EMPLOYMENT AGREEMENT
This
Employment Agreement
is
entered into and effective as of May 30, 2007 (the “Effective Date”) by and
between DGSE
Companies, Inc.
(formerly Dallas Gold & Silver Exchange, Inc.), a Nevada corporation (the
“Company”) and Xx.
X.X.
Xxxxx,
an
executive employee of Company (“Executive”) (collectively, the
“Parties”).
Whereas,
prior
to the Effective Date hereof, Executive was employed by Company as its Chief
Executive Officer and Chairman of the Board pursuant to an Amended and Restated
Employment Agreement dated July 1, 1997 between Dallas Gold & Silver
Exchange, Inc. and Executive (the “1997 Employment Agreement”);
Whereas,
on or
about June 25, 2001, the shareholders of Dallas Gold & Silver Exchange, Inc.
voted to authorize amendment of its articles of incorporation to change the
name
of the Company to DGSE Companies, Inc.;
Whereas,
the
Company desires to continue to employ Executive as its Chief Executive Officer
and Chairman of the Board in order to provide the necessary leadership and
senior management skills that are important to the Company, and believes that
retaining Executive’s services and business expertise are of material importance
to the Company and its shareholders;
Whereas,
Executive is willing to continue such employment with the Company in accordance
with the terms and conditions set forth in this Agreement; and
Whereas,
the
Company and Executive agree that this Agreement amends, restates and supersedes
the 1997 Employment Agreement.
Now,
Therefore,
in
consideration of the foregoing recitals and the mutual agreements contained
herein, the Parties agree as follows:
1. Definitions. The
following capitalized terms shall have the meanings set forth
below.
1.1 “Board”
shall
mean the board of directors of the Company.
1.2 “Cause”
shall
mean any of the following: (i) conviction of a felony involving dishonest acts
during the term of this Agreement; (ii) any willful and material misapplication
by Executive of Company’s funds, or any other material act of dishonesty
committed by Executive; (iii) Executive’s willful and material breach of this
Agreement or willful and material failure to substantially perform his duties
hereunder (other than any such failure resulting from mental or physical
illness) after written demand for substantial performance is delivered by the
Board of Directors which specifically identifies the manner in which the Board
of Directors believes Executive has not substantially performed his duties
and
Executive fails to cure his nonperformance. Executive shall not be deemed to
have been terminated for cause without first having been (i) provided written
notice of not less than thirty (30) days setting forth the specific reasons
for
the Company’s intention to terminate for Cause, (ii) an opportunity for
Executive together with his counsel, to be heard before the Board of Directors,
and (iii) delivery to Executive of a notice of termination from the Board of
Directors stating that a majority of the Board of Directors found, in good
faith, that Executive had engaged in the willful and material conduct referred
to in such notice. For purposes of this Agreement, no act, or failure to act,
on
Executive’s part shall be considered “willful” unless done, or omitted to be
done, by Executive in bad faith and without reasonable belief that Executive’s
action or omission was in the best interest of the Company.
1.3 “Change
of Control” shall
occur if (i) any “person” (as such term is used in Section 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934), becomes the beneficial Owner, directly
or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company’s then outstanding securities; (ii) during
any period of 12 months, individuals who at the beginning of such period
constitute the Board of Directors of the Company cease for any reason to
constitute a majority thereof unless the election, or the nomination for
election, by Employer’s stockholders of each new director was approved by a vote
of at least a majority of the directors then still in office who were directors
at the beginning of the period; or (iii) a person (as defined in clause (i)
above) acquires (or, during the 12-month period ending on the date of the most
recent acquisition by such person or group of persons, has acquired) gross
assets of the Company that have an aggregate fair market value greater than
or
equal to over 50% of the fair market value of all of the gross assets of the
Company immediately prior to such acquisition or acquisitions.
1.4 “COBRA”
shall
mean the Consolidated Omnibus Reconciliation Act of 1985.
