EXHIBIT 10.1
MERGER AGREEMENT
This
MERGER AGREEMENT (this “ Agreement ”) is entered
into as of May 21, 2009 by and between ESCALA GROUP, INC., a
Delaware corporation (“ Escala ”), and SPECTRUM
GROUP INTERNATIONAL, INC., a Delaware corporation (“
SGI ”).
WHEREAS, Escala is a corporation duly organized
and validly existing under the laws of the State of Delaware having
at the date hereof authorized capital stock of 40,000,000 shares of
common stock, par value $0.01 per share (“ Escala Common
Stock ”);
WHEREAS, SGI is a corporation duly organized and
existing under the laws of the State of Delaware having at the date
hereof authorized capital stock of one (1) share of common stock,
par value $0.01 per share (“ SGI Common Stock
”), of which one (1) share is issued and outstanding and held
by Escala as of the date of this Agreement; and
WHEREAS, SGI desires to merge with and into
Escala, with Escala continuing as the surviving corporation in such
merger, upon the terms and subject to the conditions herein set
forth and in accordance with the laws of the State of
Delaware.
NOW
THEREFORE, the parties hereby agree as follows:
ARTICLE 1
PRINCIPAL TERMS OF THE MERGER
1.1 Merger . At the
Effective Time (as defined below), SGI will merge with and into
Escala (the “ Merger ”) in accordance with the
General Corporation Law of the State of Delaware (the “
DGCL ”). The separate existence of SGI will
thereupon cease and Escala will be the surviving corporation (in
that capacity, the “ Surviving Corporation ”)
and will continue its corporate existence under the laws of the
State of Delaware.
1.2 Effective Time
. The Merger will become effective upon the date on
which a certificate of ownership and merger is filed by Escala with
the Secretary of State of the State of Delaware pursuant to Section
253 of the DGCL (that date, the “ Effective Time
”).
1.3 Effects of the Merger
. At the Effective Time, the Merger will have the
effects specified in the DGCL and this Agreement.
1.4 Certificate of
Incorporation . At the Effective Time, the
Certificate of Incorporation of Escala as in effect immediately
prior to the Effective Time will become the Certificate of
Incorporation of the Surviving Corporation until duly amended in
accordance with its terms and as provided by the DGCL.
1.5 By-laws . At
the Effective Time, the
