions contained in this
Agreement.
1.2 NO CONFLICTING DUTIES. Mr. Biberkraut hereby represents
and warrants that he is under no contractual or other commitments (written or
oral) that are inconsistent with his obligations set forth in this Agreement or
which would interfere with the performance of his duties hereunder, including,
but not limited to, any employment, services or consulting agreements or
commitments or any non-competition, trade secret or confidentiality or similar
agreements.
1.3 NONSOLICITATION COVENANT. TAGZ wishes to protect its
legitimate business interests and Mr. Biberkraut has, and recognizes that he
will continue to have, access to significant confidential, proprietary or trade
secret information of TAGZ during the course of his employment including, but
not limited to, names and relationships with clients and potential clients.
Based on the foregoing, for the term of this Agreement and for an additional one
(1) year after termination Mr. Biberkraut's employment, Mr. Biberkraut shall
not, without TAGZ's prior written approval: (a) solicit business from any person
or entity which was a client of TAGZ at any time during Mr. Biberkraut's
employment; (b) entice, induce or encourage any other person to engage in any
activity which, were it done by that party directly, would violate any provision
hereof.
2. COMPENSATION. Mr. Biberkraut's compensation for all services
rendered to TAGZ or to any affiliate of TAGZ shall be as follows:
2.1 BASE SALARY AND BONUS. Mr. Biberkraut's base salary shall
be $120,000 per year, subject to annual review, and payable in accordance with
the Company's usual pay schedule for officer salaries. In addition, Mr.
Biberkraut shall receive, in the Company's discretion, bonuses of (a) up to 20%
of his base salary based upon individual performance; and (b) up to 30% of his
base salary based upon the Company's performance. Said bonuses are independent
of one another and the Company may choose to pay Mr. Biberkraut either or both
of said bonuses in any given year.
2.2 EMPLOYEE BENEFITS. Health insurance coverage under TAGZ's
group plan, on the same terms and conditions as other TAGZ employees and
participation in all other employee benefit plans and programs in which all full
time employees are generally entitled to participate.
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2.3 VACATION. Mr. Biberkraut shall be entitled to three weeks'
paid vacation, with vacation time lost and non-compensable if not used.
2.4 REIMBURSEMENT OF EXPENSES. Mr. Biberkraut shall be
entitled to be reimbursed promptly for his reasonable out-of-pocket expenses
incurred in the performance of his duties for the Company, in accordance with
and subject to the Company's expense reimbursement policies, including but not
limited to: (a) up to $500 per month for automobile expenses; (b) costs of
maintaining Mr. Biberkraut's professional licenses (approximately $500 per
year); (c) premiums for Mr. Biberkraut's long-term disability insurance policy
(approximately $1,700 per year); (d) charges for Mr. Biberkraut's use of his
mobile phone for Company business (approximately $40 per month).
2.5 TAXES AND WITHHOLDINGS. All compensation and benefits
payable to Mr. Biberkraut under this Agreement shall be paid net of any
employment taxes or withholding required pursuant to applicable law or under any
employee benefit plans or programs in which Mr. Biberkraut or his dependents
participate.
3. GRANT OF OPTIONS. The Company shall grant Mr. Biberkraut options to
purchase a total of 500,000 shares of the Company's Common Stock (the "Options")
at an option purchase price of $0.02 per share, said options vesting in equal
amounts over three years under and pursuant to the Company's 1999 Incentive
Stock Plan (the "Plan"). On or after the vesting of any portion of this Option
in accordance herewith, and until termination of the right to exercise this
Option in accordance with Section 3.1 below, the portion of this Option which
has vested prior to such termination may be exercised in whole or in part by Mr.
Biberkraut upon delivery of the following to the Company at its principal
executive offices of a written notice to exercise along with a check in the
amount of the option purchase price multiplied by the number of shares being
purchased.
3.1 TERMINATION OF OPTIONS. The Options granted hereby may be
exercised until the later of (a) 10 years from the date of this Agreement; (b)
one year following termination of Mr. Biberkraut's employment with the Company.
