VOTING AND SUPPORT AGREEMENT
Exhibit 99.1
This VOTING AND SUPPORT AGREEMENT, dated as of December 18, 2025 (this “Agreement”),
is made and entered into by and between TAE Technologies, Inc., a Delaware corporation (“Company”), and the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Revocable Trust dated April 7, 2014, a trust
governed by the laws of Florida (as amended, the “Trust”) and of which ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. is the sole trustee (together with any additional or successor trustee of the
Trust that may be appointed, the “Trustee”). Each of Company and the Trust is referred to individually as a “Party”
and collectively as the “Parties.”
RECITALS
WHEREAS, concurrently with the execution and delivery of this Agreement, Company is entering into that certain Agreement and Plan of Merger (the “Merger Agreement”), by and among Company, ▇▇▇▇▇ Media & Technology Group Corp., a Florida corporation (“Parent”),
and T Media Sub, Inc., a Florida corporation and a wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which, among other things, at the closing of the
transactions contemplated thereby and on the terms and subject to the conditions set forth therein, Merger Sub will be merged with and into Company, with the result that Company will survive as a wholly owned subsidiary of Parent (the “Merger”);
WHEREAS, the Trust is the Beneficial Owner or record owner of, and has either sole or shared voting power and dispositive power over, such number of
shares of Parent Common Stock (collectively, “Parent Securities”), as is indicated opposite the Trust’s name on Schedule A attached hereto (such Parent Securities, “Existing Securities” and any such Parent Securities acquired by the Trust after the date
hereof and prior to the Expiration Date, “New Securities”);
WHEREAS, Company desires that the Trust agrees, and the Trust is willing to agree, subject to the limitations herein, not to Transfer (as defined
below) any of its Subject Securities (as defined below) in a manner prohibited by this Agreement, and to vote all of the Subject Securities with respect to which the Trust has voting rights in a manner so as to facilitate consummation of the
Merger; and
WHEREAS, as a condition and an inducement to Company’s willingness to enter into the Merger Agreement, the Trust has agreed to enter into this
Agreement with respect to all Subject Securities that the Trust Beneficially Owns or is the holder of record as of the date hereof and any additional Subject Securities that the Trust may acquire Beneficial Ownership or record ownership of after
the date hereof.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) “Agreement” shall have the meaning set forth in the preamble to this Agreement.
(b) “Beneficial Owner” shall be interpreted in accordance with the term “beneficial owner” as defined in Rules 13d-3 and 13d-5 adopted by the SEC under the Exchange Act, and a Person’s beneficial
ownership of securities shall be calculated in accordance with the provisions of such Rules (in each case, irrespective of whether or not either such Rule is actually applicable in such circumstance); provided that, notwithstanding the generality of the foregoing, for purposes of determining beneficial ownership, a Person shall be deemed to be the beneficial owner of any securities which such Person has, at
any time during the term of this Agreement, the right to acquire pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, redemption rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is exercisable immediately or only after the passage of time (including the passage of time in excess of sixty (60) days), the satisfaction of any conditions, the occurrence of any
event or any combination of the foregoing). The terms “Beneficial Ownership,” “Beneficially Own,” “Beneficially Owned” and “Own Beneficially” shall have correlative meanings.
(c) “Board” shall mean the Board of Directors of Parent.
(d) “Company” shall have the meaning set forth in the preamble to this Agreement.
(e) “Company’s Knowledge” shall mean the actual knowledge of the Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, after reasonable inquiry of the direct reports of such
individual.
(f) “Existing Securities” shall have the meaning set forth in the recitals to this Agreement.
(g) “Expiration Date” shall mean the earliest to occur of (a) the Effective Time, (b) such date as the Merger Agreement shall be terminated in accordance with its terms, (c) a Parent Change of
Recommendation in accordance with Section 6.6(d) of the Merger Agreement or (d) the termination of this Agreement by mutual written consent of the Parties hereto.
(h) “Merger” shall have the meaning set forth in the recitals to this Agreement.
2
(i) “Merger Agreement” shall have the meaning set forth in the recitals to this Agreement.
