PURCHASE AND SALE AGREEMENT
This
Purchase and Sale Agreement (“Agreement”) is made
this 27th day of January, 2010 (the “Effective Date”), by
and between (i) Stanford International Bank, Ltd., an entity organized under the
laws of Antigua (“Seller”), and (ii)
DGSE Companies, Inc., a Nevada corporation (the “Company”), and/or any
Company assignees pursuant to Section 9 of this Agreement, (collectively, “Buyers” and each,
individually, a “Buyer”) (Seller and
Buyers being sometimes hereinafter referred to, collectively, as the “Parties,” and each,
individually, as a “Party”).
WITNESSETH:
WHEREAS,
Seller owns certain of the Company’s equity securities (the “Securities”), which
are set forth on Schedule 1 hereto,
inclusive of the shares of Company common stock, $0.01 par value per share
(“Common
Stock”), to be obtained pursuant to the Conversion Agreement (as defined
below);
WHEREAS,
according to the books and records of Seller, as of the date hereof, Superior
Galleries, Inc. (“Superior”), a
subsidiary of the Company, has drawn down $10,550,000 (the “Outstanding Debt”)
under that certain Amended and Restated Commercial Loan and Security Agreement,
by and between Superior and Seller, dated as of May 30, 2007 (the “Credit
Agreement”);
WHEREAS,
the Company and Seller desire to convert the Outstanding Debt into 1,000 shares
of Common Stock pursuant to the terms of the Conversion Agreement;
WHEREAS,
the Court (as defined below) entered an order on February 17, 2009, appointing
Xxxxx X. Xxxxxx as Receiver (the “Receiver”) for the
assets of Seller, Stanford Group Company, Stanford Capital Management, LLC, R.
Xxxxx Xxxxxxxx, Xxxxx X. Xxxxx and Xxxxx Xxxxxxxxxx-Xxxx and the entities they
own or control (the “Receivership
Estate”); and
WHEREAS,
Seller desires to sell and convey to Buyers, and Buyers desire to accept and
purchase from Seller, for the Purchase Price (as defined below), all of Seller’s
right, title and interest in the Securities, including the Common Stock
converted pursuant to the terms of the Conversion Agreement, upon the terms and
conditions hereinafter set forth in this Agreement;
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained, Seller and Buyers hereby agree as
follows:
1.
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DEFINED
TERMS: Capitalized
terms and expressions used in this Agreement shall have the meanings set
forth in the Recitals above or as
follows:
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A.
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Affiliates: means
with respect to any specified Person, a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by
or is under common control with the Person specified. For
purposes of this definition, “control” (including the correlative terms
“controlled by” and “under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of a
voting equity interest, by contract or
otherwise.
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B.
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Antiguan
Petition: means the Antiguan receivers-liquidators April 20, 2009
petition for recognition under Chapter 15 of the U.S. Bankruptcy Code with
respect to the Seller.
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C.
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Xxxx of
Sale: means an instrument transferring the Securities
from Seller to Buyers in the form attached hereto as Exhibit
A.
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D.
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Buyers’
Release: means an agreement wherein each Buyer and the Company, and
each of their respective affiliates, releases Seller and the Receiver from
any and all claims, actions, causes of action, suits, debts, liens,
demands, contracts, liabilities, agreements, costs, expenses, or losses of
any type known to Buyer, fixed or contingent, whether based on contract,
tort, statute, local ordinance, regulation or any comparable law in any
jurisdiction.
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E.
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Closing: means
the closing of the transactions set forth in this Agreement, including the
performance by Seller and Buyers of their respective obligations set forth
herein.
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F.
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Closing
Date: means the date five (5) business days following
entry of the Sale Order.
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G.
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Conversion
Agreement: means an agreement between the Company and Seller, dated
the date hereof, that converts the Outstanding Debt to 1,000 shares of the
Company’s Common Stock.
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H.
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Court: means
the United States District Court for the Northern District of Texas,
Dallas Division, which is the court with exclusive jurisdiction in Case
No. 3-09CV0298-L (the “Litigation”).
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I.
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Liens: means
any ownership claims, liens, charges, pledges or other encumbrances
whatsoever, known or unknown, recognized under the laws of the United
States.
