SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 8)
DGSE COMPANIES, INC.
(Name of Issuer)
Common Stock, $.01 par value per share
(Title of Class of Securities)
395304 10 8
(CUSIP Number)
Carl D. Gum, III
General Counsel
NTR Metals, LLC
10720 Composite Drive
Dallas, TX 75220
(469) 522-1111
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
October 31, 2012
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
SCHEDULE 13D
CUSIP No.395304108 | Page 2 of 8 Pages |
(1) |
Name of reporting person
NTR Metals, LLC | |||||
(2) | Check the appropriate box if a member of a group (see instructions) (a) x (b) ¨
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds (see instructions)
OO | |||||
(5) | Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
(6) | Citizenship or place of organization
Texas | |||||
Number of shares beneficially owned by each reporting person with |
(7) | Sole voting power
11,553,256* | ||||
(8) | Shared voting power
0* | |||||
(9) | Sole dispositive power
9,925,242* | |||||
(10) | Shared dispositive power
0* | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
11,553,256* | |||||
(12) |
Check if the aggregate amount in Row (11) excludes certain shares (see instructions)
¨ | |||||
(13) |
Percent of class represented by amount in Row (11)
61.5% | |||||
(14) |
Type of reporting person (see instructions)
CO |
* | Pursuant to certain agreements between NTR Metals, LLC and both Dr. L.S. Smith (Dr. Smith) and the Issuer, the Reporting Person may be deemed to be the beneficial owner of 11,553,256 common shares. See Item 5 for additional information. Percentage of class is based on the 12,151,343 common shares reported as outstanding at November 14, 2011 on the Schedule 13D/A, filed by Dr. L.S. Smith on November 15, 2011. |
CUSIP No. 395304 10 8 |
SCHEDULE 13D | Page 3 of 8 Pages |
Item 1. Security and Issuer.
This Amendment No. 8 to the Statement on Schedule 13D amends the Statement on Schedule 13D originally filed with the Securities and Exchange Commission on June 1, 2010, which relates to the common stock, $0.01 par value per share (the Common Shares), of DGSE Companies, Inc., a Nevada corporation (the Issuer), as amended by Amendment No. 1 to the Statement on Schedule 13D filed on April 18, 2011, Amendment No. 2 to the Statement on Schedule 13D filed on June 14, 2011, Amendment No. 3 to the Statement on Schedule 13D filed on August 4, 2011, Amendment No. 4 to the Statement on Schedule 13D filed on August 16, 2011, Amendment No. 5 to the Statement on Schedule 13D filed on September 19, 2011, Amendment No. 6 to the Statement on Schedule 13D filed on October 31, 2011 and Amendment No. 7 to the Statement on Schedule 13D filed on February 14, 2012. The principal executive offices of the Issuer are located at 11311 Reeder Road, Dallas, Texas 75229.
Item 2. Identity and Background.
No material change.
Item 3. Source and Amount of Funds or Other Consideration.
No material change.
Item 4. Purpose of Transaction.
Item 4 is hereby amended to add the following text to the end of the fourth paragraph:
As a result of the exercise of the Option Contract, third-party proxies granting Dr. Smith voting power over 556,976 Common Shares terminated.
Item 4 is hereby amended to add the following paragraph immediately after the fourth paragraph:
On September 9, 2011, the Reporting Person entered into a Stock Agreement (the Stock Agreement) with James J. Vierling (Vierling) under which the Reporting Person agreed, upon Vierlings request prior to December 31, 2012 (the Termination Date), to transfer to Vierling 375,000 Common Shares owned by the Reporting Person to Vierling in exchange for the assignment and transfer by Vierling to the Reporting Person of 147,000 Common Shares and certain stock options owned by Vierling. On October 31, 2012, the Reporting Person and Vierling entered into an agreement (the Extension Agreement) to extend the Termination Date to March 31, 2012; provided, however that, if Vierling exercises his rights under the Stock Agreement and such exercise would result in the Reporting Person being subject to short-swing profit liability, the Reporting Person will have the ability to defer such exercise and extend the exercise period for six months (but not beyond March 31, 2014). The Stock Agreement and the Extension Agreement are incorporated herein by reference and are exhibits to this Statement. Any descriptions in this Statement of the Stock Agreement and the Extension Agreement are qualified in their entirety by reference to the actual text of such document.
