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Exhibit 2.8
CORPORATE GOVERNANCE AGREEMENT
THIS
CORPORATE GOVERNANCE AGREEMENT is made and entered into as of
__________, 2007 (this
"Agreement"), by and
among (i) DGSE Companies, Inc., a
Nevada corporation (together with its successors and permitted
assigns, "DGSE"),
(ii) Stanford
International Bank,
Ltd., a company
organized under the laws of
Antigua and
Barbuda (together with its successors and permitted assigns,
"SIBL"), and (iii) Dr.
L.S. Smith, an individual resident of the State of Texas
(together with his
heirs and assigns,
"Smith" and,
together with SIBL, the
"Stockholders").
R E C I T A L S
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WHEREAS, DGSE, its wholly-owned subsidiary, DGSE Merger Corp., a Delaware
corporation ("Merger
Sub"), Superior
Galleries, Inc., a
Delaware
corporation
(f/k/a Tangible Asset Galleries, Inc., a Nevada corporation)
("Superior"),
and
SIBL, as stockholder agent, made and entered into that
certain Amended and
Restated Agreement and
Plan of Merger and
Reorganization as of January 6, 2007
(as amended,
modified
or supplemented from time to time, the "Merger
Agreement");
WHEREAS, the Merger
Agreement provides for the merger of Superior with and
into Merger Sub,
with Superior as the surviving company and a wholly-owned
subsidiary of DGSE (the "Merger");
WHEREAS, pursuant to
the Merger, all outstanding capital stock of Superior
may be exchanged for shares of common stock, par value $0.01 per share, of
DGSE
(the "DGSE Common Stock"), subject to the terms and
conditions set forth in the
Merger Agreement;
WHEREAS, SIBL is currently the largest stockholder of Superior and
Smith is
currently the largest stockholder of DGSE;
WHEREAS, the
stockholders of
Superior and DGSE need to approve the Merger
Agreement in order for the Merger to be consummated and Smith and
SIBL desire to
induce each other to support and approve the Merger Agreement and to enter into
support agreements in relation thereto; and
WHEREAS, Smith and SIBL desire to establish in this Agreement
certain terms
and conditions
concerning the post-Merger board of directors of DGSE (the
"DGSE
Board").
A G R E E M E N T
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NOW,
THEREFORE, in
consideration of the premises, the mutual covenants and
agreements herein
contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged,
the parties
hereto (collectively,
the "Parties"), intending to be legally bound,
hereby
agree as follows:
1.
Certain Definitions.
Unless otherwise
expressly provided herein, the
following terms,
whenever used in this Agreement, shall have the meanings
ascribed to them below:
"Affiliate" means,
with respect to any
specified Person, (1) any other
Person who, directly or indirectly, owns or controls, is under common
ownership
or control with, or is owned or controlled by, such specified Person, (2) any
other Person who is a director, officer, managing member or general partner
or
is, directly or indirectly, the Beneficial Owner of ten percent
(10%) or more of
any class of equity securities, of the specified Person or a Person
described in
clause (1) next above,
(3) another
Person of whom the
specified Person is a
director, officer or partner or is, directly or indirectly, the
Beneficial Owner
of ten percent
(10%) or more of any
class of equity
securities, (4)
another
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Person in whom the specified Person has a substantial beneficial interest or as
to whom the specified Person serves as trustee or in a similar
capacity, or (5)
if applicable, any
member of the Immediate Family of the specified Person. As
used in this
definition, the term
"control" means the possession, directly or
indirectly, of the
power to direct the
management and
policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise.
"Associate" shall
have the meaning ascribed to such term in Rule 12b-2
promulgated under the Exchange Act (or any successor regulation
thereto).
"Beneficially Own" means, with respect to any Person, any
securities:
(a) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire
(whether such right
is exercisable
immediately
or only after the
passage of time) pursuant to any
agreement, arrangement
or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights, warrants, options or
otherwise;
(b) which such Person or any such Person's Affiliates or
Associates, directly
or indirectly, has the
right to vote or dispose of or has
"beneficial ownership"
of (as determined pursuant to Rule 13d-3
promulgated
under the Exchange Act as such rule is in effect on the date of
this Agreement),
including pursuant to
any agreement,
arrangement or understanding, whether or
not in writing;
provided, however, that a Person shall not be deemed to
"Beneficially Own" any
security under this
subparagraph (b) as a
result of an
agreement, arrangement or understanding to vote such security if
such agreement,
arrangement or
understanding
arises solely from a revocable proxy given in
response to a public proxy or consent solicitation made by DGSE
pursuant to, and
in accordance
with, the applicable provisions of the General Rules and
Regulations promulgated under the Exchange Act; or
(c) which are beneficially owned, directly or indirectly,
by any
other Person (or any Affiliate or Associate thereof) with which such Person
(or
any of such Person's Affiliates or Associates) has an agreement,
arrangement or
understanding (whether
or not in writing), for the purpose of acquiring,
holding, voting
(except pursuant to a revocable proxy as described in the
proviso to subparagraph (b) next above) or disposing of any voting
securities of
DGSE; provided,
however, that nothing in this subparagraph (c) shall cause a
person engaged in business as an underwriter of securities to
"Beneficially Own"
any securities
acquired through such Person's participation in good faith in
a
firm commitment
underwriting
under the Securities
Act until the expiration of
forty days after the date of such acquisition.
