Exhibit 99.5
SUPERIOR GALLERIES, INC.
SUPPORT AGREEMENT
THIS
SUPPORT AGREEMENT is made and entered into as of January 6, 2007
(this
"Agreement"), by and
among (i) DGSE Companies, Inc., a Nevada corporation
(together with its successors and permitted assigns, "Parent"), (ii) Superior
Galleries, Inc., a Delaware corporation (f/k/a Tangible Asset
Galleries, Inc., a
Nevada corporation) (together with its successors, the "Company"),
and (iii) the
undersigned
stockholders of the Company (each, solely in its capacity as such
a
stockholder, a "Stockholder").
R E C I T A L S
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WHEREAS, Parent,
DGSE Merger Corp., a
Nevada corporation
("Merger Sub"),
the Company, and Stanford International Bank Ltd., a corporation
organized under
the laws of Antigua and Barbuda (together with its successors, "SIBL"), as
stockholder agent, have entered into that certain Amended and
Restated Agreement
and Plan of Merger and
Reorganization,
made and entered into as of the date
hereof (the "Merger Agreement");
WHEREAS, the
respective Boards of Directors of Parent, Merger Sub and the
Company have approved and declared advisable the Merger Agreement
and the merger
of Merger Sub with and into the Company (the "Merger"), with the Company being
the surviving
corporation, upon the
terms and subject to the conditions of the
Merger Agreement;
WHEREAS, in the
Merger, one hundred percent (100%) of the issued and
outstanding shares of
common stock of the Company (the "Company Common Stock")
will be converted into
the right to receive
shares of common stock, par value
$0.01 per share, of
Parent (the "Parent Common Stock") (as set forth in Article
III of the Merger
Agreement), on the
terms and subject to the conditions set
forth in the Merger Agreement and in accordance with the General
Corporation Law
of the State of Delaware (the "DGCL") and Chapters 78 and
92A of Title 7 of the
Nevada Revised Statutes (the "NPCA");
WHEREAS, each
Stockholder is the beneficial owner of such number of shares
of Company Common Stock as is indicated on such Stockholder's
signature page to
this Agreement;
WHEREAS, approval
of the Merger by the
stockholders
of the Company is
a
condition precedent to
the ability and
obligation of Parent to consummate the
Merger or other Transactions;
WHEREAS, Parent
has incurred, and may continue to incur, substantial
expenses related
to the evaluation, negotiation and consummation of the
Transactions, the Merger Agreement and the Related Agreements;
WHEREAS, the execution and deliver of this Agreement by the
Stockholders is
a condition precedent
to the execution and delivery by Parent of the
Merger
Agreement and constitutes a material inducement for Parent
therefor; and
WHEREAS, in
consideration
of and as a condition
to the execution of
the
Merger Agreement by Parent, each Stockholder (solely in its capacity as
such)
agrees to vote all Shares (as such term is defined below) of the Company over
which such Stockholder has voting power so as to facilitate
consummation of
the
transactions contemplated by the Merger Agreement.
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A G R E E M E N T
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NOW,
THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this
Agreement, and for
other good and
valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
(collectively, the
"Parties"), intending to be legally bound, hereby agree as
follows:
1.
Certain Definitions. Capitalized terms used but not defined herein
shall
have the respective
meanings ascribed thereto in the Merger Agreement. Unless
otherwise expressly provided herein, the following terms,
whenever used in
this
Agreement, shall have the meanings ascribed to them below:
(a) "Expiration Date"
means the earliest to occur of (i) such date and
time as the Merger
Agreement shall have been terminated pursuant to Article IX
thereof, (ii) the Effective Time, and (iii) the written agreement
of the parties
hereto.
(b) "Merger Votes" means each of the following:
(1) in favor of
approval and
adoption of the Merger
or any other
Transaction, the
Merger Agreement
(including any Amendment thereto approved by
the Board of Directors of the Company), the Related Agreements, or any matter
that could reasonably be expected to facilitate the Merger;
(2) against
any proposal or action that could reasonably be
expected to delay,
impede or interfere
with the approval of
the Merger or any
other Transaction,
including (i) any merger, consolidation, sale of assets,
reorganization or
recapitalization with
any party other than Parent and Merger
Sub and their Affiliates, and (ii) any liquidation or winding up of
the Company;
in each case except as provided in the Merger Agreement;
(3) against
any action or agreement that could reasonably be
expected to result in a Breach of any covenant, representation or warranty or
any other obligation
of the Company under
the Merger Agreement
or any Related
Agreement to which the Company is a party or signatory;
(4) in favor
of the appointment of SIBL (or any other Person
approved by the Independent Committee) as Stockholder Agent;
and
(5) in favor of any other matter relating to the execution and
delivery of the Related Agreements and the proper and prompt
consummation of the
Transactions.
