SPONSOR SUPPORT AGREEMENT
Exhibit 10.2
Execution Version
This SPONSOR SUPPORT AGREEMENT, dated as of September 8, 2021 (this “Agreement”), is entered into by and among Novus Capital Corporation II, a Delaware corporation (“Novus”), Energy Vault, Inc., a Delaware corporation (the “Company”), and certain Persons whose names appear on the signature pages of this Agreement (each, a “Stockholder” and, collectively, the “Stockholders”), in each case, solely in such Stockholder’s capacity as a Stockholder (and not in any other capacity).
WHEREAS, Novus, NCCII Merger Corp., a Delaware corporation and wholly owned subsidiary of Novus (“Merger Sub”), and the Company propose to enter into, simultaneously herewith, a business combination agreement a copy of which has been made available to the Stockholders (the “BCA”; terms used but not defined in this Agreement shall have the meanings ascribed to them in the BCA), 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 Novus; and
WHEREAS, as of the date hereof, each Stockholder owns of record and/or beneficially the number of shares of Novus Common Stock as set forth opposite such Stockholder’s name on Exhibit A hereto (all such shares of Novus Common Stock and any shares of Novus Common Stock of which ownership of record or the power to vote or dispose is hereafter acquired by the Stockholders prior to the termination of this Agreement being referred to herein as the “Shares”; provided however with respect to NCCII Co-Invest LLC, the term “Shares” shall mean only the shares of Novus Class B Common Stock held by such holder.)
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 agree as follows:
1. Agreement to Vote. Each Stockholder, by this Agreement, with respect to his, her or its Shares, severally and not jointly, (unless this Agreement shall have been terminated in accordance with Section 9) hereby agrees to vote (or cause to be voted), in person or by proxy, at any meeting of the stockholders of Novus, all of such Stockholder’s Shares held by such Stockholder at such time (a) in favor of (1) the approval and adoption of the BCA and approval of the Merger and all other transactions contemplated by the BCA, (2) the approval of the issuance of Novus Common Stock as contemplated by the BCA and the Subscription Agreements, (3) the approval and adoption of the second amended and restated Certificate of Incorporation of the Surviving Corporation as set forth on Exhibit E of the BCA, (4) the approval and adoption of an equity incentive plan, as set forth in Section 7.01 and Section 7.07 of the BCA, and (5) any other action, proposal that the Company and Novus deem necessary to effect the Transactions (collectively, the “Novus Proposals”) and (b) against any action, agreement or transaction or proposal that would reasonably be expected to result in the failure of the Transactions from being consummated. Each Stockholder acknowledges that a copy of the BCA has been made available to such Stockholder.
2. Redemption. Unless this Agreement shall have been terminated in accordance with Section 9, each Stockholder, severally and not jointly, hereby agrees that such Stockholder shall waive any and all Redemption Rights with respect to the Novus Proposals and shall not elect to cause Novus to redeem any Shares beneficially owned or owned of record by such Stockholder in connection with the Novus Proposals. Each Stockholder hereby waives any and all right, title, interest or claim of any kind in or to any distribution of the Trust Account with respect to the shares of Novus Common Stock owned by the Stockholder.
3. Transfer of Shares. Unless this Agreement shall have been terminated in accordance with Section 9, each Stockholder, severally and not jointly, agrees that it shall not (a) sell, assign, transfer (including by operation of law), pledge, dispose of, permit to exist any material lien with respect to, or otherwise encumber any of the Shares or otherwise agree to do any of the foregoing, except to another stockholder of Novus that is a party to this Agreement and bound by the terms and obligations hereof, (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 or (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, except as permitted in clause (a) of this Section 3; provided, that the foregoing shall not prohibit the transfer of the Shares to (i) if Stockholder is an individual (A) to any affiliate of such Stockholder, member of such Stockholder’s immediate family, or to a trust for the direct or indirect benefit of Stockholder or any member of Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, (B) as a bona fide gift to any charitable organization or (C) by will, other testamentary document or under the laws of intestacy upon the death of Stockholder; or (ii) if Stockholder is an entity, any equityholder, partner, member, or affiliate of Stockholder, or any investment fund or other entity controlling, controlled by, managed by or under common control with the Stockholder or affiliates of the Stockholder, but only if, in the case of clause (i) and (ii), such transferee shall execute this Agreement or a joinder agreeing to become a party to this Agreement.