4. INDEMNIFICATION AND D&O LIABILITY INSURANCE. The Company agrees that
it shall indemnify and hold Mr. Biberkraut harmless against any liability, claim
or cost resulting from any claims against him for acts or omissions occurring in
the course of his employment with the Company, PROVIDED, HOWEVER, that this
obligation shall not extend to wrongful acts of Mr. Biberkraut which are
determined by a trier of fact to have been intentional or grossly negligent. To
the extent that the indemnification provisions of the Company's by-laws differ
materially from this Section 4, the by-laws shall control. Notwithstanding the
foregoing, the Company agrees that during the term of this Agreement it shall
maintain directors and officers liability insurance covering Mr. Biberkraut, in
an amount and under such terms and conditions as are typical for a company such
as TAGZ.
5. TERM AND TERMINATION.
5.1 TERM. The term of Mr. Biberkraut's employment under this
Agreement shall be three (3) years commencing on the date of this Agreement,
unless Mr. Biberkraut's employment is sooner terminated pursuant to provisions
hereinafter set forth in this Section 5 or unless Mr. Biberkraut's employment is
extended by mutual agreement of the parties.
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5.2 TERMINATION WITHOUT CAUSE. The Company shall be entitled
at any time to terminate Mr. Biberkraut's employment without Cause (as defined
below), effective on fifteen (15) days prior written notice to Mr. Biberkraut.
Mr. Biberkraut's employment with the Company also shall terminate in the event
and on the occurrence of his disability (as hereinafter defined) or his death.
In the event of any such termination of Mr. Biberkraut's employment pursuant to
this Section 5.2, the Company shall (a) continue to pay Mr. Biberkraut his base
salary for a period of three (3) months from the effective date of the
termination (the "Severance Period"), and (b) continue medical insurance
coverage for him (and for his dependents if they also were covered at the time
of such termination), on the terms in effect at the time of such termination,
for the Severance Period.
5.3 TERMINATION FOR CAUSE. TAGZ may terminate Mr. Biberkraut's
employment for Cause at any time effective on written notice to him. In the
event of a termination for Cause, the Company's sole obligation and liability to
Mr. Biberkraut shall be to pay Mr. Biberkraut any unpaid salary, together with
any unused vacation, accrued to the effective date of such termination. For
purposes of this Agreement, "Cause" shall be defined as the occurrence of any of
the following: (a) Mr. Biberkraut's conviction of an act that, under applicable
law or government regulations, constitutes a felony or a misdemeanor involving
moral turpitude; (b) Mr. Biberkraut's breach or violation of any confidentiality
covenants with the Company, or of any conflict of interest or ethics policies
from time to time adopted by the Board of Directors and made applicable
generally to the officers of TAGZ, which continues unremedied for a period of
ten (10) days following written notice thereof to Mr. Biberkraut from TAGZ or
which is not susceptible to cure; (c) Mr. Biberkraut's breach or violation of
any of his material covenants or obligations in this Agreement which continues
unremedied for a period of thirty (30) days following written notice thereof to
Mr. Biberkraut from TAGZ or which is not susceptible to cure.
5.4 VOLUNTARY TERMINATION. In the event that (a) TAGZ commits
a breach of any of its material obligations under this Agreement; or (b) there
occurs a change in Mr. Biberkraut's duties or responsibilities; and TAGZ fails
to cure same within thirty (30) days of receipt of a written notice from Mr.
Biberkraut specifying the nature of such breach and/or change, Mr. Biberkraut
may, as his sole right and remedy therefor, terminate his employment with the
Company by giving ten (10) days notice of such termination to TAGZ, and such
termination shall be treated as a termination by the Company without cause under
Section 5.2 hereof, entitling Mr. Biberkraut to the severance benefits specified
in that Section. For purposes of this section 5.4, a change in duties or
responsibilities means a material change in Mr. Biberkraut's duties and
responsibilities for TAGZ from those duties and responsibilities described in
Section 1.1 of this Agreement.