(c) "New Shares"
means, with respect to
any Stockholder,
all Equity
Interests in the
Company that such
Stockholder
purchases or with respect to
which such Stockholder
otherwise acquires
beneficial ownership
after the date
hereof, including
(i) any Equity
Interests acquired by gift or succession
or
means of dividend
or distribution, and (ii) any Equity Interests issued or
issuable upon the conversion, exercise or exchange, as the case may be, of any
Securities or
Commitments
of the Company which are convertible into, or
exercisable or exchangeable for, Equity Interests of the
Company.
(d) "Original
Shares" means, with respect to any Stockholder, all
Equity Interests of the Company beneficially owned by such
Stockholder as of the
date of this Agreement.
(e) "Shares" means, with respect to any Stockholder all Original
Shares
and New Shares beneficially owned from time to time by such
Stockholder.
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2.
Restrictions on Transfer of Shares.
(a) Restrictions
on Transfer of Shares. Except as otherwise
contemplated by the Merger Agreement, each Stockholder agrees not to cause or
permit, or to attempt
to effect, directly or
indirectly,
any Transfer of or
Encumbrance on its Shares, and any such purported Transfer or
Encumbrance shall
be null and void ab initio.
(b) Transfer of Voting Rights. Except as otherwise contemplated by the
Merger Agreement or the Related Agreements, each Stockholder agrees not to
(i)
deposit (or permit the deposit of) any Shares in a voting
trust, or (ii) grant
any proxy or power of
attorney or enter into
any voting agreement
or similar
agreement or
authorization
in contravention of its obligations under this
Agreement with respect to any Shares.
(c) No Conflicts. Each Stockholder shall not take any other action
that
would in any way restrict, limit or interfere or conflict
with the
performance
of its obligations under this Agreement, the Merger Agreement or the
Transactions.
3.
Agreement to Vote Shares. At every meeting of the
stockholders
of the
Company, however
called, and at every adjournment or postponement thereof, and
for every action or approval by consent of the stockholders of the Company,
in
each case related or potentially related to the Merger Votes,
each Stockholder
(solely in its
capacity as such) shall (A) sign and deliver such consent to
the
Company if
consistent
with the Merger Votes, (B) not sign such consent if
inconsistent with the
Merger Votes,
(C) appear at such
meeting or
otherwise
cause its Shares to be counted as present thereat for purposes of
establishing a
quorum, and (D) vote,
or cause to be voted,
its Shares strictly in
accordance
with the Merger Votes.
4.
Irrevocable and
Exclusive Proxy.
Concurrently
with the execution
and
delivery of this Agreement, each Stockholder agrees to deliver
to Parent a duly
executed Irrevocable
Proxy and Power Of Attorney substantially in the form
attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable
during
the term of this
Agreement to the
fullest extent permissible by law, with
respect to the Shares. Each Stockholder expressly acknowledges that
the Proxy is
coupled with an
interest. Each
Stockholder
hereby revokes any and all prior
proxies, powers of
attorney or similar
authorizations in respect of any Shares
to the extent related to the Merger Votes.
5.
Representations and
Warranties of Stockholder. Each Stockholder hereby
represents and warrants to Parent as follows:
(a) Title to Securities. Such Stockholder is the beneficial
owner and,
to the extent
indicated, record
holder of the Equity
Interests of the Company
and the options,
warrants, convertible notes and other Commitments of the
Company indicated
on the signature page hereof, free and clear of any
Encumbrance that, in
each case, would
deprive Parent of the benefits of this
Agreement. Such
Stockholder
has identified on the signature page of this
Agreement any
nominee or agent or other Person in whose name any Shares
beneficially owned
by such Stockholder are held, and contact information
relating to such Person.
(b) No Other Securities. Such Stockholder does not beneficially own
any
Securities of the Company other than the Equity Interests in the
Company and the
options, warrants,
convertible
notes and other Commitments of the Company
indicated on the signature page hereof.
