Exhibit 99.1
DGSE COMPANIES, 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 Parent (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 Parent Common Stock as is indicated on such Stockholder's signature page to
this Agreement;
WHEREAS, approval of the Merger by the stockholders of Parent is a
condition precedent to the obligation of each of Parent and the Company to
consummate the Merger or other Transactions;
WHEREAS, the Company 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 the Company of the Merger
Agreement and constitutes a material inducement for the Company therefor; and
WHEREAS, in consideration of and as a condition to the execution of the
Merger Agreement by the Company, each Stockholder (solely in its capacity as
such) agrees to vote all Shares (as such term is defined below) of Parent 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;
(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 Parent under the Merger Agreement or any Related
Agreement to which Parent is a party or signatory;
(4) in favor of the amendment to the Parent Articles of
Incorporation to increase the number of authorized shares of Parent Common Stock
to 30,000,000 shares; 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 Parent 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 Parent which are convertible into, or exercisable or exchangeable
for, Equity Interests of Parent.
(d) "Original Shares" means, with respect to any Stockholder, all
Equity Interests of Parent 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.
2. Restrictions on Transfer of Shares.
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(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
Parent, however called, and at every adjournment or postponement thereof, and
for every action or approval by consent of the stockholders of Parent, 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
Parent 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 the Company 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 the Company as follows:
(a) Title to Securities. Such Stockholder is the beneficial owner and,
to the extent indicated, record holder of the Equity Interests of Parent and the
options, warrants, convertible notes and other Commitments of Parent indicated
on the signature page hereof, free and clear of any Encumbrance that, in each
case, would deprive the Company 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 Parent other than the Equity Interests in Parent and the options,
warrants, convertible notes and other Commitments of Parent 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
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.
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(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 Parent.
(a) No Registration of Transfers. Parent shall not register the
Transfer of any Shares, or any Commitments for Equity Interests of Parent, of
any Stockholder on the stock record books, records or ledgers of Parent at any
time prior to the Expiration Date. Parent 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. Parent shall promptly file each Proxy with the
corporate secretary of Parent.
(c) Notice of Conflict. Parent shall notify the Company 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. Parent 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 the Company 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 Parent, or (ii) prohibit any Stockholder from
engaging in a net exercise of any option, warrant or other Commitment to acquire
Equity Interests of Parent in accordance with the terms thereof.
9. Stock Certificates Legends. If so requested by the Company, Parent 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 the Company's request and
without consideration, each Stockholder and Parent 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 the Company,
to carry out the intent of this Agreement, including executing another or
different appointment of proxy.
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11. Expenses. All fees, costs and expenses incurred in connection with this
Agreement by the Stockholders and Parent shall be paid by Parent.
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
reference and shall be disregarded for all other purposes, including the
construction, interpretation or enforcement of this Agreement or any of its
terms or provisions.
(d) Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties. Each of the Parties hereby acknowledges, represents and warrants
that (i) it has read and fully understood this Agreement and the implications
and consequences thereof; (ii) it has been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of its own choice,
or it has made a voluntary and informed decision to decline to seek such
counsel; and (iii) it is fully aware of the legal and binding effect of this
Agreement.
(e) Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof; provided
that if any provision of this Agreement, as applied to any Party or to any
circumstance, is adjudged by a court, tribunal or other governmental body,
arbitrator or mediator not to be enforceable in accordance with its terms, the
Parties agree that such governmental body, arbitrator or mediator making such
determination shall have the power to modify the provision in a manner
consistent with its objectives such that it is enforceable, and to delete
specific words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced.
(f) Binding Effect. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the Parties and their respective successors
and permitted assigns.
(g) Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by Parent, the Company each of the Stockholders (if
any) adversely affected thereby.
(h) No Waiver. The failure of any Party to exercise any right, power or
remedy provided under this Agreement or otherwise available in respect hereof at
law or in equity, or to insist upon compliance by any other Party with its
obligations hereunder, or any custom or practice of the Parties at variance with
the terms hereof shall not constitute a waiver by such Party of its right to
exercise any such or other right, power or remedy or to demand such compliance.
No waiver by any Party of any default, misrepresentation or breach hereunder,
whether intentional or not, shall be effective unless in writing and signed by
the Party against whom such waiver is sought to be enforced, and no such waiver
shall be deemed to extend to any prior or subsequent default, misrepresentation
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or breach hereunder or affect in any way any rights arising because of any prior
or subsequent such occurrence. Notwithstanding the foregoing, Parent and the
Company shall have the right to waive compliance with Section 2.
(i) Specific Performance; Injunctive Relief. Each of the Parties
acknowledges and agrees that any breach or non-performance of, or default under,
any of the terms and provisions hereof would cause substantial and irreparable
damage to the other Parties, and that money damages would be an inadequate
remedy therefor. Accordingly, each of the Parties agrees that each of them shall
be entitled to seek equitable relief, including specific performance and
injunctive relief, in the event of any such breach, non-performance or default
in any Action instituted in any court of the United States or any state having
competent jurisdiction, or before any arbitrator, in addition to any other
remedy to which such Party may be entitled, at law or in equity.