(j) “Merger Sub” shall have the meaning set forth in the recitals to this Agreement.
(k) “New Securities” shall have the meaning set forth in the recitals to this Agreement.
(l) “Parent” shall have the meaning set forth in the recitals to this Agreement.
(m) “Parent Securities” shall have the meaning set forth in the recitals to this Agreement.
(n) “Parties” shall have the meaning set forth in the preamble to this Agreement.
(o) “Permitted Transfer” shall mean, with respect to the Trust, so long as (a) such Transfer is in accordance with applicable Law and (b) the Trust is in compliance with this Agreement, any Transfer of
Subject Securities by the Trust to an Affiliate of the Trust, so long as such Affiliate, in advance of such Transfer, executes a joinder to this Agreement pursuant to which such Affiliate agrees to become a party to this Agreement and be subject
to the restrictions applicable to the Trust and otherwise become a party for all purposes of this Agreement; provided that no such Transfer shall relieve the Trust from
its obligations under this Agreement, other than with respect to the Subject Securities transferred in accordance with the foregoing provision; provided further, the Trust delivers advance notice of such Transfer pursuant to Section 8.02.
(p) “Subject Securities” shall mean, collectively, Existing Securities and any New Securities.
(q) “Transfer” shall mean (i) any direct or indirect offer, sale, assignment, conveyance, exchange, encumbrance, hedge, gift, pledge, hypothecation, disposition, loan or other transfer (whether by
revocation of the Trust, by tendering into any tender or exchange offer, by testamentary disposition, by liquidation or dissolution, by dividend or distribution, by operation of law or otherwise), either voluntary or involuntary, (ii) entry into
any Contract, option or other understanding with respect to any offer, sale, assignment, conveyance, exchange, encumbrance, hedge, gift, pledge, hypothecation, disposition, loan or other transfer (whether by revocation of the Trust, by tendering
into any tender or exchange offer, by testamentary disposition, by liquidation or dissolution, by dividend or distribution, by operation of law or otherwise), (iii) to otherwise grant, permit or suffer the creation of any Liens (other than those
created by this Agreement or under applicable securities laws) or (iv) to commit or agree, directly or indirectly, to take any of the foregoing actions.
(r) “Trust” shall have the meaning set forth in the preamble to this Agreement.
3
(s) “Trustee” shall have the meaning set forth in the preamble to this Agreement.
(t) “Trust’s Knowledge” shall mean the actual knowledge, after reasonable inquiry, of the Trustee.
ARTICLE II
Section 2.01 Transfer and Encumbrance of Subject Securities. Until the earlier of (x) the Expiration Date and (y) the date the Parent Stockholder Approval is obtained, the Trust agrees,
with respect to any Subject Securities Beneficially Owned or held of record by the Trust, not to (a) Transfer any such Subject Securities except pursuant to a Permitted Transfer or (b) deposit any such Subject Securities into a voting trust or
enter into any agreement, arrangement or understanding with any Person to vote or give instructions inconsistent with this Article II, including any rights to acquire, any granting of, options, rights of first offer or refusal, or any voting
agreement or arrangement with respect to the Trust’s Subject Securities, grant any proxy (except as otherwise provided herein) or power of attorney with respect thereto or enter into any agreement or arrangement with any person to limit, restrict
or adversely affect the Trust’s legal power to, authority or right to vote any of its Subject Securities or otherwise prevent the Trust from performing its obligations under this Agreement or commit or agree, directly or indirectly, to take any
of the foregoing actions. The Trust further authorizes Parent to notify ▇▇▇▇▇▇’s transfer agent that there is a stop transfer order with respect to all of the Subject Securities and that this Agreement places limits on the voting of the Subject
Securities (in each case subject to the provisions hereof); provided, however, that any such stop transfer order shall terminate upon the earlier of (x) the Expiration Date and (y) the date the Parent Stockholder Approval is obtained. For the
avoidance of doubt, nothing in this Agreement will restrict the Trust from Transferring any Parent Securities following receipt of the Parent Stockholder Approval.