Excluding the above amendments, the tenth paragraph of Item 4 is hereby amended and restated in its entirety to read as follows:
Following the Initial Investment, the Reporting Person has purchased, and may continue to purchase, Common Shares in the open market at market prices for the purpose of making additional investments in the Issuer. The Reporting Person intends to continuously review its investment in the Issuer, including possible additional acquisitions of Common Shares, and may in the future change its present course of action. The Reporting Person, from time to time, engages in commercial transactions with the Issuer in the regular course of business. Following the completion of the transactions described herein, the Reporting Person expects to continue to engage in such commercial transactions. The Reporting Person is currently evaluating the identification and nomination of qualified, independent individuals to serve on the Issuers board of directors. The Reporting Person and the Issuer may also engage in more significant transactions that may not be in either partys regular course of business.
Item 5. Interest in Securities of the Issuer.
No material change.
CUSIP No. 395304 10 8 |
SCHEDULE 13D | Page 4 of 8 Pages |
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
Item 6 is hereby amended and restated in its entirety to read as follows:
See Item 4 for a description of the Partial Assignment Agreement, the Closing Agreement, the NTR Irrevocable Proxy, the Lock-Up Agreement, the Option Contract, the Escrow Agreement, the Agreement to Exercise Rights, the Agreement to Execute Smith Irrevocable Proxy, the Smith Irrevocable Proxy, the Merger Agreement, the Securities Purchase Agreement, the Merger Registration Rights Agreement, the Purchase Registration Rights Agreement, the Merger Lock-Up Agreement, the Merger Escrow Agreement, the Debt Cancellation Agreement, the Option Grant Agreement, the Debt Forgiveness Letter Agreement, the Exercise Agreement, as amended, the Escrow Agreement, as amended, the Stock Agreement and the Extension Agreement.
Item 7. Materials to be Filed as Exhibits.
Item 7 is amended and restated in its entirety to read as follows:
99.1 | Partial Assignment Agreement, dated as of May 25, 2010, by and between NTR Metals, LLC and DGSE Companies, Inc. (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.2 | Closing Agreement, dated as of May 25, 2010, by and between NTR Metals, LLC, Dr. L.S. Smith and DGSE Companies, Inc. (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.3 | NTR Irrevocable Proxy To Vote Shares In DGSE Companies, Inc., dated as of May 25, 2010, executed by NTR Metals, LLC in favor of Dr. L.S. Smith (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.4 | Lock-Up Agreement, dated as of May 25, 2010, by and between NTR Metals, LLC and DGSE Companies, Inc. (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.5 | Option Contract, dated as of May 25, 2010, by and between NTR Metals, LLC and Dr. L S. Smith (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.6 | Agreement to Execute Smith Irrevocable Proxy, dated as of May 25, 2010, executed by Dr. L.S. Smith in favor of NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.7 | Option Exercise Agreement, dated as of June 10, 2011, by and between Dr. L.S. Smith and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 14, 2011) | |
99.8 | Escrow Agreement, dated as of June 10, 2011, by and between Dr. L.S. Smith, NTR Metals, LLC and K & L Gates LLP (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 14, 2011) | |
99.9 | Letter Agreement, dated as of July 15, 2011, by and between Dr. L.S. Smith and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on August 4, 2011) | |
99.10 | Letter Agreement, dated as of July 20, 2011, by and between Dr. L.S. Smith, NTR Metals, LLC and K & L Gates LLP (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on August 4, 2011) | |
99.11 | Letter Agreement, dated as of August 15, 2011, by and between Dr. L.S. Smith and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on August 16, 2011) | |
99.12 | Letter Agreement, dated as of August 15, 2011, by and between Dr. L.S. Smith, NTR Metals, LLC and K & L Gates LLP (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on August 16, 2011) | |
99.13 | Securities Purchase Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.6 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.14 | Form of Registration Rights Agreement for Securities Purchase Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.7 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) |
