EXHIBIT 10.44
DEPOSITORY AGREEMENT
This Depository Agreement (this "Agreement") is made as of July 18,
2002, by and among U.S. Stock Transfer Corporation (the "Custodian"), iGo
Corporation, a Delaware corporation ("iGo"), Xxxx Xxxxxxxxxx, an individual
("Rapparport"), and XMicro Holding Company, Inc. a California corporation
("XMicro"). Terms not otherwise defined herein shall have the meaning set forth
in the Settlement Agreement (as defined below).
RECITALS
WHEREAS, the parties hereto and certain other persons and entities are
parties to a Settlement Agreement, of even date herewith, a copy of which is
attached hereto as Exhibit I (the "Settlement Agreement"); and
WHEREAS, pursuant to Section 2(b) of the Settlement Agreement, iGo,
Rapparport and XMicro agreed to execute and deliver this Agreement and to
deposit certain items with Custodian, as further described below;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants contained herein, and intending to be legally bound, hereby agree as
follows:
1. Appointment of Custodian. The Custodian is hereby appointed and
hereby accepts such appointment as the custodian pursuant to the terms and
provisions of this Agreement.
2. Deposits with Custodian. Upon execution of this Agreement by the
parties hereto, the parties shall deliver the following to Custodian:
(a) XMicro shall deliver to Custodian certificates
representing 3,531,199 shares (the "Deposited Shares") of common stock, par
value $0.001 per share, of iGo, together with stock powers for each certificate,
executed in blank (collectively, the "Deposited Shares and Powers"); and
(b) iGo shall deliver to Custodian $1,500,000 by wire transfer
of immediately available funds (the "Deposited Cash").
The Deposited Shares and Powers and the Deposited Cash are sometimes
collectively referred to herein as the "Deposited Items". The Custodian, upon
receipt of the Deposited Items from each party hereto, shall notify all parties
hereto of the receipt of all of the Deposited Items. The Deposited Items shall
be held and distributed by the Custodian in accordance with the terms and
conditions of this Agreement.
3. Rights and Obligations of the Parties. The Custodian shall be
entitled to such rights and shall perform such duties of the custodian as set
forth herein (collectively, the "Duties"), in accordance with the terms and
conditions of this Agreement. IGo, Rapparport, and
XMicro shall be entitled to their respective rights and shall perform their
respective duties and obligations as set forth herein in accordance with the
terms hereof.
4. Depository Period; Custodian's Duties Regarding Distributions of
Deposited Items.
(a) Upon receipt of written notification from iGo and
Rapparport that the Merger (as defined in the Settlement Agreement) has been
completed (or the receipt of a copy of a file-stamped Certificate of Merger from
the Secretary of State of Delaware), on or prior to October 1, 2002, or such
later date as the parties hereto may agree, Custodian shall deliver: (i) the
Deposited Shares and Powers to iGo for cancellation by iGo; and (ii) the
Deposited Cash then held by Custodian to Rapparport by wire transfer of
immediately available funds to the Attorney Client Trust Account of Xxxxxx X.
Xxxxxx, Xx., Attorney at Law, via confidential wire routing instructions
delivered to Custodian by Xxxxxx X. Xxxxxx, Xx., counsel to Rapparport and
XMicro (the "Rapparport Account").
(b) In the event that on or prior to October 1, 2002, or such
later date as the parties hereto may agree or as provided in subsection (e)
below, the Merger Agreement (as defined in the Settlement Agreement) is
terminated, pursuant to Section 7.1 of the Merger Agreement, either iGo or
Rapparport may deliver to the other parties to this Agreement and to the
Custodian notice of such termination, together with a copy of the public
announcement released by iGo or Mobility Electronics, Inc. ("Mobility")
announcing the termination of the Merger Agreement, assuming an announcement is
published by said entities, and promptly upon its receipt thereof, Custodian
shall deliver: (i) the Deposited Shares and Powers to Rapparport, and wire, per
the instructions above, to Rapparport, from the Deposited Cash, any and all
additional unpaid sums which are due hereunder pursuant to subsections (d) and
(e) below, as additional non-refundable consideration payments; and (ii) the
remaining Deposited Cash to iGo by wire transfer of immediately available funds.