Section 2.02 Acquisition of Additional Parent Securities. If and to the extent that the Trust acquires Beneficial Ownership or record ownership of New Securities, or with respect to which the Trust otherwise acquires sole
or shared voting power, following the execution of this Agreement and prior to the Expiration Date, such New Securities shall constitute Subject Securities and be subject to the terms and conditions of this Agreement.
Section 2.03 Unpermitted Transfers. Any Transfer or attempted or purported Transfer of any Subject Securities in violation of Section 2.01 shall
be null and void ab initio.
4
ARTICLE III
AGREEMENT TO VOTE AND APPROVE.
Section 3.01 Agreement to Vote and Approve. Until the Expiration Date, at every meeting of the stockholders of Parent (whether annual or special) called with respect to any of the
following matters, and at every adjournment, postponement or continuation thereof, and on every action or approval by written consent of the stockholders of Parent with respect to any of the following matters, the Trust shall, or shall cause the
holder of record on any applicable record date to (including via proxy), vote the Subject Securities Beneficially Owned or held of record by the Trust (or
such holder of record on such applicable record date): (a) in favor of the Parent Articles of Incorporation Amendment and the Parent Stock Issuance, (b) in favor of any other proposal in respect of which the vote or written consent of the Trust
is requested that could reasonably be expected to facilitate the approval of the transactions contemplated by the Merger Agreement, including any proposal to adjourn or postpone such meeting of the stockholders of Parent to a later date if there
are not sufficient votes to approve the Parent Articles of Incorporation Amendment and the Parent Stock Issuance and/or if there are not sufficient shares present in person or by proxy at such meeting of the stockholders of Parent to constitute a quorum, and (c) against (i) any action, proposal, transaction or agreement that
would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of Parent under the Merger Agreement or of the Trust under this Agreement, (ii) any amendment to Parent’s articles of incorporation or by-laws that would reasonably be expected to prohibit or impede the timely consummation of the Merger and/or the other transactions
contemplated by the Merger Agreement or (iii) any change in a majority of the Board (other than in connection with the election of the Board Designees in accordance with the terms of the Merger Agreement). Any such vote shall be cast, or consent
shall be given, for purposes of this Section 3.01, in accordance with such procedures relating thereto as shall ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording in accordance herewith the results of such vote or consent. At any meeting of the stockholders of Parent (whether annual or special) to which this Section 3.01 is applicable, the Trust shall, or shall direct the holder(s) of record of all of the Subject Securities of the Trust on any applicable record date to, appear, in person or by proxy,
at each meeting or otherwise cause all of the Subject Securities of the Trust to be counted as present thereat for purposes of establishing a quorum. Notwithstanding the foregoing or anything else in this Agreement to the contrary, if there is
any amendment or other modification to the Merger Agreement that is material and adverse to the Trust, then the Trust shall have no obligation to vote any of the Subject Securities in accordance with this Section 3 (including in favor of the
Parent Articles of Incorporation Amendment or Parent Stock Issuance).
ARTICLE IV
SHAREHOLDER CAPACITY.
Section 4.01 Agreement to Act only in Shareholder Capacity. Notwithstanding anything to the contrary in this Agreement, this Agreement applies solely to the Trust in the Trust’s capacity as a shareholder of Parent, and
nothing in this Agreement shall prevent the Trustee from acting in such Trustee’s capacity as an employee, officer or director of Parent or any Subsidiary of Parent, or taking any action in such capacity (including at the direction of the Board).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE TRUST.
The Trust hereby represents and warrants to Company as follows:
5
Section 5.01 Due Authority; Organization. The Trust is duly formed, validly existing and has all requisite corporate, trust or other power and authority to enter into and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance of this Agreement by the Trust has been duly and validly authorized by all necessary action on the part of the Trust, and no other proceedings on the part of the Trust are necessary
to approve this Agreement or to consummate the transaction contemplated hereby, and the Trust is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. This Agreement has been duly and validly
executed and delivered by the Trust and, assuming this Agreement constitutes the valid and binding agreement of Company, constitutes a legal, valid and binding agreement of the Trust, enforceable against the Trust in accordance with its terms,
subject to the Enforceability Exceptions.