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J.
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Person: means
any individual, firm, corporation, partnership, limited liability company,
joint venture, association, trust, unincorporated organization, government
or agency or subdivision thereof or any other
entity.
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K.
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Purchase Price:
means Three Million, Six Hundred Thousand and No/100 Dollars
($3,600,000.00).
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L.
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Sale
Order: means an order in form and substance acceptable
to Buyers that, among other things, confirms (i) the sale of the
Securities by Seller to Buyers for the Purchase Price and upon the terms
and conditions set forth in this Agreement (the “Sale”), (ii)
that all creditors, parties who have appeared in the Litigation, and
parties in interest received adequate notice and an opportunity to be
heard regarding the terms of the Sale, and (iii) that the Securities are
conveyed to Buyers free and clear of any
Liens.
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2.
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SALE AND CONVEYANCE OF
SECURITIES:
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A.
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Subject
to the terms and conditions of this Agreement, and for the Purchase Price
contemplated herein, Seller hereby agrees to sell and convey the
Securities to Buyers, and Buyers, jointly and severally, hereby agree to
purchase and accept the Securities from
Seller.
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B.
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In
addition to the Securities, each Party hereby agrees to deliver at Closing
all documents required by this Agreement and perform any other acts as may
be reasonably required by the other Party to successfully effect the
transactions contemplated in this
Agreement.
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3.
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BUYERS’
CONDITIONS TO CLOSING: In addition
to all other conditions set forth herein, the obligation of Buyers to
consummate the transactions contemplated hereunder is subject to the
following conditions (each, a “Buyers’ Closing
Condition”), all of which may be waived by each Buyer in its sole
discretion. In the event any Buyers’ Closing Condition remains
unfulfilled at Closing, Buyers may terminate this Agreement or waive such
condition and proceed with Closing as provided for in this
Agreement:
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A.
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The
representations and warranties of Seller set forth herein are true and
correct as of the date hereof and as of the Closing
Date.
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B.
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The
Court shall have entered the Sale Order, and no stay of such order shall
be in effect. In connection therewith, Seller hereby covenants and agrees
that as soon as reasonably possible after the execution of this Agreement
by each Buyer, Seller shall file and serve a motion and supporting papers
to seek approval of the Court of this Agreement and for entry of the Sale
Order. Buyers will have the opportunity to review and approve
the motion for approval of the Sale Order before it is filed and
served. Seller shall use all reasonable efforts to obtain such
entry as soon as reasonably
possible.
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C.
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Seller
shall have delivered to Buyers evidence of (i) all governmental, court,
regulatory and third party approvals, consents and/or waivers as may be
required under the laws of the United States to consummate the
transactions contemplated hereby and (ii) compliance with all regulatory,
court and governmental requirements, including proof acceptable to the
Buyers that, upon transfer to the Buyers, the Buyers will receive, subject
to Section 6(d) valid title to the Securities, free and clear of all
Liens. In connection therewith, Seller hereby covenants and
agrees that as soon as reasonably possible after the execution of this
Agreement by each Buyer, Seller shall seek such approvals, consents and/or
waivers, and use all reasonable efforts to obtain such approvals, consents
and/or waivers as soon as reasonably
possible.
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D.
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Seller
shall have delivered the Xxxx of Sale, fully executed by
Seller.
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E.
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The
Company and Seller shall have entered into the Conversion
Agreement.
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F.
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Seller
shall have cancelled all agreements entered into between Seller and
Superior, including, but not limited to, the Credit
Agreement.
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G.
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Seller
shall have delivered all third party approvals, consents and/or waivers as
may be required under the contracts of
Seller.
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H.
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Seller
shall have delivered to Buyer the original stock certificates and original
warrants representing all the Securities set forth in Schedule 1
hereto.
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I.
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Seller
shall have delivered evidence reasonably satisfactory to Buyers that
either the Antiguan Petition has been dismissed or the Court has issued an
order in respect of the Antiguan Petition and such order (i) (A) does not
recognize the Antiguan receivers-liquidators as “foreign representatives”
under Chapter 15 of the United States Bankruptcy Code or (B) contains a
finding or holding that the proceeding pending in Antigua pursuant to
which the Antiguan receivers-liquidators were appointed does not
constitute a “foreign main proceeding” within the meaning of Chapter 15 of
the United States Bankruptcy Code or (ii) does not prohibit the transfer
of Seller’s assets.
