EXHIBIT 4.16
MOBILITY ELECTRONICS, INC.
SERIES C PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
OCTOBER 29, 1999
MOBILITY ELECTRONICS, INC.
SERIES C PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
This Series C Preferred Stock and Warrant Purchase Agreement (the
"Agreement") is made as of the 29th day of October, 1999, by and between
Mobility Electronics, Inc., a Delaware corporation (the "Company"), and Xxxxxxxx
Communications and Information Fund, Inc. (the "Purchaser").
The parties hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED STOCK AND WARRANT.
1.1 SALE AND ISSUANCE OF SERIES C PREFERRED STOCK AND WARRANT.
(a) The Company has adopted and filed with the Secretary of State of
the State of Delaware a Certificate of the Designations, Preferences, Rights and
Limitations of Series C Preferred Stock of the Company, a copy of which is
attached hereto as Exhibit A (the "Certificate of Designations").
(b) Subject to the terms and conditions of this Agreement, Purchaser
agrees to purchase at the Closing (as defined below) and the Company agrees to
sell and issue to Purchaser at the Closing 333,333 shares of Series C Preferred
Stock at a purchase price of $6.00 per share; provided, however, that to the
extent any shares of Series C Preferred Stock are sold by the Company at a price
less than $6.00 per share, Purchaser will receive, and the Company agrees to
issue, additional shares of Series C Preferred Stock so that Purchaser receives
the benefit of such lower issuance price by issuing additional shares of Series
C Preferred Stock in an amount equal to the remainder of (i) the aggregate
amount of Purchaser's original investment divided by such lower issuance price
minus (ii) the aggregate number of shares of Series C Preferred Stock then
issued to Purchaser (subject to adjustment for all stock splits, stock
dividends, combinations, recapitalization and the like). The shares of Series C
Preferred Stock issued to Purchaser pursuant to this Agreement shall be
hereinafter referred to as the "Stock".
(c) Subject to the terms and conditions of this Agreement, at the
Closing the Company agrees to issue to Purchaser, at no additional cost, a
warrant to purchase up to 666,666 shares of common stock, par value $0.01 per
share (the "Common Stock"), of the Company, at an exercise price of $0.01 per
share, which warrant shall be in the form of Exhibit B attached hereto (the
"Warrant").
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1.2 CLOSING; DELIVERY.
(a) The purchase and sale of the Stock shall take place at the
offices of Xxxxxxx Xxxxxx L.L.P., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, at
10:00 a.m., on the date hereof, or at such other time and place as the Company
and the Purchasers mutually agree upon, orally or in writing (which time and
place are designated as the "Closing").
(b) At the Closing, the Company shall deliver to Purchaser: (i) a
certificate representing the Stock being purchased hereby; and (ii) the Warrant,
against payment of $1,999,998 by wire transfer to the Company's bank account.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Purchaser that, except as set forth on a
Schedule of Exceptions attached hereto as Exhibit C, which exceptions shall be
deemed to be representations and warranties as if made hereunder:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to:
(i) carry on its business as now conducted and proposed to be conducted; (ii)
execute and deliver this Agreement and, the Investors' Rights Agreement in the
form attached hereto as Exhibit D (the "Investors' Rights Agreement") (together
with this Agreement, the "Agreements") and (iii) issue and sell the Stock, the
Warrant and the Common Stock issuable upon conversion of the Stock and exercise
of the Warrant (together, the "Securities") and to carry out the provisions of
the Agreements. The Company is duly qualified to transact business and is in
good standing in each jurisdiction in which the failure so to qualify would have
a material adverse effect on its business or properties. The jurisdictions in
which the Company is qualified to do business are listed on the Schedule of
Exceptions set forth in Exhibit C attached hereto.
