AGREEMENT TO EXECUTE SMITH IRREVOCABLE PROXY
Exhibit 99.6
AGREEMENT TO EXECUTE XXXXX IRREVOCABLE PROXY
This Agreement to Exercise Xxxxx Irrevocable Proxy (“Agreement”) is made and entered into effective as of the 25th day of May, 2010 (“Agreement Effective Date”), by and among Xx. X.X. Xxxxx, Individually (“Xx. Xxxxx”) and NTR Metals, LLC, a Texas limited liability company (“NTR”).
WHEREAS, Xx. Xxxxx and NTR are each parties to that certain Closing Agreement of even date herewith (the “Closing Agreement”) by and between Xx. Xxxxx, NTR and DGSE Companies, Inc., a Nevada corporation (“DGSE”). Pursuant to the Closing Agreement, including the agreements and documents identified therein (the “Closing Documents”), NTR acquired 3,000,000 shares of the issued and outstanding capital stock of DGSE (the “NTR Shares”);
WHEREAS, Xx. Xxxxx and NTR are each parties to that certain Option Contract of even date herewith (the “Option Contract”) whereby Xx. Xxxxx granted NTR the option to purchase from Xx. Xxxxx 1,000,000 shares of DGSE (the “NTR Stock Option”), subject to the terms and conditions set forth therein;
WHEREAS, Xx. Xxxxx and NTR are each parties to that certain NTR Irrevocable Proxy to Vote Shares in DGSE Companies, Inc. of even date herewith (the “NTR Proxy”) whereby NTR appointed Xx. Xxxxx as the attorney or proxy to vote the percentage interest in DGSE represented by the NTR Shares with respect to matters regarding DGSE on which NTR may otherwise be entitled to vote the NTR Shares (the “NTR Voting Rights”), subject to the terms and conditions stated therein; and
WHEREAS, as of the Agreement Effective Date, Xx. Xxxxx owns 2,847,938 shares of DGSE, including 945,634 unexercised stock options (the “Xxxxx Shares”). Further, as of the Agreement Effective Date, there are 493,282 shares of DGSE that are subject to proxies (excluding the NTR Proxy) to vote the shares owned by other persons pursuant to which Xx. Xxxxx holds sole voting power (the “Third-Party Proxies”).
WHEREAS, in connection with the Xxxxx Shares and the Proxies, Xx. Xxxxx has voting rights relating to matters regarding DGSE (the “Xxxxx Voting Rights”).
NOW THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Term of Agreement. The term of this Agreement (“Term”) shall be for a period of four (4) years commencing on the Agreement Effective Date.
2. Grant of Right to Xxxxx Voting Rights. As part of the consideration for NTR to enter into and perform its obligations under the Closing Agreement and the Closing Documents, during the Agreement Term, Xx. Xxxxx agrees to grant NTR an irrevocable right to the Xxxxx Voting Rights upon the occurrence of any of the following events (each a “Trigger Event”):
| (a) | NTR’s exercise of the NTR Stock Option; |
| (b) | The death of Xx. Xxxxx; or |
| (c) | The appointment of a legal Guardian for Xx. Xxxxx due to incapacity by reason of physical or mental condition (“Incapacity”). |
3. Xxxxx Proxy. Xx. Xxxxx agrees that within thirty (30) days of the occurrence of a Trigger Event, Xx. Xxxxx (or, if applicable, one of the persons as set forth in Section 4 below) will execute the Xxxxx Irrevocable Proxy to Vote Shares in DGSE Companies, Inc. in the form attached hereto as Exhibit A (the “Xxxxx Proxy”). Upon execution of the Xxxxx Proxy, the Xxxxx Proxy shall remain in effect for the Relevant Proxy Period as set forth therein.
4. Execution of Xxxxx Proxy. In order to confirm such agreement and obligation of Xx. Xxxxx by separate document, Xx. Xxxxx agrees that upon the occurrence of a Trigger Event (in the event that Xx. Xxxxx is incapacitated or otherwise unable to sign the Xxxxx Proxy), Xx. Xxxxx’x legal guardian, executor, representative and/or heirs will sign the attached Xxxxx Proxy.
5. Power of Attorney. In the event that Xx. Xxxxx or his legal guardian, executor, representative and/or heirs fail to execute the Xxxxx Proxy within thirty (30) days of the occurrence of a Trigger Event, Xx. Xxxxx, for himself and on behalf of his legal guardian, executor, representative and/or heirs, hereby grants NTR a power of attorney to execute the Xxxxx Proxy as provided herein.
6. Attorney’s Fees. In the event of litigation arising under this Agreement, the non-prevailing party shall pay the other party’s reasonable attorneys’ fees and expenses.
7. Invalid Provision. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
8. Modification. No change or modification of this Agreement shall be valid unless the same is in writing and signed by all the parties to this Agreement.
9. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, guardians, legal representatives, executors, successors, and assigns.
