EXHIBIT 2.3
AMENDMENT NO. 1 TO AGREEMENT
AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is executed as of July 18, 2002, by and among iGo Corporation, a Delaware
corporation (the "Company"), Mobility Electronics, Inc., a Delaware corporation
("Parent"), and IGOC Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent ("Sub").
RECITALS
A. The Company, Parent and Sub are parties to that certain Agreement
and Plan of Merger, dated as of March 23, 2002 (the "Agreement"). All
capitalized terms not otherwise defined herein have the meanings set forth in
the Agreement.
B. The parties desire to amend the Agreement to the extent provided
below.
C. NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for good and valuable consideration, the adequacy, receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby agree as
follows:
AGREEMENTS
1. Section 1.6(a) of the Agreement is hereby amended to read in its
entirety as follows:
(a) At the Effective Time, by virtue of the Merger and without
any action on the part of the holders thereof, all shares of common
stock, par value $0.001 per share, of the Company (the "Company Common
Stock") issued and outstanding immediately prior to the Effective Time
shall be cancelled, and in consideration therefore, the holders of
Company Common Stock shall be entitled to receive in the aggregate the
following consideration (the "Merger Consideration"):
(i) 3,100,000 shares (the "Parent Shares") of common
stock, par value $0.01 per share, of Parent (the "Parent
Common Stock"), subject to the hold-back described in Section
1.7 below;
(ii) $4,250,000 cash (the "Cash Consideration"),
subject to the hold-back described in Section 1.7 below (the
hold-back amounts described in subsection (i) above and this
subsection (ii) are sometimes collectively referred to herein
as the "Potential Adjustment Amounts"); and
(iii) cash in lieu of fractional shares of Parent
Common Stock as provided in Section 2.5 below.
The Merger Consideration shall be allocated among the holders of Company Common
Stock pro rata based on the number of shares of Company Common Stock held by a
holder as of the Effective Time as compared to the total number of shares of
Company Common Stock issued and outstanding as of the Effective Time.
2. A new subsection (v) shall be added after subsection (iv) in Section
1.7(a) of the Agreement to read in its entirety as follows:
"(v) in addition to (iii) and (iv) above, and
notwithstanding (i) and (ii) above: (A) any and all costs,
expenses (including reasonable attorneys fees and expenses),
damages, liabilities, losses and judgments; and (B)
seventy-five percent (75%) of all payments made with respect
to a final settlement of all such allegations, in either case,
incurred by Parent, Sub or the Company related or pertaining
to the allegations made, or which in the future may be made,
by Empire R&D, Inc., Xxxxx Xxxxxx and/or their respective
affiliates, against the Company and Xtend Micro Products,
Inc., relating or pertaining to infringement claims,
non-payment of royalties and/or other amounts due or owing to
them pursuant to contractual commitments, agreements,
arrangements and understandings involving and/or other related
claims, at equity and in law, shall be deducted from any
amounts payable to the holders of Company Common Stock
pursuant to (i) and (ii) above; it being agreed and understood
that Parent will consult with the Representative Stockholder
prior to settling any such allegations."
3. Section 7.1(c) of the Agreement is hereby amended by changing the
"August 31, 2002" date to "October 1, 2002".
4. Parent agrees that prior to and after the Closing, Parent will use
all commercially reasonable efforts to influence and encourage Xxxxxx
Corporation to purchase the Company's cellular business inventory.
5. Simultaneously with the execution and delivery of this Amendment,
the parties hereto have executed and delivered to each other Amendment No. 1 to
Confidential Disclosure Statement to Agreement and Plan of Merger among the
Company, Parent and Sub, of even date herewith (the "Amendment to Disclosure
Schedule").
6. The Parties agree that no matter listed in Section 3.11 of the
Amendment to Disclosure Schedule shall be deemed to form a basis for the
exercise of a closing condition under Article VI of the Agreement, or the
termination of the Agreement by Parent or Sub pursuant to Article VII of the
Agreement
MISCELLANEOUS
1. CONTINUING EFFECT. Except as modified and amended hereby, the
Agreement is and shall remain in force and effect in accordance with its terms.
2. COUNTERPARTS. This Amendment may be executed in several
counterparts, all of which are identical, each of which shall be deemed an
original, and all of which counterparts together shall constitute one and the
same instrument.
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3. GOVERNING LAW. This Amendment 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 principles of conflicts of laws applicable thereto.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed on its behalf by one of its duly authorized.
IGO CORPORATION
By: /S/ XXXXX XXXXXXXXXX
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Name: XXXXX XXXXXXXXXX
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Title: CFO
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MOBILITY ELECTRONICS, INC.
By: /S/ XXXXXXX X. XXXX
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Name: XXXXXXX X. XXXX
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Title: EXECUTIVE VICE PRESIDENT
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IGOC ACQUISITION, INC.
By: /S/ XXXXXXX X. XXXX
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Name: XXXXXXX X. XXXX
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Title: EXECUTIVE VICE PRESIDENT
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