Section 5.02 Ownership of the Existing Securities. As of the date hereof, (a) the Trust is the Beneficial Owner and record owner of Existing Securities as indicated on Schedule A hereto, free and clear of any proxy, voting restriction, adverse claim or other Lien, other than Liens created by this Agreement, the Merger Agreement or under applicable securities Laws, and (b) the Trustee
has sole voting power over all of the Existing Securities Beneficially Owned or held of record by the Trust and sole power of disposition with respect to all of the Existing Securities, and no Person other than the Trustee has any right to direct
or approve the voting or disposition of any of the Existing Securities. As of the date hereof, the Trust does not Beneficially Own or hold of record, any capital stock or other securities of Parent or any Subsidiary of Parent other than the
Existing Securities set forth on Schedule A opposite the Trust’s name. As of the date hereof, the Trust does not Beneficially Own or hold of record, any rights to
purchase or acquire any shares of capital stock or other equity interests of Parent or any Subsidiary of Parent except as set forth on Schedule A opposite the Trust’s
name. None of the Existing Securities are subject to any voting trust agreement or other Contract to which the Trust is a party restricting or otherwise relating to the voting or Transfer of any of the Existing Securities. The Trust has not
appointed or granted any proxy or power of attorney that is in effect with respect to any Existing Securities. The Trust has not entered into and will not enter into any agreement or commitment with any person the effect of which would be
inconsistent with or otherwise violate any of the provisions and agreements set forth herein.
Section 5.03 No Conflict; Consents.
(a) The execution and delivery of this
Agreement by the Trust does not, and the performance by the Trust of its obligations under this Agreement will not (i) contravene or conflict with, or breach any provision of, the organizational or governing documents of the Trust or (ii) (A)
contravene or conflict with or constitute a violation of any provision of any Law, judgment, writ or injunction of any Governmental Entity binding upon or applicable to the Trust or any of its properties or assets, or (B) result in any violation
of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under any Contract to which the Trust or any of its
properties or assets are bound, or by which the Trust or any of its properties or assets may be bound or affected, or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Trust.
(b) Except for any required filings by the
Trust with the SEC, the execution and delivery of this Agreement by the Trust does not, and the performance by the Trust of its obligations under this Agreement will not, require any consent, approval, authorization or permit of, action by,
filing with or notification to, any Person.
6
Section 5.04 Absence of Litigation. As of the date of this Agreement, there is no Action or Order pending or, to the Trust’s Knowledge, threatened against or affecting, the Trust or any of its Affiliates that would
reasonably be expected to impair or adversely affect the ability of the Trust or any of its Affiliates to perform the Trust’s obligations hereunder or to consummate the transactions contemplated hereby.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF COMPANY.
Company hereby represents and warrants to the Trust as follows:
Section 6.01 Due Authority. Company has all requisite corporate power and authority to enter into and deliver this Agreement and to perform its obligations hereunder. The execution, delivery and performance of this
Agreement by Company has been duly and validly authorized, and no other corporate proceedings on the part of Company are necessary to approve this Agreement. This Agreement has been duly and validly executed and delivered by Company and, assuming
this Agreement constitutes the valid and binding agreement of the Trust, constitutes a legal, valid and binding agreement of Company, enforceable against Company in accordance with its terms, subject to the Enforceability Exceptions.
Section 6.02 No Conflict; Consents.
(a) The execution and delivery of this
Agreement by Company does not, and the performance by Company of its obligations under this Agreement will not (i) contravene or conflict with, or breach any provision of, the organizational or governing documents of Company or (ii) (A)
contravene or conflict with or constitute a violation of any provision of any Law, judgment, writ or injunction of any Governmental Entity binding upon or applicable to Company or any of its properties or assets, or (B) result in any violation
of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under any Contract to which Company or any of its
properties or assets are bound, or by which Company or any of its properties or assets may be bound or affected, or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of Company.