(j) Notices. All notices, requests, instructions or other documents to
be given under this Agreement shall be in writing and shall be deemed given, (i)
five business days following sending by registered or certified mail, postage
prepaid, (ii) when sent if sent by facsimile or email; provided, however, that
the facsimile or email is promptly confirmed by telephone confirmation thereof,
(iii) when delivered, if delivered personally to the intended recipient, and
(iv) one business day following sending by overnight delivery via a national
courier service, and in each case, addressed to a Party (1) with respect to
Parent or the Company, at the address set forth for such Party in Section 10.1
(Notices) of the Merger Agreement, and (2) with respect to any Stockholder, at
the address set forth on such Stockholder's signature page hereto, or in each
case to such other address, fax number or email address as the Party to whom the
notice, request, instruction or other document is given may have previously
furnished to the other Parties in writing in the manner set forth in this
Section 12(j).
(k) Governing Law. This Agreement and the performance of the
transactions and obligations of the Parties hereunder shall be governed by and
construed in accordance with the laws of the State of Texas applicable to
contracts negotiated, executed and to be performed entirely within such State.
(l) Entire Agreement. The Parties hereby acknowledge and re-affirm the
terms and provisions of Section 10.4 of the Merger Agreement.
(m) Third-Party Beneficiaries. This Agreement is made solely for the
benefit of
the Parties and their respective permitted successors and assigns, and no other
Person shall have or acquire any right or remedy by virtue hereof except as
otherwise expressly provided herein.
(n) Consent to Jurisdiction; No Jury Trial; Service of Process. The
terms and provisions of Section 10.7(b)-(d) (Consent to Jurisdiction; Service of
Process; No Jury Trial) of the Merger Agreement are hereby incorporated by
reference herein and shall apply to this Agreement mutatis mutandis, as if
expressly set forth herein.
(o) Counterparts. This Agreement may be executed in two or more
original or facsimile counterparts, each of which shall be deemed an original
but all of which together shall constitute but one and the same instrument.
(p) Facsimile Execution. A facsimile, telecopy or other reproduction of
this Agreement may be executed by one or more Parties, and an executed copy of
this Agreement may be delivered by one or more Parties by facsimile, email or
similar electronic or digital transmission pursuant to which the signature of or
on behalf of such Party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of any
Party, all Parties agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
DGSE COMPANIES, INC.
By: /s/ Dr. L.S. Smith
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Dr. L.S. Smith
Chief Executive Officer
SUPERIOR GALLERIES, INC.
By: /s/ Silvano DiGenova
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Silvano DiGenova
Chief Executive Officer
[ THE STOCKHOLDER SIGNATURE PAGES FOLLOW ]
STOCKHOLDER:
DR. L.S. SMITH
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Address, etc. for notices:
2817 Forest Lane
Dallas, Texas 75234
Facsimile: [omitted]
Email: [omitted]
Parent Equity Interests held:
2,279,864 shares of Parent Common Stock
Commitments to acquire Parent Equity Interests:
Options to acquired 845,634 shares of Parent
Common Stock
EXHIBIT A
IRREVOCABLE PROXY AND POWER OF ATTORNEY
SUPERIOR GALLERIES, INC.
The undersigned holder of shares ("Stockholder") of DGSE COMPANIES, INC., a
Nevada corporation (together with its successors, the "Company"), hereby
irrevocably (to the fullest extent permitted by law) constitutes and appoints
MITCHELL STOLZ, an individual resident of the State of ________, and DAVID
RECTOR, an individual resident of the State of _________, and either of them or
each of their respective nominees, as the true and lawful attorneys and proxies
of the undersigned, with full power of substitution and resubstitution, for and
in its name, place and stead, solely and exclusively to vote and exercise all
voting and related rights (to the full extent that the undersigned is entitled
to do so) with respect to the matters referred to in Section 4 of this Proxy,
including the right to sign its name (solely in its capacity as a stockholder)
to any consent, certificate or other document relating to the Company that the
Chapters 78 and 92A of Title 7 of the Nevada Revised Statutes (the "NPCA") may
permit or require as provided in Section 4 of this Proxy, for all Shares (as
defined below), all in accordance with the terms of this Proxy.
1. The following capitalized terms, whenever used in this Proxy, shall have
the meanings ascribed to them below:
(a) "Expiration Date" means the earlier to occur of (i) such date and
time as the Merger Agreement shall have been validly terminated pursuant to
Article X thereof, (ii) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger Agreement, and (iii)
the termination of the Support Agreement.
(b) "Merger Agreement" means that certain Amended and Restated
Agreement and Plan of Merger and Reorganization, made and entered into as of the
date hereof, by and among the Company, DGSE Merger Corp., a Nevada corporation
("Merger Sub"), Superior, and Stanford International Bank Ltd., a corporation
organized under the laws of Antigua and Barbuda (together with its successors,
"SIBL"), as stockholder agent, as the same may be amended, modified or
supplemented from time to time.