CUSIP No. 395304 10 8 |
SCHEDULE 13D | Page 5 of 8 Pages |
99.15 | Agreement and Plan of Merger, dated as of September 12, 2011, by and between DGSE Companies, Inc., SBT, Inc., Southern Bullion Trading, LLC, NTR Metals, LLC and members of Southern Bullion Trading, LLC (filed as Exhibit 10.1 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.16 | Form of Registration Rights Agreement for Merger Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.5 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.17 | Form of Lock-Up Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and Landmark Metals, LLC, a wholly owned subsidiary of the Reporting Person (filed as Exhibit 10.2 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.18 | Form of Escrow Agreement, dated as of September 12, 2011, by and among DGSE Companies, Inc., NTR Metals, LLC, and Compass Bank (filed as Exhibit 10.3 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.19 | Letter Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on September 19, 2011) | |
99.20 | Letter Agreement, dated as of September 15, 2011, by and between Dr. L.S. Smith and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on September 19, 2011) | |
99.21 | Letter Agreement, dated as of September 15, 2011, by and between Dr. L.S. Smith, NTR Metals, LLC and K & L Gates LLP (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on September 19, 2011) | |
99.22 | Form of Debt Cancellation Agreement, dated as of October 25, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.1 to the Issuers Current Report on Form 8-K filed by the Issuer on October 28, 2011, and incorporated herein by reference) | |
99.23 | Form of Option Grant Agreement, dated as of October 25, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.2 to the Issuers Current Report on Form 8-K filed by the Issuer on October 28, 2011, and incorporated herein by reference) | |
99.24* | Stock Agreement, dated as of September 9, 2011, by and between NTR Metals, LLC and James J. Vierling | |
99.25* | Amendment to Stock Agreement, dated as of October 31, 2012, by and between NTR Metals, LLC and James J. Vierling |
* | Filed herewith. |
CUSIP No. 395304 10 8 |
SCHEDULE 13D | Page 6 of 8 Pages |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: October 31, 2012
NTR METALS, LLC | ||
By: | /s/ Carl D. Gum, III | |
| ||
Name: Title: |
Carl D. Gum, III General Counsel |
CUSIP No. 395304 10 8 |
SCHEDULE 13D | Page 7 of 8 Pages |
EXHIBIT INDEX
Exhibit |
Exhibit Description | |
99.1 | Partial Assignment Agreement, dated as of May 25, 2010, by and between NTR Metals, LLC and DGSE Companies, Inc. (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.2 | Closing Agreement, dated as of May 25, 2010, by and between NTR Metals, LLC, Dr. L.S. Smith and DGSE Companies, Inc. (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.3 | NTR Irrevocable Proxy To Vote Shares In DGSE Companies, Inc., dated as of May 25, 2010, executed by NTR Metals, LLC in favor of Dr. L.S. Smith (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.4 | Lock-Up Agreement, dated as of May 25, 2010, by and between NTR Metals, LLC and DGSE Companies, Inc. (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.5 | Option Contract, dated as of May 25, 2010, by and between NTR Metals, LLC and Dr. L S. Smith (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.6 | Agreement to Execute Smith Irrevocable Proxy, dated as of May 25, 2010, executed by Dr. L.S. Smith in favor of NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 1, 2010) | |
99.7. | Option Exercise Agreement, dated as of June 10, 2011, by and between Dr. L.S. Smith and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 14, 2011) | |
99.8. | Escrow Agreement, dated as of June 10, 2011, by and between Dr. L.S. Smith, NTR Metals, LLC and K & L Gates LLP (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on June 14, 2011) | |
99.9 | Letter Agreement, dated as of July 15, 2011, by and between Dr. L.S. Smith and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on August 4, 2011) | |
99.10 | Letter Agreement, dated as of July 20, 2011, by and between Dr. L.S. Smith, NTR Metals, LLC and K & L Gates LLP (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on August 4, 2011) | |
99.11 | Letter Agreement, dated as of August 15, 2011, by and between Dr. L.S. Smith and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on August 16, 2011) | |
