SUPPORT AGREEMENT
This
SUPPORT AGREEMENT (this
“Agreement”), dated as
of June 3, 2009, is entered into between Abazias Inc., a Delaware corporation
(Abazias-Delaware), a Delaware corporation (“Abazias”), and Xxxxx Xxxxxxxxx
(the “Securityholder”).
WHEREAS,
OmniReliant Holdings, Inc. ("OmniReliant "), OmniReliant Acquisition
Sub, Inc., a Nevada corporation, Abazias, Inc., a Delaware corporation
(“Abazias”), Abazias, Inc. a Nevada corporation (Abazias-Nevada) and a wholly
owned subsidiary of the Abazias, and Xxxxxxx.xxx, Inc., a Nevada corporation and
a wholly owned subsidiary of Abazias Nevada have entered into an Agreement and
Plan of Merger, dated as of April 29, 2009 (the “Merger
Agreement”).
WHEREAS,
in order to induce Abazias to enter into the Merger Agreement, Abazias has
requested that the Securityholder, and the Securityholder has agreed to, enter
into this Agreement with respect to all (i) common shares of the capital
stock of Abazias (“Company
Stock”) that the Securityholder beneficially owns as of the date of this
Agreement and (ii) all additional securities of Abazias (including all
shares of capital stock, options, warrants and other rights to acquire shares of
capital stock of Abazias) of which the Securityholder acquires beneficial
ownership during the period commencing on the date of this Agreement until its
termination pursuant to the terms hereof (such Company Stock and additional
securities and rights collectively, “Securities”).
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE 1
VOTING AGREEMENT; PROXY MATTERS
Section 1.01. Voting
Agreement. The Securityholder hereby agrees to vote or exercise its
right to consent with respect to all Securities that the Securityholder is
entitled to vote at the time of any vote in favor of approving and adopting the
Merger Agreement, the Merger and the other transactions contemplated by the
Merger Agreement at any meeting of the stockholders of Abazias, and at any
adjournment or postponement thereof, at which the Merger Agreement, the Merger
and/or the other transactions contemplated by the Merger Agreement (or any
amended version thereof), are submitted for the consideration and vote of the
stockholders of Abazias in accordance with the Merger Agreement. The
Securityholder hereby agrees that, for so long as this Agreement is in effect,
it will not vote any Securities in favor of, or consent to, and will vote the
Securities it is entitled to vote against and not consent to, the approval of
any (i) Acquisition Proposal, (ii) reorganization, recapitalization,
liquidation or winding-up of Abazias or any other extraordinary transaction
involving Abazias or (iii) corporate action the consummation of which would
frustrate the purposes, or prevent or delay the consummation of, the
transactions contemplated by the Merger Agreement, in each case other than
pursuant to the transactions contemplated by the Merger Agreement. In addition,
the Securityholder agrees not to take, or commit or agree to take, any action
inconsistent with the foregoing.
Section 1.02. Proxy Solicitations.
The Securityholder hereby agrees that it will not, and will not permit
any entity under Securityholder’s control or any of its or their respective
officers, directors, employees, agents or other representatives to,
(i) solicit proxies or become a “participant” in a “solicitation”, as such
terms are defined in Regulation 14A under the Securities and Exchange Act of
1934, as amended (the “Exchange
Act”), in opposition to or competition with the consummation of the
Merger or otherwise encourage or assist any party in taking or planning any
action which would reasonably be expected to compete with, impede, interfere
with or attempt to discourage the consummation of the Merger or inhibit the
timely consummation of the Merger in accordance with the terms of the Merger
Agreement, (ii) directly or indirectly encourage, initiate or cooperate in
a stockholders’ vote or action by consent of Abazias’ stockholders in opposition
to or in competition with the consummation of the Merger, (iii) become a
member of a “group” (as such term is used in Rule 13d-5 under the Exchange Act)
with respect to any voting securities of Abazias for the purpose of opposing or
competing with the consummation of the Merger or (iv) unless required by
Applicable Law, make any press release, public announcement or other
non-confidential communication with respect to the business or affairs of
Abazias or Abazias, including this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby, without the prior written consent
of Abazias. In addition, the Securityholder agrees not to take, or commit or
agree to take, any action inconsistent with the foregoing.
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Section 1.03.
