Twin Vee PowerCats (VEEE) to merge with USFM, spin marine business into CVR trust
Rhea-AI Filing Summary
Twin Vee PowerCats Co. agreed to merge with USFM Corporation, under which a USFM subsidiary will merge into Twin Vee and Twin Vee will become a wholly owned subsidiary of USFM. Each outstanding Twin Vee common share (other than excluded and dissenting shares) will convert into a pro rata portion of USFM common stock that in total represents 10% of USFM’s fully diluted shares immediately after closing.
Before closing, Twin Vee will transfer all assets and liabilities of its recreational marine business into a wholly owned subsidiary and then into a Delaware trust, distributing non‑transferable contingent value rights (CVRs) in that trust to existing stockholders. The trust will operate the marine business privately, and any net proceeds from operations or asset sales will accrue to current Twin Vee stockholders via the CVRs.
The merger is subject to stockholder approvals at both companies, effectiveness of a Form S‑4 registration statement, listing approval for the USFM shares issued to Twin Vee holders, completion of the CVR restructuring, absence of continuing material adverse effects, and delivery of a fairness opinion. Termination fees include $500,000 payable by USFM in certain failure‑to‑close scenarios and $1,500,000 payable by Twin Vee if it terminates for a Superior Proposal or certain intervening events. A support agreement commits key stockholders to vote for the deal. Separately, Twin Vee appointed Michael P. Dickerson as Interim CFO, amending his consulting agreement to add 3,970 fully vested RSUs and cash payments tied to signing and closing of the merger.
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contingent value right financial
Pre-Closing CVR Restructuring financial
fairness opinion financial
Registration Statement on Form S-4 regulatory
Superior Proposal financial
Takeover Statute regulatory
FAQ
What merger did Twin Vee PowerCats (VEEE) announce with USFM Corporation?
What equity will VEEE stockholders receive in USFM after the merger?
How will Twin Vee’s marine business be treated in the VEEE–USFM transaction?
What termination fees are included in the Twin Vee (VEEE) merger agreement?
What conditions must be satisfied before the VEEE–USFM merger can close?
What management change did Twin Vee PowerCats (VEEE) disclose with this deal?
What ongoing benefits do VEEE stockholders get from the contingent value rights?
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act.
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Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On July 12, 2026, Twin Vee PowerCats Co., a Nevada corporation (the “Company”), USFM Corporation, a Colorado corporation (the “Acquiror”), and USFM Merger Sub Inc., a Nevada corporation and wholly-owned subsidiary of the Acquiror (“Merger Sub” and together with the Acquiror, the “Acquiror Entities”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, on the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the “Merger”), with the Company continuing as the surviving corporation in the Merger (the “Surviving Company”) as a wholly owned subsidiary of Acquiror. The Company’s shares are currently publicly traded on the Nasdaq Capital Market.
On the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the Merger (the “Effective Time”), and as a result of the Merger, each share of common stock, par value $0.001 per share, of the Company (the “Shares”), that is issued and outstanding immediately prior to the Effective Time (other than certain Shares to be canceled pursuant to the terms of the Merger Agreement and Dissenting Shares (as defined in the Merger Agreement)) will be converted into the right to receive a pro rata portion of an aggregate number of shares of the Acquiror’s common stock, no par value (“Acquiror Shares”), that represent 10% of the issued and outstanding Acquiror Shares immediately following the Effective Time (calculated on a fully diluted basis) (the “Company Consideration Shares”).
In addition, pursuant to the Merger Agreement, effective as of the Effective Time, automatically and without any action on the part of the holder thereof, (a) each Company Convertible Security (as defined in the Merger Agreement) shall be accelerated and fully vested, and converted into the right to receive a pro rata portion of the Company Consideration Shares and (b) each Company Common Stock Warrant (as defined in the Merger Agreement) shall be assumed by the Surviving Company and shall become a corresponding warrant of Acquiror.
The Company is subject to customary restrictions on its ability to solicit alternative acquisition proposals from third parties and to provide information to, and enter into discussions or negotiations with, third parties regarding alternative acquisition proposals. However, prior to the receipt of the approval of the Merger from the Company’s stockholders, the solicitation restrictions are subject to a customary “fiduciary-out” provision that allows the Company, under certain circumstances, to provide information to and participate in negotiations or discussions with third parties with respect to an alternative acquisition proposal if it determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to be a violation of the Company’s board of directors’ fiduciary duties under applicable law. In addition, the Company’s board of directors, after satisfying certain notice requirements to the Acquiror, may change its recommendation with respect to the Merger if it determines in good faith, after consultation with outside legal counsel, that the failure to do so under certain circumstances specified in the Merger Agreement would reasonably be expected to be a violation of the Company’s board of directors’ fiduciary duties under applicable law.
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The Merger Agreement contains certain termination rights, and provides that, upon termination of the Merger Agreement under specified circumstances, the Acquiror may be required to pay the Company a termination fee of $500,000 and the Company would be required to pay the Acquiror a termination fee of $1,500,000. Specifically, if the Merger Agreement is terminated (a) in connection with either failure of the Acquiror to obtain its stockholders approval of the Merger or (b) subject to certain conditions, in the event the Merger is not consummated prior to the “end date” of October 31, 2026, then, in either case, the $500,000 termination fee will be payable by the Acquiror to the Company upon termination. In addition, if the Company terminates the Merger Agreement to accept a Superior Proposal (as defined in the Merger Agreement) in compliance with the terms of the Merger Agreement or in connection with a Company Intervening Event (as defined in the Merger Agreement), the $1,500,000 termination fee will be payable by the Company to the Acquiror upon termination.
The Merger Agreement contains customary representations, warranties and covenants of the Company, Merger Sub and the Acquiror, including, among others, covenants that: (a) each party will conduct its business in the ordinary course of its business during the interim period between the execution of the Merger Agreement and the Effective Time, (b) each party will not engage in certain types of transactions or take certain actions outside the ordinary course during such period without the prior consent of the other party. The Merger Agreement also requires each of the Company and the Acquiror to call and hold a stockholder meeting and for the Company’s board of directors to recommend that the Company’s stockholders approve the Merger Agreement.