4. Exclusivity. Unless this Agreement shall have been terminated in accordance with Section 9, each Stockholder, severally and not jointly, agrees not to, and shall cause its Representatives not to, directly or indirectly, solicit, initiate, continue, or engage in any discussions or negotiations with, or enter into any agreement with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or commence due diligence with respect to, or otherwise cooperate in any way, with any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning, relating to, or which is intended or is reasonably likely to give rise to or result in, a Novus Business Combination Proposal, as such term is defined in the BCA. Each Stockholder shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Novus Business Combination Proposal (other than the transactions contemplated by the BCA) to the extent required by the BCA.
5. Entry into Closing Agreements. Each Stockholder is delivering, simultaneously herewith, a Stockholder Rights Agreement with Novus, the Company and the stockholders of the Company. Unless this Agreement shall have been terminated in accordance with Section 9, each Stockholder, severally and not jointly, agrees that such Stockholder shall execute and deliver to Novus a copy of each of the Sponsor Restricted Stock Agreement and the Amended and Restated Registration Rights Agreement (each in substantially the form attached to the BCA) at Closing.
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6. Loans and Advances. Each Stockholder waives any rights under any contract or arrangement with Novus to convert all or any portion of any amounts loaned or advanced to Novus or its subsidiaries at any time prior to or at the Closing into warrants to purchase shares of Novus Common Stock.
7. Representations and Warranties. Each Stockholder, severally and not jointly, represents and warrants to Novus 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 Governmental Authority, (iii) result in the creation of any encumbrance on any Shares (other than under this Agreement, the BCA and the agreements contemplated by the BCA) or (iv) conflict with or result in a breach of or constitute a default under any provision of such Stockholder’s governing documents or any agreement (including any voting agreement or letter agreement with Novus) to which such Stockholder is a party.
(b) As of the date of this Agreement, such Stockholder owns exclusively of record and has good and valid title to, and/or owns beneficially, the Shares set forth opposite the Stockholder’s name on Exhibit A free and clear of any Liens of any kind, other than pursuant to (i) this Agreement, (ii) applicable securities laws, (iii) the Novus Organizational Documents and (iv) the Insider Letter Agreement, as defined below, to vote in accordance with this Agreement and 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 this Agreement has been duly authorized, executed and delivered by such Stockholder.
(d) As of the date hereof, there are no outstanding loans or advances from such Stockholder or their respective Affiliates to Novus or its subsidiaries.
8. Restricted Share Legend.
(a) Each Stockholder agrees that the Shares shall be subject to the restrictions set forth herein, including as set forth in Section 3.
(b) Each Stockholder agrees that, in connection with the Transactions, the Shares, the Restricted Shares (as defined in the Sponsor Restricted Stock Agreement) and certain shares of the Novus Common Stock subject to lock-up restrictions pursuant to the Lock-Up Agreement (the “Lock-Up Shares” and together with the Shares and the Restricted Shares, the “Restricted Sponsor Shares”) shall, concurrently with the Closing, have the Legend (as defined below) affixed to them as set forth in this Section 8. The restrictions set forth pursuant to Section 3 above, the Sponsor Restricted Stock Agreement, and the Lock-Up Agreement are collectively referred to as the “Transfer Restrictions”). Each Stockholder acknowledges and agrees that the Restricted Sponsor Shares shall be subject to the Transfer Restrictions until such Transfer Restrictions expire in accordance with the terms of this Agreement, the Lock-Up Agreement, and/or the Sponsor Restricted Stock Agreement, as applicable, respectively.