1.5 “Confidential
Information”
shall
mean trade secrets, confidential or proprietary information, and all other
information, documents or materials, owned, developed or possessed by the
Company, or its predecessors and successors, that is not generally known to
the
public. Confidential Information includes, but is not limited to, customer
lists, financial information, business plans, product cost or pricing,
information regarding future development, locations or acquisitions, personnel
records and software programs. Confidential Information shall not include any
information (i) that is or becomes generally publicly available (other than
as a result of violation of this Agreement by Executive), (ii) that Executive
receives on a nonconfidential basis from a source (other than the Company)
that
is not known by him to be bound by an obligation of secrecy or confidentiality
to the Company, or (iii) that was in the possession of Executive prior to
disclosure by the Company.
1.6 “Employment
Term” shall
mean the period during which Executive is employed by the Company pursuant
to
this Agreement, including the Initial Term and any Renewal Terms as defined
in
Section 2 below.
1.7 “Incapacity,”
with
respect to Executive, shall mean that Executive shall become ill or be injured
or otherwise incapacitated such that, in the good faith opinion of the Board,
he
cannot carry out and perform fully the essential functions of his duties
hereunder, and such incapacity shall continue for a period of 180 consecutive
business days. Such Incapacity shall be confirmed by the written opinion of
two
(2) practicing physicians.
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2. Initial
Employment Term and Renewal Terms.
2.1 Initial
Term. The
initial term of this Agreement (the "Initial Term') shall begin immediately
upon
the Effective Date and shall continue through the third (3rd)
anniversary thereof, subject to automatic extension as provided below and unless
terminated earlier in accordance with Section 7 below.
2.2 Renewal.
Beginning
with the third (3rd)
anniversary date of the Effective Date and continuing with each anniversary
date
thereafter, the term of this Agreement shall automatically be extended in
additional, successive one-year increments (“Renewal Term(s)”), unless Executive
or the Company provides written notice not less than 120 days prior to the
expiration of the Initial Term or any Renewal Term of its intention to not
renew
the Agreement.
3. Duties.
3.1 Executive
agrees to perform the duties of Chief Executive Officer and Chairman of the
Board of the Company. Executive shall render such services as are described
for
such positions in the Company’s Bylaws, including overseeing and formulating
overall company strategy, business development and growth, and such other or
additional duties as may from time-to-time be assigned to Executive by the
Board.
3.2 While
employed pursuant to this Agreement, Executive shall obey the lawful directions
of the Board, or any duly authorized committee thereof, and shall use his best
efforts to promote the interests of the Company and to maintain and promote
the
reputation thereof. During the Employment Term, Executive may from time-to-time
engage in any businesses or activities that do not compete directly and
materially with Company and any of its subsidiaries, provided that such
businesses or activities do not materially interfere with his performance of
the
duties assigned to him in compliance with this Agreement by the Board or any
duly authorized committee thereof. Executive is specifically permitted to (i)
invest his personal assets as a passive investor in such form or manner as
will
not contravene the best interests of Employer and (ii) serve as an officer,
director, trustee or otherwise participate in educational, welfare, social,
charitable, religious and civic organizations. In addition, Executive may,
at
his sole discretion, represent unrelated entities involved in insolvency
proceedings notwithstanding any provisions of this Agreement.
3.3 The
Parties agree that during the Employment Term, Executive shall be based in
Dallas, Texas and may not be assigned to another location outside the
Dallas-Fort Worth metropolitan area. Should Company elect to relocate or
transfer Executive to a location that is outside the Dallas-Fort Worth
metropolitan area and otherwise not acceptable to Executive, Executive shall
have the option to terminate this Agreement with Good Reason as defined in
Section 7.3 below.
4. Compensation
and Benefits.
4.1 Salary.
As
compensation for the performance of services to the Company, Company shall
pay
Executive an annual salary of at least Four Hundred Twenty-Five Thousand Dollars
($425,000.00) (said amount, together with any periodic increases, referred
to as
“Salary”). The Salary shall be payable in equal bi-weekly installments, subject
only to such payroll and withholding deductions as may be required by law and
other deductions applied generally to employees of the Company for employee
benefits. The Board shall review Executive’s overall annual compensation at
least annually, and Executive’s Salary may be increased by the Board from time
to time by an amount that in the opinion of the Board is justified by
Executive’s performance.
