STOCKHOLDER SUPPORT AGREEMENT
Exhibit 10.2
This STOCKHOLDER SUPPORT AGREEMENT (this “Agreement”) is entered into as of January 3, 2024, by and among New Era Helium Corp., a Nevada corporation (the “Company”), Xxxx XX Acquisition V Co., a Delaware corporation (the “Acquiror”), and each of the stockholders of the Company whose name appears on the signature pages to this Agreement (each, a “Holder” and, collectively, the “Holders,” and the Holders, together with the Company and the Acquiror, the “Parties”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Business Combination Agreement (as defined below).
WHEREAS, it is a condition to closing that the Holders approve the Transaction.
3. Representations, Warranties and Agreements.
3.1.1 If such Holder is not an individual, such Holder has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Agreement. If such Holder is an individual, such Holder has the authority to enter into, deliver and perform its obligations under this Agreement.
3.1.2 If such Holder is not an individual, this Agreement has been duly authorized, validly executed and delivered by such Xxxxxx. If such Holder is an individual, the signature on this Agreement is genuine, and such Holder has legal competence and capacity to execute the same. This Agreement is enforceable against such Holder in accordance with its terms, except as may be limited or otherwise affected by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (b) principles of equity, whether considered at law or equity.
3.1.3 The execution, delivery and performance by such Holder of this Agreement and the consummation of the transactions contemplated herein do not and will not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon such Holder’s Covered Shares or any other property or assets of such Holder or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which such Holder or any of its Subsidiaries is a party or by which such Holder or any of its Subsidiaries is bound or to which such Holder’s Covered Shares or any other property or assets of such Holder or any of its Subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the legal authority of such Holder to enter into and timely perform its obligations under this Agreement (a “Holder Material Adverse Effect”), (b) if such Holder is not an individual, result in any violation of the provisions of the organizational documents of such Holder or any of its Subsidiaries or (c) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over such Holder that would reasonably be expected to have a Holder Material Adverse Effect.
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3.1.4 Exhibit A hereto sets forth the number of Covered Shares over which such Holder has beneficial ownership as of the date hereof. As of the date hereof, such Xxxxxx is the legal and beneficial owner of the Covered Shares denoted as being owned by such Holder on Exhibit A hereto and has the sole power to vote (or sole power to direct the voting of) such Covered Shares. Such Holder has good and valid title to the Covered Shares denoted as being owned by such Holder on Exhibit A hereto, free and clear of any and all Liens other than those created or permitted by this Agreement, the agreements set forth on Exhibit B hereto (the “Affiliate Agreements”)1 and those imposed by applicable law, including federal and state securities laws, and are not subject to any preemptive or similar rights. There are no claims for finder’s fees or brokerage commission or other like payments in connection with this Agreement or the transactions contemplated hereby payable by such Holder pursuant to arrangements made by such Holder. Except for the Covered Shares denoted on Exhibit A hereto, as of the date of this Agreement, such Holder is not a beneficial owner or record holder of any (a) equity securities of the Company, (b) securities of the Company having the right to vote on any matters on which the holders of equity securities of the Company may vote or which are convertible into or exchangeable for, at any time, equity securities of the Company, or (c) options or other rights to acquire from the Company any equity securities or securities convertible into or exchangeable for equity securities of the Company except as contemplated by Business Combination Agreement or the Transaction Documents.
3.1.5 Such Holder acknowledges and represents that such Xxxxxx has received such information as such Holder deems necessary in order to make a voting decision with respect to the Covered Shares and to enter into this Agreement, including with respect to the Acquiror, the Company and the Transactions. Without limiting the generality of the foregoing, such Holder has not relied on any statements or other information provided by the Acquiror, Company Parent, or the Company in making its decision to enter into, deliver and perform its obligations under this Agreement. Such Holder further acknowledges that there have been no representations, warranties, covenants or agreements made to such Holder by the Company, Company Parent, the Acquiror or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Agreement. Such Holder acknowledges that the agreements contained herein with respect to the Covered Shares held by such Holder are irrevocable.