2.2 CAPITALIZATION. The authorized capital of the Company consists of:
(a) 5,000,000 shares of Preferred Stock, of which (i) 2,500 shares
have been designated Series A Preferred Stock, none of which are issued and
outstanding; (ii) 4,186 shares have been designated Series B Preferred Stock,
none of which are issued and outstanding; and (iii) 4,500,000 shares have been
designated Series C Preferred Stock, 1,166,365 of which are issued and
outstanding immediately prior to the Company's current $5 million offering of
Series C Preferred Stock. All of the outstanding shares of Series C Preferred
Stock have been duly and validly authorized, fully paid and are nonassessable
and issued in compliance with all applicable federal and state securities laws.
(b) 75,000,000 shares of Common Stock, 10,992,825 shares of which
are issued and outstanding immediately prior to the Closing. All of the
outstanding shares of Common
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Stock have been duly and validly authorized, fully paid and are nonassessable
and issued in compliance with all applicable federal and state securities laws.
(c) The Company has reserved 1,197,282 shares of Common Stock for
issuance to officers, directors, employees and advisors of the Company pursuant
to the Company's Amended and Restated 1996 Long Term Incentive (the "Stock
Plan"), and has issued and outstanding options under the Stock Plan to purchase
703,456 shares of Common Stock as of September 30, 1999.
(d) The Company has issued and outstanding the following other
securities: (i) warrants to purchase 3,330,059 shares of Common Stock (ii)
options to purchase 264,396 shares of Common Stock and (iii) approximately
$95,000 of 12% Convertible Debentures, 60% of which is convertible into shares
of Common Stock at a conversion price of $3.86 per share.
(e) Except for (i) conversion privileges of the Series C Preferred
Stock, (ii) outstanding options issued pursuant to the Stock Plan, (iii)
conversion and exercise privileges of the securities described in subsections
(c) and (d) above, there are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal or similar rights)
or agreements, orally or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock. The Company is not a party or
subject to any agreement or understanding, and there is no agreement or
understanding between any person and/or entities, which affects or relates to
the voting or giving of written consents with respect to any security or by a
director of the Company. The Company has outstanding the registration rights set
forth in Section 2.2 of Exhibit C.
2.3 SUBSIDIARIES. The Company does not currently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity.
2.4 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of the Agreements, the performance of all obligations of the
Company under the Agreements and the authorization, issuance, sale and delivery
of the Securities has been taken or will be taken prior to the Closing, and the
Agreements, when executed and delivered by the Company, shall constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of
general application affecting enforcement of creditors' rights generally, as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, or (ii) to the extent the indemnification
provisions contained in the Investors' Rights Agreement may be limited by
applicable federal or state securities laws.
2.5 VALID ISSUANCE OF SECURITIES. The Stock that is being issued to the
Purchasers hereunder, when issued, sold and delivered in accordance with the
terms hereof for the
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consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable and free of restrictions on transfer other than restrictions on
transfer under the Agreements and applicable state and federal securities laws.
Based in part upon the representations of the Purchasers in this Agreement, the
Stock will be issued in compliance with all applicable federal and state
securities laws. The Common Stock issuable upon conversion of the Stock and
exercise of the Warrant has been duly and validly reserved for issuance, and
upon issuance in accordance with the terms of the Certificate of Designations or
the Warrant (as the case may be), shall be duly and validly issued, fully paid
and nonassessable and free of restrictions on transfer other than restrictions
on transfer under the Agreements, and applicable federal and state securities
laws and will be issued in compliance with all applicable federal and state
securities laws.
2.6 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement, except for filings pursuant to applicable state securities laws
and Regulation D of the Securities Act of 1933, as amended (the "Securities
Act") which filing will be effected within fifteen (15) days after the sale of
the Stock.
