EXHIBIT 2.2
LOCK-UP AND VOTING AGREEMENT
This Lock-up and Voting Agreement, dated as of March 24, 2002 (this
"Agreement"), is entered into by and among Mobility Electronics, Inc., a
Delaware corporation ("Parent"), iGo Corporation, a Delaware corporation (the
"Company"), and those stockholders of the Company whose signatures appear on the
signature pages hereof (each a "Company Stockholder" and collectively the
"Company Stockholders"). All capitalized terms used herein without definition
having the respective meanings ascribed to them in the Merger Agreement (as
defined below).
W I T N ES S E T H :
WHEREAS, contemporaneous with the execution and delivery of this
Agreement, Parent, IGOC Corporation, a Delaware corporation ("Sub"), and the
Company have entered into an Agreement and Plan of Merger, of even date herewith
(the "Merger Agreement"); and
WHEREAS, as a condition and inducement to Parent and Sub entering into
the Merger Agreement and incurring the obligations set forth therein, the
Company Stockholders have agreed to vote and to cause to be voted all shares of
Company Common Stock now owned or hereafter acquired by them, for and in favor
of the merger of the Company with and into Sub contemplated by the Merger
Agreement (the "Merger"), and have agreed to the other terms and provisions
contained herein;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. DEFINITIONS. Each term used herein with its initial letter
capitalized and not otherwise defined shall have the meaning assigned to such
term in the Merger Agreement. The following terms shall have the respective
meanings set forth below:
(a) "DISPOSITION" shall mean any sale, exchange, assignment, gift,
pledge, mortgage, hypothecation, transfer or other disposition or encumbrance of
all or any part of the rights and incidents of ownership of Company Common
Stock, including the right to vote, and the right to possession of Company
Common Stock as collateral for indebtedness, whether such transfer is outright
or conditional, or for or without consideration.
(b) "TERM" shall mean the period commencing on the date hereof and
continuing until the first to occur of (i) the Effective Time of the Merger, or
(c) the termination of the Merger Agreement in accordance with its terms.
2. VOTING OF COMPANY COMMON STOCK. Each of the Company Stockholders
hereby agrees that, during the Term, at any meeting (whether annual or special
and whether or not an adjourned or postponed meeting) of the holders of Company
Common Stock, however called, or in connection with any written consent of the
holders of Company Common Stock, such Company Stockholder will appear at the
meeting or otherwise cause the shares of Company Common Stock now owned or
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hereafter acquired by such Company Stockholder (the "COMPANY SHARES") to be
counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) the Company Shares (a) in favor of
the adoption of the Merger Agreement and the approval of all other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof, (b) against any action or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement, and (c) against any action involving the Company or its subsidiaries
which is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, or materially adversely affect the transactions contemplated by
the Merger Agreement.
3. RESTRICTION ON DISPOSITION OF COMPANY COMMON STOCK. Each of the
Company Stockholders hereby agrees that, during the Term, such Company
Stockholder will not make, offer to make, agree to make, or suffer any
Disposition of his, her or its Company Shares or any interest therein. The
restrictions contained in this Section 3 shall not apply to (a) a Disposition
under a Company Stockholder's will or pursuant to the laws of descent and
distribution, or (b) a gift by a Company Stockholder to an immediate family
member (i.e., a spouse, child, parent, grandparent or sibling) or a family trust
for the benefit of immediate family member(s), so long as, in each case, the
transferee(s) deliver to Parent and Sub an executed written instrument agreeing
to be bound by the terms of this Agreement as if such transferee(s) were the
Company Stockholder.
