Support Agreement, dated May 2, 2019, by and among Misonix, Inc., Stavros Vizirgianakis, Joseph Dwyer, Sharon Klugewicz, Scott Ludecker, John Salerno and Dan Voic
EX-10.3 5 s117986_ex10-3.htm EXHIBIT 10.3
Exhibit 10.3
EXECUTION VERSION
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT, dated as of May 2, 2019 (this “Agreement”), is entered into by and among Misonix, Inc., a New York corporation (“Motor”) and the undersigned signatories set forth on the signature pages hereto under the heading “Supporting Motor Shareholders,” in their capacity as shareholders (and not, if applicable, as a director or officer) of Motor (collectively, the “Supporting Motor Shareholders”). Motor and the Supporting Motor Shareholders are each sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, each of the Supporting Motor Shareholders is the beneficial or record owner, and has either sole voting power or shared voting power with other Supporting Motor Shareholders over, such number of shares of common stock, par value $0.01 per share, of Motor (“Motor Common Stock”) as is indicated opposite each such Supporting Motor Shareholder’s name on Schedule A attached hereto;
WHEREAS, concurrently with the execution and delivery of this Agreement, Motor, New Misonix, Inc., a New York corporation and wholly owned subsidiary of Motor (“ParentCo”), Motor Reincorp. Sub One, Inc., a New York corporation and a direct, wholly owned subsidiary of ParentCo, Surge Sub Two, LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of ParentCo (“Merger Sub Two”), Solsys Medical, LLC, a Delaware limited liability company and, solely in his capacity as the representative for the equityholders of Surge, Greg Madden, an individual resident of the State of Massachusetts, are entering into an Agreement and Plan of Merger (such agreement, as amended from time to time, the “Merger Agreement”), that provides, among other things, for the ParentCo Stock Issuances and the Reincorporation Merger;
WHEREAS, as a condition and an inducement to Motor’s willingness to enter into the Merger Agreement, Motor has required that the Supporting Motor Shareholders agree, and the Supporting Motor Shareholders have agreed, to enter into this Agreement with respect to all shares of Motor Common Stock that the Supporting Motor Shareholders Beneficially Own (as defined below); and
WHEREAS, Motor desires that the Supporting Motor Shareholders agree, and the Supporting Motor Shareholders are willing to agree, subject to the limitations herein, not to Transfer (as defined below) any of their Subject Securities (as defined below), and to vote their Subject Securities to approve the ParentCo Stock Issuances and adoption of the Merger Agreement and the Reincorporation Merger.
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, intending to be legally bound, do hereby agree as follows:
AGREEMENT
| 1. | Definitions. Capitalized terms used but not otherwise defined herein shall have their respective meanings ascribed to such terms in the Merger Agreement. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the same meanings assigned to them in this Section 1 or elsewhere in this Agreement. |
| (a) | “Beneficially Own” has the meaning assigned to such term in Rule 13d-3 under the Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance). For the avoidance of doubt, Beneficially Own shall also include record ownership of securities. |
| (b) | “Beneficial Owners” means Persons who Beneficially Own the referenced securities. |
| (c) | “Expiration Time” means the earlier to occur of (i) the Reincorporation Merger Effective Time, (ii) such date and time as the Merger Agreement is validly terminated in accordance with the terms and provisions thereof, or (iii) the termination of this Agreement by mutual written consent of the Parties. |
| (d) | “Permitted Transfer” means, in each case, with respect to each Supporting Motor Shareholder, so long as (i) such Transfer is in accordance with applicable Law and such Supporting Motor Shareholder is, and at all times has been, in compliance with this Agreement and (ii) any Transfer of Subject Securities by the Supporting Motor Shareholder to another Supporting Motor Shareholder or to an Affiliate of such transferring Supporting Motor Shareholder, so long as such Affiliate, in connection with, and prior to, such Transfer, executes a joinder to this Agreement, in form and substance reasonably acceptable to Motor, pursuant to which such Affiliate agrees to become a party to this Agreement and be subject to the restrictions and obligations hereof and otherwise become a party for all purposes of this Agreement. |
| (e) | “Subject Securities” means, collectively, all shares of Motor Common Stock and all shares of New Motor Common Stock. |