2.7 LITIGATION. There is no action, suit, proceeding or investigation
pending or, to the best knowledge of the Company, currently threatened against
the Company or any of its subsidiaries that questions the validity of the
Agreements or the right of the Company to enter into them, or to consummate the
transactions contemplated hereby or thereby, or that might result, either
individually or in the aggregate, in any material adverse changes in the assets,
condition or affairs of the Company, financially or otherwise, or any change in
the current equity ownership of the Company, nor is the Company aware that there
is any basis for the foregoing. The foregoing includes, without limitation,
actions pending or to the best knowledge of the Company threatened in writing
involving the prior employment of any of the Company's employees, their use in
connection with the Company's business of any information or techniques
allegedly proprietary to any of their former employers. Neither the Company nor
any of its subsidiaries is a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company or any of its subsidiaries currently pending or which the Company or any
of its subsidiaries intends to initiate.
2.8 INTELLECTUAL PROPERTY. The Company owns or possesses sufficient
title and ownership of or licenses to all patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information and proprietary
rights and processes necessary for its business as conducted and proposed to be
conducted without any conflict with, or infringement of, the rights of others.
There are no outstanding options, licenses or agreements of any kind relating to
the foregoing, nor is the Company bound by or a party to any options, licenses
or agreements of any kind with respect to the patents, trademarks, service
marks, trade names, copyrights, trade secrets, licenses, information and other
proprietary rights and processes of any other person or entity other
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than such licenses or agreements arising from the purchase of "off the shelf" or
standard commercial products. The Company has not received any communications
alleging that the Company has violated or, by conducting its business, would
violate any of the patents, trademarks, service marks, trade names, copyrights,
trade secrets or other proprietary rights or processes of any other person or
entity. The Company, to the best of its knowledge, is not aware that any of its
employees is obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere with
the use of such employee's best efforts to promote the interest of the Company
or that would conflict with the Company's business. To the best knowledge of the
Company, neither the execution or delivery of this Agreement, nor the carrying
on of the Company's business by the employees of the Company, nor the conduct of
the Company's business as proposed, will conflict with or result in a breach of
the terms, conditions, or provisions of, or constitute a default under, any
contract, covenant or instrument under which any such employee is now obligated.
The Company does not believe it is or will be necessary to use any inventions of
any of its employees (or persons it currently intends to hire) made prior to
their employment by the Company.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS.
(a) The Company is not in violation or default of any provisions of
(i) its Certificate of Incorporation or Bylaws (as such documents are in force
and effect as of the Closing Date) or (ii) any instrument, judgment, order,
writ, decree or contract to which it is a party or by which it is bound, the
violation of, or default, which would have a material adverse effect on the
Company, or, to the best knowledge of the Company, of any provision of federal
or state statute, rule or regulation applicable to the Company. The execution,
delivery and performance of the Agreements and the consummation of the
transactions contemplated hereby or thereby will not result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event which results
in the creation of any lien, charge or encumbrance upon any assets of the
Company.
(b) The Company has avoided every condition, and has not performed
any act, the occurrence of which would result in the Company's loss of any right
granted under any license, distribution agreement or other agreement.
2.10 AGREEMENTS; ACTION.
(a) There are no agreements, understandings or proposed transactions
between the Company and any of its officers, directors, affiliates, or any
affiliate thereof.
(b) Except as created or incurred in the ordinary course of
business, as related to the Company's Universal Docking Station, or for
agreements explicitly contemplated by the Agreements, there are no agreements,
understandings, instruments, contracts or proposed
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transactions to which the Company or any of its subsidiaries is a party or by
which it is bound that involve (i) obligations (contingent or otherwise) of, or
payments to, the Company or any of its subsidiaries in excess of, $100,000, (ii)
the license of any patent, copyright, trade secret or other proprietary right to
or from the Company or any of its subsidiaries, (iii) the grant of rights
(excluding contract manufacturing rights and relationships) to manufacture,
produce, assemble, license, market, or sell its products to any other person or
affect the Company's exclusive right to develop, manufacture, assemble,
distribute, market or sell its products; or (iv) indemnification by the Company
with respect to infringement of proprietary rights (other than indemnification
obligations arising from purchase or sale agreements entered into in the
ordinary course of business).
