EXHIBIT 10.4
VOTING AND LOCK-UP AGREEMENT
THIS VOTING AND LOCK-UP AGREEMENT (the "Agreement") is made and entered
into as of this 14th day of December, 2007, by and between CALAMP CORP., a
Delaware corporation (the "Company"), and ECHOSTAR TECHNOLOGIES
CORPORATION, a Texas corporation (the "Customer").
RECITALS
WHEREAS, on the date hereof, the Company and the Customer are entering into
a Settlement Agreement (the "Settlement Agreement") providing for, among
other things, the issuance of (a) 500,000 shares of the Company's common
stock (the "Common Stock"), par value $.01 per share not subject to Section
2 below (the "Unrestricted Shares"), (b) 500,000 shares of Common Stock
subject to Section 2 below (the "Restricted Shares" and, collectively with
the Unrestricted Shares, the "Shares"), and (c) a warrant (the "Warrant")
to purchase 350,000 shares of Common Stock (the "Warrant Shares"); and
WHEREAS, the parties desire to enter into this Agreement to set forth their
agreements and understandings with respect to the voting of the Shares and
Warrant Shares, and with respect to certain other matters.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Voting Provision. The Customer agrees to vote, or cause to be voted,
all Shares and Warrant Shares owned by the Customer, or over which the
Customer has voting control, from time to time and at all times, in
whatever manner as shall be necessary to ensure that at each annual or
special meeting of stockholders such Shares and Warrant Shares are voted
(a) in the election of directors in favor of any candidates for the
Company's Board of Director (the "Board") proposed or supported by the
Board or in proportion to the vote of the outstanding shares of Common
Stock, including shares not voted and expressly withheld and (b) on any
proposal proposed or supported by the Board, either for such proposal or in
proportion to the vote of the outstanding shares of Common Stock, including
shares not voted and expressly abstaining.
2. Lock-Up Agreement. The Customer agrees that it will not offer to
sell, contract to sell, or otherwise sell, dispose of, loan, pledge or
grant any rights with respect to (collectively, a "Disposition") more than
285,000 Restricted Shares or Warrant Shares in any one year period
following the date hereof. The Customer also consents to the entry of stop
transfer instructions by the Company's transfer agent and registrar
prohibiting the transfer of any Restricted Shares or Warrant Shares held by
the Customer except in compliance with the foregoing restrictions. This
restriction shall not apply to any Restricted Shares or Warrant Shares (a)
sold pursuant to a tender or exchange offer or (b) transferred to any
affiliate of the Customer that agrees to be bound by the terms hereof.
3. Legend. Each certificate representing the Shares or Warrant Shares
and any other securities issued in respect of the Shares or Warrant Shares
upon any stock split, stock dividend, recapitalization, merger or similar
event shall bear a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A VOTING AND LOCK-UP
AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, (A COPY OF WHICH MAY BE
OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING ANY
INTEREST IN SUCH SECURITIES, THE PERSON ACCEPTING SUCH INTEREST SHALL BE
DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF THAT
VOTING AND LOCK-UP AGREEMENT.
4. Remedies. The Customer acknowledges and agrees that the Company will
be irreparably damaged in the event any of the provisions of this Agreement
are not performed by the Customer in accordance with their specific terms
or are otherwise breached. Accordingly, it is agreed that the Company
shall be entitled to an injunction to prevent breaches of this Agreement,
and to specific enforcement of this Agreement and its terms and provisions
in any action instituted in any court of the United States or any state
having subject matter jurisdiction. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
5. Miscellaneous.
5.1 Transfers. Each transferee or assignee of any Shares or Warrant
Shares subject to this Agreement that is an affiliate of the Customer shall
continue to be subject to the terms hereof, and, as a condition precedent
to the Company's recognizing such transfer, each transferee or assignee
shall agree in writing to be subject to each of the terms of this
Agreement. The Company shall not permit the transfer of the Shares or
Warrant Shares subject to this Agreement to an affiliate of the Customer on
its books or issue a new certificate representing any such Shares or
Warrant Shares unless and until such transferee shall have complied with
the terms of this Section 5.1. Each certificate representing the Shares or
Warrant Shares subject to this Agreement if issued on or after the date of
this Agreement shall be endorsed by the Company with the legend set forth
in Section 3.
5.2 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.
5.3 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of conflicts
of law.
5.4 Counterparts; Facsimile. This Agreement may be executed and
delivered by facsimile (or other electronic transmission) signature and in
two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
5.5 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.
5.6 Notices. All notices required or permitted under this Agreement
shall be in writing to the other party and shall be delivered in person, by
facsimile, by overnight mail, or by registered or certified mail, to the
parties at the following addresses and facsimile numbers:
If to the Company:
CalAmp Corp.
0000 X. Xxxx Xxx.
Xxxxxx, XX, 00000
Attn: Xxxx Xxxxx, CEO
Facsimile No.: 000-000-0000
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 X. Xxxxx Xxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile No.: 213-229-6595
If to the Customer:
EchoStar Technologies Corporation
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: 000-000-0000
With a copy to:
Morris, Nichols, Arsht & Xxxxxxx LLP
0000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fascimile No.: 000-000-0000
5.7 Amendment, Termination or Waiver. No amendment of any provision
of this Agreement shall be effective unless the same shall be in writing
and signed by all of the parties hereto. No waiver of any provision of
this Agreement nor consent to any departure therefrom by any party shall be
effective unless the same shall be in writing and signed by the Company,
with respect to any waiver or consent requested by the Customer, and by the
Customer with respect to any waiver or consent requested by the Company.
In either case, such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. 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, except as expressly provided in this Agreement,
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
previously or thereafter occurring.
5.8 Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision.
5.9 Entire Agreement. This Agreement, together with the Warrant and
the Settlement Agreement, constitutes the full and entire understanding and
agreement among the parties with respect to the subject matter hereof, and
any other written or oral agreement relating to the subject matter hereof
existing between the parties are expressly canceled.
5.10 Manner of Voting The voting of Shares and Warrant Shares
pursuant to this Agreement may be effected in person, by proxy, by written
consent or in any other manner permitted by applicable law.
5.11 Further Assurances. At any time or from time to time after the
date hereof, the parties agree to cooperate with each other, and at the
request of any other party, to execute and deliver any further instruments
or documents and to take all such further action as the other party may
reasonably request in order to evidence or effectuate the consummation of
the transactions contemplated hereby and to otherwise carry out the intent
of the parties hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year herein above first written.
CALAMP CORP.,
a Delaware corporation
By: /s/ Xxxx Xxxxx
________________________
Name: Xxxx Xxxxx
Title: CEO
ECHOSTAR TECHNOLOGIES CORPORATION,
a Texas corporation
By: Xxxxxxx X. Xxxxx
___________________________
Name: Xxxxxxx X. Xxxxx
Title: Chairman & CEO
