EXHIBIT 10.33
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement"), dated as of July 18, 2002,
is by and among Xtend Micro Products, Inc., a California corporation formerly
known as XMP Acquisition Corp. (the "Company"), iGo Corporation, a Delaware
corporation and parent of the Company ("iGo"), XMicro Holding Company, Inc., a
California corporation formerly known as Xtend Micro Products, Inc. ("XMicro"),
Xxxx Xxxxxxxxxx, an individual ("Rapparport"), Mobility Electronics, Inc., a
Delaware corporation ("Mobility"), and each of Institutional Venture Partners
VII, L.P., Xxx Xxxx, individually and as Trustee of the Xxxxxxx X. Xxxx Grantor
Retained Annuity Trust, Xxxxx Xxxxxxx, IVM Investment Fund VIII, LLC, Xxxxxx
Xxxxxxx Xxxxx Trustee UTA dated August 26, 1994, Xxxxxx Xxxxxx Xxxxx Trustee UTA
dated August 26, 1994, IVM Investment Fund VIII-A, LLC, IVP Founders Fund, L.P.,
Xxxx Xxxx, Ph.D., Xxxxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxxx X. Xxxxxx and IVP Founders
Fund I, L.P. (each, an "iGo Affiliate" and collectively, the "iGo Affiliates").
The parties hereto are sometimes each referred to herein as a "Party" and
collectively, as the "Parties".
WHEREAS, the Company, iGo, XMicro and Rapparport are parties to that
certain Settlement Agreement, dated as of March 13, 2002 (the "Prior Settlement
Agreement"); and
WHEREAS, iGo, IGOC Acquisition, Inc., a Delaware corporation ("Sub"),
and Mobility have entered into an Agreement and Plan of Merger, dated as of
March 23, 2002 (the "Merger Agreement"), pursuant to which, among other things,
iGo will merge with and into Sub (the "Merger"); and
WHEREAS, Xxxxxx X. Xxxxxx, Xx., on behalf of XMicro and Rapparport,
delivered to the Board of Directors of iGo, with a copy to Mobility, a letter
dated June 6, 2002 (the "Rapparport Letter"), in which XMicro and Rapparport
sought resolution of various claims against iGo and its affiliates, in
connection with the Prior Settlement Agreement and certain other matters, and
discussed the possibility, among other things, of XMicro and Rapparport
potentially having to seek temporary injunctive relief to enjoin any disposition
of iGo's assets, including under the Merger, pending judicial resolution of the
claims; and
WHEREAS, in response to the Rapparport Letter, iGo filed a Complaint
For Declaratory Relief against Rapparport and XMicro (the "Action"), pursuant to
which iGo is seeking declaratory relief for certain of the matters alleged in
the Rapparport Letter; and
WHEREAS, the Parties have determined that it is in their mutual
interests to settle all claims Rapparport and XMicro, on the one hand, and the
Company, iGo, the iGo Affiliates and Mobility, on the other hand, may have
against each other and enter into this Agreement, without the expense, burden
and distraction of further litigation;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. SETTLEMENT OBLIGATIONS. Each of the Parties shall have the following
settlement obligations:
(a) Upon execution of this Agreement by all of the Parties,
iGo shall deliver $350,000 to the Attorney-Client Trust Account of Xxxxxx X.
Xxxxxx, Xx., for and on behalf of Rapparport, XMicro, and their counsel, by wire
transfer of immediately available funds (the "Non-Refundable Payment"). Counsel
for XMicro and Rapparport shall provide confidential wire routing instructions
forthwith to such persons designated by iGo to carry out the transfer.
(b) Upon execution of this Agreement by the all of the
Parties: (i) iGo, Rapparport, XMicro and U.S. Stock Transfer Corporation
("Custodian") shall execute and deliver to each other the Depository Agreement,
in substantially the form attached hereto as EXHIBIT A (the "Depository
Agreement"), (ii) XMicro and Rapparport shall deliver to Custodian under the
Depository Agreement certificates representing 3,531,199 shares of common stock,
par value $0.001 per share, of iGo (the "Shares"), together with stock powers
for each certificate, executed in blank; and (iii) iGo shall deliver $1,500,000
to Custodian, by wire transfer of immediately available funds (collectively, the
"Deposited Items"). The Custodian shall hold the Deposited Items in accordance
with the terms of the Depository Agreement.