(c) Neither the Company nor any of its subsidiaries has (i) declared
or paid any dividends, or authorized or made any distribution upon or with
respect to any class or series of its capital stock, (ii) incurred any
indebtedness for money borrowed or incurred any other liabilities individually
in excess of $25,000 or in excess of $100,000 in the aggregate, other than in
the ordinary course of business, (iii) made any loans or advances to any person,
other than ordinary advances for travel and relocation expenses and the like, or
(iv) sold, exchanged or otherwise disposed of any of its assets or rights, other
than the sale of its inventory in the ordinary course of business.
2.11 DISCLOSURE. The Company has fully provided Purchaser with all the
information that Purchaser has requested for deciding whether to acquire the
Stock and the Warrant and all information that the Company believes is
reasonably necessary to enable the Purchaser to make such a decision, including
the Company's 1999 Company Overview, dated September 1999 (the "Company
Overview"). No representation or warranty of the Company contained in this
Agreement and the exhibits attached hereto, any certificate furnished or to be
furnished to Purchaser at the Closing, or the Company Overview (when read
together) contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances under which they were made.
To the extent the Company Overview was prepared by management of the Company,
the Company Overview and the financial and other projections contained in the
Company Overview and other written information provided to the Purchaser were
prepared in good faith (with the exception of information prepared by third
party sources and identified as such in the Company Overview or other written
information and to which the Company makes no representation except that it has
no basis to believe such sections are inaccurate); however, the Company does not
warrant that it will achieve such projections.
2.12 NO CONFLICT OF INTEREST. The Company is not indebted, directly or
indirectly, to any of its officers or directors or to their respective spouses
or children, in any amount whatsoever other than in connection with expenses or
advances of expenses incurred in the ordinary course of business or relocation
expenses of employees which amount does not in the aggregate exceed $50,000.
None of the Company's officers or directors, or any members of their immediate
families, are, directly or indirectly, indebted to the Company (other than in
connection with purchases of the
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Company's stock) or to the best knowledge of the Company have any direct or
indirect ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation which competes with the Company except that officers, directors
and/or stockholders of the Company may own stock in (but not exceeding two
percent of the outstanding capital stock of) any publicly traded company that
may compete with the Company. None of the Company's officers or directors or any
members of their immediate families are, directly or indirectly, interested in
any material contract with the Company. The Company is not a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
2.13 RIGHTS OF REGISTRATION AND VOTING RIGHTS. Except as contemplated in
the Investors' Rights Agreement, the Company has not granted or agreed to grant
any registration rights, including piggyback rights, to any person or entity. To
the best knowledge of the Company, no stockholder of the Company has entered
into any agreements with respect to the voting of capital shares of the Company.
2.14 TITLE TO PROPERTY AND ASSETS. The Company owns its property and
assets free and clear of all mortgages, liens, loans and encumbrances, except
such encumbrances and liens which arise in the ordinary course of business and
do not materially impair the Company's ownership or use of such property or
assets. With respect to the property and assets it leases, the Company is in
compliance with such leases and, to its knowledge, holds a valid leasehold
interest free of any liens, claims or encumbrances. The Company is in compliance
with all material terms of each material lease to which it is a party or
otherwise bound.
2.15 FINANCIAL STATEMENTS. The Company has made available to Purchaser
the financial statements set forth in the Company Overview (collectively, the
"Financial Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated, except that the unaudited Financial
Statements may not contain all footnotes required by generally accepted
accounting principles. The Financial Statements fairly present the financial
condition and operating results of the Company as of the dates, and for the
periods, indicated therein, subject to normal year-end audit adjustments. Except
as set forth in the Financial Statements, the Company has no material
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to June 30, 1999 and (ii) obligations
under contracts and commitments incurred in the ordinary course of business and
not required under generally accepted accounting principles to be reflected in
the Financial Statements, which, in both cases, individually or in the aggregate
are not material to the financial condition or operating results of the Company.