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4.
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SELLER’S
CONDITIONS TO CLOSING: In addition
to all other conditions set forth herein, the obligation of Seller to
consummate the transactions contemplated hereunder is subject to the
following conditions (each, a “Seller Closing
Condition”), all of which may be waived by Seller in its sole
discretion. In the event any Seller Closing Condition remains
unfulfilled at Closing, Seller may terminate this Agreement or waive such
condition and proceed with Closing as provided for in this
Agreement:
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A.
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The
representations and warranties of each Buyer set forth herein are true and
correct as of the date hereof and as of the Closing
Date.
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B.
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Each
Buyer shall have delivered to Seller evidence reasonably satisfactory to
Seller of all consents and authorizations necessary to authorize such
Buyer to consummate the transactions contemplated by this
Agreement.
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C.
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The
Court shall have entered the Sale Order, and no stay of such order shall
be in effect.
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D.
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The
Company and Seller shall have entered into the Conversion
Agreement.
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E.
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Buyers
shall have delivered the Xxxx of Sale, fully executed by each
Buyer.
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5.
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CLOSING:
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A.
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The
Closing shall be held at the offices of Xxxxx Xxxxx L.L.P., 000 Xxxxxxxxx
Xx., Xxxxxxx, Xxxxx 00000, on or before the Closing
Date.
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B.
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At
Closing, Buyers and Seller shall perform the obligations set forth in,
respectively, subparagraphs (i) and (ii) below, the performance of which
obligations shall be concurrent
conditions:
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(i)
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Buyers
shall deliver, or cause to be delivered, to
Seller:
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(a)
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the
Xxxx of Sale, fully executed by each
Buyer;
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(b)
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the
Conversion Agreement, fully executed by the
Company;
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(c)
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the
Purchase Price in the form of immediately available funds by wire transfer
to an account or accounts specified by the
Receiver;
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(d)
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the
Buyers’ Release, fully executed by each Buyer;
and
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(e)
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any
other documents reasonably requested by Seller to evidence each Buyer’s
authority to enter into and comply with all of the terms and conditions
contained in this Agreement.
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(ii)
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Seller
shall deliver, or cause to be delivered, to
Buyers:
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(a)
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the
Xxxx of Sale, fully executed by
Seller;
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(b)
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the
Conversion Agreement, fully executed by
Seller;
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(c)
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a
copy of the entered Sale Order, and any other documents reasonably
requested by Buyers to evidence Seller’s authority under the laws of the
United States to enter into and comply with all of the terms and
conditions contained in this Agreement;
and
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(d)
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the
original stock certificates and the original warrants representing all the
Securities set forth in Schedule 1
hereto.
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C.
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Each
Party shall bear its own expenses with respect to the performance of its
obligations under this Agreement and providing all of the documents
required under this Agreement in connection with
Closing.
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D.
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In
the event the Parties hereto are unable to obtain the approval of the
Court or are otherwise unable to legally consummate the transactions
contemplated under this Agreement by March 29, 2010 (the “Termination
Date”), then the obligations of the Parties to each other pursuant
to this Agreement shall terminate, unless such time period is extended by
mutual agreement of the parties. Furthermore, the Termination
Date may be extended at any time by written agreement of the
parties.
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6.
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SELLER’S
REPRESENTATIONS: Seller
makes the following representations and warranties, which shall be true as
of the Effective Date and at Closing and which shall survive
Closing:
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A.
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Authorization of
Agreement and Enforceability: Subject to Court approval,
this Agreement is a valid and legally binding obligation of Seller under
the laws of the United States and enforceable against it in accordance
with its terms and, subject to entry of the Sale Order, each document and
instrument of transfer contemplated by this Agreement, when executed and
delivered by Seller in accordance with the provisions hereof, shall be
valid and legally binding upon Seller under the laws of the United States
and enforceable against Seller in accordance with its
terms.
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B.