(b) Except for any required filings by
Company with the SEC, the execution and delivery of this Agreement by Company does not, and the performance by Company of its obligations under this Agreement will not, require any consent, approval, authorization or permit of, action by, filing
with or notification to, any Person.
Section 6.03 Absence of Litigation. As of the date of this Agreement, there is no Action or Order pending or, to Company’s Knowledge, threatened against or affecting, Company or any of its Affiliates that would reasonably
be expected to impair or adversely affect the ability of Company to perform its obligations hereunder or to consummate the transactions contemplated hereby.
7
ARTICLE VII
NO LEGAL ACTION.
Section 7.01 No Legal Action. The Trust shall not bring, commence, institute, maintain, voluntarily aid, finance, encourage or prosecute, and agree to take all actions necessary to opt out of any class in any class action
with respect to, any claim, appeal, litigation, arbitration or proceeding which, and the Trust hereby waives any claim, appeal, litigation, arbitration or proceeding that, (a) challenges the validity of or seeks to enjoin the operation of any
provision of this Agreement (other than to enforce it) or (b) alleges the breach of any fiduciary duty of any Person (including any member of the Board or any committee thereof) in connection with the negotiation and entry into this Agreement,
the Merger Agreement or the transactions contemplated hereby and thereby. In addition, in the case of a class action, the Trust agrees not to bring, commence, institute, maintain, voluntarily aid, finance, encourage, prosecute or participate in
and to take all actions necessary to opt out of, any class in any class action with respect to (a) or (b) above.
ARTICLE VIII
TERMINATION AND NOTICE.
Section 8.01 Termination. This Agreement shall terminate and shall have no further force or effect immediately as of and following the Expiration Date. Upon termination of this
Agreement, no Party shall have any further obligations or liabilities under this Agreement; provided, however, that (a) nothing set forth in this Section 8.01 shall
relieve any Party from liability for any Willful Breach in respect of its representations, warranties, covenants or agreements set forth in this Agreement prior to such termination; and (b) the provisions of this Section 8.01, and Article IX, shall survive any termination of this Agreement.
Section 8.02 Notice of Certain Events. Until the Expiration Date, the Trust shall notify Company promptly of (a) the receipt by the Trust of any notice or other communication from any
Person alleging that the consent of such Person is or may be required in connection with this Agreement, (b) any acquisition of New Securities by the Trust pursuant to Section
2.02 and (c) any Permitted Transfer; provided, however, that the delivery
of any notice pursuant to this Section 8.02 shall not limit or otherwise affect the remedies available to any Party.
ARTICLE IX
Section 9.01 Reliance by Company. The Trust understands and acknowledges that Company is entering into the Merger Agreement (and the other documents related thereto) in reliance upon the Trust’s execution, delivery and
performance of this Agreement and upon the representations and warranties, covenants and other agreements of the Trust contained in this Agreement.
8
Section 9.02 No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Company any direct or indirect ownership or incidence of ownership of or with respect to the Subject Securities. All rights,
ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to the Trust, and Company shall have no authority to direct the Trust in the voting or disposition of any of the Subject Securities,
except as otherwise provided herein. Nothing in this Agreement shall be interpreted as creating or forming a “group” with any other Person, including Company, for purposes of Rule 13d-5(b)(1) of the Exchange Act or any other similar provision of
applicable Law.
Section 9.03 Further Assurances. From time to time, at the request of Company and
without further consideration, the Trust shall take such further action as may reasonably be deemed to be necessary or desirable to effect the transactions contemplated by
this Agreement.
Section 9.04 Certain Adjustments. In the event of a change in the number of shares of Parent Securities by reason of any reclassification, recapitalization, split (including a reverse split), subdivision, combination,
exchange or readjustment, or any stock or unit dividend or stock or unit distribution or other similar transaction, the terms “Parent Securities,” “New Securities” and “Subject Securities” shall be deemed to refer to and include such shares or
units as well as all such stock or unit dividends and distributions and any securities into which or for which any or all of such shares or units may be changed or exchanged or which are received in such transaction.
Section 9.05 Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the Party incurring or required to incur such expenses, whether
or not the Merger is consummated.