2.16 CHANGES. Since June 30, 1999 there has not been:
(a) any change in the assets, liabilities, financial condition or
operating results of the Company from that reflected in the Financial
Statements, except actions contemplated
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in the Company Summary and changes in the ordinary course of business that have
not been, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the business, properties,
prospects, or financial condition of the Company;
(c) any waiver or compromise by the Company of a valuable right or
of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the business, properties,
prospects or financial condition of the Company;
(e) any material change to a material contract or agreement by which
the Company or any of its assets is bound or subject;
(f) any material change in any compensation arrangement or agreement
with any employee, officer, director or stockholder;
(g) any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of any officer or
key employee of the Company; and the Company is not aware of any impending
resignation or termination of employment of any such officer or key employee;
(i) any mortgage, pledge, transfer of a security interest in, or
lien, created by the Company, with respect to any of its material properties or
assets, except liens for taxes not yet due or payable;
(j) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(k) any declaration, setting aside or payment or other distribution
in respect to any of the Company's capital stock, or any direct or indirect
redemption, purchase, or other acquisition of any of such stock by the Company;
(l) any declaration or payment of any dividend or other distribution
of the assets of the Company;
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(m) receipt of notice by the Company that there has been a loss of,
or material order cancellation by, any major customer of the Company;
(n) to the Company's knowledge, any other event or condition of any
character that might materially and adversely affect the business, properties,
prospects or financial condition of the Company; or
(o) any arrangement or commitment by the Company to do any of the
things described in this Section 2.16.
2.17 EMPLOYEE BENEFIT PLANS. The Company does not have any Employee
Benefit Plan as defined in the Employee Retirement Income Security Act of 1974.
2.18 TAX RETURNS AND PAYMENTS. The Company has filed all tax returns and
reports as required by law. These returns and reports are true and correct in
all material respects. The Company has paid all taxes and other assessments due.
The Company has not made any elections pursuant to the Internal Revenue Code of
1986, as amended (the "Code") (other than elections that relate solely to
methods of accounting, depreciation or amortization) that would have a material
effect on the Company, its financial condition, its business as presently
conducted or proposed to be conducted or any of its properties or material
assets. The Company had never had any tax deficiency proposed or assessed
against it and has not executed any waiver of any statute of limitations on the
assessment or collection of any tax or governmental charge. None of the
Company's federal income tax returns and none of its state income or franchise
tax or sales or use tax returns has ever been audited by governmental
authorities. Since the date of the Financial Statements, the Company has not
incurred any taxes, assessments or governmental charges other than in the
ordinary course of business and the Company has made adequate provisions on its
books of account for all taxes, assessments and governmental charges with
respect to its business, properties and operations for such period. The Company
has withheld or collected from each payment made to each of its employees, the
amount of all taxes (including, but not limited to, federal income taxes,
federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes)
required to be withheld or collected therefrom, and has paid the same to the
proper tax receiving officers or authorized depositories.
2.19 INSURANCE. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
2.20 LABOR AGREEMENTS AND ACTIONS. The Company is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the best knowledge of
the Company, has sought to represent any of the employees, representatives or
agents of the Company. There is no strike or other labor dispute involving the
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Company pending, or to the best knowledge of the Company threatened, which could
have a material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company, nor is the Company aware of any
labor organization activity involving its employees. The Company is not aware
that any officer or key employee, or that any group of key employees, intends to
terminate their employment with the Company, nor does the Company have a present
intention to terminate the employment of any of the foregoing. The employment of
each officer and employee of the Company is terminable at the will of the
Company. The Company has complied in all material respects with all applicable
state and federal equal employment opportunity laws and with other laws related
to employment. The Company is not a party to or bound by any currently effective
employment contract, deferred compensation agreement, bonus plan, incentive
plan, profit sharing plan, retirement agreement, or other employee compensation
agreement.
2.21 CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENTS.
Substantially all current employees and officers of the Company have executed an
agreement with the Company regarding confidentiality and proprietary information
substantially in the form or forms delivered to the counsel for the Purchasers.