2. MUTUAL RELEASES OF CLAIMS.
(a) Effective as of Closing Time (as hereinafter defined), and
in consideration of the covenants and agreements set forth herein, except for
the obligations created by this Agreement (those unreleased obligations being
collectively referred to as the "Unreleased Rapparport Claims"), Rapparport and
XMicro (collectively, the "Rapparport Releasors"), each fully and forever
releases, discharges and acquits the Company, iGo, Mobility, each iGo Affiliate
and the respective officers, directors, stockholders, employees, predecessors
and successors in interest, subsidiary and parent entities, assigns and
attorneys, agents, consultants, general partners, limited partners, and insurers
of each of the foregoing (collectively, the "iGo Releasees") from and against
any and all claims, demands, obligations, duties, liabilities, damages,
expenses, indebtedness, debts, breaches of contract or warranty, duty or
relationship, acts, omissions, or liability of any type, kind, nature,
description or character whatsoever, whether now known or unknown, whether
heretofore existing or hereafter arising, whether liquidated or unliquidated,
which the Rapparport Releasors may now have, heretofore have had or hereafter
may have against the iGo Releasees arising out of or relating to the matters
described in the Rapparport Letter and the Action, their status as stockholders
of iGo, or any other actual or alleged action or omission of the iGo Releasees
occurring on or prior to the Closing Time (the "Rapparport Claims"). Each
Rapparport Releasor hereby represents and warrants to the iGo Releasees that
such Rapparport Releasor is the sole holder and owner of any and all right,
claim and/or interest that it is compromising, settling and/or releasing herein,
and that no portion of the Rapparport Claims has been transferred, assigned, or
encumbered.
(b) Effective as of the Closing Time, and in consideration of
the covenants and agreements set forth herein, except for (i) the obligations
created by this Agreement, and (ii) the indemnification obligations of XMicro
and its shareholders pursuant to the Purchase Agreement (as defined in the Prior
Settlement Agreement at paragraph 2(ii)) (such items 2(b)(i) and 2(b)(ii) being
collectively referred to as the "Unreleased iGo Claims"), the Company, iGo,
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Mobility and each iGo Affiliate (collectively, the "iGo Releasors"), each fully
and forever release, discharge and acquit XMicro and Rapparport, and their
respective officers, directors, employees, predecessors and successors in
interest, subsidiary and parent entities, assigns and attorneys, agents,
consultants, general partners, and limited partners from (collectively, the
"Rapparport Releasees") and against any and all claims, demands, obligations,
duties, liabilities, damages, expenses, indebtedness, debts, breaches of
contract or warranty, duty or relationship, acts, omissions, or liability of any
type, kind, nature, description or character whatsoever, whether now known or
unknown, whether heretofore existing or hereafter arising, whether liquidated or
unliquidated, which the iGo Releasors may now have, heretofore have had or
hereafter may have against the Rapparport Releasees arising out of or relating
to the matters described in the Rapparport Letter and the Action, or any other
actual or alleged action or omission of the Rapparport Releasees occurring on or
prior to the Closing Time (the "iGo Claims"). Each iGo Releasor hereby
represents and warrants to the Rapparport Releasees that such iGo Releasor is
the sole holder and owner of any and all right, claim and/or interest that it is
compromising, settling and/or releasing herein, and that no portion of the iGo
Claims has been transferred, assigned, or encumbered.
(c) For purposes hereof, "Closing Time" shall mean the time
which is two (2) hours prior to the Effective Time (as defined in the Merger
Agreement), which Closing Time shall be deemed not to have occurred unless the
Merger is thereafter consummated. If the Merger is consummated, then the Parties
agree and understand that Rapparport shall be unconditionally entitled to
receive all of the Deposited Funds (as defined in the Depository Agreement) and
the Shares shall be deemed to be canceled as of the Closing Time, and as such,
neither Rapparport nor XMicro shall be entitled to receive any consideration
under the Merger Agreement as the Shares will not be outstanding immediately
prior to the Effective Time.