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Ownership of
Securities: Seller is the sole and exclusive registered and
beneficial owner of the Securities and, subject to Section 6(d), Seller
has good, valid and marketable title thereto, free and clear of any
Liens. Upon delivery of the Purchase Price, as provided for in
this Agreement, Buyers will receive, subject to Section 6(d), good, valid
and marketable title to the Securities, free and clear of any
Liens. The Securities constitute all of Seller’s interests in
the Company and, on the Closing Date, Seller shall cease to have any
interest in the Company, whether direct or indirect, actual or
contingent.
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C.
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No Conflicts; Consents
and Approvals: Seller has not granted to any Person any
rights in the Securities that will survive the Closing or any rights to
acquire all or any part of the Securities that remain in effect, and there
is no outstanding agreement by Seller to sell all or any part of the
Securities to any other Person. No consent, approval, waiver,
authorization or other order of or filing with any person is required
under the laws of the United States on the part of Seller in connection
with Seller’s execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby, except for approval of the Court,
which will be delivered to Buyers in the form of a copy of the entered
Sale Order prior to Closing.
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D.
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Litigation: Seller
has not received any written notice of any pending or threatened
litigation, proceeding or investigation by any Person against it with
respect to or against the Securities, except for those matters within the
jurisdiction of the Court and consolidated under the
Litigation.
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E.
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Knowledge of
Receiver: To the extent that the Receiver or the
Receivership Estate is deemed to have made any of the representations of
the Seller in this Agreement, any such representations shall be made
subject to the Receiver’s knowledge. All such representations
shall be binding on the Receiver and the Receivership Estate, and the
Receiver and the Receivership Estate are prevented and estopped from
taking a position contrary to any such representations in the Litigation
or any other legal or administrative
proceeding.
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F.
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Access
to Information: Seller
has had access to all reports required to be filed by the Company (the
"SEC Reports") under the 1934 Act as well as other material information
concerning the Company which is known to the Buyers. The Seller
represents that it has had the opportunity to ask questions of, and
receive answers from, the Company and the Buyers regarding the foregoing
documents and information, and otherwise as to the business of the
Company. Seller has sought
such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision with respect to its sale of the
Securities.
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7.
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BUYERS’
REPRESENTATIONS: Each Buyer
makes the following representations and warranties, severally, which shall
be true as of the Effective Date and at Closing and which shall survive
Closing:
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A.
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Authority: Buyer
has the legal authority to enter into and to consummate the transactions
contemplated by this Agreement.
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B.
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Authorization of
Agreement: The execution, delivery and performance of
this Agreement have been duly and validly authorized within each Buyer’s
organization. This Agreement is a valid and legally binding
obligation of Buyer enforceable against it in accordance with its terms
and each document and instrument of transfer contemplated by this
Agreement, when executed and delivered by Buyer in accordance with the
provisions hereof, shall be valid and legally binding upon Buyer in
accordance with its terms.
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C.
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Consents and
Approvals: No consent, approval, waiver, authorization or other
order of or filing with any person is required on the part of Buyer in
connection with Buyer’s execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except for approval
of the Court.
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D.
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Purchase for
Investment: Buyer is acquiring the Securities for its own account,
for investment purposes and not with a view to any distribution or resale
thereof, except in compliance with the Securities Act of 1933, as amended,
and applicable state securities
laws.
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8.
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REMEDIES: In the
event of a default by any Buyer hereunder, which default remains uncured
for a period of ten (10) business days after written notice thereof is
received by such Buyer, Seller shall be entitled to all remedies available
to Seller at law or in equity, including without limitation, the right to
maintain an action for monetary damages or for specific performance of the
terms of this Agreement; provided, however, that
Seller may not seek monetary damages in excess of the aggregate Purchase
Price. In the event of a default by Seller hereunder, which
default remains uncured for a period of ten (10) business days after
written notice thereof is received by Seller, Buyers shall be entitled to
all remedies available to Buyers at law or in equity, including without
limitation, the right to maintain an action for equitable relief, monetary
damages or for specific performance of the terms of this Agreement; provided, however, that
Buyers may not seek monetary damages in excess of the aggregate Purchase
Price.
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9.