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4.2 Signing
Bonus. The
Company shall pay Executive a Signing Bonus of $100,000.00 upon execution of
this Agreement.
4.3 Annual
Bonus.
Executive
shall be eligible to receive bonus compensation from the Company upon the
conclusion of each calendar year occurring during the Employment Term (each
an
“Annual
Bonus”)
in an
amount equal of not less than 50% of his then existing Salary. The Annual Bonus
for any calendar year shall be calculated and paid to Executive as follows:
(i)
one-half of the Annual Bonus shall be paid in a lump-sum on January
31st
of the
next calendar year provided Executive was employed with the Company on the
last
day of the calendar year; and (ii) one-half of the Annual Bonus shall be paid
in
a lump-sum on January 31st
of the
next calendar year provided that the closing price per share of the Company’s
common stock (as recorded by Reuters or reported by NASDAQ on the last business
day of the calendar year) is at least 10% higher than the closing price per
share of the Company’s common stock (as recorded by Reuters or reported by
NASDAQ) on the last business day of the prior calendar year. By way of example,
if Executive is employed with the Company on December 31, 2007, then he shall
be
paid one-half of his 2007 Annual Bonus on January 31, 2008. Furthermore, if
the
closing per share of the Company’s common stock on the last business day of
December 2007 is $3.30 per share and the closing price of the Company’s stock
was $3.00 per share on the last business day of December 2006, then Executive
would also be paid the other one-half of his Annual Bonus for calendar year
2007
on or before January 31, 2008 because the closing price per share of the
Company’s stock increased by 10% from the last business day of 2007 as compared
to the closing price per share of the Company’s stock on the last business day
of 2006. For purposes of calculating Executive’s Annual Bonus for calendar year
2006, (i) the Executive’s Salary shall be deemed to be $425,000.00, (ii) the
price per share against which the last business day of 2006 share price will
be
measured or compared against will be the average price of the Company’s common
stock (as recorded by Reuters or reported by NASDAQ) for the 30 business days
immediately preceding and including the closing date of the contemplated merger
of the Company and Superior Galleries, and (iii) the 10% increase noted above
in
this section 4.3 shall be adjusted/decreased based on when the planned merger
actually closes during calendar year 2006. For example, if the merger closes
on
September 30, 2006 then the second half of the 2006 Annual Bonus will be earned
if the closing price of the Company’s stock on the last business day of 2006 is
2.5% (10% x 1/4) higher than the average price of the Company’s common stock for
the 30 days preceding the merger closing date. In addition to the Annual Bonus,
the Board of Directors of the Company may, in its discretion, award and pay
Executive such additional bonus amounts as it deems necessary or appropriate.
4.4 Medical
Insurance Benefits. During
the Employment Term, the Company shall maintain hospitalization and medical
insurance coverage on Executive and his Spouse as may be provided by the Company
for its senior executive employees in accordance with the provisions of any
such
plans.
4.5 Life
and Disability Insurance. During
the Employment Term, the Company will obtain for the benefit of Executive (i)
term life insurance coverage providing death benefits to beneficiaries
designated by Executive equal to $2,000,000.00, and (ii) long-term
disability insurance coverage providing Executive with long-term disability
benefits equal to 50% of his Salary payable on and after the 181st
day of
Executive’s qualifying disability. Company and Executive agree that Executive’s
existing life and disability insurance policies may, if permitted to be carried
over to the Company, wholly or partially satisfy the Company’s obligations under
this paragraph.
4.6 Other
Employee Benefit Plans. Executive
shall be eligible to participate at a level commensurate with his position
in
any employee equity purchase plans or programs that may be adopted for the
benefit of the Company’s officers or employees generally and in any employee
fringe or other employee benefits and pension and/or profit sharing plans that
may be provided by the Company for its senior executive employees in accordance
with the provisions of any such plans, as the same may be in effect from time
to
time.
4.7 Vacation
and Leave of Absence. Executive
shall be entitled to take a minimum of four (4) weeks vacation per calendar
year. Executive shall also be entitled to all paid holidays and personal days
given by the Company to its senior executive officers.