3.1.6 Such Holder understands and acknowledges that the Company and the Acquiror are entering into the Business Combination Agreement in reliance upon the execution and delivery of this Agreement by such Holder and in reliance on the acknowledgments, understandings, agreements, representations and warranties of such Holder contained in this Agreement.
3.1.7 Other than the Affiliate Agreements, such Holder (a) has not entered into any voting agreement or voting trust with respect to Holder’s Covered Shares inconsistent with such Holder’s obligations pursuant to this Agreement, (b) has not granted a proxy, a consent or power of attorney with respect to such Holder’s Covered Shares and (c) has not entered into any agreement or taken any action that would make any representation or warranty of such Holder contained herein untrue or incorrect in any material respect or have the effect of preventing such Holder from performing any of its obligations under this Agreement.
3.1.8 There is no proceeding pending against such Holder or, to the knowledge of such Holder, threatened against such Holder that challenges the beneficial or record ownership of such Holder’s Covered Shares, the validity of this Agreement or the
3.2.1 Each of the Company and the Acquiror, as applicable, is duly organized and validly existing under the laws of its jurisdiction of formation, with limited liability company power and authority to enter into, deliver and perform its obligations under this Agreement.
1 | Is there anything to be scheduled? If not, we can delete the references. |
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3.2.2 This Agreement has been duly authorized, executed and delivered by the Company and the Acquiror, as applicable, and is enforceable against the Company and the Acquiror, as applicable, in accordance with its terms, except as may be limited or otherwise affected by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (b) principles of equity, whether considered at law or equity.
3.2.3 The execution, delivery and performance of this Agreement (including compliance by the Company and the Acquiror, as applicable, with all of the provisions hereof) and the consummation of the transactions contemplated herein will not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any of the terms of any material contract, or other agreements or instrument to which the Company or the Acquiror, as applicable, is a party or by which the Company or the Acquiror, as applicable, or any of its respective assets may be bound, (b) result in any violation of the provisions of the organizational documents of the Company or the Acquiror, as applicable, or (c) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or the Acquiror, as applicable, or any of its respective properties, as applicable, that would reasonably be expected to impair the Company’s or the Acquiror’s, as applicable, ability to perform its obligations under this Agreement in any material respect.
4.1 Each Holder agrees that, during the Restricted Period, except as contemplated by the Business Combination Agreement and the Transactions, it shall not, and shall cause its Affiliates not to, without Acquiror’s prior written consent (which consent may be given or withheld by Acquiror in its sole discretion): (a) offer for sale, sell (including short sales), transfer, tender, pledge, convert, encumber, assign or otherwise dispose of (including by gift, merger, tendering into any tender offer or exchange offer or otherwise) (collectively, a “Transfer”), or enter into any contract, option, derivative, hedging or other agreement or arrangement or understanding (including any profit-sharing arrangement) with respect to, or consent to, a Transfer of, any or all of the Covered Shares or any interest in the Covered Shares; (b) grant any proxies or powers of attorney with respect to any or all of the Covered Shares (except in connection with voting by proxy at a Stockholder Meeting as contemplated by Section 1); or (c) permit to exist any Lien with respect to any or all of the Covered Shares other than those created by this Agreement and the Affiliate Agreements. Notwithstanding the foregoing, this Section 4.1 shall also not prohibit a Transfer of Covered Shares by any Holder to an Affiliate of such Holder; provided, that such Transfer shall be permitted only if, prior to or in connection with such Transfer, the transferee agrees in writing, reasonably satisfactory in form and substance to the Company, to assume all of the obligations of the applicable Holder hereunder and to be bound by the terms of this Agreement; and provided, further, that any such Transfer shall not excuse any Holder’s obligations under this Agreement. Any Transfer in violation of this Section 4.1 shall be null and void ab initio.