3. COVENANTS NOT TO XXX.
(a) Except for the Unreleased Rapparport Claims, the
Rapparport Releasors also agree not to initiate a lawsuit or proceeding or bring
a claim against any of the iGo Releasees, in any court, or otherwise, relating
or pertaining to any matter which is subject to the release set forth in Section
2(a) above, including, but not limited to, any claim under any common law,
whether in law or equity, or federal, state or local statute, ordinance or rule
of law.
(b) Except for the Unreleased iGo Claims, the iGo Releasors
also agree not to initiate a lawsuit or proceeding or bring a claim against any
of the Rapparport Releasees, in any court, or otherwise, relating or pertaining
to any matters which is subject to the release set forth in Section 2(b) above,
including, but not limited to, any claim under any common law, whether in law or
equity, or federal, state or local statute, ordinance or rule of law.
4. ASSIGNMENT OF CLAIMS.
(a) In consideration of the mutual promises and other
consideration exchanged hereby, except for the Unreleased Rapparport Claims,
Rapparport and XMicro hereby transfer and assign any and all of the Rapparport
Claims of Rapparport and XMicro to the iGo Releasors.
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(b) In consideration of the mutual promises and other
consideration exchanged hereby, except for the Unreleased iGo Claims, Mobility,
iGo, the Company and the iGo Affiliates hereby transfer and assign any and all
of the iGo Claims held by them to the Rapparport Releasors.
5. INDEMNIFICATION.
(a) In consideration of the mutual promises and other
consideration exchanged hereby, Rapparport and XMicro agree to indemnify and
hold harmless the iGo Releasees of and from any claim or cause of action arising
out of the Rapparport Claims held by them and asserted by or in the name of any
of the Rapparport Releasors against any of the iGo Releasees.
(b) In consideration of the mutual promises and other
consideration exchanged hereby, Mobility, iGo, the Company and the iGo
Affiliates agree to indemnify and hold harmless the Rapparport Releasees of and
from any claim or cause of action arising out of the iGo Claims held by them and
asserted by or in the name of any of the iGo Releasors against any of the
Rapparport Releasees.
6. OTHER PROMISES.
(a) Each Party agrees that the releases set forth in Section
2, as of their respective effective dates, shall be and remain in effect in all
respects as a complete general release as to the matters released.
(b) The Parties acknowledge that they are familiar with the
provisions of California Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Parties, each being aware of such code section, agree (i) that it is their
intention that this Agreement be governed by Delaware law and as such that such
code section be inapplicable, and (ii) effective upon the occurrence of the
Closing Time, to waive any rights they may have thereunder, as well as under any
other statute or common law principles of similar effect, whether of Nevada,
California, Delaware or otherwise.
7. OTHER AGREEMENTS.
(a) Rapparport and XMicro hereby agree that, during the period
that the Deposited Items are held by Custodian under the Depository Agreement
(the "Depository Period"), at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of the holders of Common Stock,
however called, or in connection with any written consent of the holders of
Common Stock, Rapparport and XMicro will appear at the meeting or otherwise
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cause the 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 Shares (a) in
favor of the adoption of the Merger Agreement and the approval of all other
actions contemplated by the Merger 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 iGo under the Merger Agreement, and (c)
against any action involving iGo 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. In addition, Rapparport and XMicro hereby waives, releases and
discharges any rights of appraisal or rights to dissent from the Merger that
they may have.
(b) Upon execution of this Agreement by all of the Parties,
Rapparport, XMicro, Mobility and iGo shall execute and deliver to each other the
Lock-Up and Voting Agreement, in substantially the form attached hereto as
EXHIBIT B.