Without limiting the generality of the foregoing, pursuant to the Merger Agreement, prior to the closing of the Merger, the Company, a newly formed subsidiary (“Assetco”), and a newly formed Delaware contingent value rights trust (the “Trust”), must consummate the Pre-Closing CVR Restructuring (as defined below) pursuant to which such parties shall: (a) form Assetco as a wholly-owned subsidiary of the Company; (b) cause the contribution of all of the Company Assets and Liabilities (as defined in the Merger Agreement) from the Company to Assetco in exchange for all of Assetco’s issued and outstanding shares of capital stock (the “Assetco Contribution”), using a contribution agreement in a form reasonably satisfactory to the Acquiror; (c) form the Trust as a wholly-owned subsidiary of the Company; (d) cause the contribution of all of the issued and outstanding shares of capital stock of Assetco from the Company to the Trust in exchange for all of the Trust’s contingent value rights interests, using a contribution agreement in a form reasonably satisfactory to the Acquiror; and (e) cause the distribution of the contingent value rights interests from the Company to the Company’s existing stockholders, using a distribution agreement in a form reasonably satisfactory to the Acquiror, after which the Company shall retain no ownership or other interest (whether in the form of stock, trust interests, or otherwise) in either the Trust or Assetco (such steps collectively, the “Pre-Closing CVR Restructuring”). Following closing of the Merger, the Trust will seek to sell the Company Assets and Liabilities and any net proceeds received from such sales would ultimately accrue to the benefit of existing Company stockholders.
Consummation of the Merger is subject to various conditions, including (a) obtaining requisite approval of the Merger from the Company’s and the Acquiror’s stockholders, (b) the Registration Statement (as defined in the Merger Agreement) filed by the Acquiror with the SEC becoming effective, (c) the absence of certain laws or orders issued by certain specified governmental entities making illegal or permanently enjoining or prohibiting the Merger, (d) the Company Consideration Shares being approved for listing on the NYSE, NYSE American, or another applicable stock exchange, (e) the accuracy of the representations and warranties made by the parties, subject to certain exceptions, (f) the absence of a material adverse effect on either party that is continuing, (g) consummation of the Pre-Closing CVR Restructuring, and (h) delivery of a fairness opinion.
The foregoing description of the Merger Agreement and the transactions contemplated thereby in this Current Report on Form 8-K is only a summary and does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and incorporated into this Current Report on Form 8-K by reference herein.
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The Merger Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company, the Acquiror, or Merger Sub. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger Agreement as of the specific dates therein, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. The representations and warranties may also be subject to contractual standards of materiality that may be different from those generally applicable under the securities laws. Neither the Company nor the Acquiror’s investors are third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s or the Acquiror’s public disclosures.
Company Support Agreement
Concurrently with entering into the Merger Agreement, a Company stockholder, in its capacity as a holder of shares or other equity interests of the Company, entered into a Company Support Agreement with the Acquiror (the “Support Agreement”) pursuant to which such Company stockholder agreed, among other things, to vote its shares of Company common stock for the approval of the Merger Agreement and against any alternative proposal. Notwithstanding the foregoing, however, the Support Agreement terminates upon the termination of the Merger Agreement in accordance with its terms. The foregoing description of the Support Agreement does not purport to be complete and is qualified in its entirety by reference to the form of Support Agreement, a copy of which is filed as Exhibit 99.1 hereto and is hereby incorporated into this Current Report on Form 8-K by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b)
Joseph Visconti, the Company’s Chief Executive Officer and President has resigned his role as the Company’s Interim Chief Financial Officer, effective as of July 10, 2026.
(c)
On July 11, 2026, the Company appointed Michael P. Dickerson to be the Company’s Interim Chief Financial Officer.
Michael P. Dickerson was our Chief Financial & Administrative Officer from April 2024 through February 2026, at which time Mr. Dickerson became a consultant to the Company. Mr. Dickerson has more than 35 years of corporate experience in senior and executive level finance and operational roles, including finance & accounting, treasury, investor relations & corporate communications, risk management and other related roles. In February 2024, he served in a consulting capacity at Savannah River Logistics as their Executive Vice President, Chief Financial & Administrative Officer, and Treasurer. From August 2022 until November 2023, he served as Vice President, Investor Relations & Risk Management, at Dorman Products, Inc. (Nasdaq: DORM). From August 2018 to March 2022, he served as Vice President, Corporate Communications & Investor Relations, at Aaron’s Inc. (NYSE: AAN). We believe Mr. Dickerson’s extensive operational and financial expertise in public companies along with his experience in various leadership roles make him a valuable member of Twin Vee’s management.
(e)
In connection with Mr. Dickerson’s appointment as the Company’s Interim Chief Financial Officer, on July 11, 2026, Mr. Dickerson and the Company entered into an amendment to Mr. Dickerson’s existing consulting agreement. The consulting agreement, which provides that he will provide the Company certain advisory, financial, strategic, or other professional services as requested by the Company from time to time at a rate of $6,000 per month commencing April 1, 2026 to December 31, 2026 (unless earlier terminated), was amended to appoint Mr. Dickerson to be the Company’s Interim Chief Financial Officer and provide him with (a) a grant of 3,970 Restricted Stock Units, which shall be fully vested on the date of grant, (b) payment to Mr. Dickerson of $25,000 in cash upon the signing of the Merger Agreement and (c) payment to Mr. Dickerson of $25,000 in cash upon the consummation of the transactions contemplated by the Merger Agreement.
The foregoing description of Mr. Dickerson’s consulting agreement, as amended, is only a summary and does not purport to be complete and is qualified in its entirety by reference to the full text of the consulting agreement, as amended, a copy of which is filed as Exhibit 10.1 hereto and incorporated into this Current Report on Form 8-K by reference herein.
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Item 7.01 Regulation FD Disclosure.
On July 13, 2026, the Company issued a press release announcing the execution of the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.2 and is hereby incorporated by reference herein.
Additional Information and Where to Find It
The Acquiror intends to file with the SEC a Registration Statement on Form S-4, which shall include a joint proxy statement of the Acquiror and the Company, in connection with its proposed acquisition of the Company by the Acquiror and the Acquiror and the Company will furnish or file other materials with the SEC in connection with the proposed transaction. The definitive proxy statement will be sent or given to the stockholders of the Company and will contain important information about the proposed transaction and related matters. BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT AND THOSE OTHER MATERIALS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES TO THE PROPOSED TRANSACTION. The registration statement, proxy statement and other relevant materials (when they become available), and any other documents filed by the Acquiror and the Company with the SEC, may be obtained free of charge at the SEC’s website at www.sec.gov. In addition, security holders will be able to obtain free copies of the proxy statement from the Company by contacting the Company by telephone at (772) 429-2525, or by mail to Twin Vee PowerCats Co., 3101 S. U.S. Highway 1, Fort Pierce, Florida 34982.