Proxy
Revocation. The Securityholder hereby revokes any and all previous
proxies granted with respect to the Securities.
ARTICLE 2
REPRESENTATIONS
AND WARRANTIES OF THE SECURITYHOLDER
The
Securityholder represents and warrants to Abazias:
Section 2.01. Authorization. The
Securityholder has duly executed and delivered this Agreement, and the
execution, delivery and performance by the Securityholder of this Agreement and
the consummation by the Securityholder of the transactions contemplated hereby
are within the powers and legal capacity of the Securityholder and have been
duly authorized by all necessary action. Assuming accuracy of the
representation set forth in Section 3.01, this Agreement is a valid and
binding agreement of the Securityholder, enforceable against the Securityholder
in accordance with its terms, except to the extent enforceability may be subject
to (i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting or relating to creditors’ rights
generally and (ii) general equitable principles (whether considered in a
proceeding in equity or at law).
Section 2.02. Non-Contravention. The
execution, delivery and performance by the Securityholder of this Agreement and
the consummation of the transactions contemplated hereby do not and will not
(i) violate any law, rule, regulation, judgment, injunction, order or
decree applicable to the Securityholder, (ii) require any consent or other
action by any Person under, constitute a default under, or give rise to any
right of termination, cancellation or acceleration or to a loss of any benefit
to which the Securityholder is entitled in respect of the Securities under any
provision of any agreement or other instrument binding on the Securityholder or
(iii) result in the imposition of any Lien on any of the Securities (other
than the Lien created hereunder).
Section 2.03. Ownership of
Securities. The Securityholder is the record or beneficial owner of
the Securities issued and outstanding as of the date hereof, free and clear of
any Lien and any other limitation or restriction (including any restriction on
the right to vote or otherwise dispose of the Securities). None of the
Securities is subject to any voting trust or other agreement or arrangement with
respect to the voting of the Securities.
Section 2.04. Total
Securities. Except for the Securities set forth on the signature
page hereto, the Securityholder does not beneficially own any (i) shares of
capital stock or voting securities of Abazias, (ii) securities of Abazias
convertible into or exchangeable for shares of capital stock or voting
securities of Abazias or (iii) options or other rights to acquire from
Abazias any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of Abazias.
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ARTICLE 3
REPRESENTATIONS
AND WARRANTIES OF PARENT
Abazias
represents and warrants to the Securityholder:
Section 3.01. Authorization. Abazias
has duly executed and delivered the Merger Agreement and this Agreement, and the
execution, delivery and performance by Abazias of the Merger Agreement and this
Agreement and the consummation by Abazias of the transactions contemplated
thereby and hereby are within the corporate powers of Abazias and have been duly
authorized by all necessary corporate action. Each of the Merger Agreement
and this Agreement constitutes a valid and binding agreement of Abazias,
enforceable against Abazias in accordance with its terms, except to the extent
enforceability may be subject to (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting or
relating to creditors’ rights generally and (ii) general equitable
principles (whether considered in a proceeding in equity or at
law).
ARTICLE 4
COVENANTS
OF THE SECURITYHOLDER
The
Securityholder hereby covenants and agrees that so long as this Agreement is in
effect:
Section 4.01. No Proxies for or
Encumbrances on Securities. The Securityholder shall not, without
the prior written consent of Abazias, directly or indirectly, (i) grant any
proxies or enter into any voting trust or other agreement or arrangement with
respect to the voting of any of the Securities or (ii) sell, assign,
transfer, encumber or otherwise dispose of, or enter into any contract, option
or other arrangement or understanding with respect to the direct or indirect
sale, assignment, transfer, encumbrance or other disposition of, any Securities
during the term of this Agreement (other than the deemed disposition of Company
Options upon exercise thereof and the sale of Company Stock received upon
exercise of Company Options). The Securityholder shall not seek or solicit any
such sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or understanding and agrees to notify
Abazias promptly, and to provide all details requested by Abazias, if the
Securityholder shall be approached or solicited, directly or indirectly, by any
Person with respect to any of the foregoing. Notwithstanding the foregoing,
Section 4.01 shall not prohibit a transfer of Securities by the
Securityholder (i) to any member of its immediate family, or to a trust for
the benefit of the Securityholder or any member of its immediate family,
(ii) upon the death of the Securityholder, or (iii) if the
Securityholder is a partnership or limited liability company, to one or more
partners or members of the Securityholder or to an affiliated corporation under
common control with the Securityholder; provided, however, that a transfer
referred to in this sentence shall be permitted only if, as a precondition to
such transfer, the transferee agrees in a writing, reasonably satisfactory in
form and substance to Abazias, to be bound by the terms of this
Agreement.