(c) If neither notice is delivered by iGo or XMicro as
provided in subsections (a) and (b) above on or prior to October 1, 2002, and
the parties have not availed themselves of the right to extend the period that
the Deposited Items are held by Custodian hereunder beyond October 1, 2002,
pursuant to subsection (e) below, then on October 2, 2002, Custodian shall
deliver: (i) the Deposited Shares and Powers to Rapparport, and wire, per the
instructions above, to Rapparport, from the Deposited Cash, any and all
additional unpaid sums which are due hereunder pursuant to subsections (d) and
(e) below, as additional non-refundable consideration payments; and (ii) the
remaining Deposited Cash to iGo by wire transfer of immediately available funds.
(d) iGo agrees that upon the occurrence of the earlier of (i)
the date of the iGo stockholder meeting and stockholder vote on the Merger or
(ii) September 3, 2002, Rapparport shall be entitled to receive an additional
payment of non-refundable consideration from the Deposited Cash and agrees to
instruct the Custodian as follows: In the event iGo conducts a meeting of its
stockholders to consider approval of the Merger and the Merger Agreement and
Rapparport votes all of the Deposited Shares in favor thereof, then the
Custodian shall release an additional $250,000 from the Deposited Cash as an
additional non-refundable consideration payment, to Rapparport, via wire
transfer to the Rapparport Account, on the next business day
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following the Custodian's receipt of notice of the same from iGo's transfer
agent, which notice shall be sent to the Custodian via facsimile no later than
the next business day following said stockholders meeting and vote. In the event
said stockholders meeting and vote does not take place on or before September 3,
2002, and the Merger has not been terminated, then the Custodian shall release
said $250,000 to Rapparport, no later than close of business September 4, 2002
(e) At any time on or before 5:00 p.m. (Pacific Time) on
September 20, 2002, iGo, based on it's own discretion, may elect to notify
Rapparport and Custodian in writing, (delivered to said parties by close of
business September 20, 2002), that iGo desires to extend the October 1, 2002
date referenced above in subsections (a), (b) and (c), to October 31, 2002. As
and for consideration for exercise of said option to extend, iGo agrees and
hereby instructs the Custodian to deliver to Rapparport no later than 5:00 p.m.
(Pacific Time) on September 21, 2002, by wire transfer as instructed herein, an
additional $500,000 of the Deposited Cash, which amount shall be non-refundable
consideration, and the aforementioned "October 1, 2002" date referred to in
subsections (a), (b) and (c) above, shall be changed to "October 31, 2002" and
the aforementioned "October 2, 2002" date referred to in subsection (c) above,
shall be changed to "November 1, 2002" (the $250,000 and $500,000 payments
described above are sometimes referred to herein as the "Additional
Non-Refundable Payments").
(f) Notwithstanding anything to the contrary contained herein,
at any time prior to the applicable distribution date set forth in subsection
(c) above, iGo can deliver written instructions to Custodian to deliver the
Deposited Cash to Rapparport, in which event Custodian shall deliver the
Deposited Items as provided in subsection (a) above on the next business day.
(g) During the Depository Period, the Deposited Cash shall be
placed in an interest bearing account, with any interest thereon accruing for
the benefit of, and shall be paid to, iGo at the time the Deposited Items are
distributed by Custodian as provided above.
5. General Duties of Custodian. The Duties of the Custodian shall
consist of the following:
(a) The Custodian shall hold and safeguard the Deposited Items
during the Depository Period, and shall hold and dispose of the Deposited Items
only in accordance with the terms hereof.
(b) Rapparport shall retain all voting rights to the Deposited
Shares during the Depository Period.