Participants in the Solicitation
The Company and its directors and officers may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the proposed transaction. Information regarding the interests of these directors and officers in the transaction described herein will be included in the proxy statement described above. Additional information regarding the directors and executive officers of the Company is included in the proxy statement for its 2025 Annual Meeting, which was filed with the SEC on October 23, 2025, its Annual Report on Form 10-K, which was filed with the SEC on February 27, 2026, and is supplemented by other public filings made, and to be made, with the SEC by the Company and the Acquiror.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements involve certain risks and uncertainties that could cause actual results to differ materially from those indicated in such forward-looking statements, including, but not limited to, the ability of the parties to consummate the proposed transaction; satisfaction of closing conditions to the consummation of the proposed transaction; the impact of the announcement of the proposed transaction on the Company’s relationships with its employees, existing customers or potential future customers; and such other risks and uncertainties pertaining to the Company’s business as detailed in its filings with the SEC on Forms 10-K and 10-Q, which are available on the SEC’s website at www.sec.gov. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date thereof. The Company assumes no obligation to update any forward-looking statement contained in this document except to the extent required by applicable law.
No Offer or Solicitation
This communication is for informational purposes only and is not intended to, and shall not, constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
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Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits. |
| 2.1* | Agreement and Plan of Merger, dated as of July 12, 2026, by and among the Acquiror, Merger Sub, and the Company. | ||
| 10.1 | Consulting agreement, by and between Michael P. Dickerson and/or Dickerson Financial Services, LLC, dated February 25, 2026, as amended by the First Amendment to Consulting Agreement, dated July 11, 2026. | ||
| 99.1 | Company Support Agreement, dated as of July 12, 2026, by and among the Acquiror and a stockholder of the Company. | ||
| 99.2 | Press release, dated July 13, 2026. | ||
| 104 | Cover Page Interactive Data File, formatting Inline Extensible Business Reporting Language (iXBRL). |
*Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601. The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| TWIN VEE POWERCATS CO. | ||
| By: | /s/ Glenn Sonoda | |
| Glenn Sonoda | ||
| In-House Counsel | ||
Date: July 13, 2026
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EXHIBIT 99.1
Execution Copy
COMPANY SUPPORT AGREEMENT
This COMPANY SUPPORT AGREEMENT, dated as of July 12, 2026 (this “Agreement”), is entered into by and among USFM Corporation, a Colorado corporation (“Acquiror”), and the stockholders of Twin Vee PowerCats Co., a Nevada corporation (the “Company”), set forth on the signature page hereto (the “Supporting Holders” and each a “Supporting Holder”). Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, Acquiror, USFM Merger Sub Inc., a Nevada corporation and wholly-owned subsidiary of Acquiror (“Merger Sub”), and the Company, propose to enter into, substantially simultaneously herewith, an Agreement and Plan of Merger (the “Merger Agreement”), a copy of which has been made available to the Supporting Holders, 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 Acquiror;
WHEREAS, as of the date hereof, the Supporting Holders are the record owners and the beneficial (as such term is defined in Rule 13d-3 under the Exchange Act, which meaning shall apply for all purposes of this Agreement whenever the term “beneficial” or “beneficially” is used) owners of, and have sole voting power over the number of shares of common stock of the Company, par value $0.001 per share (“Company Common Stock”), set forth opposite their respective names on Schedule A hereto (together with any other Company Securities held or acquired by such Supporting Holder between the date of this Agreement and the earlier of the Closing or the termination of this Agreement in accordance with its terms pursuant to Section 7.2 (collectively, the “Subject Shares”)); and
WHEREAS, as a condition and inducement to Acquiror’s willingness to enter into the Merger Agreement and to consummate the transactions contemplated thereunder, the parties have agreed to enter into this Agreement.
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 hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE
I
AGREEMENT TO VOTE SUBJECT SHARES
1.1 Binding Effect of Merger Agreement. Each Supporting Holder hereby acknowledges that it has read the Merger Agreement and this Agreement and has had the opportunity to consult with its tax and legal advisors. Each Supporting Holder hereby agrees (i) to be bound by and comply with Sections 8.11 (Exclusivity) and 11.10 (Publicity) of the Merger Agreement (and any relevant definitions contained in any such Sections of the Merger Agreement), mutatis mutandis, as if such Supporting Holder was an original signatory to the Merger Agreement (as the Company) with respect to such provisions and (ii) that such Supporting Holder shall provide to (A) Acquiror and its Representatives any information regarding such Supporting Holder or the
Subject Shares that is reasonably requested by Acquiror or its
Representatives and is required in order for Acquiror to comply with Sections 7.2 (Listing), 8.1 (HSR Act; Other Filings),
8.2 (Preparation of Registration Statement and Proxy Statement; Stockholders’ Meeting and Approvals), and 8.3 (Support
of Transaction) of the Merger Agreement (and any relevant definitions contained in any such Sections of the Merger Agreement) or otherwise
in connection with any application or filing made or any approval sought in connection with the Transactions (including filings with the
SEC) and (B) the Company and its Representatives any information regarding such Supporting Holder or the Subject Shares that is reasonably
requested by the Company or its Representatives and is required in order for the Company to comply with Sections 8.1 (HSR Act; Other
Filings), 8.2 (Preparation of Registration Statement and Proxy Statement; Stockholders’ Meeting and Approvals), and 8.3
(Support of Transaction) of the Merger Agreement (and any relevant definitions contained in any such Sections of the Merger Agreement)
or otherwise in connection with any application or filing made or any approval sought in connection with the transactions contemplated
thereunder (including filings with the SEC).
1.2 New Shares. In the event that after the execution of this Agreement and prior to the termination of this Agreement (a) any Company Securities are issued to any Supporting Holder pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of, on or affecting the Company Securities owned by such Supporting Holder, or pursuant to any anti-dilution right or otherwise, (b) any Supporting Holder purchases or otherwise acquires beneficial ownership of any Company Securities, or (c) any Supporting Holder acquires the right to vote or share in the voting of any Company Securities (such Company Securities, collectively the “New Securities”), then such New Securities issued to, acquired by or purchased by such Supporting Holder shall be subject to the terms of this Agreement to the same extent as if they constituted the Company Securities owned by such Supporting Holder respectively, as of the execution hereof (and shall constitute Subject Shares for all purposes hereof).
1.3 Voting of Subject Shares. Each Supporting Holder holding Subject Shares hereby irrevocably and unconditionally agrees that, after the Registration Statement is declared effective by the SEC and prior to the termination of this Agreement, such Supporting Holder will at any meeting of the stockholders of the Company (and at any adjournment or postponement thereof), however called, and in any written actions by consent of the stockholders of the Company (whenever presented), cause the Subject Shares to be voted (including via proxy) (I) in favor of (A) approval of the Merger in accordance with applicable Law and exchange rules and regulations, (B) adoption and approval of any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto, (C) adoption and approval of any other proposals as reasonably agreed by Acquiror and the Company to be necessary or appropriate in connection with the transactions contemplated hereby, and (D) postponement or adjournment of the Company Stockholders’ Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing, and (II) against any other action that would reasonably be expected to (x) materially impede, interfere with, delay, postpone or adversely affect any of (A) through (D) above, or (y) result in a breach of any covenant, representation or warranty or other obligation or agreement of the Company under the Merger Agreement or (z) result in a breach of any covenant, representation or warranty or other obligation or agreement of such Supporting Holder contained in this Agreement.
