STOCKHOLDER SUPPORT AGREEMENT
Exhibit 10.24
STOCKHOLDER SUPPORT AGREEMENT, dated as of May 29, 2019 (this “Agreement”), by and among CONSTELLATION ALPHA CAPITAL CORP., a company incorporated in the British Virgin Islands (“Constellation”), and certain of the stockholders of DERMTECH, INC., a Delaware corporation (the “Company”), whose names appear on the signature pages of this Agreement (each, a “Stockholder” and, collectively, the “Stockholders”).
WHEREAS, Constellation, DT Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Constellation (“Merger Sub”), and the Company propose to enter into, simultaneously herewith, an Agreement and Plan of Merger (the “Merger Agreement”; terms used but not defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement), a copy of which has been made available to each Stockholder, which provides, among other things, that, upon the terms and subject to the conditions thereof, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Constellation; and
WHEREAS, as of the date hereof, each Stockholder owns of record the number of shares Company Common Stock and Company Preferred Stock as set forth opposite such Stockholder’s name on Exhibit A hereto (all such shares of Company Common Stock and Company Preferred Stock and any shares of Company Common Stock and Company Preferred Stock of which ownership of record or the power to vote is hereafter acquired by the Stockholders prior to the termination of this Agreement being referred to herein as the “Shares”).
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agrees as follows:
1. Agreement to Vote. Each Stockholder, by this Agreement, with respect to its Shares, severally and not jointly, hereby agrees (and agrees to execute such documents or certificates evidencing such agreement as Constellation may reasonably request in connection therewith) to vote, at any meeting of the stockholders of the Company, and in any action by written consent of the stockholders of the Company, all of such Stockholder’s Shares (a) in favor of the approval and adoption of the Merger Agreement and approval of the Merger and all other transactions contemplated by the Merger Agreement and this Agreement, (b) against any action, agreement or transaction (other than the Merger Agreement or the transactions contemplated thereby) or proposal that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or that would reasonably be expected to result in the failure of the Merger and the other transactions contemplated by the Merger Agreement from being consummated, and (c) in favor of any other matter reasonably necessary to the consummation of the transactions contemplated by the Merger Agreement and considered and voted upon by the stockholders of the Company. Each Stockholder acknowledges receipt and review of a copy of the Merger Agreement.
2. Transfer of Shares. Each Stockholder severally and not jointly, agrees that it shall not, directly or indirectly, (a) sell, assign, transfer (including by operation of law), lien, pledge, dispose of or otherwise encumber any of the Shares or otherwise agree to do any of the foregoing (unless the transferee agrees to be bound by this Agreement), (b) deposit any Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (c) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other disposition of any Shares (unless the transferee agrees to be bound by this Agreement), or (d) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect or have the effect of preventing or disabling the Stockholder from performing its obligations hereunder.
3. No Solicitation of Transactions. Each of the Stockholders severally and not jointly, agrees not to directly or indirectly, through any officer, director, representative, agent or otherwise, (a) solicit, initiate or encourage (including by furnishing information) the submission of, or participate in any discussions or negotiations regarding, any transaction in violation of the Merger Agreement or (b) participate in any discussions or negotiations regarding, or furnish to any person, any information with respect to, or otherwise cooperate in any way with respect to, or assist or participate in, facilitate or encourage, any unsolicited proposal that constitutes, or may reasonably be
expected to lead to, a Superior Proposal in violation of the Merger Agreement. Each Stockholder shall, and shall direct or cause its representatives and agents to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to any transaction involving the Company (other than the transactions contemplated by the Merger Agreement) to the extent required by the Merger Agreement.
4. Representations and Warranties. Each Stockholder severally and not jointly, represents and warrants to Constellation as follows:
(a) The execution, delivery and performance by such Stockholder of this Agreement and the consummation by such Stockholder of the transactions contemplated hereby do not and will not (i) conflict with or violate any United States or non-United States statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order applicable to such Stockholder, (ii) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any person or entity, (iii) result in the creation of any encumbrance on any Shares or (iv) conflict with or result in a breach of or constitute a default under any provision of such Stockholder’s governing documents.
(b) Such Stockholder owns exclusively, beneficially and of record and has good, valid and marketable title to the Shares set forth opposite the Stockholder’s name on Exhibit A free and clear of any security interest, lien, claim, pledge, proxy, option, right of first refusal, agreement, voting restriction, limitation on disposition, charge, adverse claim of ownership or use or other encumbrance of any kind, other than pursuant to (i) this Agreement and (ii) applicable securities laws, and has the sole power (as currently in effect) to vote and full right, power and authority to sell, transfer and deliver such Shares, and such Stockholder does not own, directly or indirectly, any other Shares.
(c) Such Stockholder has the power, authority and capacity to execute, deliver and perform this Agreement and that this Agreement has been duly authorized, executed and delivered by such Stockholder.
5. Termination. This Agreement and the obligations of the Stockholders under this Agreement shall automatically terminate upon the earliest of (a) the Effective Time; and (b) the termination of the Merger Agreement in accordance with its terms. Nothing in this Section 5 shall relieve any party of liability for any breach of this Agreement occurring prior to termination.
6. Miscellaneous.
(a) Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the transactions contemplated hereby are consummated.