(c) The Custodian shall observe the instructions set forth in
any writing executed by iGo and Rapparport.
(d) The Custodian shall be obligated only for the performance
of such duties as are specifically set forth herein, and as set forth in any
additional written escrow instructions which the Custodian may receive after the
date of this Agreement which are signed by an officer of iGo and by Rapparport,
and may rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed to be genuine and to have been signed or
presented by the proper party or parties. The Custodian shall not be liable for
any act done or omitted
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hereunder as Custodian while acting in good faith and in the exercise of
reasonable judgment, and any act done or omitted pursuant to the advice of
counsel shall be conclusive evidence of such good faith.
(e) The Custodian is hereby expressly authorized to disregard
any and all warnings given by any of the parties hereto or by any other person,
excepting only orders or process of courts of law, and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case the Custodian obeys or complies with any such order, judgment or decree of
any court, the Custodian shall not be liable to any of the parties hereto or to
any other person by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
(f) The Custodian shall not be liable in any respect on
account of the identity, authority or rights of the parties executing or
delivering or purporting to execute or deliver this Agreement or any documents
or papers deposited or called for hereunder.
(g) The Custodian shall not be liable for the expiration of
any rights under any statute of limitations with respect to this Agreement or
any documents deposited with the Custodian.
(h) The Custodian may resign at any time upon giving at least
30 days written notice pursuant to the provisions of this Agreement; provided,
however, that no such resignation shall become effective until the appointment
of a successor Custodian which shall be accomplished as follows: iGo and
Rapparport shall use their best efforts to mutually agree upon a successor agent
within 30 days after receiving such notice. If they fail to agree upon a
successor transfer agent within such time, the Custodian may petition any court
of competent jurisdiction for the appointment of a successor Custodian
authorized to do business in California or for other appropriate relief. The
successor Custodian selected in the preceding manner shall execute and deliver
an instrument accepting such appointment and it shall thereupon be deemed the
Custodian hereunder and it shall without further acts be vested with all the
estates, properties, rights, powers, and duties of the predecessor Custodian as
if originally named as Custodian. Thereafter, the predecessor Custodian shall be
discharged for any further duties and liabilities under this Agreement.
6. Distribution. Any cash dividends, dividends payable in securities or
other distributions of any kind payable with respect to the Deposited Shares
shall be deemed to constitute a part of the Deposited Shares and distributed by
the Custodian as provided in Section 4 above.
7. Maintenance of Records. The Custodian will keep and maintain
complete and accurate ledgers showing all shares exchanged by the Custodian and
funds, deposits, transfers and payments made by the Custodian.
8. Termination of Exchange and Custodian's Duties and Obligations. This
Agreement shall terminate upon the release by the Custodian of all of the
Depository Items in
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accordance with the terms of this Agreement; provided that the provisions of
Section 9 and 15 shall survive the termination of this Agreement.
9. Exculpatory Provisions.
(a) The Custodian shall be obligated only for the performance
of such Duties as are specifically set forth herein and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably
believed to be genuine and to have been signed or presented by the proper party
or parties. The Custodian shall not be liable for forgeries or false
impersonations. The Custodian shall not be liable for any act done or omitted
hereunder as custodian except for gross negligence or willful misconduct. Any
act done or omitted pursuant to the advice or opinion of counsel shall be
conclusive evidence of the good faith of the Custodian.
(b) The Custodian is hereby expressly authorized to disregard
any and all warnings given by any of the parties hereto or by any other person,
and is hereby expressly authorized to comply with and obey orders, judgments or
decrees of any court or rulings of any arbitrators. In case the Custodian obeys
or complies with any such order, judgment or decree of any court or such ruling
of any arbitrator, the Custodian shall not be liable to any of the parties
hereto or to any other person by reason of such compliance, notwithstanding any
such order, judgment, decree or arbitrators' ruling being subsequently reversed,
modified, annulled, set aside, vacated or found to have been entered without
jurisdiction.