4. RESTRICTION PROXIES AND NON-INTERFERENCE. Each of the Company
Stockholders hereby agrees that, during the Term, such Company Stockholder will
not (i) grant any proxies or powers or attorney that would permit any such proxy
or attorney-in-fact to take any action inconsistent herewith, (ii) deposit his,
her or its Company Shares into a voting trust or enter into a voting agreement
with respect to such Company Shares in either case providing for the voting or
consenting of such shares in a manner inconsistent herewith; or (iii) take any
action that would make any representation or warranty of such Company
Stockholder contained herein untrue or incorrect or would result in a breach by
such Company Stockholder of its obligations under this Agreement. Each Company
Stockholder further agrees not to enter into any agreement or understanding with
any Person, the effect of which would be inconsistent with or violative of any
provision contained in this Agreement.
5. COVENANTS. REPRESENTATIONS AND WARRANTIES OF COMPANY STOCKHOLDERS.
Each Company Stockholder (severally, and not jointly and severally) hereby
represents and warrants to, and agrees with, Parent and Sub as follows:
(a) OWNERSHIP OF SHARES. Such Company Stockholder is the sole
record and beneficial owner of that number of shares of Company Common Stock set
forth next to such Company Stockholder's name on SCHEDULE I attached hereto
(other than to the extent that (i) shares held by an entity may be deemed to be
beneficially owned by certain persons in control of such entity and (ii) all or
a portion of such Company Stockholder's shares may be held by a broker in street
name). On the date hereof, such Company Shares constitute all of the shares of
Company Common Stock owned of record or beneficially owned by such Company
Stockholder. Such Company Stockholder has sole voting power and sole power to
issue instructions with respect to the matters set forth in this Agreement, sole
power of disposition, and sole power to agree to all of the matters set forth in
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this Agreement, in each case with respect to all of such Company Shares, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) AUTHORIZATION. Such Company Stockholder (that is not a
natural person) is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and has the power and authority
(corporate or otherwise) and full legal right to execute and deliver this
Agreement and perform its obligations hereunder. Such Company Stockholder (that
is a natural person) has the requisite legal capacity and competency, and the
full legal right to execute and deliver this Agreement and perform his or her
obligations hereunder. This Agreement has been duly and validly executed and
delivered by such Company Stockholder and constitutes a valid and binding
agreement enforceable against such Company Stockholder in accordance with its
terms except (i) as may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights, and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought.
(c) NO CONFLICTS. Except for filings, authorizations, consents
and approvals as may be required under the Securities Act and the Exchange Act,
(i) no filing with, and no permit, authorization, consent or approval of, any
state or federal governmental authority, or any other Person, is necessary for
the execution of this Agreement by such Company Stockholder and the consummation
by such Company Stockholder of the transactions contemplated hereby, and (ii)
none of the execution and delivery of this Agreement by such Company
Stockholder, the consummation by such Company Stockholder of the transactions
contemplated hereby or compliance by such Company Stockholder with any of the
provisions hereof will (A) conflict with or result in any breach of the
organizational documents of such Company Stockholder (that is not a natural
person), (B) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which such Company
Stockholder is a party or by which such Company Stockholder or any of its
properties or assets may be bound, or (C) violate any order, writ, injunction,
decree, judgment, statute, role or regulation applicable to such Company
Stockholder or any of his or its properties or assets.
(d) NO ENCUMBRANCES. Such Company Stockholder owns his, her or
its Company Shares free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, or any other encumbrances whatsoever,
except for (i) any such matters arising hereunder and (ii) bona fide pledges of
such shares as security for obligations owed to the Company; provided, however,
in the event that the Company acquires any interest in all or any of such
shares, including, without limitation, legal or beneficial ownership thereof or
any voting rights with respect thereto, whether through foreclosure or
otherwise, the Company hereby agrees to be bound by the terms of this Agreement
with respect to such shares as if it were the Company Stockholder.
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(e) RELIANCE BY PARENT AND SUB. Such Company Stockholder
understands and acknowledges that Parent and Sub are entering into the Merger
Agreement in reliance upon such Company Stockholder's execution and delivery of,
and compliance with, this Agreement.
(f) STOCKHOLDER CAPACITY. Such Company Stockholder who is or
becomes during the Term a director of the Company makes any agreement or
understanding herein in his or her capacity as a stockholder of the Company and
not as a director.