| (f) | “Transfer” means (i) any direct or indirect offer, sale, tender pursuant to a tender or exchange offer, lease, assignment, encumbrance, loan, pledge, grant of a security interest, hypothecation (including by gift or by contribution or distribution to any trust or similar instrument or to any beneficiaries of the Supporting Motor Shareholder), disposition, or other transfer (including by merger, consolidation or otherwise by operation of law), either voluntary or involuntary, or entry into any contract, option, or other arrangement or understanding with respect to any offer, sale, tender pursuant to a tender or exchange offer, lease, assignment, encumbrance, loan, pledge, hypothecation (including by gift or by contribution or distribution to any trust or similar instrument or to any beneficiaries of the Supporting Motor Shareholder), disposition, or other transfer (including by merger, consolidation or otherwise by operation of law), of any shares of Motor Common Stock or other Equity Interest or interest in any shares of Motor Common Stock or other Equity Interest (or any security convertible into or exchangeable for such shares of Motor Common Stock or other Equity Interest), including in each case through the transfer of any Person or any interest in any Person or (ii) in respect of any shares of Motor Common Stock or other Equity Interest or interest in any shares of Motor Common Stock or other Equity Interest, to enter into any swap or any other agreement, transaction, or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of such shares of Motor Common Stock or other Equity Interest or interest in shares of Motor Common Stock or other Equity Interest, whether any such swap, agreement, transaction, or series of transactions is to be settled by delivery of securities, in cash, or otherwise. |
| 2. | Agreement to Retain Subject Securities. |
| (a) | Transfer and Encumbrance of Subject Securities. Other than Permitted Transfers, from and after the date hereof until the Expiration Time, each Supporting Motor Shareholder agrees that it shall not, with respect to any Subject Securities Beneficially Owned by such Supporting Motor Shareholder, (i) Transfer any such Subject Securities, or (ii) deposit any such Subject Securities into a voting trust or enter into a voting agreement or arrangement with respect to such Subject Securities or grant any proxy (except as otherwise provided herein, in connection with the matters to be voted on at Motor’s annual meeting to be held on May 7, 2019 and to grant a revocable proxy to Motor’s proxy holders to vote or cause to be voted the Subject Securities in accordance with this Agreement) or power of attorney with respect thereto. |
| (b) | Injunction. Notwithstanding anything to the contrary in this Agreement, if at any time following the date hereof and prior to the Expiration Time a Governmental Entity of competent jurisdiction enters an order restraining, enjoining, or otherwise prohibiting the Supporting Motor Shareholders or their Affiliates from (i) consummating the Transactions or (ii) taking any action pursuant to Section 3 or Section 4, then (A) the obligations of each Supporting Motor Shareholder set forth in Section 3 and the irrevocable proxy and power of attorney in Section 4 shall be of no force and effect for so long as such order is in effect and, in the case of clause (ii), solely to the extent such order restrains, enjoins, or otherwise prohibits such Supporting Motor Shareholder from taking any such action, and (B) for so long as such order is in effect, each Supporting Motor Shareholder shall cause the Subject Securities to not be represented in person or by proxy at any meeting at which a vote of such Supporting Motor Shareholder on the Transactions is requested. Notwithstanding anything to the contrary in this Section 2(b), the restrictions set forth in Section 2(a) shall continue to apply with respect to the Subject Securities until the Expiration Time. |
| (c) | Additional Purchases; Adjustments. Each Supporting Motor Shareholder agrees that any shares of Motor Common Stock and any Equity Interest of Motor that such Supporting Motor Shareholder purchases or otherwise acquires (including pursuant to its exercise of preemptive rights or as a result of a stock split, reverse stock split, stock dividend or distribution or any change in shares of Motor Common Stock by reason of a merger, reorganization, recapitalization, reclassification, combination, exchange of shares, or similar transaction) or with respect to which such Supporting Motor Shareholder otherwise acquires voting power after the execution of this Agreement and prior to the Expiration Time (“New Motor Common Stock”) shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted shares of Motor Common Stock, and such Supporting Motor Shareholder shall promptly notify Motor of the existence of any shares of New Motor Common Stock. |
| (d) | Unpermitted Transfers; Involuntary Transfers. Any Transfer or attempted Transfer of any Subject Securities in violation of this Section 2 shall, to the fullest extent permitted by Law, be null and void ab initio. If any involuntary Transfer of any of such Supporting Motor Shareholder’s Subject Securities shall occur, the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Subject Securities subject to all of the restrictions, liabilities, and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. |