Section 9.06 Counterparts; Effectiveness. This Agreement may be executed and delivered in counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been
signed by each of the Parties to this Agreement and delivered to the other Party, it being understood that all Parties need not sign the same counterpart. Signatures transmitted by facsimile or other electronic transmission shall be accepted as
originals for all purposes of this Agreement.
| (a) |
This Agreement and all claims or causes of action (whether in tort, contract or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation,
execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement) shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
|
9
| (b) |
In addition, each of the Parties to this Agreement irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising
hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other Party to this Agreement or its successors or assigns, shall be brought and
determined exclusively in the State of Texas. In addition, each of the Parties to this Agreement irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for
recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other Party to this Agreement or its successors or assigns, shall be brought and determined exclusively
in the Texas Business Court, First Division B, or, if the Texas Business Court, First Division B, does not have jurisdiction over a particular matter, the United States District Court for the Northern District of Texas, or, if both the
Texas Business Court, First Division B, and the United States District Court for the Northern District of Texas do not have jurisdiction over a particular matter, any other state court within the State of Texas sitting in Dallas County,
and, in each case, any appellate court therefrom. Notwithstanding Section 9.07(a), this Section
9.07(b) shall be governed by and construed in accordance with the laws of the State of Texas. Each of the Parties to this Agreement hereby irrevocably submits with regard to any such action or proceeding for itself and in
respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action or proceeding relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than the aforesaid courts. Each of the Parties to this Agreement hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to serve in accordance with this Section
9.07, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by the applicable Law, any claim that (I) the suit, action or proceeding in such court is brought in an inconvenient
forum, (II) the venue of such suit, action or proceeding is improper or (III) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the Parties to this Agreement agrees that service of process upon
such Party in any such action or proceeding shall be effective if such process is given as a notice in accordance with Section 9.09.
|
(a) The Parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each Party agrees that in the event of any breach or threatened breach by any
other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to obtain (i) a
decree or order of specific performance to enforce the observance and performance of such covenant or obligation and (ii) an injunction restraining such breach or threatened breach. Each Party acknowledges and agrees that (A) each Party is
entitled to specifically enforce the terms and provisions of this Agreement notwithstanding the availability of any monetary remedy, (B) the availability of any monetary remedy (1) does not adequately compensate for the harm that would result
from a breach of this Agreement and (2) shall not be construed to diminish or otherwise impair in any respect any Party’s right to specific enforcement, and (C) the right of specific enforcement is an integral part of the transactions
contemplated by this Agreement and without that right, neither Company nor the Trust would have entered into this Agreement.
10
(b) Each Party further agrees that (i) no
such Party will oppose the granting of an injunction, specific performance and other equitable relief as provided herein on the basis that the other Party has an adequate remedy at law or an award of specific performance is not an appropriate
remedy for any reason at law or equity and (ii) no other Party or any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.08, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
Section 9.09 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 9.09.
Section 9.10 Notices. Any notice required to be given hereunder shall be in writing, and sent by reliable overnight delivery service (with proof of delivery, with such notice deemed to be given upon receipt), hand delivery
(with such notice deemed to be given upon receipt) or by electronic mail transmission (with such notice deemed to have been given at the time of confirmation of transmission if sent during normal business hours of the recipient, and on the next
Business Day if received after normal business hours of the recipient, and provided that the sender does not receive any out-of-office replies or other automatically generated responses), addressed as follows:
To the Company:
TAE Technologies, Inc.
19631 ▇▇▇▇▇▇▇
Foothill Ranch, CA 92610
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Chief Executive Officer
11
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Houston, Texas 77002
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: [***]
E-mail Address: [***]
To the Trust:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Revocable Trust dated April 7, 2014
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Jupiter, FL 33477
with a copy (which shall not constitute notice) to:
DLA Piper LLP (US)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
New York, New York 10020
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: [***]
E-mail Address: [***]
or to such other address as any Party shall specify with respect to itself by written notice so given (subject to the proviso of the immediately
following sentence), and such notice shall be deemed to have been delivered as of the date so telecommunicated, personally delivered or received. Any Party to this Agreement may notify any other Party of any changes to the address or any of the
other details specified in this paragraph; provided that such notification shall only be effective on the date specified in such notice or two (2) Business Days after the
notice is given, whichever is later. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or
inability to deliver.