Section 4.02. Other Offers. The
Securityholder shall not directly or indirectly take any action that is
prohibited under the Merger Agreement with respect to actions to be taken by
Abazias and its Representatives.
Section 4.03.
Waiver of Certain
Actions. The Securityholder 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 Abazias,
Merger Subsidiary, Abazias or any of their respective successors relating to the
negotiation, execution or delivery of this Agreement or the Merger Agreement or
the consummation of the Merger, including any claim (i) challenging the
validity of or seeking to enjoin the operation of any provision of this
Agreement or (ii) alleging a breach of any fiduciary duty of the Board of
Directors of Abazias in connection with the Merger Agreement or the transactions
contemplated thereby.
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ARTICLE 5
MISCELLANEOUS
Section 5.01. Further
Assurances. Abazias and the Securityholder will each execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use its best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
Applicable Law, to consummate and make effective the transactions contemplated
by this Agreement.
Section 5.02. Amendments;
Termination. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed, in
the case of an amendment, by each party to this Agreement or in the case of a
waiver, by the party against whom the waiver is to be effective. This
Agreement shall terminate upon the earlier to occur of (i) the Effective
Time of the Merger and (ii) the termination of the Merger Agreement, and
all rights or obligations of the parties under this Agreement shall immediately
terminate, except as provided in Section 5.13 hereof.
Section 5.03. Expenses. All
costs and expenses incurred in connection with this Agreement shall be paid by
the party incurring such cost or expense.
Section 5.04. Successors and Assigns;
Obligations of Securityholder. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto.
Section 5.05. Governing Law; Waiver of Jury
Trial. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT OR THE SECURITYHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
Section 5.06.
Entire Agreement. This
Agreement, together with the Merger Agreement and other documents incorporated
therein, appended thereto or contemplated thereby, constitutes the complete,
final and exclusive statement of the agreement between the parties pertaining to
the subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the
parties.
Section 5.07. Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective as between Abazias, on the one hand, and the
Securityholder, on the other hand, when each such party shall have received
counterparts hereof signed by each such other party.
Section 5.08. Severability. If
any term, provision or covenant of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions and covenants of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
Section 5.09. Specific
Performance. The parties hereto agree that Abazias would suffer
irreparable damage in the event any provision of this Agreement is not performed
in accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof in addition to any other remedy to
which they are entitled at law or in equity.
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Section 5.10. Capitalized
Terms. Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Merger Agreement.
Section 5.11
Certain Disclosures.
Securityholder hereby authorizes Abazias and Abazias to publish and disclose in
any proxy statement or prospectus relating to the Merger Agreement and the
Merger and in the registration statement relating to the shares of preferred
stock of OmniReliant to be received by Abazias Stockholders in the Merger
(including any and all documents and schedules filed with the SEC relating
thereto or in connection therewith), its identity and ownership of Securities
and the nature of its commitments, arrangements
and
understandings pursuant to this Agreement and any other information that Abazias
reasonably determines to be necessary or desirable in any press release or any
other disclosure document in connection with the Merger or any other
transactions contemplated by the Merger Agreement.
Section 5.12
Notices. All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice): (i) if to Abazias, to the appropriate address for notice thereto
set forth in the Merger Agreement and (ii) if to the Securityholder, to the
appropriate address set forth underneath the Securityholder’s name on the
signature page hereto.
Section 5.13. Securityholder
Capacity. The Securityholder signs solely in the Securityholder’s
capacity as the record holder or beneficial owner of the Securities and nothing
in this Agreement shall limit or affect any actions taken by the Securityholder
in the Securityholder’s capacity as an officer or director of Abazias. This
Section 5.13 shall survive termination of this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
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Abazias,
Inc., a Delaware corporation
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By: /s/ Xxxxx
Xxxx
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Name:
Xxxxx Xxxx
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Title: CFO
and Director
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/s/
Xxxxx
Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
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Number
of shares of Company Stock:
1,125,000
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