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ASSIGNMENT: The Company
shall have the right to assign its rights and obligations, in whole or in
part, under this Agreement. Any such assignment shall be
performed, and Seller shall be notified in writing, no later than three
business days before the Closing Date. To the extent the
Company assigns all or a portion of its rights under this Agreement, the
Company shall be jointly and severally liable for the Company’s and any
assignees' obligations hereunder, and any assignee shall be liable only
for the obligations corresponding to the portion of the rights assigned by
the Company to that assignee. The Seller shall not assign any
interest in this Agreement to any other party without the prior written
consent of the Company.
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10.
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BROKERS: Except as
set forth on Schedule 2,
each Party represents to the other Party that (i) there are no
finders’ fees or brokers’ fees that have been or will be incurred in
connection with this Agreement or the transfer of the Securities, and
(ii) such Party has not authorized any broker or finder to act on
such Party’s behalf in connection with the sale and purchase
hereunder.
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11.
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FURTHER
ASSURANCES: Each Party
shall from time to time, before and after Closing, at the other Party’s
request, execute and deliver such further instruments of conveyance,
assignment and transfer and shall take such further action as either Party
may reasonably require for the conveyance and transfer of the Securities
and to consummate the transactions contemplated by this
Agreement.
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12.
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PUBLICITY: Neither Party shall make any
public statement, press release or other announcement concerning the
matters covered by this Agreement without the approval of the other Party
hereto and the Court, as deemed necessary by Seller; provided
that Buyers may make
such press releases or other public statements it believes are required
under applicable securities laws and regulations and the rules of any
stock exchange or market on which its securities are traded provided that
Buyers provide Seller with an opportunity to review and comment on such
press releases or other public statements in
advance.
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13.
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NOTICES: All notices
and other communications from one Party to the other pertaining to this
Agreement shall be given in written form and shall be served either (i) by
personal delivery, or (ii) by depositing the same with the United States
Postal Service addressed to the Party to be notified, postage prepaid and
in registered or certified form, with return receipt requested, or (iii)
by deposit with FedEx or other recognized courier for overnight delivery,
or (iv) by email or facsimile, and in any event addressed as set forth
below. Notice given as aforesaid shall be deemed delivered on
the date actually received at the address to which such notice was sent,
or if delivery is refused or not accepted, such notice shall be deemed
delivered on the date of such refusal or failure to accept
delivery. For purposes of notice, the addresses of the Parties
shall be as follows:
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If to
Seller or the Receiver:
Xxxxx X.
Xxxxxx
Receiver
for the Stanford Financial Group
0000 Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Email:
xxxx@xxxxxxxxxxxxxxxxxxxxxxxxxxxxx.xxx
Phone:
000-000-0000
Fax:
000-000-0000
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With copy
to:
Xxxxx
Xxxxx L.L.P.
0000 Xxxx
Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx
Email: Xxxxx.Xxxxx@XxxxxXxxxx.xxx
Phone: 000-000-0000
Fax: 000-000-0000
If to
Buyers:
DGSE
Companies, Inc.
000
Xxxxxxxxxx 00, XXX 000
Xxxxxxxx,
XX 00000
Attn: Xx.
X.X. Xxxxx
Email:
xxxxxxx0@xxxxxxx.xxx
Phone: 000-000-0000
Fax: 000-000-0000
With copy
to:
Xxxxxxxx
Xxxxxx Xxxxxxx & Xxxxxxx LLP
000 Xxxxx
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxxxx X. Xxxxxx
Email: XXxxxxx@xxxxxxxxxxxxxx.xxx
Phone: 000-000-0000
Fax: 000-000-0000
Either
Party may change its address to another location in the continental United
States upon five (5) days’ prior written notice thereof to the other party;
provided, however, a notice of change of address shall not become effective
unless actual receipt thereof by the Party to be notified.
14.
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EXCLUSIVE
DEALING:
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A.