| 3. | Agreement to Vote and Approve. |
| (a) | Approval. From and after the date hereof until the Expiration Time, each Supporting Motor Shareholder irrevocably and unconditionally agrees that it shall: |
| (i) | at any meeting of the Motor Shareholders, however called, with respect to any of the following matters, and at every adjournment or postponement thereof, and on every action or approval by written consent of the Motor Shareholders with respect to any of the following, each Supporting Motor Shareholder (A) shall appear at each such meeting (in person or by proxy) or otherwise cause the Subject Securities that the Supporting Motor Shareholder Beneficially Owns to be counted as present thereat for purposes of calculating a quorum and (B) shall, and shall cause each holder of record on any applicable record date to (including via proxy), vote all of the Subject Securities the Supporting Motor Shareholder Beneficially Owns for (1) the approval of the ParentCo Stock Issuances and adoption of the Merger Agreement and the Reincorporation Merger and (2) any proposal to adjourn or postpone such meeting of the Motor Shareholders to a later date if there are not sufficient votes to adopt the Merger Agreement; and |
| (ii) | at any meeting of the Motor Shareholders, however called, with respect to any of the following matters, and at every adjournment or postponement thereof, and on any action or approval by written consent of the Motor Shareholders with respect to any of the following matters, each Supporting Motor Shareholder (A) shall appear at each such meeting or otherwise cause the Subject Securities that the Supporting Motor Shareholder Beneficially Owns to be counted as present thereat for purposes of establishing a quorum and (B) shall, and shall cause each holder of record on any applicable record date to (including via proxy), vote the Subject Securities that the Supporting Motor Shareholder Beneficially Owns against (1) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Merger set forth in Article V of the Merger Agreement not being satisfied, (2) any action which could reasonably be expected to prevent, impede, interfere with, discourage, delay, postpone, or materially adversely affect the consummation of the Transactions, including the ParentCo Stock Issuances, the adoption of the Merger Agreement and the Reincorporation Merger, or dilute, in any material respect, the benefit of the transactions contemplated thereby to Motor or the Motor Shareholders, and (4) any action which could reasonably be expected to result in a breach of any representation, warranty, covenant, or agreement of Motor in the Merger Agreement. |
| 4. | Irrevocable Proxy. By execution of this Agreement, each Supporting Motor Shareholder hereby appoints and constitutes Motor, until the Expiration Time (at which time this proxy shall automatically be revoked), with full power of substitution and resubstitution, as such Supporting Motor Shareholder’s true and lawful attorney-in-fact and proxy (which proxy is an “irrevocable proxy” and is coupled with an interest sufficient in law to support an irrevocable proxy, pursuant to Section 609 of the NYBCL), to the fullest extent of such Supporting Motor Shareholder’s rights with respect to the Subject Securities Beneficially Owned by such Supporting Motor Shareholder, to vote (or exercise a written consent with respect to) such Subject Securities solely to vote such Subject Securities for (1) the approval of the ParentCo Stock Issuances and adoption of the Merger Agreement and the Reincorporation Merger and (2) any proposal to adjourn or postpone such meeting of the Motor Shareholders to a later date if there are not sufficient votes to adopt the Merger Agreement, and Motor hereby agrees to vote such proxy as specified in (1) and (2) above provided, however, that the foregoing shall only be effective if such Supporting Motor Shareholder fails to be counted as present, to consent, or to vote such Supporting Motor Shareholder’s Subject Securities, as applicable, in accordance with this Agreement. Each Supporting Motor Shareholder shall retain the authority to vote its Subject Securities on all other matters. |
| 5. | Representations and Warranties of the Supporting Motor Shareholders. Each Supporting Motor Shareholder hereby severally, but not jointly, represents, warrants and covenants to Motor as follows: |
| (a) | Organization; Due Authority. Such Supporting Motor Shareholder has the full power and authority to make, enter into, and carry out the terms of this Agreement and to grant the irrevocable proxy as set forth in Section 4 hereof. This Agreement has been duly authorized, and no other action on the part of such Supporting Motor Shareholder is necessary to authorize the execution and delivery of this Agreement by the Supporting Motor Shareholder. This Agreement has been validly executed and delivered by such Supporting Motor Shareholder and, assuming due authorization, execution and delivery of this Agreement by the other parties hereto, constitutes a valid and binding agreement of such Supporting Motor Shareholder enforceable against it in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, fraudulent conveyance or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any Proceeding therefor may be brought. |