(b) All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy or e-mail or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses or e-mail addresses (or at such other address or email address for a party as shall be specified in a notice given in accordance with this Section 6(b)):
If to Constellation, to it at:
Constellation Alpha Capital Corp.
0000 Xxxxx Xxxxxxx
Xxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
Email: xxx@xxxxxxxxxxxxxxxxxx.xxx
with a copy to:
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Xxxxxxxxx Traurig, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxx
Email: Xxxxx@xxxxx.xxx
If to a Stockholder, to the address or email address set forth for Stockholder on the signature page hereof.
(c) If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(d) This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise), except that Constellation may assign all or any of its rights and obligations hereunder to any affiliate of Constellation, provided that no such assignment shall relieve the assigning party of its obligations hereunder if such assignee does not perform such obligations.
(e) This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. No Stockholder shall be liable for the breach by any other Stockholder of this Agreement.
(f) The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was 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 at law or in equity.
(g) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court. The parties hereto hereby (i) submit to the exclusive jurisdiction of the Delaware Chancery Court for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto, and (ii) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereunder may not be enforced in or by any of the above-named courts.
(h) This Agreement may be executed and delivered (including by facsimile or portable document format (pdf) transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
(i) At the request of Constellation, in the case of any Stockholder, or at the request of the Stockholders, in the case of Constellation, and without further consideration, each party shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take all such further action as may be reasonably necessary or desirable to consummate the transactions contemplated by this Agreement.
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(j) This Agreement shall not be effective or binding upon any Stockholder until after such time as the Merger Agreement is executed and delivered by the Company, Constellation and Merger Sub.
(k) Each of the parties hereto hereby waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement. Each of the parties hereto (i) certifies that 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 that foregoing waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and certifications in this Paragraph (k).
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Chief Executive Officer |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| /s/ Xxxxxx Xxxxxxxxxx |
| Xxxxxx Xxxxxxxxxx |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXXX XXXXXXXXXX TRUST DATED 5-14-83 | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxxx | |
| Title: | Trustor/Trustee |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXXX XXXXXXXXXX, TRUSTEE FBO XXXXX XXXXXXXXXX, XXXXXXXXXX CHILDREN’S TRUST DATED 3-15-89 | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxxx | |
| Title: | Trustee |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXXX XXXXXXXXXX, TRUSTEE FBO XXXXXXX XXXXXXXXXX, XXXXXXXXXX CHILDREN’S TRUST DATED 3-15-89 | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxxx | |
| Title: | Trustee |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| /s/ Xxxx Xxxxxx |
| Xxxx Xxxxxx |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXX AND XXXX XXXXXX FAMILY TRUST 6-2-80 | ||
| By: | /s/ Xxxxx Xxxxxx | |
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx and Xxxxx Xxxxxx | |
| Title: | Trustees |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXXX INVESTMENT COMPANY LLC | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | Managing Member |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| MIRA MESA SHOPPING CENTER LLC | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxxx | |
| Title: | Managing Member |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| MESA SHOPPING CENTER-EAST, LLC | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxxx | |
| Title: | Managing Member |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| MIRA MESA SHOPPING CENTER-WEST, LLC | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxxx | |
| Title: | Managing Member |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXXXX XXXXXXXXXX TRUST DTD 7-9-83 | ||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxxxx | |
| Title: | Trustee |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXXXX DERMTECH INVESTMENT LLC | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Managing Director |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXXXX DERMTECH INVESTMENT II LLC | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Managing Director |
Signature page to Stockholder Support Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| XXXXXXX DERMTECH INVESTMENT III LLC | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Managing Director |
Signature page to Stockholder Support Agreement
EXHIBIT A
LIST OF STOCKHOLDERS
| Name of Stockholder |
Number of Shares of Company Owned | |
| Xxxxxx Xxxxxxxxxx | Common: 75,053 | |
| Xxxxxx Xxxxxxxxxx Trust Dated 5-14-83 | Common: 35,269 Series C Preferred: 36,102 | |
| Xxxxxx Xxxxxxxxxx, Trustee FBO Xxxxx Xxxxxxxxxx, Xxxxxxxxxx Children’s Trust Dated 3-15-89 | Common: 23,548 | |
| Xxxxxx Xxxxxxxxxx, Trustee FBO Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxx Children’s Trust Dated 3-15-89 | Common: 23,548 | |
| Xxxx Xxxxxx | Common: 848,518 | |
| Xxxxx and Xxxx Xxxxxx Family Trust 6-2-80 | Series C Preferred: 1,083,033 | |
| Xxxxxx Investment Company LLC | Common: 1,079,785 | |
| Mira Mesa Shopping Center LLC | Series C Preferred: 36,101 | |
| Mesa Shopping Center-East, LLC | Series C Preferred: 36,101 | |
| Mira Mesa Shopping Center-West, LLC | Series C Preferred: 36,101 | |
| Xxxxxxx DermTech Investment LLC | Common: 515,965 | |
| Xxxxxxx DermTech Investment II LLC | Common: 537,188 | |
| Xxxxxxx DermTech Investment III LLC | Series C Preferred: 709,987 | |
| Xxxxxxx Xxxxxxxxxx Trust DTD 7-9-83 | Series C Preferred: 36,101 | |
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