6. TERMINATION. This Agreement will terminate upon the earlier of (a)
the Effective Time of the Merger, or (b) the termination of the Merger Agreement
in accordance with its terms.
7. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) CERTAIN EVENTS. Each Company Stockholder agrees that this
Agreement and the obligations hereunder shall attach to his, her or its Company
Shares and shall be binding upon any Person to which legal or beneficial
ownership of such Company Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Stockholder's heirs, guardians,
administrators or successors. Notwithstanding any such transfer of Company
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(c) CHANGE IN COMPANY COMMON STOCK. In the event of a stock
dividend or distribution, or any change in the Company Common Stock by reason of
any stock dividend, split-up, recapitalization, combination, exchange of shares
or the like, the term "Company Shares" shall be deemed to refer to and include
the Company Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Company Shares may be changed
or exchanged.
(d) ACQUISITION OF ADDITIONAL COMPANY SHARES. Each Company
Stockholder agrees to promptly notify Parent of the number of shares of Company
Common Stock acquired by such Company Stockholder, if any, after the date of
this Agreement.
(e) WAIVER OF APPRAISAL RIGHTS. Each Company Stockholder
hereby waives, releases and discharges any rights of appraisal or rights to
dissent from the Merger that such Company Stockholder may have.
(f) ASSIGNMENTS; RIGHTS OF ASSIGNEES; THIRD PARTY
BENEFICIARIES. This Agreement shall not be assignable by any Company Stockholder
without the prior written consent of Parent and Sub. This Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties hereto
and their respective heirs, executors, administrators, legal representatives,
successors and permitted assigns. Nothing expressed or referred to in this
Agreement is intended or shall be construed to give any Person other than the
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parties to this Agreement or their respective heirs, executors, administrators,
legal representatives, successors or permitted assigns any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
(g) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
money damages are an inadequate remedy for breach of this Agreement because of
the difficulty of ascertaining the amount of damage that will be suffered by the
non-breaching party or parties in the event that this Agreement is breached.
Therefore, each of the parties agrees that the non-breaching party or parties
may obtain specific performance of this Agreement and injunctive and other
equitable relief against any breach hereof, without the necessity of
establishing irreparable harm or posting any bond, in addition to any other
remedy to which such party may be entitled at law or in equity.
(h) WAIVER. No waiver of any provision of this Agreement shall
be effective unless it is in writing signed by the party granting the waiver,
and a waiver by any party hereto of any one or more defaults shall not operate
as a waiver of any future default or defaults, whether of a like or of a
different character. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provisions (whether or not similar), nor shall
such a waiver constitute a continuing waiver, unless otherwise expressly
provided.
(i) SECTION HEADINGS. Headings contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, or extend
the scope or intent of this Agreement or any provisions thereof.
(j) CHOICE OF LAW. This Agreement will be governed by and
construed and enforced in accordance with the laws of the State of Delaware
(without regard to the principles of conflicts of law) applicable to a contract
executed and to be performed in such State. Each party hereto (i) agrees to
submit to personal jurisdiction and to waive any objection as to venue in the
state or federal courts located in Maricopa County, Arizona, (ii) agrees that
any action or proceeding shall be brought exclusively in such courts, unless
subject matter jurisdiction or personal jurisdiction cannot be obtained, and
(iii) agrees that service of process on any party in any such action shall be
effective if made by registered or certified mail addressed to such party at the
address specified herein, or to any panics hereto at such other addresses as he,
she or it may from time to time specify to the other parties in writing for such
purpose. The exclusive choice of forum set forth in this paragraph shall not be
deemed to preclude the enforcement of any judgment obtained in such forum or the
taking of any action under this Agreement to enforce such judgment in any
appropriate jurisdiction.
(k) NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing and will be deemed to have been duly
given only if delivered personally or by facsimile transmission or mailed (first
class mail postage prepaid), or by overnight express courier (charges prepaid or
billed to the account of the sender) to the parties at the following addresses
or facsimile numbers:
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If to Parent or Sub, to: Mobility Electronics, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
If to any of the of Company At his, her or its address set forth
Stockholders: on Schedule I annexed hereto
or to such other address or fax number as any party may have famished to the
others in writing in accordance herewith.
