EXHIBIT 10.45
LOCK-UP AND VOTING AGREEMENT
This Lock-up and Voting Agreement, dated as of July 18, 2002 (this
"Agreement"), is entered into by and between Mobility Electronics, Inc., a
Delaware corporation ("Parent"), iGo Corporation, a Delaware corporation (the
"Company"), XMicro Holding Company, Inc., a California corporation, and Xxxx
Xxxxxxxxxx ("Company Stockholder"). All capitalized terms used herein without
definition having the respective meanings ascribed to them in the Merger
Agreement (as defined below).
WITNESSETH:
WHEREAS, Parent, IGOC Corporation, a Delaware corporation ("Sub"), and
the Company have entered into an Agreement and Plan of Merger, dated as of March
23, 2002 (the "Merger Agreement"); and
WHEREAS, simultaneously with the execution and delivery of this
Agreement by the parties hereto, the Company, Parent, XMicro, Company
Stockholder and certain other persons and entities, executed and delivered a
Settlement Agreement, of even date herewith (the "Settlement Agreement"); and
WHEREAS, as a condition and inducement to Parent and the Company
entering into the Settlement Agreement, the Company Stockholder has agreed to
vote and to cause to be voted all shares of Company Common Stock now owned or
hereafter acquired by the Company Stockholder, 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 Settlement 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 any of the triggering events set
forth in Sections 7(g), 7(h) and 7(i) of the Settlement Agreement.
2. Voting of Company Common Stock. The Company Stockholder hereby
agrees that, during the Term, at any meeting (whether annual or special and
whether or not an adjourned
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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,
the Company Stockholder will appear at the meeting or otherwise cause the shares
of Company Common Stock now owned or hereafter acquired by the 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. The Company
Stockholder hereby agrees that, during the Term, the Company Stockholder will
not make, offer to make, agree to make, or suffer any Disposition of its Company
Shares or any interest therein, except as provided in the Settlement Agreement
and the Depository Agreement which is an Exhibit to the Settlement Agreement
(the "Depository Agreement").
4. Restriction Proxies and Non-Interference. Except as provided in the
Settlement Agreement and the Depository Agreement, the Company Stockholder
hereby agrees that, during the Term, the 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 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 the Company Stockholder contained
herein untrue or incorrect or would result in a breach by the Company
Stockholder of its obligations under this Agreement. The 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.
The Company Stockholder hereby represents and warrants to, and agrees with,
Parent and iGo as follows:
(a) Ownership of Shares. Such Company Stockholder is the sole
record and beneficial owner of 3,531,199 of shares of Company Common Stock. On
the date hereof, such Company Shares constitute all of the shares of Company
Common Stock owned of record or beneficially owned by the Company Stockholder.
The 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 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.
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(b) Authorization. The Company Stockholder has the full legal
right to execute and deliver this Agreement and perform its obligations
hereunder. This Agreement has been duly and validly executed and delivered by
the Company Stockholder and constitutes a valid and binding agreement
enforceable against the 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 the Company Stockholder and the consummation
by the Company Stockholder of the transactions contemplated hereby, and (ii)
none of the execution and delivery of this Agreement by the Company Stockholder,
the consummation by the Company Stockholder of the transactions contemplated
hereby or compliance by the Company Stockholder with any of the provisions
hereof will (A) conflict with or result in any breach of the organizational
documents of the Company Stockholder, (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 the Company Stockholder is a party or by which
the 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 the Company Stockholder or any of his or its properties
or assets.
(d) No Encumbrances. Except as provided in the Settlement
Agreement and the Depository Agreement. the Company Stockholder owns 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.
(e) Reliance by Parent and the Company. The Company
Stockholder understands and acknowledges that Parent and the Company are
entering into the Settlement Agreement in reliance upon such Company
Stockholder's execution and delivery of, and compliance with, this Agreement.
6. Termination. This Agreement will terminate upon the first to occur
of any of the triggering events set forth in Section 7(g), 7(h) and 7(i) of the
Settlement Agreement.
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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. So long as this Agreement has not been
terminated as provided in Section 6 above, the Company Stockholder agrees that
this Agreement and the obligations hereunder shall attach to 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 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. The Company
Stockholder agrees to promptly notify Parent and iGo 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. The Company Stockholder hereby
waives, releases and discharges any rights of appraisal or rights to dissent
from the Merger that the Company Stockholder may have.
(f) Assignments; Rights of Assignees; Third Party
Beneficiaries. This Agreement shall not be assignable by the Company Stockholder
without the prior written consent of Parent and the Company. 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 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
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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:
If to Parent: Mobility Electronics, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
If to the Company: iGo Corporation
0000 Xxxxxxx Xxxxx
Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx
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If to the Company Stockholder: Xxxx Xxxxxxxxxx
0000 Xxxx Xxxxx Xxxxxxx, Xxxxx 0
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
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 Settlement Agreement.
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. Xxxx
-----------------------------------
Title: Executive Vice President
IGO CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Title: CFO
XMICRO HOLDING COMPANY, INC.
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Title: President
/s/ Xxxx Xxxxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxxxx
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EXHIBIT C
ADDRESSES OF THE PARTIES
If to the Company or iGo: c/o iGo Corporation
0000 Xxxxxxx Xxxxx
Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx
If to XMicro or Rapparport: Xxxx Xxxxxxxxxx x/x Xxxxxx X. Xxxxxx, Xx.
0000 XxxXxxxxx Ct, Suite 1200
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
000-000-0000
If to Mobility: Mobility Electronics, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax: (0000 000-0000
Attn: Xxxxxxx X. Xxxxx
If to Xxx Xxxx: Xxx Xxxx, Trustee of the Xxxxxxx X. Xxxx
Grantor Retained Annuity Trust
0000 Xxxxxxxx Xxxxx Xxxx
Xxxx, Xxxxxx 00000
If to
Institutional Venture Partners VIII, L.P. 0000 Xxxx Xxxx Xxxx
IVM Investment Fund VIII, LLC Xxxxxxxx 0, Xxxxx 000
IVM Investment Fund VIII-A, LLC Xxxxx Xxxx, Xxxxxxxxxx 00000
IVP Founders Fund I, L.P. (000) 000-0000 fax
Xxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxx Ph.D.
If to:
Xxxxxx Xxxxxxx Xxxxx and Xxxxxx Xxxxxx 00000 Xxxxx Xxxx
Xxxxx, Xxxxxxxx XXX dated August 26, 1994 Xxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 fax
If to:
Xxxxx Xxxxx c/o iGo Corporation
Xxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxxx
Xxxx, Xxxxxx 00000
(000) 000-0000 fax
C-1