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(c) Legends. The books and records of Novus evidencing the Restricted Sponsor Shares shall be stamped or otherwise imprinted with a legend (the “Legend”) in substantially the following form:
THE SECURITIES EVIDENCED HEREIN ARE SUBJECT TO RESTRICTIONS ON TRANSFER, AND CERTAIN OTHER AGREEMENTS, SET FORTH IN THE SPONSOR RESTRICTED STOCK AGREEMENT, DATED AS OF [●], 2021, THE LOCK-UP AGREEMENT, DATED AS OF [●], 2021 AND THE SPONSOR SUPPORT AGREEMENT DATED AS OF SEPTEMBER 8, 2021, BY AND AMONG NOVUS CAPITAL CORPORATION II AND THE OTHER PARTIES THERETO.
(d) Procedures Applicable to the Restricted Sponsor Shares. As soon as practicable, and in any event within two (2) business days after the removal of the Transfer Restrictions in accordance with this Agreement, the Lock-Up Agreement and the Sponsor Restricted Stock Agreement, respectively, Novus shall remove, or cause to be removed, the Legend from the books and records of Novus evidencing the Restricted Sponsor Shares with respect to which such Transfer Restrictions have been removed and such shares shall no longer be subject to any of the terms of this Section 8.
9. Termination. This Agreement and the obligations of the Stockholders under this Agreement shall automatically terminate upon the earliest of (a) the Effective Time; (b) the termination of the BCA in accordance with its terms; and (c) the effective date of a written agreement of the parties hereto terminating this Agreement. Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided that nothing in this Section 9 shall relieve any party of liability for any willful material breach of this Agreement occurring prior to termination. The representations and warranties contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the Closing or the termination of this Agreement.
10. 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 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 10(b)):
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If to Novus, to it at:
Novus Capital Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX
4626
Attention: Xxxxxx X. Xxxxxx, Chairman and Xxxxx X. Xxxxxxx, President & CEO
Email: xxxxxxxxxxxxx@xxxxx.xxx, xxxxxxxxxxxxx@xxxxx.xxx
with a copy to:
Blank Rome LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention:
Xxxxxx X. Xxxxxxx and Xxxxxxxx Xxxxxxxxxx
Email: xxxxxxxx@xxxxxxxxx.xxx; xxxxxxxxxxx@xxxxxxxxx.xxx
if to the Company:
Energy Vault, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, CEO
Email: xxx@xxxxxxxxxxx.xxx
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx,
LLP
Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Email: xxxxxxx@xxxxxx.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.
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(d) This Agreement, together with the BCA, the Sponsor Restricted Stock Agreement and the Lock-Up Agreement, contains the entire agreement of the parties hereto 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, including the Letter Agreement (the “Insider Letter Agreement”) entered into in February 2021, between the Stockholders and Novus and delivered to Novus and the Representative, as defined therein, to the extent any of the provisions hereof are inconsistent therewith, it being acknowledged that the Insider Letter Agreement will terminate by its terms upon the Effective Date and shall continue in full force and effect, unamended hereby upon the termination of this Agreement pursuant to Section 9 (b) or (c) hereof. Any term of this Agreement may be amended, modified or terminated and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of (i) the Company, (ii) Novus and (iii) the holders of a majority of the Shares. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise), by any party without the prior express written consent of Novus and the Company.
(e) Except as set forth below, this Agreement shall be binding upon and inure solely to the benefit of each party hereto (and Novus’ permitted assigns), 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. The covenants and obligations of each Stockholder set forth in this Agreement shall be construed as independent of any other contract between such Stockholder, on the one hand, and the Company or Novus, on the other hand. The existence of any claim or cause of action by any such Stockholder against the Company or Novus shall not constitute a defense to the enforcement of any of such covenants or obligations against such Stockholder. Nothing in this Agreement shall limit any of the rights or remedies of Novus or the Company under the BCA, or any of the rights or remedies of Novus or the Company or any of the obligations such Stockholder under any agreement between such Stockholder or the Company or any certificate or instrument executed by such Stockholder in favor of Novus or the Company; and nothing in the BCA or in any other such agreement, certificate or instrument, shall limit any of the rights or remedies of the Company or any of the obligations of such Stockholder under 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 without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each party hereto hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.