1.4 No Inconsistent Agreements. Each Supporting Holder hereby represents and covenants that such Supporting Holder (a) has not entered into, and shall not enter into, any agreement or undertaking that would restrict, limit or interfere with, or that is otherwise inconsistent with, or would adversely affect, or prohibit or prevent from satisfying, the ability to perform or satisfy any party’s obligations under this Agreement or the Company’s or Acquiror’s ability to perform or satisfy any obligation under the Merger Agreement or any other Ancillary Agreement, or that is otherwise inconsistent with such Supporting Holder’s obligations hereunder, including any voting agreement or voting trust with respect to any of the Subject Shares, and (b) has not granted, and shall not grant, a proxy or power of attorney with respect to any of the Subject Shares that is inconsistent with such Supporting Holder’s obligations hereunder.
1.5 Waiver and Release of Claims. Each Supporting Holder covenants and agrees as follows:
(a) Subject to and conditioned upon the Closing, effective as of the Closing (and subject to the limitations set forth in Section 1.5(d)), each Supporting Holder, on behalf of itself and its Affiliates and its and their respective successors, assigns, representatives, administrators, executors and agents, and any other Person claiming by, through or under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties”; provided, for the avoidance of doubt, that the Company shall not be deemed a Releasing Party hereunder), does hereby unconditionally and irrevocably release, waive and forever discharge Acquiror, the Company, Merger Sub and each of its and their past and present Subsidiaries, and the equityholders, directors, officers, employees, agents, predecessors, successors and assigns of each of the foregoing (the “Released Parties”), from any and all past or present claims, demands, damages, debts, judgments, causes of action and liabilities of any nature whatsoever, whether or not known, suspected or claimed, directly or indirectly arising from or relating to (x) the Releasing Parties’ ownership of the Subject Shares or the transactions contemplated hereby or thereby or (y) any act, omission, event or transaction occurring (or any circumstance existing) at or prior to the Closing (each a “Claim” and, collectively, the “Claims”), in each case (x) and (y), except for fraud, willful misconduct or gross negligence.
(b) Each Supporting Holder acknowledges that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to the subject matter of this Section 1.5(b), and that it may hereafter come to have a different understanding of the Law that may apply to potential Claims which it is releasing hereunder, but it affirms that, except as is otherwise specifically provided herein, it is its intention to fully, finally and forever settle and release any and all Claims in accordance with this Section 1.5(b). In furtherance of this intention, such Supporting Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Law.
(c) Such Supporting Holder knowingly and voluntarily waives and releases any and all rights and benefits that such Supporting Holder may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous Law of any other jurisdiction), which reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Such Supporting Holder understands that Section 1542 of the California Civil Code, or a comparable Law of another jurisdiction, gives such Supporting Holder the right not to release existing claims of which such Supporting Holder is not aware, unless such Supporting Holder voluntarily chooses to waive this right. Having been so apprised, such Supporting Holder nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542 of the California Civil Code, or such other comparable Law, and elects to assume all risks for claims that exist, existed or may hereafter exist in his, her or its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 1.5, in each case, effective as of the Closing. Such Supporting Holder acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 1.5 and that, without such waiver, the Company would not have agreed to the terms of this Agreement or the Merger Agreement.
(d) Each Supporting Holder acknowledges that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to the subject matter of this 1.5(b) Section 1.5, and that it may hereafter come to have a different understanding of the Law that may apply to potential Claims which it is releasing hereunder, but it affirms that, except as is otherwise specifically provided herein, it is its intention to fully, finally and forever settle and release any and all Claims in accordance with this Section 1.5. In furtherance of this intention, such Supporting Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Law.
(e) Notwithstanding the foregoing provisions of this Section 1.5, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto. Notwithstanding anything to the contrary contained herein, each Supporting Holder (and each of its Affiliates other than the Company) and the Company shall be deemed not to be Affiliates of each other for purposes of this Section 1.5.
ARTICLE
II
IRREVOCABLE PROXY AND POWER OF ATTORNEY
2.1 Grant of Irrevocable Proxy and Power of Attorney.
(a) Each Supporting Holder makes, constitutes and appoints Kevin Schuyler as its true and lawful attorney and proxy with full power to appoint a nominee or nominees to act hereunder from time to time and to represent and vote the Subject Shares by proxy at
all meetings of stockholders
(or any class thereof) of the Company, sign any form of proxy and grant written consents or approvals in respect of the Subject Shares
in each case in a manner consistent with Section 1.3 and with the same force and effect as such Supporting Holder might or could
do with respect to such Subject Shares, regardless whether such stockholders are required to vote on a poll, in the form of written resolutions
or on a show of hands, with respect to all resolutions and matters to be voted upon by stockholders of the Company.
(b) Each Supporting Holder hereby ratifies and confirms and undertakes to ratify and confirm that Kevin Schuyler or his respective nominee or nominees, in his capacity as the attorney and proxy of the Subject Shares, may lawfully do or cause to be done by virtue of the rights hereby granted and exercised in accordance with this Section 2.1 of this Agreement.
(c) Each Supporting Holder hereby (i) affirms that this Agreement is (A) coupled with and intended to secure an interest sufficient in applicable Law to support an irrevocable power of attorney or irrevocable proxy, and (B) executed and intended to be irrevocable, (ii) revokes any and all prior proxies granted by the Supporting Holder with respect to the Subject Shares to any Person (other than those granted pursuant to the Company’s Governing Documents), (iii) undertakes that no subsequent proxy shall be given (and if given shall be ineffective) by the Supporting Holder to any Person other than Kevin Schuyler with respect to the Subject Shares, and (iv) undertakes that the proxy granted by this Section 2.1 is an irrevocable proxy and power of attorney and shall survive (x) any dissolution or winding up of any Supporting Holder that is an entity, (y) any testamentary transfer or any transfer by the laws of intestate succession by any Supporting Holder who is an individual, and (z) any Transfer permitted pursuant to Section 6.1 of this Agreement.