99.12 | Letter Agreement, dated as of August 15, 2011, by and between Dr. L.S. Smith, NTR Metals, LLC and K & L Gates LLP (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on August 16, 2011) | |
99.13 | Securities Purchase Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.6 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.14 | Form of Registration Rights Agreement for Securities Purchase Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.7 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.15 | Agreement and Plan of Merger, dated as of September 12, 2011, by and between DGSE Companies, Inc., SBT, Inc., Southern Bullion Trading, LLC, NTR Metals, LLC and members of Southern Bullion Trading, LLC (filed as Exhibit 10.1 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.16 | Form of Registration Rights Agreement for Merger Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.5 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) |
CUSIP No. 395304 10 8 |
SCHEDULE 13D | Page 8 of 8 Pages |
Exhibit |
Exhibit Description | |
99.17 | Form of Lock-Up Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and Landmark Metals, LLC, a wholly owned subsidiary of the Reporting Person (filed as Exhibit 10.2 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.18 | Form of Escrow Agreement, dated as of September 12, 2011, by and among DGSE Companies, Inc., NTR Metals, LLC, and Compass Bank (filed as Exhibit 10.3 to the Issuers Current Report on Form 8-K filed by the Issuer on September 16, 2011, and incorporated herein by reference) | |
99.19 | Letter Agreement, dated as of September 12, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on September 19, 2011) | |
99.20 | Letter Agreement, dated as of September 15, 2011, by and between Dr. L.S. Smith and NTR Metals, LLC (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on September 19, 2011) | |
99.21 | Letter Agreement, dated as of September 15, 2011, by and between Dr. L.S. Smith, NTR Metals, LLC and K & L Gates LLP (previously filed as an Exhibit to the Schedule 13D filed by the Reporting Person on September 19, 2011) | |
99.22 | Form of Debt Cancellation Agreement, dated as of October 25, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.1 to the Issuers Current Report on Form 8-K filed by the Issuer on October 28, 2011, and incorporated herein by reference) | |
99.23 | Form of Option Grant Agreement, dated as of October 25, 2011, by and between DGSE Companies, Inc. and NTR Metals, LLC (filed as Exhibit 10.2 to the Issuers Current Report on Form 8-K filed by the Issuer on October 28, 2011, and incorporated herein by reference) | |
99.24* | Stock Agreement, dated as of September 9, 2011, by and between NTR Metals, LLC and James J. Vierling | |
99.25* | Amendment to Stock Agreement, dated as of October 31, 2012, by and between NTR Metals, LLC and James J. Vierling |
* | Filed herewith. |
Exhibit 99.24
STOCK AGREEMENT
This Stock Agreement (Agreement) is made and entered into as of September 9, 2011, by and between NTR Metals, LLC, a Texas limited liability company (NTR) and James J. Vierling (Vierling).
R E C I T A L S:
WHEREAS, NTR and Vierling are or will shortly become parties to that certain Agreement and Plan of Merger Among DGSE Companies, Inc. (DGSE), SBT, Inc., Southern Bullion Trading, LLC (SBT), NTR Metals, LLC and Members of Southern Bullion Trading, LLC dated as of September 12, 2011 (Merger Agreement) whereby SBT will merge with and into SBT, Inc.; and
WHEREAS, pursuant to the Merger Agreement, Vierling will receive 147,000 shares (24.5% of 600,000) of DGSE common stock, par value $0.01 per share (the Vierling Merger Stock); and
WHEREAS, pursuant to the Merger Agreement and the associated DGSE Companies Inc. Option Grant Agreement (Option Agreement, attached to the Merger Agreement as Exhibit F), one or more members of the SBT, Inc. management, including Vierling, may, at the discretion of NTR and if certain conditions are met, receive options to acquire up to an aggregate of 500,000 shares of DGSE common stock, par value $0.01 per share (the Option Stock); and
WHEREAS, NTR wishes to guarantee to Vierling that if the merger of SBT into SBT, Inc. is consummated, then Vierling will receive from or on behalf of NTR, at no cost to Vierling, 375,000 shares of unrestricted DGSE stock, par value $0.01 per share (Guarantee Stock), and Vierling wishes, in return, to assign and transfer to NTR to the full extent permissible by law all of the Vierling Merger Stock and all of the Option Stock received by Vierling.