(l) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same document.
(m) SEVERABILITY OF PROVISIONS. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall not in any way be affected, impaired or invalidated.
8. EFFECTIVENESS. This Agreement shall become effective simultaneously
with the execution and delivery of the Merger Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth above.
MOBILITY ELECTRONICS, INC.
By: /S/ XXXXXXX X. XXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
IGO CORPORATION
By: /S/ XXXXX X. XXXXX
--------------------------------------------------
Xxxxx X. Xxxxx
Acting President and Chief Executive Officer
COMPANY STOCKHOLDERS
--------------------
INSTITUTIONAL VENTURE PARTNERS VIII, L.P. /S/ XXX XXXX
By: Institutional Venture Management VIII, LLC -----------------------------------------------
Its: General Partner XXX XXXX, Individually and as
Trustee of the Xxxxxxx X. Xxxx Grantor Retained
Annuity Trust
By: /S/ XXXX X. XXXXXX /S/ XXXXX XXXXXXX
------------------------------------------ -----------------------------------------------
Managing Director XXXXX XXXXXXX
IVM INVESTMENT FUND VIII, LLC
By: Institutional Venture Management VIII, LLC
Its: Manager /S/ XXXXXX XXXXXXX XXXXX
-----------------------------------------------
By: /S/ REID W. XXXXXX XXXXXX XXXXXXX XXXXX
---------------------------------------- Trustee UTA dated August 26, 1994
Managing Director
/S/ XXXXXX XXXXXX XXXXX
IVM INVESTMENT FUND VIII-A, LLC -----------------------------------------------
By: Institutional Venture Management VIII, LLC XXXXXX XXXXXX XXXXX
Its: Manager Trustee UTA dated August 26, 1994
By: /S/ XXXX X. XXXXXX
---------------------------------------- /S/ XXXX XXXX
Managing Director -----------------------------------------------
XXXX XXXX, PH.D.
IVP FOUNDERS FUND I, L.P.
By: Institutional Venture Management VI, L.P.
Its: General Partner
/S/ XXXXX XXXXX
By: /S/ XXXX X. XXXXXX -----------------------------------------------
---------------------------------------- XXXXX XXXXX
General Partner
/S/ XXXXX XXXXXXXXXX
/S/ XXXX X. XXXXXX -----------------------------------------------
-------------------------------------------- XXXXX XXXXXXXXXX
XXXX X. XXXXXX
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SCHEDULE I
----------
Shares of Company Common
Stock Owned by Company
Stockholder
Name and Address of Company Stockholders at March ___, 2002
------------------------------------------------------ ------------------------
Xxx Xxxx 4,197,856
Xxx Xxxx, Trustee of the Xxxxxxx X. Xxxx Grantor 182,150
Retained Annuity Trust
0000 Xxxxxxxx Xxxxx Xxxx
Xxxx, XX 00000
Institutional Venture Partners VIII, L.P. 3,224,340
IVM Investment Fund VIII, LLC 39,312
IVM Investment Fund VIII-A, LLC 12,258
IVP Founders Fund I, L.P. 27,240
Xxxx X. Xxxxxx 433,000
Xxxxx Xxxxxxx 257,650
Xxxx Xxxx Ph.D 30,000*
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxxx Xxxxxxx Xxxxx and Xxxxxx Xxxxxx Xxxxx, Trustees 209,672
UTA dated August 26, 1994
00000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
----------
Xxxxx Xxxxx **
Xxxxx Xxxxxxxxxx **
c/o iGo Corporation
0000 Xxxxxxx Xxxxx
Xxxx, XX 00000
----------
Total: 8,613,478
----------
----------
* Excludes shares subject to outstanding stock options.
** No outstanding shares held. Holders hold only stock options.
SI-1