(c) The Custodian shall not be liable in any respect on
account of the identity, authority or rights of the parties executing or
delivering or purporting to execute or deliver the Agreement or any documents or
papers deposited or called for thereunder.
(d) The Custodian shall not be liable for the outlawing of any
rights under any statute of limitations with respect to the Agreement or any
documents deposited with the Custodian.
10. Alteration of Duties. The Duties may be altered, amended, modified
or revoked only by a writing signed by all of the parties hereto.
11. Further Instruments. If the Custodian reasonably requires other or
further instruments in connection with performance of the Duties, the necessary
parties hereto shall join in furnishing such instruments.
12. Disputes. It is understood and agreed that should any dispute arise
with respect to the delivery and/or ownership or right of possession of the
securities held by the Custodian hereunder, the Custodian is authorized and
directed to act in accordance with, and in reliance upon, the terms hereof.
13. Fees and Expenses. iGo shall pay the Custodian the fees specified
in Schedule I attached hereto; and iGo agrees to pay the Acceptance as Custodian
fee ($750) and Annual Custodian Fee ($250) within two business days following
the execution of this Agreement by all the parties hereto.
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14. Indemnification. In consideration of the Custodian's acceptance of
this appointment, Rapparport and iGo agree jointly and severally to indemnify
and hold the Custodian harmless as to any liability incurred by it to any
person, firm or corporation by reason of their having accepted such appointments
or in carrying out the terms hereof, and to reimburse the Custodian for all its
costs and expenses, including, among other things, counsel fees and expenses,
reasonably incurred by reason of any matter as to which an indemnity is paid;
provided, however, that no indemnity need be paid in case of the Custodian's
gross negligence, willful misconduct or breach of this Agreement.
15. General.
(a) Any notice given hereunder shall be in writing and shall
be deemed effective upon the earlier of personal delivery, confirmed successful
transmission by telecopy (facsimile) or the third day after mailing by certified
or registered mail, postage prepaid as follows:
To iGo: iGo Corporation
0000 Xxxxxxx Xxxxx
Xxxx, Xxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxx,
Chief Executive Officer
With a copy to: Xxxx Xxxx Peek Xxxxxxxx Xxxxxx and
Xxxxxxxx
X.X. Xxx 0000
Xxxx, Xxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
To Rapparport: 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx 0
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx, Xx., Esq.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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To the Custodian: U.S. Stock Transfer Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
or to such other address as any party may have furnished in writing to the other
parties in the manner provided above.
(b) The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
(c) This Agreement may be executed in any number of
counterparts, each of which when so executed shall constitute an original copy
hereof, but all of which together shall constitute one agreement.
(d) No party may, without the prior express written consent of
each other party, assign this Agreement in whole or in part. This Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts made
and to be performed entirely within the State of California.
(f) If any controversy arises among the parties hereto with
respect to the subject matter of this Agreement, Custodian shall not be required
to determine the same or to take any action thereon, but may await the
settlement of any such controversy; provided, however, in such event, upon
written demand by either iGo or Rapparport, Custodian shall interplead the
Deposited Items then held by Custodian hereunder in the California Superior
Court located in Los Angeles, California. In such event: (i) Custodian shall not
be liable for interest or damages; and (ii) the prevailing party shall be
entitled to payment of its attorney's fees by the non-prevailing party.
(g) This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
U.S. STOCK TRANSFER CORPORATION
as Custodian
By: /s/ Xxxxxxx Xxxxx
---------------------------
Title: 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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SCHEDULE I
CUSTODIAN FEES
Acceptance as Custodian $750.00(1)
Annual Custodian Fee $250.00(1)
Release of Deposited Shares and Powers $ 20.00 per release(2)
Release of Deposited Cash $ 50.00 per release(2)
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(1) These amounts will be billed in the month that the Agreement is
executed by all parties thereto.
(2) These amounts will be billed as they occur.
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