The related term "Beneficial Owner" shall have the correlative
meaning.
"Common Stock" means the common stock, par value $0.01 per share, of
DGSE,
or any capital stock into which such common stock may be converted
or exchanged.
"DGSE Shares" means,
with respect to any
Stockholder, all
shares of DGSE
capital stock (or any
capital stock into which such capital stock may be
converted or exchanged) Beneficially Owned by such Stockholder.
"Director" means any director on the DGSE Board.
"Effective Time"
means the effective time of the consummation of the
Merger.
"Entity" means any
corporation (including
any non-profit corporation),
general partnership,
limited partnership,
limited liability partnership, joint
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venture, estate,
trust, company (including any limited
liability company
or
joint stock company), firm, labor organization, unincorporated organization,
or
other enterprise, association, organization or business entity.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and
the rules and regulations promulgated thereunder.
"Executive Officer"
means an "officer" (as such term is defined in
Rule
16a-1(f) promulgated under the Exchange Act on the date hereof) of
DGSE.
"Immediate Family" means, with respect to any individual, such
individual's
(i) children, stepchildren, grandchildren, parents,
stepparents,
grandparents,
spouse, former
spouses, siblings, nieces, nephews, or current or former
mothers-in-law,
fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law
or sisters-in-law,
including in each case by adoption, and (ii) any other
individual sharing
such individual's household (other than a tenant or
employee).
"Independent Director"
means a Director or
Nominee (i) who is not and has
never been an officer or employee of DGSE, Superior or SIBL or their
respective
Affiliates or
Associates,
or of any Entity that derived 5% or more of its
revenues or
earnings in any of its three most recent fiscal years from
transactions involving DGSE, Superior, SIBL or any Affiliate or
Associate of any
of them, (ii) who has
no affiliation,
compensation,
consulting or contracting
arrangement with
DGSE, Superior or SIBL or their respective Affiliates or
Associates or any
other Entity such that a reasonable person would regard such
individual as likely to be unduly influenced by management of DGSE,
Superior or
SIBL, respectively, or
their respective Affiliates or Associates, and (iii) who
is a Director the DGSE
Board has determined, or a Nominee the DGSE Board is
reasonably likely to
determine, to be
"independent" within
the meaning of the
applicable listing
rules of DGSE's
principal trading
market from time to time
and Section 10A(m)(3)
of the Exchange Act and Rule 10A-3(b)(1) promulgated
thereunder.
"Person" means any (i)
individual,
(ii) group (within the meaning of
Section 13 of the Exchange Act), (iii) supranational, national, federal, state,
local, municipal,
foreign or other governmental or quasi-governmental authority
of any nature (including any legislature, agency, board, body, bureau,
branch,
department, division, commission, instrumentality, court, tribunal,
magistrate,
justice or other entity exercising governmental or
quasi-governmental powers, or
(iv) any Entity.
"SEC" means the United States Securities and Exchange
Commission.
"SEC
Rules" means the rules and regulations promulgated by the SEC under
the Securities Act, the Exchange Act or SOX.
"Securities Act" means
the Securities
Act of 1933,
as amended,
and the
rules and regulations promulgated thereunder.
"SOX" means the Sarbanes-Oxley Act of 2002, as amended,
and the rules and
regulations promulgated thereunder.
2.
Board of Directors.
2.1 Nominations. From
and after the Effective Time, (i) for so long as
SIBL shall
Beneficially Own at
least 15% of the
outstanding shares of
Common
Stock as of the record date for the applicable meeting at which
directors are to
be elected to the DGSE
Board, SIBL shall have
the right to nominate
up to two
Independent Directors
for election to the DGSE Board, (ii) for so long as Smith
shall Beneficially Own at least 10% of the outstanding shares of
Common Stock as
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of the record
date for the
applicable
meeting at which
directors are to be
elected to the DGSE
Board, Smith
shall have the right
to nominate
up to two
Independent Directors for election to the DGSE Board, (iii) for so
long as Smith
is an executive
officer of DGSE, Smith shall have the right to be nominated for
election to the DGSE Board, and (iv) as long as William H. Oyster
("Oyster") is
an executive officer
of DGSE, Oyster shall
have the right to be nominated for
election to the DGSE Board (all of the foregoing six nominees,
collectively, the
"Nominees"). All Nominees shall be individuals at least 18 years of
age.
2.2 Audit Committee
Financial Expert. The Stockholders shall use their
reasonable efforts
to nominate at least one Independent Director who is
qualified as an "audit committee financial expert", as such term is
defined for
purposes of Item
401(h)(2) of Regulation S-K of the