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For
a period commencing on the date hereof and ending upon the sooner of
either (i) the completion of all the transactions contemplated by this
Agreement or (ii) the Termination Date, Seller agrees that it will not,
and it will cause it and its affiliates and their respective directors,
officers, affiliates, employees and other agents and representatives
(including, without limitation, any investment banking, legal or
accounting firm retained by it or any of them and any individual member or
employee of the foregoing) (each, a “Representative”)
not to, unless otherwise ordered by the Court, (i) initiate, solicit or
seek, directly or indirectly, any inquiries or the making or
implementation of any proposal or offer with respect to a liquidation, or
similar transaction involving, or any purchase of all or any substantial
portion of, the Securities (any such proposal or offer being hereinafter
referred to as a “Proposal”),
(ii) engage in any negotiations concerning, or provide any confidential
information or data to, or have any discussions with, any person relating
to a Proposal, (iii) otherwise cooperate in any effort or attempt to make,
implement or accept a Proposal, or (iv) enter into or consummate any
agreement or understanding with any person relating to a
Proposal.
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B.
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Seller
has terminated, and its affiliates and its and their respective
Representatives have also ceased and terminated, any existing activities,
including
discussions or negotiations with any parties conducted heretofore with
respect to any Proposal.
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C.
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Seller
shall notify Buyers immediately if any inquiries, proposals or offers
related to a Proposal are received by, any confidential information or
data is requested from, or any negotiations or discussions related to a
Proposal are sought to be initiated or continued with, Seller, its
affiliates or any of their respective
Representatives.
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D.
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Seller
represents and warrants that Buyers will not incur any liability by virtue
of the execution of this Agreement or the completion of the transactions
contemplated by this Agreement to any third party with whom Seller or its
affiliates have had discussions concerning a sale of the
Securities.
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15.
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MISCELLANEOUS:
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A.
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This
Agreement shall be construed in accordance with the laws of the State of
Texas notwithstanding any contrary “choice of laws” provisions of that or
any other State. Each Party hereto agrees that it shall bring any action
or proceeding in respect of any claim arising out of or related to this
Agreement, whether in tort or contract or at law or in equity, exclusively
in the Court.
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B.
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This
Agreement may be executed in multiple counterparts, including emailed or
faxed counterparts, each of which shall be deemed to be an original, but
all of which, taken together, shall constitute one and the same
agreement.
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C.
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If
the final day of any period of time set out in any provision of this
Agreement falls upon a Saturday or Sunday or a legal holiday under the
laws of the State of Texas, then, and in such event, the time of such
period shall be extended to the next business day that is not a Saturday,
Sunday or legal holiday. The term “business day” shall mean a
day that is not a Saturday, Sunday or national bank holiday in Houston,
Texas.
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D.
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Time
is of the essence in the performance of this
Agreement.
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E.
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Subject
to any limitations on an assignment by Buyers or Seller set forth in this
Agreement, this Agreement shall bind and benefit the Parties and their
respective representatives, successors and
assigns.
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F.
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This
Agreement may not be amended except in writing, executed by the Party
against whom enforcement of any waiver, change, or discharge is
sought.
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G.
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This
Agreement and its Schedules and Exhibits contain all of the
representations by each Party to the other and expresses the entire
understanding between the Parties with respect to the transactions
contemplated in this Agreement. All prior communications concerning the
sale of the Securities are replaced by this
Agreement.
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[End
of text.]
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IN WITNESS WHEREOF, the signatories
hereto have executed this Agreement as of the Effective Date.
BUYERS: | |||
DGSE COMPANIES, INC. | |||
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By:
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Xx. X.X. Xxxxx | ||
Title: | Chief Executive Officer | ||
SELLER: | ||||
STANFORD INTERNATIONAL BANK, LTD., an entity organized under the laws of Antigua | ||||
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By: |
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Name:
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Xxxxx X. Xxxxxx | ||
Title: | Receiver | |||
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Schedule
1
SECURITIES
Common
Stock:
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1.
|
3,376,361
shares of common stock; $0.01 par value (“Common
Stock”)
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2.
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1,000
shares of Common Stock (to be converted from the $10,550,000 of debt
outstanding under that certain Amended and Restated Commercial Loan and
Security Agreement, by and between Superior Galleries, Inc. and Stanford
International Bank, Ltd., dated as of May 30,
2007).
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Warrants:
|
1.
|
Warrants
to purchase 422,814 shares of Common Stock at an exercise price of $1.89
per share
|
Schedule
2
Brokers
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1.
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Seller
- Park Hill Group LLC
|
|
2.
|
Buyers
- None
|