4.8 Sick
Leave and Disability. Executive shall be entitled to sick leave, sick
pay and disability benefits in accordance with any Company policy that may
be
applicable to senior executive employees from time to time.
4.9 Expense
Reimbursement. Upon
Executive’s furnishing to the Company customary and reasonable documentary
support evidencing costs and expenses incurred by him in the performance of
his
services and duties hereunder (including, without limitation, travel and
entertainment expenses), the Company shall reimburse Executive for such costs
and expenses in accordance with its normal expense reimbursement policy.
4.10 Legal
Expenses. During
the Employment Term, the Company agrees to provide an allowance to Executive
of
$5,000 per year for costs and expenses incurred by Executive for professional
legal and/or accounting services rendered personally to Executive, which amount
shall be paid to Executive on December 1 of each year (or such earlier time
that
Executive and the Company may otherwise agree). If at any time during the term
of this Agreement or afterwards there should arise any dispute as to the
validity, interpretation or application of any term or condition of this
Agreement, the Company agrees, upon written demand by Executive (and Executive
shall be entitled upon application to any court of competent jurisdiction,
to
the entry of a mandatory injunction , without the necessity of posting any
bond
with respect thereto, compelling the Company) to promptly provide sums
sufficient to pay on a current basis (either directly or by reimbursing
Executive) Executive’s attorneys’ fees (including expenses of investigation and
disbursements for the fees and expenses of experts, etc.) incurred by Executive
in connection with any such dispute or any litigation. The provisions of this
Section 4.10 shall survive the expiration or termination of this
Agreement.
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4.11 Additional
Expense Allowance. During
the Employment Term, Executive shall be entitled to a reimbursement for
reasonable and documented automobile expenses (the “Additional Expense Amounts”)
up to $750.00 per month.
4.12 Other
Executive Employee Benefits.
During
the Employment Term, Executive shall be eligible to participate in any
additional incentive compensation benefit, insurance benefit or other plan
or
arrangement of the Company now or hereafter created for the benefit of executive
employees of the Company.
5. Company
Stock Options. As
of the
Effective Date, Executive has been granted the following options to purchase
Common Stock in the Company:
|
Date
|
#/Options
|
Strike
Price
|
||
|
(a)
|
October
8, 2001
|
577,777
|
$2.25
|
|
|
(b)
|
November
20, 2002
|
267,857
|
$1.12
|
The
Parties agree and acknowledge that all options referred to above fully vested
prior to the Effective Date.
6. Confidential
Information.
Executive hereby covenants, agrees and acknowledges as follows:
6.1 Access
to Confidential Information.
During
the Term of this Agreement Executive will have access to Confidential
Information of the Company.
6.2 Non-Disclosure
and Non-Use.
During
the Term of this Agreement Executive shall not use or disclose, or make known
for another’s benefit other than for the benefit of the Company, any
Confidential Information of the Company.
6.3 Return
of Confidential Information.
Executive agrees that upon termination of his employment with the Company for
any reason, Executive shall forthwith return to the Company all Confidential
Information in whatever form maintained (including, without limitation, computer
discs and other electronic media).
6.4 Survival.
The
obligations of Executive under this Section 6 shall, except as otherwise
provided herein, survive the termination of the Employment Term and the
expiration or termination of this Agreement.
7. Termination.
7.1 Termination
of Employment.
Executive’s employment hereunder shall be terminated upon the occurrence of any
of the following:
(a) Incapacity
or death of Executive;
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(b) the
Company giving written notice to Executive that Executive’s employment is being
terminated for Cause as defined in Section 1.2 above;
(c) the
Company giving written notice to Executive that his employment is being
terminated without cause or the Agreement is not being renewed following
expiration of the Initial Term or any Renewal Term(s);
(d) Executive
terminating his employment hereunder for Good Reason (as defined in Section
7.3
below); or
(e) Executive
terminating his employment hereunder for any reason whatsoever (whether by
reason of retirement, resignation. or otherwise), other than for Good Reason,
upon sixty (60) days’ written notice to the Company.