NOW, THEREFORE, in consideration of the mutual premises, representations, warranties and conditions set forth in this Agreement, the parties hereto, intending to be legally bound, hereby agree as follows:
1. NTR agrees that if the merger of SBT into SBT, Inc. is consummated, then for period beginning at said consummation and continuing thereafter through and including December 31, 2012, Vierling shall have the right to request and thereafter receive within 60 days from or on behalf of NTR, at no cost to Vierling, 375,000 shares of Guarantee Stock;
2. Vierling agrees that in exchange for and upon receipt of the 375,000 shares of Guarantee Stock, Vierling will assign and transfer to NTR to the extent and in a manner not inconsistent with the Merger Agreement and other closing documents relating thereto - all of the Vierling Merger Stock and all of the Option Stock received by Vierling.
3. To the extent not paid by SBT, NTR agrees to pay all income taxes owed by Vierling as a result of SBT profits earned from January 1, 2011 until the day the merger of SBT into SBT, Inc. is closed.
4. If the merger of SBT into SBT, Inc. is not closed by December 31, 2011, or if Vierling fails to request the Guarantee Stock by December 31, 2012, then all parties shall be released from all of their respective obligations hereunder.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written hereinabove.
NTR Metals, LLC | ||
By: | /s/ John Loftus | |
Name: | John Loftus | |
Title: | President | |
/s/ James J. Vierling | ||
James J. Vierling |
2
Exhibit 99.25
NTR METALS, LLC
AMENDMENT TO STOCK AGREEMENT
October 31, 2012
This Amendment to Stock Agreement (this Agreement) is made and entered into as of the date set forth above, by and among NTR Metals, LLC (the Company) and James J. Vierling (Vierling). Capitalized terms used but not defined herein have the meaning assigned to them in the Stock Agreement (as defined below).
RECITALS
WHEREAS, the undersigned entered into that certain Stock Agreement, dated as of September 9, 2011, by and between the Company and Vierling (the Stock Agreement), pursuant to which the Company agreed, upon Vierlings request prior to December 31, 2012, to transfer to Vierling 375,000 shares of Guarantee Stock in exchange for the assignment and transfer by Vierling to the Company of (a) the 147,000 shares of Vierling Merger Stock and (b) any Option Stock received by Vierling;
WHEREAS, the Stock Agreement has not been exercised by Vierling and remains in effect; and
WHEREAS, pursuant to this Agreement, Vierling and the Company are amending the terms of the Stock Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
AGREEMENT
1. Extension. Section 1 of the Stock Agreement is hereby amended so that the reference to December 31, 2012 is changed to March 31, 2013.
2. Further Extensions. The parties agree that the Stock Agreement, as amended, may not be exercised if, upon Vierlings request to exercise, the Company informs Vierling that such exercise may reasonably result in the Company being subject to short-swing profit liability under Section 16(b) of the Securities Exchange Act of 1934 (herein referred to as an Exercise-deferral Notice). In the event of any such Exercise-deferral Notice under this Agreement, the parties agree that the exercise period of the Stock Agreement will be extended for a period of six months, provided that no extension will defer the exercise period beyond March 31, 2014.
3. Authority. Each party hereto represents and warrants that it had and has all necessary authority and legal capacity to enter into the Stock Agreement and this Agreement.
4. Taxes. All taxes associated with the Stock Agreement and this Agreement shall be borne by Vierling. Vierling acknowledges that (a) he has had the opportunity to consult with his own tax, legal and accounting advisors with respect to the Stock Agreement and this Agreement and (b) the Company has made no representations or warranties with respect to the tax, legal or accounting consequences of the Stock Agreement or this Agreement.
5. Choice of Law. The Stock Agreement and this Agreement are to be construed according to the laws of the State of Texas.
6. Integration of Contract. The Stock Agreement as amended by this Agreement constitutes the full understanding of the parties, and no terms, conditions, understandings or agreements purporting to modify or vary the terms of the Stock Agreement or this Agreement shall be binding unless hereafter made in writing and signed by the party to be bound.
7. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
[Signature page follows]
IN WITNESS HEREOF, the undersigned have executed this Agreement on the date first appearing above.
NTR METALS, LLC | ||
By | /s/ John Loftus | |
Name: John Loftus | ||
Title: President | ||
/s/ James J. Vierling | ||
James J. Vierling |