The Company is not aware that any of its employees or consultants is in
violation thereof.
2.22 PERMITS. The Company and each of its subsidiaries has all
franchises, permits, licenses and any similar authority necessary for the
conduct of its business, the lack of which could materially and adversely affect
the business, properties, prospects, or financial condition of the Company. The
Company is not in default in any material respect under any of such franchises,
permits, licenses or other similar authority.
2.23 CORPORATE DOCUMENTS. The Certificate of Incorporation and Bylaws of
the Company are in the form provided to counsel for the Purchasers. The copy of
the minute books of the Company provided to the Purchasers' counsel contains
minutes of all meetings of directors and stockholders and all actions by written
consent without a meeting by the directors and stockholders since the date of
incorporation and reflects all actions by the directors (and any committee of
directors) and stockholders with respect to all transactions referred to in such
minutes accurately in all material respects.
2.24 ENVIRONMENTAL AND SAFETY LAWS. The Company is not in violation of
any applicable statute, law or regulation relating to the environment or
occupational health and safety, and to its knowledge, no material expenditures
are or will be required in order to comply with any such existing statute, law
or regulation.
2.25 OFFERING. Subject in part to the truth and accuracy of each
Purchaser's representations and warranties set forth in Section 3 of this
Agreement, the offer, sale and issuance of the Securities as contemplated by
this Agreement are exempt from the registration requirements of the Securities
Act and any applicable state securities laws, and neither the Company nor any
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authorized agent acting on its behalf will take any action hereafter that would
cause the loss of such exemption.
2.26 SIGNIFICANT CUSTOMERS AND SUPPLIERS. No customer or supplier that
was significant to the Company during the period from June 30, 1999 to the date
hereof has terminated, materially reduced or threatened to terminate or
materially reduce its purchases from or provision of products or services to the
Company, as the case may be.
2.27 OUTSTANDING CAPITAL STOCK. There are no issued and outstanding
shares of capital stock of the Company which have dividend or redemption rights,
liquidation preferences, conversion rights, voting rights or otherwise which are
superior to or on a party with the Series C Preferred Stock.
2.28 YEAR 2000 COMPLIANCE. To the best knowledge of the Company after
due inquiry, the Company's software, hardware and other computer and information
technology (collectively, "Information Technology") is Year 2000 Compliant (as
defined in the next sentence). "Year 2000 Compliant" shall mean that such
Information Technology is designed to be used prior to, during and after the
calendar year 2000 A.D., and such Information Technology used during each such
time period shall accurately receive, provide and process data/time data
(including, but not limited to. calculation, comparing and sequencing) from,
into and between the twentieth and twenty-first centuries, including the years
1999 and 2000, and leap year calculations and will not malfunction, cease to
function, or provide invalid or incorrect results as a result of data/time data,
to the extent that other information technology, used in combination of the
information technology being acquired, properly exchanges data/time data with
it.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby represents
and warrants to the Company that:
3.1 AUTHORIZATION. Purchaser has full power and authority to enter into
this Agreement. The Agreements, when executed and delivered by Purchaser, will
constitute valid and legally binding obligations of Purchaser, enforceable in
accordance with their terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of creditors' rights
generally, and as limited by laws relating to the availability of a specific
performance, injunctive relief, or other equitable remedies, or (b) to the
extent the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities laws.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
Purchaser in reliance upon Purchaser's representation to the Company, which by
Purchaser's execution of this Agreement Purchaser hereby confirms, that the
Securities to be acquired by Purchaser will be acquired for investment for
Purchaser's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that Purchaser has no present
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intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, Purchaser further represents that
Purchaser does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of the Securities. Purchaser
has not been formed for the specific purpose of acquiring the Securities.
3.3 DISCLOSURE OF INFORMATION. Purchaser has had an opportunity to
discuss the Company's business, management, financial affairs and the terms and
conditions of the offering of the Stock and Warrant with the Company's
management and has had an opportunity to review the Company's facilities.