5.5 EXCLUSIVITY OF REMEDIES. In the event of any termination
of Mr. Biberkraut's employment by TAGZ or by Mr. Biberkraut, and whether such
termination is or is not for Cause, then the respective rights and remedies and
the respective obligations of the parties hereto set forth in this Section 5
shall constitute the exclusive rights, remedies and obligations of the parties,
and each party disclaims any other rights or remedies it or he (as the case may
be) would, but for the provisions of this Section 4, have under applicable law
by reason of such termination of employment or the acts or omissions that led to
such termination of employment.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT/AMENDMENT. This Agreement shall
constitute the entire agreement of the parties with respect to its subject
matter, and shall supersede any other prior or contemporaneous written, oral or
implied agreements or understandings between the parties. This Agreement may be
amended at any time, but only by a written instrument signed by both parties.
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6.2 NO ASSIGNMENT. No party may transfer or assign any of its
rights or obligations under this Agreement and any attempt to do so shall be
null and void; PROVIDED, HOWEVER, that TAGZ shall be entitled, without the
necessity of having to obtain the consent of Mr. Biberkraut, to assign this
Agreement and delegate its duties hereunder to any corporation or other entity
that acquires a majority or more of the outstanding common stock of TAGZ or all
or substantially all of the assets of TAGZ, whether by purchase, merger,
consolidation or otherwise.
6.3 BINDING ON SUCCESSORS. Subject to Section 6.2 above, this
Agreement shall be binding on the parties and their respective heirs, legal
representatives and successors and assigns.
6.4 HEADINGS. Section, subsection and paragraph headings are
for convenience of reference only and shall not affect the meaning or have any
bearing on the interpretation of any provision of this Agreement.
6.5 SEVERABILITY. If any provision of this Agreement or of the
Employee Confidentiality Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof or thereof (as the case may be) shall not be affected or
impaired in any way.
6.6 GOVERNING LAW. This Agreement is made in and shall be
construed and interpreted according to and enforced under the internal laws of
the State of California, excluding its choice of law rules and principles.
6.7 ARBITRATION AND WAIVER OF JURY TRIAL. Any dispute between
the parties relating to this Agreement shall be resolved exclusively by binding
arbitration in accordance with the rules of commercial arbitration of the
American Arbitration Association in Los Angeles County, California and the
determination of the arbitrator in any such proceeding shall be final and
binding on and non-appealable by the parties. EACH PARTY DOES HEREBY EXPRESSLY
AND IRREVOCABLY WAIVE SUCH PARTY'S RIGHTS TO A TRIAL BY JURY IN ANY SUCH
PROCEEDING, AND IN ANY TRIAL OR OTHER PROCEEDING BETWEEN THE PARTIES RELATING IN
ANY WAY TO THIS AGREEMENT, AND EXPRESSLY AND IRREVOCABLY AGREES THAT THE TRIER
OF FACT IN ANY SUCH PROCEEDING SHALL BE THE ARBITRATOR.
6.8 AUTHORITY. TAGZ represents and warrants to Mr. Biberkraut
that it has the requisite corporate power and authority, and Mr. Biberkraut
represents and warrants to TAGZ that he has the legal capacity and right to
enter into this Agreement and to perform its or his respective obligations under
this Agreement. Each of TAGZ and Mr. Biberkraut further represents and warrants
that its or his (as the case may be) execution, delivery and performance of this
Agreement does not and will not conflict with or violate any contract, agreement
or understanding, written or oral, to which it or he is a party to which it or
he is subject or bound.
6.9 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and each of such signed counterparts, including any photocopies
or facsimile copies thereof, shall be deemed to be an original, but all of such
counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and date first above written:
TANGIBLE ASSET GALLERIES, INC.
By: S/S XXXXXXX XXXXXXXX
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S/S XXXX BIBERKRAUT
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