(c) Authorization.
Such Stockholder has the full power and
authority
(if an Entity), or the
full legal capacity (if an individual), to make, enter
into and carry out the terms of this Agreement and the Proxy. This
Agreement and
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the Proxy have been duly executed and delivered by such Stockholder and
constitute its legal, valid and binding obligations, enforceable against it in
accordance with their respective terms.
(d) No Conflicts
or Consents. The execution and delivery of this
Agreement and the Proxy by such Stockholder do not, and the
performance of this
Agreement and the
Proxy by such
Stockholder will not,
(i) conflict with or
violate any Law or Order applicable to such Stockholder or to which
it or any of
its Properties is or may be subject or affected, or (ii) result in
or constitute
a Breach of, or result (with or without notice or lapse of time) in
the creation
of any Encumbrance on
any of the Shares pursuant to, any Contract to which such
Stockholder is a party or by which such Stockholder or any of its
affiliates or
Property is or may be bound or affected. The execution and delivery of this
Agreement and the Proxy by such Stockholder do not, and the
performance of this
Agreement and the Proxy by such Stockholder will not, require any
Consent of any
Person.
6.
Covenants of the Company.
(a) No Registration
of Transfers.
The Company shall not
register the
Transfer of any Shares, or any Commitments for Equity
Interests of the Company,
of any Stockholder on the stock record books, records or ledgers of the
Company
at any time prior to the Expiration Date. The Company shall issue
stop-transfer
instructions to each
transfer agent (if any) for any class or series of its
Equity Interests,
instructing
each such transfer agent not to register any
Transfer of any Shares
during the term hereof
except in compliance with the
terms of this Agreement.
(b) Filing of Proxies.
The Company shall promptly file each Proxy with
the corporate secretary of the Company.
(c) Notice of
Conflict. The Company
shall notify Parent as soon as
practicable, but in
any event within one
business day, if it
receives (i) any
proxy, power of
attorney or similar authorization or any revocation which
purports to revoke or otherwise conflicts with any Proxy, or (ii)
any request or
notice of Transfer of any Shares of any Stockholder.
7. New Shares. The Company
and each Stockholder agree that New Shares shall
be subject to the terms and conditions of this Agreement to the same extent
as
if they constituted Original Shares. Each Stockholder shall
promptly, and in any
event within two
business days,
notify Parent of the number of New Shares
it
acquires from time to time.
8.
Permitted Activities.
Nothing in this
Agreement shall be
construed to
(i) require any Stockholder to exercise any option, warrant or other Commitment
to acquire Equity
Interests in the
Company, or (ii)
prohibit any
Stockholder
from engaging in a net
exercise of any option, warrant or other Commitment to
acquire Equity Interests of the Company in accordance with the
terms thereof.
9.
Stock Certificates
Legends. If so
requested by Parent, the Company and
each Stockholder agrees that the certificates representing any
Shares shall bear
a legend stating that
they are subject to this Agreement and to an
irrevocable
proxy.
10.
Further Assurances.
From time to time, at Parent's request and without
consideration, each
Stockholder and the
Company shall execute and deliver such
additional documents
and take all such
further action as may be necessary or
desirable to
consummate and make
effective,
in the most
expeditious
manner
practicable, the
transactions and appointments contemplated by this
Agreement.
Without limiting the generality of the foregoing, each Stockholder (solely in
its capacity as such) shall execute and deliver any
additional
documents and
instruments as necessary or desirable, in the reasonable opinion of Parent, to
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carry out the intent of this Agreement, including executing another
or different
appointment of proxy.
11.
Expenses. All fees, costs and expenses incurred in connection with
this
Agreement by the Stockholders and the Company shall be paid by the
Company.
12.
Miscellaneous.
(a) Term. This Agreement shall be effective as of the date hereof.
This
Agreement shall
terminate,
and have no
further force or effect, as of the
Expiration Date;
provided that such termination of this Agreement shall relieve
any party hereto from any liability for any breach of this
Agreement prior to
termination.
(b) Construction.
The rules of
construction specified
in Section 1.3
(Construction) of the
Merger Agreement
are hereby
incorporated
by reference
herein and shall apply to this Agreement mutatis mutandis, as if expressly set
forth herein.
(c) Titles and Headings. The section and paragraph titles
and headings
contained herein are
inserted purely as a matter of convenience and for ease of
re