4.2 In the event of a share dividend or distribution, or any change in the Covered Shares by reason of any share dividend or distribution, sub-division, recapitalization, combination, conversion, exchange of shares or the like, the term “Covered Shares” shall be deemed to refer to and include the Covered Shares as well as all such share dividends and distributions and any securities into which or for which any or all of the Covered Shares may be changed or exchanged or which are received in such transaction. Each Holder agrees, while this Agreement is in effect, to notify the Company promptly in writing (including by e-mail) of the number of any additional Covered Shares acquired by such Holder, if any, after the date hereof.
4.3 Standstill Obligations. Each Holder covenants and agrees that, during the Restricted Period:
4.3.1 Such Holder shall not take, nor shall any of its Affiliates or representatives take any action intended to solicit, initiate or encourage, or any action to continue or engage in discussions or negotiations with, any Person (other than the Company and/or any of its Affiliates or representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, an Alternative Transaction in respect of the Company other than with the Acquiror and its Affiliates and representatives. If such Holder or any of its Affiliates or representatives receives any inquiry or proposal regarding an Alternative Transaction in respect of the Company, then such Holder shall promptly notify such Person indicating only that it is subject to an exclusivity agreement that prohibits it from considering such inquiry or proposal and, in such event, such Xxxxxx shall also promptly notify the
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Acquiror of such facts and circumstances. Such Holder shall, and shall cause its Affiliates and representatives to, immediately cease any and all existing discussions or negotiations with any Person (other than the Acquiror and/or any of its Affiliates or representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction in respect of the Company.
4.3.2 Such Holder shall not, nor shall such Holder act in concert with any Person to make, or in any manner participate in a “solicitation” of “proxies” or consents (as such terms are used in the proxy solicitation rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any person with respect to the voting of, any Covered Shares in connection with any vote or other action with respect to the voting matters, other than to recommend that stockholders of the Company vote in favor of approval of the Business Combination Agreement and other voting matters (and otherwise as expressly provided by Section 1).
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8.1.1 The Parties shall execute and deliver such additional documents and take such additional actions as the Parties reasonably may deem to be practical and necessary in order to consummate the transactions contemplated by this Agreement.
8.1.2 Each Holder acknowledges that the Company, the Acquiror and others will rely on the acknowledgements, understandings, agreements, representations and warranties contained in this Agreement.
8.1.3 Each of the Holders, the Company and the Acquiror is entitled to rely upon this Agreement and is irrevocably authorized to produce this Agreement or a copy hereof to any interested Party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
8.1.4 Each Holder shall pay all of its own expenses in connection with this Agreement and the transactions contemplated herein.
8.1.5 Each Holder shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement at the times and on the terms and conditions described herein.
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(i) If to the Company:
New Era Helium Corp.
0000 Xxxxx Xxxx Xxxxx,
Xxxxxxx, XX 00000
Attention: E. Will Gray II
Email: xxxx@xxxxxxxxxxxx.xxx
with a copy to: (which shall not constitute notice)
Xxxxxxxxx Xxxx Xxxxxxx Carmel LLP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Email: xxxxxxx@xxxx.xxx
(i) If to the Acquiror:
Xxxx XX Acquisition V Co.
000 Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Newport Beach, CA 92660
Attention: Xxxxx Xxxx
E-mail: xxxxx@xxxx.xxx
with a copy (which shall not constitute notice) to:
Loeb & Loeb LLP
000 Xxxx Xxxxxx, 00xx Floor
New York, NY 10154
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
E-mail: xxxxxxxxx@xxxx.xxx
(iii) If to any Holder, to such address or addresses set forth on Exhibit A attached hereto.
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8.6.1 Except as otherwise provided herein, this Agreement shall be binding upon, and inure to the benefit of the Parties and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns. This Agreement shall not confer rights or remedies upon any person other than the Parties and their respective successors and assigns.
8.6.2 Each Holder acknowledges and agrees that (a) this Agreement is being entered into in order to induce each of the Company and the Acquiror to execute and deliver the Business Combination Agreement and without the representations, warranties, covenants and agreements of such Holder contained herein, each of the Company and the Acquiror would not enter into the Business Combination Agreement, (b) each representation, warranty, covenant and agreement of such Holder contained herein is being made for the benefit of the Company and the Acquiror, and (c) each of the Company and the Acquiror may directly enforce (including by an action for specific performance, injunctive relief or other equitable relief) each of the covenants and agreements of such Holder under this Agreement.
