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 Surge Unitholders (collectively, the Supporting Surge Unitholders). Motor and the Supporting Surge Unitholders are each sometimes referred to herein individually as a Party and collectively as the Parties.
WHEREAS, each of the Supporting Surge Unitholders is the beneficial or record owner, and has either sole voting power or shared voting power with other Supporting Surge Unitholders over, such number of membership interests in Solsys Medical, LLC, a Delaware limited liability company (Surge) (the Surge Units) as is indicated opposite each such Supporting Surge Unitholders 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), Reincorp. Merger 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), Surge 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 merger of Merger Sub Two with and into the Surge, pursuant to which Surge will be the surviving corporation (such transaction, the Combination Merger);
WHEREAS, as a condition and an inducement to Motors willingness to enter into the Merger Agreement, Motor has required that the Supporting Surge Unitholders agree, and the Supporting Surge Unitholders have agreed, to enter into this Agreement with respect to all Surge Units that the Supporting Surge Unitholders Beneficially Own (as defined below); and
WHEREAS, Motor desires that the Supporting Surge Unitholders agree, and the Supporting Surge Unitholders 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 and adopt the Merger Agreement and the Combination 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:
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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.