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(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 the 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 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 Novus or the Company, in the case of any Stockholder, at the request of Novus, in the case of the Company, or at the request of the Company, in the case of Novus, and without further consideration, each party shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(j) This Agreement shall not be effective or binding upon any Stockholder until such time as the BCA is executed and delivered by the Company, Novus 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 Section 10(k)(i).
(l) Stockholder signs this Agreement solely in Stockholder’s capacity as a holder of Shares of Novus, and not in Stockholder’s capacity as a director, officer or employee of Novus or in Stockholder’s capacity as a trustee or fiduciary of any employee benefit plan or trust. Notwithstanding anything herein to the contrary, nothing herein shall in any way restrict a director or officer of Novus in the exercise of his or her fiduciary duties as a director or officer of Novus or in his or her capacity as a trustee or fiduciary of any employee benefit plan or trust or prevent or be construed to create any obligation on the part of any director or officer of Novus or any trustee or fiduciary of any employee benefit plan or trust from taking any action in his or her capacity as such director, officer, trustee or fiduciary, provided that nothing contained in this Section 10(l) shall obviate any of the Stockholder’s obligations under Sections 1, 2, 3, 5 and 6 of this Agreement.
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(m) Interpretation. The words “hereof,” “herein,” “hereinafter,” “hereunder,” and “hereto” and words of similar import refer to this Agreement as a whole and not to any particular section or subsection of this Agreement and reference to a particular section of this Agreement will include all subsections thereof, unless, in each case, the context otherwise requires. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context shall require, any pronoun shall include the corresponding masculine, feminine and neuter forms. When a reference is made in this Agreement to an Exhibit or Schedule, such reference shall be to an Exhibit or Schedule to this Agreement unless otherwise indicated. When a reference is made in this Agreement to Sections or subsections, such reference shall be to a Section or subsection of this Agreement. Unless otherwise indicated the words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” Reference to the subsidiaries of an entity shall be deemed to include all direct and indirect subsidiaries of such entity. The word “or” shall be disjunctive but not exclusive. References to a particular statute or regulation including all rules and regulations thereunder and any predecessor or successor statute, rule, or regulation, in each case as amended or otherwise modified from time to time. All references to currency amounts in this Agreement shall mean United States dollars.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| NOVUS CAPITAL CORPORATION II | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | Chief Executive Officer | |
[Signature Page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| ENERGY VAULT, INC. | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | Chief Executive Officer | |
[Signature Page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| STOCKHOLDERS: | ||
| XXXXXX X. XXXXXXXX | ||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| XXXXXXX XXXXXXX AND XXXX XXXXX, TENANTS IN COMMON | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Xxxxxxx Xxxxxxx | ||
| By: | /s/ Xxxx Xxxxx | |
| Xxxx Xxxxx | ||
| V DONARGO LLC | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | ||
| Title: CFO | ||
| NCCII CO-INVEST LLC | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | ||
| Title: Authorized Person | ||
| XXXXX X XXXXXXX AND XXXXXXXX X XXXXXXX FAMILY TRUST DATED SEPT 4, 2019, AND ANY AMENDMENTS THERETO | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | ||
| Title: CEO | ||
[Signature Page to Sponsor Support Agreement]
| NEW FRONTIER LLC | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Manager | ||
| XXXXXX X. XXXXXX | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| XXXXXX XXXXXX | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| XXXXX XXXXXX | ||
| By: | /s/ Xxxxx Xxxxxx | |
| XXX XXXXXX | ||
| By: | /s/ Xxx Xxxxxx | |
| KNC I LLC | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: President of KRL Ltd, GP of Xxxxx Realty, LP | ||
| KNC II LLC | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: President of KRL Ltd, GP of Xxxxx Realty, LP | ||
[Signature Page to Sponsor Support Agreement]
| NOVUS CAPITAL ASSOCIATES, LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | ||
| Title: CEO | ||
| CLIFF VENTURES LLC | ||
| By: | /s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx | ||
| Title: Authorized Signer | ||
[Signature Page to Sponsor Support Agreement]