7.2 Compensation
following Termination.
(a)
Termination
By Reason of Incapacity or Death. If
Executive’s employment relationship is terminated pursuant to Section 7.1(a)
above due to Executive’s Incapacity or death, then Executive (or in the event of
Executive’s death, Executive’s legal representative) will be entitled to those
benefits that are provided by retirement and benefits plans and programs
specifically adopted and approved by the Company for Executive that are earned
and vested at the date of termination due to death or Incapacity. In the event
of Executive’s Incapacity or death, Executive (or in the event of Executive’s
death, Executive’s legal representative), even though no longer employed by the
Company, shall continue to receive the Salary in effect at the time of
Executive’s Incapacity or death for one (1) year following the date of
termination. Executive (or in the event of Executive’s death, Executive’s legal
representative) shall further be entitled to receive payment of an amount equal
to a pro-rata share of the Annual Bonus paid to Executive for the calendar
year
immediately preceding his termination. Executive’s rights in other stock plans,
if any, shall remain governed by the terms and conditions of the appropriate
stock plan.
(b) Termination
by Company for Cause.
The
Company may terminate Executive for Cause only if he engages in any of the
acts
or omissions listed in the definition of Cause set forth in Section 1.2 above.
If the Company terminates Executive’s employment for Cause pursuant to Sections
1.2 and 7.2(b) above, then all compensation and benefits shall cease as of
the
date of termination other than: (i) such amounts, if any, of Executive’s Salary
as shall have accrued and remain unpaid as of the date of such termination
for
Cause, (ii) payment of an amount equal to a pro-rata share of the Annual Bonus
paid to Executive for the calendar year immediately preceding his termination;
and (iii) such other amounts, if any, which may be payable to Executive pursuant
to the terms of the Company’s benefits plans or pursuant to Section 4.7 above.
Any amounts payable pursuant to this Section 7.2(b) shall be tendered to
Executive within thirty (30) days from the date of termination.
(c) Termination
by Company Without Cause or by Employee for Good Reason. If
the
Company terminates Executive’s employment without cause pursuant to Section
7.1(c) above, or if Executive terminates his employment for Good Reason pursuant
to Section 7.1(d) above, then Executive, even though no longer employed by
the
Company, shall be entitled to receive: (i) a lump sum payment within thirty
(30)
days after the date of such Termination equal to the remainder of Executive’s
current year’s Salary; (ii) a lump sum payment within thirty (30) days after the
date of such Termination in an amount equal to the maximum amount of Annual
Bonus to which Executive would have been eligible to receive for calendar year
in which he was terminated; (iii) a lump sum payment within ninety (90) days
following termination in an amount equal to three (3) years’ Salary based on the
Executive’s Salary in effect immediately prior to termination of this
Agreement.
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5
(d) Termination
by Executive Without Good Reason. In
the
event that Executive terminates this Agreement pursuant to Section 7.1(e) above,
then Executive shall be entitled to receive (i) a lump sum payment within thirty
(30) days after the date of such Termination equal to the remainder of
Executive’s current year’s Salary; (ii) a lump sum payment within thirty (30)
days after the date of such Termination equal to a pro-rata share of maximum
amount of Annual Bonus to which Executive would have been eligible to receive
for the calendar year in which he voluntarily terminates this Agreement; (iii)
payment of an amount equal to one year’s Salary based on his Salary in effect
immediately prior to the termination of this Agreement payable in a lump sum
within ninety (90) days following termination.