| (b) | Ownership of Motor Common Sotck. As of the date hereof, such Supporting Motor Shareholder (i) Beneficially Owns the shares of Motor Common Stock indicated on Schedule A hereto opposite such Supporting Motor Shareholder’s name, free and clear of any and all Liens, other than those created by this Agreement, and (ii) has sole voting power over all of the shares of Motor Common Stock Beneficially Owned by such Supporting Motor Shareholder. As of the date hereof, such Supporting Motor Shareholder does not Beneficially Own any shares of Motor Common Stock other than the shares of Motor Common Stock set forth on Schedule A opposite such Supporting Motor Shareholder’s name. As of the date hereof, such Supporting Motor Shareholder does not Beneficially Own any rights to purchase or acquire any shares of Motor Common Stock. |
| (c) | No Conflict; Consents. |
| (i) | The execution and delivery of this Agreement by such Supporting Motor Shareholder does not, and the performance by such Supporting Motor Shareholder of its obligations under this Agreement and the compliance by such Supporting Motor Shareholder with any provisions hereof do not and will not: (A) conflict with or violate any Law applicable to such Supporting Motor Shareholder or (B) conflict with or violate, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration, or cancellation of, or result in the creation of a Lien on any of the shares of Motor Common Stock Beneficially Owned by such Supporting Motor Shareholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise, or other instrument or obligation, or any order, arbitration award, judgment or decree, to which such Supporting Motor Shareholder or an Affiliate is a party or by which such Supporting Motor Shareholder or an Affiliate is bound. |
| (ii) | No consent, approval, order, or authorization of, or registration, declaration, or filing with, any Governmental Entity or any other Person, is required by or with respect to such Supporting Motor Shareholder or an Affiliate in connection with the execution and delivery of this Agreement or the performance by such Supporting Motor Shareholder of its obligations hereunder. |
| (d) | Absence of Litigation. There is no Proceeding pending against, or, to the knowledge (after reasonable inquiry) of such Supporting Motor Shareholder, threatened against or affecting, such Supporting Motor Shareholder or an Affiliate that could reasonably be expected to materially impair or materially adversely affect the ability of such Supporting Motor Shareholder to perform such Supporting Motor Shareholder’s obligations hereunder on a timely basis. |
| 6. | Termination. This Agreement shall terminate immediately at, and shall have no further force or effect as of and following, the Expiration Time, provided, however, that the termination of this Agreement shall not relieve any Party from any liability for any inaccuracy in or breach of any representation, warranty, or covenant contained in this Agreement occurring prior to such termination. |
| 7. | Notice of Certain Events. Each Supporting Motor Shareholder shall notify Motor in writing promptly of (a) any fact, event, or circumstance that would cause, or reasonably be expected to cause or constitute, a breach in any material respect of the representations and warranties of such Supporting Motor Shareholder under this Agreement and (b) the receipt by such Supporting Motor Shareholder 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; provided, however, that the delivery of any notice pursuant to this Section 7 shall not limit or otherwise affect the remedies available to any Party. |
| 8. | Waiver of Certain Actions. Each Supporting Motor Shareholder hereby agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Motor, ParentCo, Surge, or any of their respective Affiliates or successors (a) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the Closing) or (b) alleging a breach of any duty of the Surge Board, the Motor Board or the ParentCo Board in connection with the Merger Agreement, this Agreement, or the transactions contemplated thereby or hereby. |
| 9. | Miscellaneous. |
| (a) | Expenses. All expenses incurred by the Parties will be borne solely and entirely by the Party which has incurred the same. |
| (b) | Notices. All notices, reports, records or other communications that are required or permitted to be given to the Parties under this Agreement shall be sufficient in all respects if given in writing and delivered in person, by facsimile, by electronic mail, by overnight courier or by registered or certified mail, postage prepaid, return receipt requested, to the receiving party at the following address: |
If to Motor, addressed to it at:
Misonix, Inc.