10. Agreement Governed by Texas Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. The parties shall have the right, but not the obligation, to apply to a court of competent jurisdiction within Dallas County, Texas to enjoin any breach of this Agreement or to seek specific performance of this Agreement. Excepting the right of a party to seek such injunctive relief, all claims, disputes and matters in question arising out of or related to this Agreement, whether sounding in contract, tort or otherwise, shall be resolved by binding arbitration, administered by the American Arbitration Association (“AAA”) pursuant to its then current AAA Commercial Arbitration Rules (“Rules”). The dispute shall be heard and determined by one (1) arbitrator. Within thirty (30) days of the notification of a party’s intent to proceed with arbitration, the parties shall mutually agree upon and designate an arbitrator. If the parties fail to designate an arbitrator within the time specified, then the arbitrator shall be appointed by the AAA. The arbitrator shall decide whether a particular dispute is or is not arbitrable. The costs of the arbitrator shall be divided equally between the parties. Only damages alleged pursuant to this Agreement may be awarded, and the
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arbitrator shall have no authority to award punitive or exemplary damages, the parties hereby waiving their right, if any, to recover punitive or exemplary damages, either in arbitration or in litigation. The arbitration shall take place in Dallas, Texas. Judgment on the award may be entered in any court having jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the day and year first above written.
| XX. X.X. XXXXX, an individual | ||
| /s/ Xx. X.X. Xxxxx | ||
| Xx. X.X. Xxxxx | ||
| NTR METALS, LLC, a Texas limited liability company | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | President | |
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EXHIBIT A
Form of Xxxxx Irrevocable Proxy to
Vote Shares in DGSE Companies, Inc.
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XXXXX IRREVOCABLE PROXY TO VOTE
SHARES IN
DGSE COMPANIES, INC.
, 201
This Irrevocable Proxy to Vote Shares (this “Proxy”) is made and entered into effective as of the day of 201 (the “Proxy Effective Date”), by and between XX. X.X. XXXXX, an individual and a resident of the State of Texas (“Xx. Xxxxx”) and NTR METALS, LLC, a Texas limited liability company (“NTR”).
WHEREAS, NTR has acquired 3,000,000 shares (the “NTR Shares”) of DGSE Companies, Inc., a Nevada Corporation (“DGSE”), from Stanford International Bank, LTD, an an entity organized under the laws of Antigua (“SIBL”), pursuant to (i) that certain Purchase and Sale Agreement (and amendment thereto) dated January 27, 2010, by and among DGSE and the court-appointed receiver for SIBL (the “DGSE-SIBL Purchase Agreement”); (ii) that certain Partial Assignment Agreement, dated May 25, 2010, by and among DGSE and NTR (the “Partial Assignment Agreement”); and (iii) that certain Closing Agreement, dated May 25, 2010, by and among DGSE, Xx. Xxxxx, and NTR (the “Closing Agreement”).
WHEREAS, Xx. Xxxxx and NTR are each parties to that certain Agreement to Execute Xxxxx Irrevocable Proxy (“Agreement to Execute Xxxxx Proxy”) dated May 25, 2010 (the “Agreement Effective Date”).
WHEREAS, as of the Proxy Effective Date, Xx. Xxxxx owns [ ] shares of DGSE (the “Xxxxx Shares”). Further, as of the Proxy Effective Date, [ ] shares of DGSE are subject to proxies pursuant to which Xx. Xxxxx holds sole voting power (the “Third-Party Proxies”). In connection with the Xxxxx Shares and the Proxies, Xx. Xxxxx has voting rights relating to matters regarding DGSE (the “Xxxxx Voting Rights”).
NOW, THEREFORE, in consideration of the mutual covenants and consideration as described in this Proxy, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
(1) Grant of Proxy. There has been an occurrence of one of the Trigger Events as set forth in the Agreement to Execute Xxxxx Proxy. Accordingly, Xx. Xxxxx hereby nominates and appoints NTR as the attorney or proxy to represent Xx. Xxxxx and vote the Xxxxx Voting Rights with respect to any matter regarding DGSE on which Xx. Xxxxx may be entitled to vote for the Relevant Proxy Period as set forth in Section 2 herein.
(2) Relevant Proxy Period. This Proxy is given voluntarily and without any solicitations by any agent of NTR. This Proxy is irrevocable and coupled with an interest, and will remain in effect as to the Xxxxx Voting Rights for the remainder of the four (4) year period commencing on the Agreement Effective Date; provided that with respect to 2 the Xxxxx Voting Rights relating to the Third-Party Proxies, this Proxy will remain in effect only for the remaining term of any such Third-Party Proxies.
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IN WITNESS WHEREOF, the undersigned have signed this Proxy as of the Proxy Effective Date.
| NTR METALS, LLC | ||
| By: |
| |
| Name: | ||
| Title: | ||
| XX. X.X. XXXXX | ||
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