7.3 Good
Reason. For
purposes of this Agreement, Executive shall have a Good Reason for terminating
employment with the Company if any one or more of the following occur:
(a)
a
change in Executive’s status or position(s) with the Company that, in
Executive’s reasonable judgment, represents a demotion from Executive’s existing
status or position(s);
(b)
the
assignment to Executive of any duties or responsibilities that, in Executive’s
reasonable judgment, are inconsistent with Executive’s existing status or
position(s);
(c)
layoff or involuntary termination of Executive’s employment, except in
connection with the termination of Executive’s employment for Cause or as a
result of Executive’s Retirement, Disability or death;
(d) a
reduction by the Company in Executive’s Salary;
(e) any
Change in Control occurring more than one (1) year after the Effective Date
of
this Agreement;
(f) the
failure by the Company to continue in effect any employee benefit Plan in which
Executive is participating at the Effective Date other than as a result of
the
normal expiration of any such Plan in accordance with its terms, except to
the
extent that the Company provides Executive without substantially equivalent
benefits;
(g) the
imposition of any requirement that Executive be based outside the Dallas-Fort
Worth metropolitan area;
(h)
the
Company’s failure to obtain the express assumption of this Agreement by any
successor to the Company as provided by Section 8.2 hereof; or
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6
(i) any
violation by the Company of any agreement (including this Agreement) between
it
and Executive.
Any
Good
Reason shall not be deemed to be waived by Executive’s continued employment
following an act or omission giving rise to such Good Reason.
7.4 Insurance
Benefits following Termination.
Following the termination or non-renewal of this Agreement for any reason or
no
reason at all by either Executive or the Company, the Company shall continue
to
provide medical health benefits and coverage to Executive and his wife, Xxx
Xxxxx Xxxxx, which is at least equal to or better than the medical health
benefits and coverage provided to Executive and his wife immediately prior
to
the termination or non-renewal date of this Agreement (under either the
Company’s health and insurance plans or such other health and insurance plans as
may be necessary) at no cost to Executive or his wife; provided, however, that
the Company’s obligation to provide such benefits and coverage will end upon the
earlier of (i) the death of both Executive and his wife; or (ii) the date both
Executive and his wife become covered by a comparable health insurance plan
provided by a subsequent employer.
7.5 Section
280G Treatment. Notwithstanding
any other provision of this Agreement, if (a) there is a change in the ownership
or effective control of the Company or in the ownership of a substantial portion
of the assets of the Company within the meaning of Section 280G(b)(2)(A) of
the
Internal Revenue Code (the “Code”), and (b) payments to be made to Executive
under this Agreement would create an “excess parachute payment” within the
meaning of Section 280G of the Code, then the Company shall (at Executive’s
option) make the payments in substantially equal installments, the first
installment being due within thirty days after the date of termination and
each
subsequent installment being due on January 31st of each year, such that the
aggregate present value of all payments, whether pursuant to this Agreement
or
otherwise, will be as close as possible to, but not exceed, three times
Executive’s base amount, within the meaning of Section 280G.
7.6 Mitigation
Not Required. Executive
shall not be required to mitigate the amount of any payment(s) provided for
in
this Agreement either by seeking employment or otherwise. Furthermore, the
Company shall not be entitled to set off or reduce any payments owed to
Executive under this Agreement by the amount of earnings or benefits received
by
Executive in any future employment.
8. Assignment
and Succession.
8.1 No
Assignment by Executive.
This
Agreement is personal to Executive and shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by Executive’s legal
representatives.
8.2 Succession.
This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns. The Company may assign this Agreement only to an
assignee that agrees to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession
had taken place. The failure of any assignee of the Company to expressly assume
to perform this Agreement in writing, which is not remedied within ten (10)
business days after receipt of written notice from Executive notifying Company
or Company’s assignee of such failure, shall, at the election of Executive,
constitute Good Reason for Executive to terminate pursuant to Section
7.1(d).
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9. Restrictive
Covenants.
9.1
Competition.
During
the Employment Term and in the event Executive’s employment is terminated for
any reason other than pursuant to Section 7.1(d) for Good Reason, for a period
of two (2) years from the date of termination, Executive, in consideration
of
compensation to be paid to Executive hereunder, will not directly or indirectly
(as a director, officer, executive employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own any
interest in, manage, control, perform any services for, participate in or be
connected with any business or organization which engages in competition with
the Company within the geographic borders of each State in which the Company
conducts business during the Employment Term. provided, however, that the
provisions of this Section 9.1 shall not be deemed to prohibit (i)
Executive’s ownership of not more than 4.9% of the total shares of all classes
of stock outstanding of any publicly held company, whether through direct or
indirect stock holdings so long as Executive has no active participation in
such
company or (ii) any of the current activities permitted by Section 3.2 above.