1938 New Highway
Farmingdale, NY 11735
Attention: Stavros Vizirgianakis
Email: ***@***
with a copy to (for information purposes only):
Jones Day
3161 Michelson Drive, Suite 800
Irvine, CA 92612
Attention: Jonn R. Beeson
Email: ***@***
If to any Supporting Motor Shareholder, to it at the mailing or email address set forth on the signature pages hereto.
or such other address as such Party may have given to the other Parties by notice pursuant to this Section 9(b). Notice shall be deemed given on (i) the date such notice is personally delivered, (ii) in the case of a globally recognized express delivery service, on the Business Day that receipt by the addressee is confirmed pursuant to the service’s systems, or (iii) immediately when sent by facsimile or electronic mail, prior to 5:00 p.m. (in the time zone of the receiving party) on a Business Day, and when sent outside of such hours, at 9:00 a.m. (in the time zone of the receiving party) on the next Business Day.
| (c) | Headings. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. |
| (d) | Severability. If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by reason of any rule of Law or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible. |
| (e) | Entire Agreement. This Agreement, together with the other documents delivered pursuant hereto constitute the entire agreement of the parties hereto and supersede all prior agreements and undertakings, both written and oral, among the parties hereto, or any of them, with respect to the subject matter hereof. |
| (f) | Parties in Interest. This Agreement will be binding upon and inure solely to the benefit of each Party and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or will confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement |
| (g) | Assignment. This Agreement will not be assigned by any Party by operation of Law or otherwise without the prior written consent of the other Parties, and, subject to the preceding clause, this Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the Parties and their respective permitted assigns. |
| (h) | Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury. |
| (i) | This Agreement will be governed by, and construed in accordance with, the Laws of the State of New York, without regard to laws that may be applicable under conflicts of laws principles (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York, and any action, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, in any way relating to this Agreement or any of the transactions contemplated by this Agreement shall also be governed by, and construed in accordance with, the Laws of the State of New York, without giving effect to any choice of Law or conflict of Laws provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York. |
| (ii) | Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the supreme court of the State of New York, or, if subject matter jurisdiction over the matter that is the subject of the action or proceeding is vested only in the federal courts of the United States of America, the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the agreements delivered in connection herewith or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally (A) agrees not to commence any such action or proceeding except in such court, (B) agrees that any claim in respect of any such action or proceeding may be heard and determined in such court, (C) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in any such court and (D) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each of the Parties agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each Party irrevocably consents to service of process in the manner provided for notices in Section 9(b). Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by Law. |
| (iii) | EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(h). |
| (i) | Amendments and Modifications. No provision of this Agreement may be amended or modified unless such amendment or modification is in writing and signed by (i) Motor and (ii) the applicable Supporting Motor Shareholder against whom enforcement is sought. No failure or delay by any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable Law. |
| (j) | Counterparts; Electronic Delivery. This Agreement may be executed and delivered, including by e-mail of an attachment in Adobe Portable Document Format or other file format based on common standards (“Electronic Delivery”), in any number of counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered will be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent delivered using Electronic Delivery will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party will raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent that such defense relates to lack of authenticity. |
| (k) | Specific Performance. 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. It is accordingly agreed that the Parties will be entitled to specific performance and the issuance of immediate injunctive and other equitable relief to prevent breaches of this Agreement and to specifically enforce the terms and provisions hereof in any court referred to in Section 9(h), without the necessity of proving the inadequacy of money damages as a remedy, and the parties further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief, this being in addition to any other remedy to which they are entitled at Law or in equity. Each Party further agrees that, in the event of any action for specific performance in respect of such breach or violation, it will not assert the defense that a remedy at law would be adequate or that the consideration reflected in this Agreement was inadequate or that the terms of this Agreement were not just and reasonable. |
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IN WITNESS WHEREOF, Motor and the Supporting Motor Shareholders have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| MISONIX, INC. | ||
| By: | /s/ Stavros Vizirgianakis | |
| Name: | Stavros Vizirgianakis | |
| Title: | Chief Executive Officer | |
| STAVROS VIZIRGIANAKIS | ||
| By: | /s/ Stavros Vizirgianakis | |
| SHARON KLUGEWICZ | ||
| By: | /s/ Sharon Klugewicz | |
| JOSEPH DWYER | ||
| By: | /s/ Joseph Dwyer | |
| JOHN SALERNO | ||
| By: | /s/ John Salerno | |
| DAN VOIC | ||
| By: | /s/ Dan Voic | |
| SCOTT LUDECKER | ||
| By: | /s/ Scott Ludecker | |
Schedule A
| Supporting Motor Shareholders | Motor Common Stock |
| Stavros Vizirgianakis | 1,639,078 shares |
| Sharon Klugewicz | 0 shares |
| Joseph Dwyer | 1,300 shares |
| John Salerno | 0 shares |
| Dan Voic | 138,895 shares |
| Scott Ludecker | 9,443 shares |