ARTICLE
III
REPRESENTATIONS AND WARRANTIES OF THE SUPPORTING HOLDERS
Each Supporting Holder represents and warrants to Acquiror and the Company that:
3.1 Authorization; Binding Agreement.
(a) Such Supporting Holder, if not a natural person, is duly organized, validly existing and in good standing (where such concept is recognized) under the Laws of the jurisdiction in which it is incorporated, formed, organized or constituted. Such Supporting Holder has full legal capacity and power, right and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered by such Supporting Holder and, assuming the due authorization, execution and delivery by Acquiror, constitutes a legal, valid and binding obligation of such Supporting Holder, enforceable against such Supporting Holder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability affecting or relating to creditors’ rights generally and (ii) is subject to general principles of equity (the “Enforceability Limitations”).
3.2 Non-Contravention. Neither the execution and delivery of this Agreement by such Supporting Holder nor performance by such Supporting Holder of the obligations herein nor the compliance by such Supporting Holder with any provisions herein will (a) if not a natural person, violate the certificate or articles of incorporation, bylaws or other governing documents of such Supporting Holder, (b) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority or any other Person on the part of such Supporting Holder, except as provided in the Company’s Governing Documents, (c) result (or, with the giving of notice, the passage of time or otherwise, would result) in the creation or imposition of any Encumbrance (as defined below) on the Subject Shares, other than any Permitted Encumbrance (as defined below), or (d) violate any Law applicable to such Supporting Holder or by which any of such Supporting Holder’s Subject Shares are bound, except, in the case of each of clauses (b), (c) and (d), as would not reasonably be expected to prevent or materially impair or delay such Supporting Holder’s ability to perform its obligations hereunder.
3.3 Ownership of Shares; Total Shares. As of the date hereof, such Supporting Holder is the record and beneficial owner of all of the Subject Shares as set forth opposite their name on Schedule A hereto and has good and marketable title to all of such Subject Shares, free and clear of any encumbrances, security interests, claims, pledges, proxies, options, right of first refusals, voting restrictions, limitations on dispositions, voting trusts or agreements, options or any other liens or restrictions on title, transfer or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for any such Encumbrance that may be imposed pursuant to (a) this Agreement, (b) any lock-up agreement entered into by and between such Supporting Holder, Acquiror and the Company, (c) any applicable restrictions on transfer under applicable securities Laws, and (d) the Company Governing Documents (collectively, “Permitted Encumbrances”). The Subject Shares as set forth on the signature page hereto constitute all of the Company Common Stock owned by such Supporting Holder as of the date hereof and, other than such Subject Shares, as of the date of this Agreement, there are no other shares of Company Common Stock held of record or beneficially owned by such Supporting Holder or in respect of which such Supporting Holder has full voting power.
3.4 Voting Power. Such Supporting Holder has, as of the date hereof and, except pursuant to a Permitted Transfer (defined below), will have until the termination of this Agreement, sole voting power and the power to agree to all of the matters set forth in this Agreement, in each case with respect to all such Supporting Holder’s Subject Shares currently owned or hereinafter acquired. None of such Supporting Holder’s Subject Shares are subject to any stockholders’ agreement, proxy, voting trust or other agreement, arrangement or restriction of any kind or nature with respect to the voting of such Subject Shares, except for the Company Governing Documents.
3.5 Reliance. Such Supporting Holder understands and acknowledges that Acquiror and the Company are entering into the Merger Agreement in reliance upon such Supporting Holder’s execution, delivery and performance of this Agreement.
3.6 Actions. There are no Legal Proceedings pending against such Supporting Holder or, to the knowledge of such Supporting Holder, threatened against such Supporting Holder, before (or, in the case of threatened Legal Proceedings, that would be before) any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such Supporting Holder of such Supporting Holder’s obligations under this Agreement.
3.7 Brokers. Other than as expressly contemplated by the Merger Agreement or the disclosure schedules thereto, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Supporting Holder.
3.8 Adequate Information. Such Supporting Holder acknowledges that such Supporting Holder is a sophisticated investor with respect to such Supporting Holder’s Subject Shares and has adequate information concerning the business and financial condition of the Company and Acquiror to make an informed decision regarding the transactions contemplated by this Agreement and has, independently and without reliance upon Acquiror, the Company or any Affiliate thereof, and based on such information as such Supporting Holder has deemed appropriate, made such Supporting Holder’s own analysis and decision to enter into this Agreement. Such Supporting Holder acknowledges that such Supporting Holder has received and reviewed this Agreement and the Merger Agreement and has had the opportunity to seek independent legal advice prior to executing this Agreement.
ARTICLE
IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ACQUIROR
Acquiror represents, warrants and covenants to the Supporting Holders that:
4.1 Organization and Qualification. Acquiror is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated or constituted.
4.2 Authority for this Agreement. Acquiror has all requisite entity power and authority to execute, deliver and perform its obligations under this Agreement and to comply with any provisions herein. The execution and delivery of this Agreement by Acquiror has been duly and validly authorized by all necessary entity action on the part of Acquiror, and no other entity proceedings on the part of Acquiror are necessary to authorize this Agreement. This Agreement has been duly and validly executed and delivered by Acquiror and, assuming the due authorization, execution and delivery by the Supporting Holders, constitutes a legal, valid and binding obligation of Acquiror, enforceable against Acquiror in accordance with its terms, subject to the Enforceability Limitations.
4.3 Takeover Statutes. Acquiror has taken all necessary action to ensure that no Takeover Statute is applicable to Acquiror, this Agreement, the Merger Agreement or the transactions contemplated by the Merger Agreement, and shall refrain from taking any action that would cause the applicability of any Takeover Statute to Acquiror, this Agreement, the Merger Agreement or the transactions contemplated by the Merger Agreement.
ARTICLE
V
[INTENTIONALLY OMITTED]
ARTICLE
VI
ADDITIONAL COVENANTS OF THE SUPPORTING HOLDERS
6.1 No Transfer; No Inconsistent Arrangements.
(a) Except for a Permitted Transfer, until the earlier of the Closing or the termination of the Merger Agreement in accordance with its terms, each Supporting Holder agrees that it shall not, directly or indirectly, (i) sell, assign, transfer (including by operation of Law), gift, pledge dispose of or otherwise permit any Encumbrances other than Permitted Encumbrances on any of the Subject Shares or otherwise agree to do any of the foregoing (provided that any encumbrance that would not prevent, impair or delay such Supporting Holder’s ability to comply with the terms and conditions of this Agreement shall be permitted and will not be deemed to violate the restrictions set forth in this clause (i)), (ii) deposit any Subject 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 (iii) other than in furtherance of the transactions contemplated by the Merger Agreement, 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 Subject Shares. Any action taken in violation of the foregoing sentence shall be null and void ab initio.