8.7 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction.
8.8 Consent to Jurisdiction; Waiver of Jury Trial. The Parties hereby agree and consent to be subject to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, to the extent such court declines jurisdiction, first to any federal court, or second, to any state court, each located in Wilmington, Delaware, to the exclusion of other courts, and hereby waive the right to assert the lack of personal or subject matter jurisdiction or improper venue in connection with any such suit, action or other proceeding. In furtherance of the foregoing, each of the Parties (a) waives the defense of inconvenient forum, (b) agrees not to commence any suit, action or other proceeding arising out of this Agreement or any transactions contemplated hereby other than in any such court, and (c) agrees that a final judgment in any such suit, action or other proceeding shall be conclusive and may be enforced in other jurisdictions by suit or judgment or in any other manner provided by law. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by law or to commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any action brought pursuant to this Section 8.8. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Without limiting the foregoing, each Party hereby agrees that service of process upon such Party in any action or proceeding contemplated by this Section 8.8 shall be effective if notice is given in accordance with Section 8.2.
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8.11.1 The Parties agree that the Company and the Acquiror would suffer irreparable damage if this Agreement was not performed or was otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that the Company and the Acquiror shall be entitled to equitable relief, including in the form of an injunction or injunctions, to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, including each Holder’s obligations to vote its Covered Shares as provided in this Agreement, without proof of actual damages or the inadequacy of monetary damages as a remedy, in an appropriate court of competent jurisdiction as set forth in Section 8.8, this being in addition to any other remedy to which any Party is entitled at law or in equity, including money damages. The right to specific enforcement shall include the right of the Company or the Acquiror to cause any Holder to cause the transactions contemplated hereby to be consummated on the terms and subject to the conditions and limitations set forth in this Agreement. The Parties further agree (a) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (b) not to assert that a remedy of specific enforcement pursuant to this Section 8.11 is unenforceable, invalid, contrary to applicable law or inequitable for any reason and (c) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate. In connection with any action for which the Company or the Acquiror is being granted an award of money damages, each Holder agrees that such damages shall not be limited to an award of out-of-pocket fees and expenses related to the Business Combination Agreement.
8.11.2 The Parties acknowledge and agree that this Section 8.11 is an integral part of the transactions contemplated hereby and without that right, the Parties would not have entered into this Agreement.
8.11.3 In any dispute arising out of or related to this Agreement, or any other agreement, document, instrument or certificate contemplated hereby, or any transactions contemplated hereby or thereby, the applicable adjudicating body shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the dispute and the enforcement of its rights under this Agreement or any other agreement, document, instrument or certificate contemplated hereby and, if the adjudicating body determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the adjudicating body may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the adjudication and the enforcement of its rights under this Agreement or any other agreement, document, instrument or certificate contemplated hereby or thereby.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have each caused this Agreement to be duly executed as of the date first written above.
THE COMPANY: | ||
NEW ERA HELIUM CORP. | ||
By: | /s/ X. Xxxx Xxxx XX | |
Name: | X. Xxxx Xxxx XX | |
Title: | Chief Executive Officer | |
THE ACQUIROR: | ||
XXXX XX ACQUISITION V CO. | ||
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Co-Chief Executive Officer | |
THE HOLDERS: | ||
/s/ Xxxx X. Xxxxx | ||
Xxxx X. Xxxxx, individually | ||
/s/ Xxxxx X. Xxxxx | ||
Xxxxx X. Xxxxx, individually | ||
/s/ Xxxxxx X. Xxxxx | ||
Xxxxxx X. Xxxxx, individually | ||
Pecos Slope Holdings, LLC | ||
By: | /s/ X. Xxxx Xxxx XX | |
Name: | X. Xxxx Xxxx XX | |
Title: | Chief Executive Officer |
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