9.2 Activities
Excluded. The
Parties acknowledge and agree that if Executive shall enter into any license
or
franchise agreement or comparable arrangement with the Company or any subsidiary
or affiliate of the Company for the operation of a business also conducted
by
the Company or such subsidiary or affiliate, Executive shall not be deemed
to be
“engaged” in any business in competition with the business conducted by the
Company for purposes of Section 9.1, provided Executive has first obtained
the
approval of the Board.
10. Indemnification. The
Company hereby agrees to indemnify Executive and hold him harmless to the
fullest extent permitted by law against any and all actions, claims, demands,
proceedings, damages, losses or suits, including all costs and expenses of
defense (including but not limited to attorneys fees) resulting from Executive’s
good faith performance of his duties and obligations with the
Company.
11. Notices.
All
notices which are required or may be given pursuant to the terms of this
Agreement shall be in writing and shall be sufficient in all respects if given
in writing and (i) delivered personally, (ii) mailed by certified or registered
mail, return receipt requested and postage prepaid, (iii) sent via a nationally
recognized overnight courier or (iv) sent via facsimile confirmed in writing
as
follows:
If
to the Company:
DGSE
Companies, Inc.
0000
Xxxxxx Xxxx
Xxxxxx,
Xxxxx 00000
Attention:
President
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If
to Executive:
Xx.
X.X.
Xxxxx
[Omitted]
or
to
such other address or addresses as either party shall have designated in writing
to the other party hereto, provided, however, that any notice sent by certified
or registered mail shall be deemed delivered on the date of delivery as
evidenced by the return receipt.
12. Governing
Law and Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Texas, without giving effect to any principle of conflict of laws
that
would require the application of the law of any other jurisdiction. The venue
for any dispute arising out of this Agreement or Executive’s employment with the
Company shall be exclusively in the State District Court of Dallas County,
Texas.
13. Severability.
The
Parties agree that in the event that any court of competent jurisdiction shall
hold any provision of this Agreement to be unenforceable, then such provision
shall be deemed to be severed from the remainder of this Agreement for the
purpose only of the particular legal proceedings in question and all other
covenants and provisions of this Agreement shall in every other respect continue
in full force and effect and no covenant or provision shall be deemed dependent
upon any other covenant or provision.
14. Waiver.
Failure
to insist upon strict compliance with any of the terms, covenants or conditions
hereof shall not be deemed a waiver of such term, covenant or condition. nor
shall any waiver or relinquishment of any right or power hereunder at any one
or
more times be deemed a waiver or relinquishment of such right or power at any
other time or times.
15. Entire
Agreement; Modifications.
Unless
otherwise specified, this Agreement, together with any previous Stock Grant
Agreements or Stock Option Agreements entered into between Executive and the
Company, constitute the entire and final expression of the agreement of the
parties with respect to the subject matters hereof and supersede all prior
agreements, oral and written, between the parties with respect to the subject
matter hereof. This Agreement may be modified or amended only by an instrument
in writing signed by the Company and Executive. The Parties agree that if the
terms this Agreement conflict with any future merger agreements, asset purchase
agreements or other agreements relating to a Change of Control of the Company
then the terms of this Agreement shall govern with respect to Executive
notwithstanding any provision to the contrary in any other
agreement.
16. Construction.
This
Agreement shall be construed as a whole according to its fair meaning. The
headings of paragraphs and sections are for convenience of reference and are
not
part of this Agreement and shall not affect the interpretation of any of its
terms. The Parties acknowledge that each of them has reviewed this Agreement
and
has had the opportunity to have it reviewed by their respective attorneys and
that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in the interpretation of this
Agreement.
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9
17. Counterparts.
This
Agreement may be executed in two or more counterparts. each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
IN
WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first written above.
| DGSE Companies, Inc. | ||
| |
|
|
| By: | ________________________________ | |
| Xxxxx Xxxxxx | ||
|
Chief
Financial Officer
|
||
| ________________________________ | ||
|
Xx.
X.X. Xxxxx
|
||
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10