(b) Section 6.1(a) shall not prohibit a transfer of Subject Shares by any Supporting Holder made: (i) if such Supporting Holder is an individual, by gift to a member of one of such Supporting Holder’s immediate family, an estate planning vehicle or to a trust, the beneficiary of which is a member of such Supporting Holder’s immediate family, an affiliate of such person or to a charitable organization; (ii) if such Supporting Holder is an individual, by virtue of laws of descent and distribution upon death of such Supporting Holder; (iii) if such Supporting Holder is an individual, pursuant to a qualified domestic relations order; (iv) if such Supporting Holder is not a natural person, by pro rata distributions from such Supporting Holder to its members, partners, or stockholders pursuant to such Supporting Holder’s organizational documents; and (v) by virtue of applicable law or such Supporting Holder’s organizational documents upon liquidation or dissolution of such Supporting Holder; (vi) if such Supporting Holder is not a natural person, to any employees, officers, directors or members of such Supporting Holder, or to any affiliates of such Supporting Holder; provided, however, that a transfer referred to in this Section 6.1(b) shall be permitted only if, (A) as a precondition to such transfer, the transferee agrees in a written document, reasonably satisfactory in form and substance to Acquiror and the Company, to be bound by all of the terms of this Agreement, and except for transfers referred to in Section 6.1(b)(ii) or (iii), (B) such transfer is effected no later than three (3) Business Days prior to the date on which the Registration Statement is declared effective (collectively, “Permitted Transfers”).
6.2 Standstill. From the date of this Agreement until the earlier of the Closing or the termination of the Merger Agreement in accordance with its terms, no Supporting Holder shall engage in any transactions involving the securities of Acquiror or the Company without Acquiror’s and the Company’s prior written consent; except for Permitted Transfers.
6.3 No Legal Action. No Supporting Holder shall, and shall cause its respective Affiliates not to and shall direct its respective Representatives not to, bring, commence, institute, maintain, voluntarily aid or prosecute any claim, appeal or proceeding which (a) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement, or (b) alleges that the execution and delivery of this Agreement by such Supporting Holder breaches any duty that such Supporting Holder has (or may be alleged to have) to the Company or to the other holders of Subject Shares; provided, that the foregoing shall not limit or restrict in any manner the rights of such Supporting Holder to enforce the terms of this Agreement.
6.4 Documentation and Information. Each Supporting Holder shall permit and hereby consents to and authorizes Acquiror and the Company to publish and disclose in all documents and schedules filed with the SEC and, to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any press release or other disclosure document that Acquiror and/or the Company reasonably determines to be necessary in connection with the Merger and any of the transactions contemplated by the Merger Agreement, a copy of this Agreement and the nature of such Supporting Holder’s commitments and obligations under this Agreement. The parties hereto agree that each Supporting Holder’s identity and ownership of the Subject Shares will not be included in a press release or other public disclosure (other than a filing with the SEC) without such Supporting Holder’s prior consent.
6.5 Public Announcements. No Supporting Holder will make any public announcement or issue any public communication regarding the Merger Agreement, the transactions contemplated thereby or any matter related to the foregoing, without the prior written consent of Acquiror and the Company, except: (i) if such announcement or other communication is required by applicable Law or the rules of any stock exchange, in which case the disclosing Supporting Holder shall, to the extent permitted by applicable Law, first allow Acquiror and the Company to review such announcement or communication and have the opportunity to comment thereon and the disclosing Supporting Holder shall consider such comments in good faith; (ii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 6.5; and (iii) announcements and communications to Governmental Authorities in connection with registrations, declarations and filings required to be made as a result of the Merger Agreement.
ARTICLE
VII
MISCELLANEOUS
7.1 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given and received if delivered personally (notice deemed given upon receipt), by electronic mail (notice deemed given upon confirmation of receipt) or sent by a nationally recognized overnight courier service, such as Federal Express (notice deemed given upon receipt of proof of delivery); provided that the notice or other communication is sent to the address or email address set forth (i) if to Acquiror, to the address or email address set forth in Section 11.2 of the Merger Agreement and (ii) if to a Supporting Holder, to such Supporting Holder’s address or email address set forth on a signature page hereto, or to such other address or email address as such party may hereafter specify for the purpose by notice to each other party hereto.
7.2 Termination. This Agreement, the covenants and agreements contained herein and any proxy granted hereunder shall terminate automatically with respect to the Supporting Holder, without any notice or other action by any person, upon the first to occur of (a) the Effective Time, (b) the valid termination of the Merger Agreement in accordance with its terms, and (c) the mutual written agreement of Acquiror and the Supporting Holders. Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that the provisions of this Article VII shall survive any termination of this Agreement.
7.3 Amendments and Waivers. Any provision of this Agreement may be amended or waived 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 each party against whom the waiver is to be effective. The waiver by any party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
7.4 Expenses. All fees and expenses incurred in connection herewith shall be paid by the party incurring such fees and expenses, whether or not the Merger are consummated, except as expressly provided otherwise herein or in the Merger Agreement; provided, that in the event of any Legal Proceeding arising out of or relating to this Agreement, the non-prevailing party in any such Legal Proceeding will pay its own expenses and the reasonable documented out-of-pocket expenses, including reasonable attorneys’ fees and costs, reasonably incurred by the prevailing party.
7.5 Entire Agreement; Assignment. This Agreement, together with the Merger Agreement and the other documents and certificates delivered pursuant hereto, constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement. This Agreement shall not be assigned by any party (including by operation of law, by merger or otherwise) without the prior written consent of (a) Acquiror and the Company, in the case of an assignment by a Supporting Holder (other than in the case of a Permitted Transfer) and (b) the Supporting Holders, in the case of an assignment by Acquiror or the Company. Any assignment in violation of this Section 7.5 shall be null and void ab initio.
7.6 Enforcement of the Agreement. The parties agree that irreparable damage may occur in the event that any Supporting Holder did not perform any of the provisions of this Agreement in accordance with their specific terms or otherwise breached any such provisions, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that Acquiror or the Company may be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in addition to any other remedy to which they are entitled at law or in equity without the requirement to post any bond or other security. Any and all remedies herein expressly conferred upon Acquiror or the Company will be deemed cumulative with and not exclusive of any other remedy conferred hereby or by Law or equity upon Acquiror or the Company, and the exercise by Acquiror or the Company of any one remedy will not preclude the exercise of any other remedy.