Purchaser understands that such discussions, as well as the Company Overview and
any other written information delivered by the Company to Purchaser, were
intended to describe the aspects of the Company's business which it believes to
be material.
3.4 RESTRICTED SECURITIES. Purchaser understands that the Securities
have not been, and will not be, registered under the Securities Act, by reason
of a specific exemption from the registration provisions of the Securities Act
which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of Purchaser's representations as expressed herein.
Purchaser understands that the Securities are "restricted securities" under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, Purchaser must hold the Securities indefinitely unless they are registered
with the Securities and Exchange Commission and qualified by state authorities,
or an exemption from such registration and qualification requirements is
available. Purchaser acknowledges that the Company has no obligation to register
or qualify the Securities for resale except as set forth in the Investors'
Rights Agreement. Purchaser further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale, the
holding period for the Securities, and on requirements relating to the Company
which are outside of Purchaser's control, and which the Company is under no
obligation and may not be able to satisfy.
3.5 NO PUBLIC MARKET. Purchaser understands that no public market now
exists for any of the securities issued by the Company, and that the Company has
made no assurances that a public market will ever exist for the Securities.
3.6 LEGENDS. Purchaser understands that the Securities, and any
securities issued in respect of or exchange for the Securities, may bear one or
all of the following legends (or substantially similar legends):
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE
Page 12
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933."
(b) Any legend set forth in the other Agreements.
(c) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the certificate so
legended.
3.7 ACCREDITED INVESTOR. Purchaser is an accredited investor as defined
in Rule 501(a) of Regulation D promulgated under the Securities Act as
presently in effect.
4. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING. The obligations of
Purchaser to the Company under this Agreement are subject to the fulfillment, on
or before the Closing, of each of the following conditions, unless otherwise
waived:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained in Section 2 shall be true and correct on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of the Closing.
4.2 PERFORMANCE. The Company shall have performed and complied with all
covenants, agreements, obligations and conditions contained in this Agreement
that are required to be performed or complied with by it on or before the
Closing.
4.3 COMPLIANCE CERTIFICATE. The President of the Company shall deliver
to the Purchasers at the Closing a Compliance Certificate certifying that the
conditions specified in Sections 4.1 and 4.2 have been fulfilled.
4.4 CONSENTS; QUALIFICATIONS. The Company shall have obtained any and
all consents, permits and waivers necessary or appropriate for consummation of
the transactions contemplated by the Agreements (except for such as may be
properly obtained subsequent to the Closing Date). All authorizations, approvals
or permits, if any, of any governmental authority or regulatory body of the
United States or of any state that are required in connection with the lawful
issuance and sale of the Stock pursuant to this Agreement shall be obtained and
effective as of the Closing.
4.5 OPINION OF COMPANY COUNSEL. Purchaser shall have received from
Xxxxxxx Xxxxxx L.L.P., counsel for the Company, an opinion, dated as of the
Closing, in substantially the form of Exhibit E.
4.6 RESERVATION OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE STOCK
AND EXERCISE OF THE WARRANT. The Common Stock issuable upon conversion of the
Stock and
Page 13
exercise of the Warrant shall have been duly authorized and reserved for
issuance upon such conversion.
4.7 INVESTOR'S RIGHTS AGREEMENT. The Company and Purchaser shall have
executed and delivered the Investor's Rights Agreement in substantially the form
attached as Exhibit D.
4.8 DUE DILIGENCE. Purchaser shall, in its sole discretion have
completed their legal and financial due diligence and the results of such due
diligence shall, in the sole discretion of Purchaser, be acceptable to Purchaser
and its legal counsel. The Schedule of Exceptions delivered to Purchaser by the
Company shall contain no exception deemed unacceptable by Purchaser in its sole
discretion.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of
the Company to Purchaser under this Agreement are subject to the fulfillment, on
or before the Closing, of each of the following conditions, unless otherwise
waived:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Purchaser contained in Section 3 shall be true and correct on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing.