Section 9.11 Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties to this Agreement (whether by operation of law or otherwise)
without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the Parties to this Agreement and their respective successors and assigns. Any
purported assignment not permitted by this Section 9.11 shall be null and void.
Section 9.12 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement
or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or
unenforceable, the Parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to
it in the prior sentence, the Parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of
such invalid or unenforceable term or provision.
12
Section 9.13 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the Parties, or any of them, with respect to the
subject matter hereof and thereof.
Section 9.14 Amendments; Waivers.
(a) Any provision of this Agreement may be
amended if, and only if, such amendment is in writing and signed by the Parties hereto.
(b) Except as otherwise set forth herein,
any Party may, to the extent legally allowed and except as otherwise set forth in this Agreement, (a) extend the time for the performance of any of the covenants or other acts of the other Parties, as applicable; (b) waive any inaccuracies in the
representations and warranties made to such Party in this Agreement; and (c) waive compliance with any of the agreements or conditions for the benefit of such Party contained in this Agreement. Any agreement by a Party to any such extension or
waiver will be valid only if set forth in an instrument in writing signed by such Party. Notwithstanding the foregoing, no failure or delay by a Party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise of any other right hereunder.
Section 9.15 Headings. The titles of Articles and Sections of this Agreement are for convenience only and shall not be interpreted to limit or otherwise affect the provisions of this Agreement.
Section 9.16 Interpretation. References in this Agreement to Articles and Sections shall be deemed to be references to Articles and Sections of this Agreement, unless the context shall otherwise require. The words
“include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of such agreement or instrument. Words in the singular shall be held to include the plural and vice versa. References to “written” or “in writing” include in electronic form. The word “or” shall not be
exclusive. The phrase “to the extent” shall mean the degree to which a subject or other thing extends, and not merely “if.” Each of the Parties has participated in the negotiation and drafting of this Agreement and if an ambiguity or question of
interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or burdening any party by virtue of the authorship of any of the provisions in this
Agreement. A reference to any Person includes such Person’s successors and permitted assigns.
13
Section 9.17 Documentation and Information. The Trust consents to and authorizes the publication and disclosure by Parent and Company and their respective Affiliates of the Trust’s identity and holdings of Subject
Securities, and the nature of the Trust’s commitments, arrangements and understandings under this Agreement, in any press release or any other disclosure document required in connection with the Merger or any other transaction contemplated by the
Merger Agreement; provided, that the Trust will be provided with an opportunity to review any such disclosure prior to public release. As promptly as reasonably
practicable, the Trust shall notify Parent and Company, as applicable, of any required corrections with respect to any written information supplied by the Trust specifically for use in any such disclosure document, if and to the extent the Trust
becomes aware that any have become false or misleading in any material respect.
Section 9.18 Obligation to Update Schedule A. The Trust agrees that in connection with any acquisitions or Transfers (to the extent permitted) of Subject Securities by the Trust, the Trust will, as promptly as practicable
following the completion thereof, notify each of Parent and Company in writing of such acquisition or Transfer and the Parties will update Schedule A to reflect the
effect of such acquisition or Transfer.
[Signature Page Follows]
14
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed on the date first above written.
|
TAE TECHNOLOGIES, INC.
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
|
|
Title:
|
CEO
|
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ REVOCABLE TRUST DATED APRIL 7, 2014
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
|
|
|
Name:
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
|
|
|
Title:
|
Sole trustee
|
|
[Signature Page to Voting and Support Agreement]
SCHEDULE A
TRUST’S EXISTING SECURITIES
|
Type of Security
|
Shares of Parent Common Stock Beneficially Owned
|
Shares of Parent Common Stock Owned of Record
|
|
Parent Common Stock
|
114,750,000
|
114,750,000
|