7.7 Jurisdiction; Waiver of Jury Trial; Governing Law. This Agreement and all related Legal Proceedings shall be governed by and construed in accordance with the internal Laws of the State of Nevada, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Nevada. THE PARTIES HERETO EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES HERETO EACH HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. The parties hereto expressly incorporate by reference Section 11.12(a) (addressing jurisdictional matters) and Section 11.12(b) (addressing service of process matters) of the Merger Agreement to apply to this Agreement mutatis mutandis, with references to the Merger Agreement therein deemed to reference this Agreement and references to the “Parties” thereunder deemed to reference the parties hereto.
7.8 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
7.9 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to confer any rights or remedies of any nature whatsoever under or by reason of this Agreement upon any person other than each party hereto.
7.10 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall 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 hereto. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
7.11 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement or the other Ancillary Agreements shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, “pdf”, “tif” or “jpg”) and other electronic signatures (including DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act and any other applicable law. Minor variations in the form of the signature page, including footers from earlier versions of this Agreement or any such other document, shall be disregarded in determining the party’s intent or the effectiveness of such signature.
7.12 Interpretation. The words “hereof,” “herein,” “hereby,” “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph and schedule references are to the articles, sections, paragraphs and schedules of this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.” The words describing the singular number shall include the plural and vice versa, words denoting either gender shall include both genders and words denoting natural persons shall include all persons and vice versa. The word “extent” and the phrase “to the extent” when used in this Agreement shall mean the degree to which a subject or other things extends, and such word or phrase shall not merely mean “if.” The term “or” is not exclusive. The phrases “the date of this Agreement,” “the date hereof,” “of even date herewith” and terms of similar import, shall be deemed to refer to the date set forth in the preamble to this Agreement. Any reference in this Agreement to a date or time shall be deemed to be such date or time in New York, New York, unless otherwise specified. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any person by virtue of the authorship of any provision of this Agreement.
7.13 Further Assurances. Each Supporting Holder agrees that if any further agreements, deeds, assignments, assurances or other instruments are reasonably necessary to effectuate the covenants in this Agreement, such Supporting Holder will, upon reasonable written request of such Supporting Holder by Acquiror, execute and deliver all such proper agreements, deeds, assignments, assurances and other instruments and take other reasonable action as permissible to do all other things reasonably necessary to effectuate the covenants in this Agreement and otherwise to carry out the purposes of this Agreement.
7.14 No Agreement as Director or Officer. Each Supporting Holder is entering into this Agreement solely in such Supporting Holder’s capacity as record and/or beneficial owner of Subject Shares and nothing herein is intended to or shall limit, restrict or otherwise affect any votes or other actions taken by such Supporting Holder, or any employee, officer, director (or person performing similar functions), partner or other Affiliate of such Supporting Holder (including, for this purpose, any appointee or representative of such Supporting Holder to the board of directors of the Company) of such Supporting Holder, solely in his or her capacity as a director or officer of the Company (or a subsidiary of the Company) or other fiduciary capacity for the stockholders of the Company.
7.15 No Ownership Interest. Nothing contained in this Agreement will be deemed to vest in Acquiror any direct or indirect ownership or incidents of ownership of or with respect to the Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Supporting Holders, as applicable, and Acquiror shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct any Supporting Holder in the voting of any of the equity securities of the Company, except as otherwise provided herein with respect to the Subject Shares. Except as otherwise set forth in Section 1, no Supporting Holder shall be restricted from voting in favor of, against or abstaining with respect to any other matters presented to the Company Stockholders. Without limiting the foregoing, nothing in this Agreement shall obligate or require any Supporting Holder to exercise an option to purchase any Company Securities.
7.16 Third Party Beneficiary. Acquiror and the Supporting Holders acknowledge and agree that the Company is an intended third party beneficiary of each and every provision of this Agreement and shall have the right to enforce each and every provision of this Agreement directly against the parties as if it were a party hereto. Except as expressly set forth in this Section, this Agreement is not intended to and shall not confer any rights or remedies upon any person or entity other than the parties hereto.
[Signature Pages Follow.]
IN WITNESS WHEREOF, Acquiror and each Supporting Holder have each caused this Company Support Agreement to be duly executed as of the date first written above.
| USFM CORPORATION | ||
| By: | /s/ Robert B. Price | |
| Name: | Robert B. Price | |
| Title: | President | |
| SUPPORTING HOLDERS: | ||
| Clamantis Holdings LLC | ||
| By: | /s/ Dan Shribman | |
| Name: | Dan Shribman | |
| Title: | Signor | |
| Joseph C. Visconti | ||
| Preston Yarborough | ||
| Michael P. Dickerson | ||
| Kevin Schuyler | ||
| Larry Swets, Jr. | ||
Schedule A
SUPPORTING HOLDERS
| Supporting Holder | Shares of Company Common Stock (including any other Company Securities) |
| Joseph C. Visconti | 10,865 |
| Preston Yarborough | 994 |
| Michael P. Dickerson | 4,188 |
| Kevin Schuyler | 963 |
| Larry Swets, Jr. | 6,757 |
| Clamantis Holdings LLC | 31,937 |
EXHIBIT 99.2
Twin Vee PowerCats Co. Announces Strategic Merger
and Concurrent
Privatization of its Recreational Marine Business
FORT PIERCE, FL / ACCESSWIRE / July 13, 2026 — Twin Vee PowerCats Co. (Nasdaq: VEEE) (“Twin Vee” or the “Company”), a manufacturer, distributor and marketer of power sport boats, today announced that it has entered into a definitive agreement for a transformative transaction that will combine a merger involving the publicly traded company with the concurrent privatization of its boating business under the brands Twin Vee and Bahama Boat Works (the “Marine Business”).
Pursuant to the terms of the transaction, a subsidiary of USFM Corporation, a developer of strategic mineral interests in Greenland, will merge with and into the Company (the “Merger”), and in exchange the Company’s common stockholders (the “Pre-Merger Stockholders”) will receive equity in the combined company. Additionally, prior to the Merger, the Company will form a Delaware statutory trust (the “CVR Trust”) for the benefit of the Pre-Merger Stockholders. Each Pre-Merger Stockholder will receive a non-transferable contingent value right (“CVR”) in the CVR Trust as a special distribution from the Company. Prior to the consummation of the Merger, the Company will transfer the assets and liabilities relating to the Marine Business to the CVR Trust and the CVR Trust will operate the Marine Business as a privately held company focused on delivering leading recreational marine products to boating enthusiasts. The CVRs will entitle holders to receive future distributions from the CVR Trust, which are expected to be generated from the operations of the Marine Business.
The transactions are intended to unlock value for stockholders, provide the operating business with greater strategic and financial flexibility, and position both businesses for their next phase of growth.
“This transaction represents an important milestone for the Company,” said Kevin Schuyler, Lead Independent Director of the Company. “After a thorough review of strategic alternatives, our Board concluded that the combination of the public company merger and the privatization of the Marine Business provides a compelling path forward for our stockholders, employees, customers, and business partners.”
