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STRATEGIC PARTNER AGREEMENT
This Strategic Partner Agreement (the "Agreement") is made as of the
29th day of August, 2000, by and among Mobility Electronics, Inc., a Delaware
corporation ("Mobility"), Portsmith, Incorporated, a Delaware corporation
("Portsmith"), and the stockholders of Portsmith, which stockholders are listed
on the signature page hereto under the heading "Stockholders" (the
"Stockholders"). Mobility, Portsmith and the Stockholders are sometimes each
referred to herein as a "Party" and collectively, as the "Parties".
The Parties agree as follows:
1. STRATEGIC RELATIONSHIP.
1.1 BACKGROUND. Portsmith and Mobility currently have a strategic
business relationship, and desire to significantly expand such relationship as
provided herein.
1.2 AGREEMENTS AND DOCUMENTS BETWEEN THE PARTIES. At the Closing
(as defined below), the Parties agree as follows:
(i) Portsmith and Mobility agree to execute and deliver to
each other the Amended and Restated Purchase and Development Agreement,
in the form attached hereto as Exhibit A (the "D&P Agreement").
(ii) Portsmith and Mobility agree to execute and deliver to
each other the Private Label Agreement, in the form attached hereto as
Exhibit B (the "Private Label Agreement").
(iii) Mobility agrees to loan to Portsmith up to $3,000,000,
on the terms and conditions set forth in the Subordinated Convertible
Promissory Note of Mobility, in the form attached hereto as Exhibit C
(the "Note"), and (A) Portsmith agrees to execute and deliver the Note,
(B) Portsmith and Mobility agree to execute and deliver to each other
the Security Agreement and Patent Collateral Assignment, in the forms
attached hereto as Exhibits D-1 and D-2 (collectively, the "Security
Agreement"), and (C) Portsmith shall execute and deliver to Mobility
appropriate UCC-1 and other financing statements or documents to
evidence the security interest granted to Mobility in certain assets of
Portsmith under the Security Agreement.
(iv) Portsmith, the Stockholders and Mobility agree to execute
and deliver to each other the Stock Option Agreement, in the form
attached hereto as Exhibit E (the "Option Agreement").
(v) Mobility grants to Portsmith a five (5) year worldwide,
royalty-free, non-exclusive, non-transferable and non-sublicensable
right (the "License") to use, sell or otherwise incorporate into
products the technology set forth in U.S. Patent No. US 5941965 (the
"Xxxxx Patent"); it being agreed and understood that Portsmith takes
the License "AS IS WHERE IS." MOBILITY EXPRESSLY DISCLAIMS ANY IMPLIED
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WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR OWNERSHIP
OR NON-INFRINGEMENT.
The documents, instruments and agreements described in subparts (i) - (iv) above
are sometimes referred to herein as the "Strategic Agreements".
1.3 BOARD OF DIRECTORS. Portsmith and the Stockholders agree to
take all appropriate action to: (i) establish and maintain a Board of Directors
consisting of no more than five (5) persons; and (ii) cause the following number
of nominees of Mobility to be elected to, and remain a member of, Portsmith's
Board of Directors: (A) one person on or after the date hereof; (B) an
additional one person (two in total) on or after the date that Mobility
exercises its option for the Second Tranche (as defined in the Option
Agreement); and (C) an additional one person (three in total) on or after the
date that Mobility exercises its option for the Third Tranche (as defined in the
Option Agreement). Each Stockholder agrees that at every regular or special
meeting of the stockholders of Portsmith, and whenever the consent of
stockholders, at which meeting or in which consent, one or more of the directors
of Portsmith are to be elected, such Stockholder will vote all capital stock of
Portsmith owned by such Stockholder or which such Stockholder is entitled to
vote, whether by proxy, agreement or otherwise, in favor of the nominee(s)
selected by Mobility. In addition to the rights set forth above, on or after the
date hereof, Mobility shall have the right to have a representative attend and
to receive prior notice of (and all materials provided to the managers
regarding) all meetings of the Board of Directors of Portsmith, but such
representative shall not have the right to vote at any such meeting and shall
not be counted in determining the presence of a quorum for such meeting.
1.4 FINANCIAL INFORMATION. Portsmith will maintain a system of
accounts in accordance with generally accepted accounting principles and
procedures ("GAAP"), keep full and complete financial records and will furnish
to Mobility the following reports:
(i) within one hundred twenty (120) days after the end of each
fiscal year, a copy of the balance sheet of Portsmith as of the end of
such year, together with a consolidated statement of income and
retained earnings of Portsmith for such year, audited by and
accompanied by the report of independent public accountants, prepared
in accordance with GAAP and practices consistently applied. In
addition, Portsmith will provide such financial statements in
comparative form with the corresponding periods of the prior year and
budgeted figures for the current year;
(ii) within forty-five (45) days after the end of each fiscal
quarter, an unaudited consolidated balance sheet of Portsmith as of the
end of each fiscal quarter and an unaudited consolidated statement of
income, cash flow and retained earnings for Portsmith for such quarter
and for the year to date, prepared in accordance with GAAP (except for
year end audit adjustments and footnotes) and practices consistently
applied. In addition, Portsmith will provide such financial statements
in comparative form with the corresponding periods of the prior year
and budgeted figures for the current year;
(iii) within thirty (30) days after the end of each month, an
unaudited consolidated balance sheet of Portsmith as of the end of such
month and an unaudited consolidated statement of income.