5.2 PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed by Purchaser on or prior to the Closing shall
have been performed or complied with in all material respects.
5.3 QUALIFICATIONS. All authorizations, approvals or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Stock and the Warrant pursuant to this Agreement shall be obtained and effective
as of the Closing.
6. MISCELLANEOUS.
6.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in this
Agreement, the warranties and representations of the Company and Purchaser
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing for a period of two (2) years
following the Closing, except for the warranties and representations in Section
2.8 which shall survive the execution and delivery of this Agreement and the
Closing for a period of three (3) years following the Closing. The covenants set
forth in this Agreement shall survive until the consummation of an initial
public offering of Common Stock or the merger, acquisition or sale of
substantially all of the assets of the Company in which the stockholders of the
Company immediately prior to such event do not own a majority of the outstanding
shares of the surviving corporation.
Page 14
6.2 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.3 GOVERNING LAW. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law.
6.4 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.5 NOTICES. Any notice required or permitted by this Agreement shall be
in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth on the signature page hereto, or as subsequently
modified by written notice.
6.6 FINDER'S FEE. Except for a placement agent fees payable by the
Company to BancBoston Xxxxxxxxx Xxxxxxxx Inc., each party represents that it
neither is nor will be obligated for any finder's fee or commission in
connection with Purchaser's investment hereunder. Purchaser agrees to indemnify
and to hold harmless the Company from any liability for any commission or
compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which Purchaser or
any of its officers, employees, or representatives is responsible. The Company
agrees to indemnify and hold harmless each Purchaser from any liability for any
commission or compensation in the nature of a finder's fee (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company or any of its officers, employees or representatives is responsible.
6.7 FEES AND EXPENSES. Each party shall be responsible for any fees or
expenses, incurred by it with respect to this Agreement, the documents referred
to herein and the transactions contemplated hereby and thereby.
6.8 ATTORNEY'S FEES'. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of any of the
Agreements, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
Page 15
6.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or
waived only with the written consent of the Company and the holders of at least
a majority of the Common Stock issued or issuable upon conversion of the Stock
and exercise of the Warrant. Any amendment or waiver effected in accordance with
this Section 6.9 shall be binding upon the Purchasers and each transferee of the
Stock (or the Common Stock issuable upon conversion thereof) and Warrant (of the
Common Stock issuable upon exercise thereof), each future holder of all such
securities, and the Company.
6.10 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
6.11 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
6.12 ENTIRE AGREEMENT. This Agreement, and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
6.13 CONFIDENTIALITY. Each party hereto agrees that, except with the
prior written permission of the other parties hereto, it shall at all times keep
confidential and not divulge, or make accessible to anyone any confidential
information, knowledge or data concerning or relating to the business or
financial affairs of the other parties to which such party has been or shall
become privy by reason of this Agreement, discussions or negotiations relating
to this Agreement, the performance of its obligations hereunder or the ownership
of Securities purchased hereunder. The provisions of this Section 6.13 shall be
in addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by the parties hereto with respect to the
transactions contemplated hereby.
Page 16
6.14 RELIANCE. Purchaser acknowledges that it is not relying upon any
person, firm or corporation, other than the Company and its officers and
directors, in making its investment or decision to invest in the Company.
6.15 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
The parties have executed this Agreement as of the date first written
above.
MOBILITY ELECTRONICS, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxxx, Chief Financial Officer
Address: 00000 Xxxxxxxx-Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
XXXXXXXX COMMUNICATIONS AND INFORMATION FUND, INC.
BY: J. & X. XXXXXXXX & CO. INCORPORATED,
ITS INVESTMENT ADVISER
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------
Title: Managing Director
-------------------------
Address: 000 Xxxxxxxxxx Xxx.
Xxxx Xxxx, XX 00000
(000) 000-0000
Page 17