“For more than 30 years, Twin Vee has earned its reputation by building exceptional boats, standing behind our products, and supporting our customers,” added Preston Yarborough, Vice-President of the Company, “That commitment extends to our employees, dealers, vendors, suppliers, financial partners, and the entire boating community who have helped make Twin Vee what it is today. Our commitment remains unchanged. We will continue to focus on supporting our team, maintaining strong day-to-day operations, and delivering the quality, service, and reliability that our customers have come to expect. Our facilities remain open, our team is hard at work, and we remain fully committed to serving our customers, fulfilling orders, supporting our dealer network, and standing behind every Twin Vee boat.”
“As the proposed transaction is completed, we look forward to the opportunities that operating as a private company may provide,” stated Joseph Visconti, Twin Vee’s President and Chief Executive Officer. “We believe this transition will lower operating overhead and allow us to dedicate more resources to product development, manufacturing and customer support. Our objective is simple: build and deliver amazing boats and support our 10,000 plus customers with exceptional customer service. To our customers, dealers, vendors, and business partners, thank you for your continued confidence and support. We value every relationship we have built over the years, and we invite you to stop by our facility, meet with our team, and see firsthand the passion and dedication that goes into every Twin Vee we build. We look forward to continuing to earn your trust every day.”
The transaction has been approved by the Board of Directors of the Company and the Board of Directors of USFM Corporation. The closing of the transactions is subject to customary closing conditions, including approval by the Company’s disinterested shareholders, applicable regulatory approvals, and the satisfaction or waiver of other conditions contained in the definitive agreements.
Upon completion of the transactions, the combined public company is expected to trade on NYSE American. The parties currently expect the transaction to close in the third quarter of 2026, subject to the satisfaction of closing conditions.
The Marine Business will continue to operate in the ordinary course through and after the closing. The Company does not expect any immediate changes to customer service, vendor relationships, or employee operations as a result of today’s announcement.
Advisors
Sheppard, Mullin, Richter & Hampton LLP is serving as legal counsel to the Company. Houlihan Capital provided a fairness opinion to the Board of Directors of the Company. Loeb & Loeb LLP is serving as legal counsel to USFM Corporation.
About Twin Vee PowerCats Co.
Twin Vee PowerCats Co. manufactures a range of boats under the Twin Vee and Bahama Boat Works brands, designed for activities including fishing, cruising, and recreational use. Twin Vee PowerCats are recognized for their stable, fuel-efficient, and smooth-riding catamaran hull designs. Twin Vee is one of the most recognizable brand names in the catamaran sport boat category and is known as the “Best Riding Boats on the Water™.” Bahama Boat Works is an iconic luxury brand long celebrated for its unmatched craftsmanship, timeless aesthetic, and dedication to producing some of the finest offshore fishing vessels.
The Company is located in Fort Pierce, Florida, and has been building and selling boats for 30 years.
Learn more at twinvee.com and bahamaboatworks.com.
About USFM Corporation
USFM Corporation is a privately held U.S.-based mineral exploration company focused on advancing critical mineral opportunities in stable jurisdictions. The Company is currently focused on the Disko-Nuussuaq Project in Greenland, one of the largest underexplored magmatic nickel districts globally.
Learn more about USFM at usfm.com.
Forward-Looking Statements
This press release contains certain forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These statements are identified by the use of the words “could,” “believe,” “anticipate,” “intend,” “estimate,” “expect,” “may,” “continue,” “predict,” “potential,” “project” and similar expressions that are intended to identify forward-looking statements and include statements regarding the proposed merger with USFM Corporation and the concurrent privatization of the Marine Business; the formation of a contingent value rights trust to operate the Marine Business as a private company; the anticipated strategic and financial benefits of the transactions, including the unlocking of shareholder value, the lowering of operating overhead, and the ability to dedicate more resources to product development, manufacturing, and customer support; the expected timing for completion of the transactions in the third quarter of 2026; the expectation that there will be no immediate changes to operations, customer service, or vendor relationships; the impact of the transaction to the Company’s stockholders, employees, customers, business partners, dealers, vendors, suppliers, and other stakeholders; and the combined public company’s future trading on NYSE American.
These forward-looking statements are based on management’s expectations and assumptions as of the date of this press release and are subject to a number of risks and uncertainties, many of which are difficult to predict, that could cause actual results to differ materially from current expectations and assumptions from those set forth or implied by any forward-looking statements. Important factors that could cause actual results to differ materially from current expectations include, among others, the ability of the parties to consummate the proposed transaction; satisfaction of closing conditions to the consummation of the proposed transaction; the impact of the announcement of the proposed transaction on the Company’s relationships with its employees, existing customers or potential future customers, and the risk factors described in the Company’s Annual Report on Form 10-K for the year ended December 31, 2025, the Company’s Quarterly Reports on Form 10-Q, the Company’s Current Reports on Form 8-K and subsequent filings with the SEC. The information in this release is provided only as of the date of this release, and the Company undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, after the date on which the statements are made or to reflect the occurrence of unanticipated events, except as required by law.
Additional Information and Where to Find It
USFM Corporation intends to file with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-4, which shall include a proxy statement, in connection with its proposed acquisition of the Company and the Company will furnish or file other materials with the SEC in connection with the proposed transaction. The definitive proxy statement will be sent or given to the stockholders of the Company and will contain important information about the proposed transaction and related matters. BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT AND THOSE OTHER MATERIALS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES TO THE PROPOSED TRANSACTION. The Registration Statement, proxy statement and other relevant materials (when they become available), and any other documents filed by USFM Corporation and the Company with the SEC, may be obtained free of charge at the SEC’s website at www.sec.gov. In addition, security holders will be able to obtain free copies of the proxy statement from the Company by contacting the Company by telephone at (772) 429-2525, or by mail to Twin Vee PowerCats Co., 3101 S. U.S. Highway 1, Fort Pierce, Florida 34982.
Participants in the Solicitation
USFM, the Company and their directors and officers may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the proposed transaction. Information regarding the interests of these directors and officers in the transaction described herein will be included in the proxy statement described above. Additional information regarding the directors and executive officers of the Company is included in the proxy statement for its 2025 Annual Meeting, which was filed with the SEC on October 23, 2025, its Annual Report on Form 10-K, which was filed with the SEC on February 27, 2026, and is supplemented by other public filings made, and to be made, with the SEC by the Company and USFM Corporation.
No Offer or Solicitation
This communication is for informational purposes only and is not intended to, and shall not, constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
Contact:
Glenn Sonoda
investor@twinvee.com