(c) "New Shares" means all shares of capital stock of the Company that
the undersigned Stockholder purchases or with respect to which the undersigned
Stockholder otherwise acquires beneficial ownership after the date hereof,
including, without limitation, (i) any such shares acquired by gift or
succession or means of dividend or distribution, and (ii) any shares of capital
stock of the Company issued or issuable upon the conversion, exercise or
exchange, as the case may be, of any options, warrants, convertible securities
or other commitments of the Company which are convertible into, or exercisable
or exchangeable for, shares of capital stock of the Company.
(d) "Original Shares" means shares of capital stock of the Company
(including all shares issuable upon the exercise or conversion of options,
warrants, convertible notes and other rights to acquire such shares)
beneficially owned by the undersigned Stockholder as of the date of the Support
Agreement.
(e) "Shares" means all Original Shares and New Shares from time to time
beneficially owned by the undersigned Stockholder.
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(f) "Superior" means Superior Galleries, Inc., a Delaware corporation
(f/k/a Tangible Asset Galleries, Inc., a Nevada corporation), together with its
successors and permitted assigns under the Support Agreement.
(g) "Support Agreement" means that certain Support Agreement, made and
entered into as of even date herewith, by and among the Company, Superior and
the stockholders of the Company party thereto, as the same may be amended,
modified or supplemented from time to time.
2. This Proxy is granted pursuant to the Support Agreement and is granted
in consideration of Superior entering into the Merger Agreement. The Merger
Agreement provides for the merger of Superior with and into Merger Sub, with
Superior as the surviving corporation and a wholly-owned subsidiary of the
Company (the "Merger").
3. Upon the undersigned's execution of this Proxy, any and all prior powers
of attorney and proxies given by the undersigned with respect to any Shares, to
the extent related to the matters set forth in Section 4 of this Proxy, are
hereby revoked, and the undersigned agrees not to grant any subsequent powers of
attorney or proxies with respect to the Shares or any New Shares to the extent
related thereto until after the Expiration Date.
4. The attorneys and appointees named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and nominee to vote the Shares, and
to exercise all voting, consent and similar rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and
deliver written consents) at every annual, special, postponed or adjourned
meeting of the stockholders of the Company and in every written consent in lieu
of any such meeting, and the right to sign its name (solely in its capacity as a
stockholder) to any consent, certificate or other document relating to the
Company that the DGCL may permit or require:
(a) in favor of approval and adoption of the Merger, the other
transactions and agreements contemplated by the Merger Agreement (the
"Transactions"), the Merger Agreement (including any amendment, modification or
supplement thereto approved by the Board of Directors of the Company), the other
agreements expressly contemplated by the Merger Agreement (the "Related
Agreements"), and any matter that could reasonably be expected to facilitate the
Merger;
(b) 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;
(c) against any action or agreement that could reasonably be expected
to result in a breach of or default under 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;
(d) in favor of the amendment to the Parent Articles of Incorporation
to increase the number of authorized shares of common stock, par value $0.01 per
share, of the Company to 30,000,000 shares; and
(e) in favor of any other matter relating to the execution and delivery
of the Related Agreements and the proper and prompt consummation of the Merger
and the other Transactions.
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5. THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE (TO THE FULLEST EXTENT
PERMITTED BY LAW) AND ARE COUPLED WITH AN INTEREST. This Proxy shall expire on
the Expiration Date.
6. For sake of clarification, nothing in this Proxy shall confer upon the
attorneys named above the right to exercise control or direction over the voting
rights attached to the Shares in any circumstance other than the limited
circumstances expressly referred to herein. The undersigned Stockholder may vote
the Shares on all other matters.
7. Any obligation of the undersigned Stockholder hereunder shall be binding
upon the successors and assigns of the undersigned Stockholder.
8. If any term or provision of this Proxy or any part of any such term or
provision is held under any circumstances to be invalid or unenforceable in any
jurisdiction, then (i) such term or provision or part thereof will, with respect
to such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest permitted
extent, (ii) the invalidity or unenforceability of such term or provision or
part thereof under such circumstances and in such jurisdiction shall not affect
the validity or enforceability of such term or provision or part thereof under
any other circumstances or in any other jurisdiction, and (iii) the invalidity
or unenforceability of such term or provision or part thereof shall not affect
the validity or enforceability of the remainder of such term or provision or the
validity or enforceability of any other term or provision of this Proxy. Each
term and provision of this Proxy is separable from every other term or provision
of this Proxy, and each part of each term or provision of this Proxy is
separable from every other part of such term or provision.
9. The Shares beneficially owned by the undersigned Stockholder as of the
date of this Proxy are listed on the final page of this Proxy.
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IN WITNESS WHEREOF, the undersigned Stockholder has caused this Proxy to be
duly executed on the day and year written next below.
Dated: January ___, 2007
DR. L.S. SMITH
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Shares Beneficially Owned:
2,279,864 shares of common stock of the Company
845,634 shares of common stock of the Company issuable
upon exercise of outstanding options, warrants or other
rights or upon conversion of outstanding notes or other
convertible securities