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(iv) such other financial information as Mobility may
reasonably request.
Portsmith will permit Mobility to inspect at Mobility's expense any of
the properties or books and records of Portsmith, to make copies of extracts
from such books and records and to discuss the affairs and condition of
Portsmith with representatives of Portsmith, all to such reasonable extent and
at such reasonable times and intervals as Mobility may reasonably request.
1.5 ISSUANCES OF CAPITAL STOCK. Portsmith agrees that following
the exercise by Mobility of any Tranche (as defined in the Option Agreement),
Portsmith will not issue, or agree to issue any Capital Stock (as defined in the
Option Agreement) or any Capital Stock Equivalents (as defined in the Option
Agreement) at a price per share of Capital Stock (or the effective price per
share of Capital Stock in the event of any issuance of Capital Stock
Equivalents), less than the price per share paid by Mobility upon exercise of
such Tranche by Mobility (as determined by dividing the aggregate exercise price
paid by Mobility upon exercise of such Tranche by the number of shares of
Capital Stock received by Mobility upon such exercise).
1.6 CLOSING; DELIVERY. The closing of the transactions
contemplated herein (the "Closing") 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.
2. REPRESENTATIONS AND WARRANTIES OF PORTSMITH. Portsmith hereby
represents and warrants to Mobility that the following are true and correct as
of the date hereof:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. Portsmith 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 Strategic Agreements (collectively,
the "Agreements"); (iii) issue to Mobility the Common Stock (as defined in the
Note) issuable upon conversion of the Note (the "Portsmith Stock"); and (iv)
carry out the provisions of the Agreements. Portsmith 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.
2.2 AUTHORIZATION. All corporate action on the part of Portsmith,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of the Agreements, the performance of all obligations of
Portsmith under the Agreements and the authorization, issuance, sale and
delivery of the Portsmith Stock has been taken, and the Agreements, when
executed and delivered by Portsmith, shall constitute valid and legally binding
obligations of Portsmith, enforceable against Portsmith in accordance with their
terms
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except 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.
2.3 COMPLIANCE WITH OTHER INSTRUMENTS. Portsmith is not in
violation or default of any provisions of (i) its Certificate of Incorporation
or Bylaws, copies of which are attached hereto as Exhibits F 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 Portsmith, or, to the best knowledge of Portsmith, of any
provision of federal or state statute, rule or regulation applicable to
Portsmith. 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 Portsmith.
3. REPRESENTATIONS AND WARRANTIES OF MOBILITY. Mobility hereby
represents and warrants to Portsmith that the following are true and correct as
of the date hereof:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. Mobility 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 the Agreements and (iii) carry out the provisions of the
Agreements. Mobility 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.
3.2 AUTHORIZATION. All corporate action on the part of Mobility,
its officers, directors and stockholders for the authorization, execution and
delivery of the Agreements, and the performance of all obligations of Mobility
under the Agreements, has been taken, and the Agreements, when executed and
delivered by Mobility, shall constitute valid and legally binding obligations of
Mobility, enforceable against Mobility in accordance with their terms except 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.
3.3 COMPLIANCE WITH OTHER INSTRUMENTS. Mobility is not in
violation or default of any provisions of (i) its Certificate of Incorporation
or Bylaws 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 Mobility, or, to the best knowledge of
Mobility, of any provision of federal or state statute, rule or regulation
applicable to Mobility. 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
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event which results in the creation of any lien, charge or encumbrance upon any
assets of Mobility.
4. MISCELLANEOUS.
4.1 SURVIVAL. Unless otherwise set forth in this Agreement, the
warranties and representations of Portsmith and Mobility contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the Closing.
4.2 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 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.
4.3 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.
4.4 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.
4.5 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 in accordance with this Section.
4.6 FEES AND EXPENSES. Except as provided in Section 4.7 below,
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.
4.7 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 receive from the
non-prevailing Parties reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such Party may be
entitled.
4.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of Portsmith, Mobility and
Stockholders owning a majority in interest of the voting securities of
Portsmith.
4.9 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
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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.
4.10 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.
4.11 ENTIRE AGREEMENT. This Agreement and the Strategic Agreements
constitute the entire agreement between the Parties 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 are expressly canceled.
4.12 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.
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The parties have executed this Agreement as of the date first written
above.
MOBILITY ELECTRONICS, INC.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx,
Chief Executive Officer
Address: 0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
PORTSMITH, INCORPORATED
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx,
Chief Executive Officer
Address: 0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
STOCKHOLDERS:
/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Address:
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/s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
Address:
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/s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
Address:
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/s/ XXX XXXXX
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Xxx Xxxxx
Address:
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/s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx
Address:
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/s/ XXXXXX & XXXXXX XXXXX
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Xxxxxx & Xxxxxx Xxxxx
Address:
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/s/ JESS ASLA
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Jess Asla
Address:
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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A Form of D&P Agreement
B Form of Private Label Agreement
C Form of Note
D-1 Form of Security Agreement
D-2 Form of Patent Collateral Assignment
E Form of Option Agreement
F Certificate of Incorporation and Bylaws of Portsmith