(c) Rapparport and XMicro further agree not to directly or
indirectly acquire, of record or beneficially, any interest in or right to
acquire further shares of iGo's Common Stock unless and until the earlier to
occur of any of the triggering events set forth in subsections (h) or (i) below,
provided that the foregoing covenant shall not apply to or prohibit Rapparport
and/or XMicro from purchasing such shares as may be necessary for the sole
purpose of complying with or settling their obligations to transfer shares to
Xxxxx Xxxxx ("Fears") under a previous settlement agreement entered into with
such individual by certain of the Parties hereto. The Parties acknowledge and
agree that this Agreement does not in any manner interfere with or prohibit any
party from complying with or satisfying its obligations under such previous
settlement agreement. Furthermore, the Parties agree that upon Rapparport's
transfer of fifty thousand shares of unrestricted iGo common stock or equivalent
cash (at Fears' election), iGo agrees that it will not bring any suit or cross
claim against Rapparport and/or XMicro as part of any court action initiated by
Fears, nor as stated in a separate and independent suit, wherein iGo seeks any
indemnity, contribution, or other theory by which it seeks to hold Rapparport
and/or XMicro Holding in any way responsible to pay any sums iGo agrees, or is
found liable, to pay Fears, whether by settlement, judgment, or
arbitration/mediation award arising from any court action or other proceeding
seeking damages based on any theory arising from or related to iGo and Fears'
entry into that certain Severance Agreement and Release, dated July 16, 2001
(d) XMicro and Rapparport will provide reasonable cooperation
to iGo and Mobility in connection with the consummation of the Merger and will
take no action that may be deemed to endanger or adversely impact the potential
or likelihood of consummation of the Merger, including without limitation,
directly or indirectly providing assistance to or participation with any other
party(ies) in any action against or with respect to iGo or Mobility that XMicro
or Rapparport would be prohibited from taking themselves hereunder.
(e) Each iGo Affiliate which is or was a stockholder of iGo
hereby agrees not to initiate a lawsuit, become a party to a lawsuit, or
otherwise bring a claim against iGo, in any court or otherwise, relating or
pertaining to such iGo Affiliate's status as a stockholder of iGo, including,
without limitation, any claims similar to the matters described in the
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Rapparport Letter. In the event that after the closing of the Merger, any iGo
Affiliate is entitled to receive any consideration as a result of any lawsuit or
action brought against iGo (by any other person or entity, or otherwise) with
respect to claims described in the preceding sentence, then such iGo Affiliate
shall immediately assign and transfer such consideration to Mobility, which will
be the sole stockholder of iGo following the closing of the Merger.
(f) The Parties agree to toll the Action, any currently
outstanding motions, demands or requests of any kind and any other lawsuit or
action which XMicro and Rapparport, on the one hand, and the other Parties
hereto, on the other hand, may take against each other until the occurrence of
an event triggering application of subsections (h) or (i) below, other than
actions to enforce the Parties' respective obligations under this Agreement and
the agreements attached hereto as exhibits. Upon execution of this Agreement by
the Parties, iGo, XMicro and Rapparport agree to file with the United States
District Court in and for the State of Nevada (the "Court") a Stipulation and
Order, in substantially the form of EXHIBIT D attached hereto. Immediately
following the Closing Time, iGo, XMicro and Rapparport agree to notify the
United States District Court in and for the State of Nevada of this settlement,
and to dismiss the Action with prejudice.
(g) iGo and Rapparport shall immediately provide written
notice to the Custodian upon the Merger being completed (or effective upon the
Custodian's 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 may agree, and upon receipt of said written notice or
Certificate of Merger, Custodian shall forthwith 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").
(h) iGo and Rapparport agree that 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 (k) below, the Merger 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 the Depository Agreement and
to the Custodian notice of such termination, together with a copy of the public
announcement released by iGo or Mobility announcing the termination of the
Merger Agreement, assuming an announcement is published by said entities, and
agree to instruct that 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 (j) and
(k) below, as additional non-refundable consideration payments; and (ii) the
remaining Deposited Cash to iGo by wire transfer of immediately available funds.
(i) If neither notice is delivered by iGo or XMicro as
provided in subsections (g) and (h) above on or prior to October 1, 2002, and
the parties have not availed themselves of the right to extend the Depository
Period beyond October 1, 2002, pursuant to subsection (k) 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 (j) and (k) below, as additional non-refundable
consideration payments; and (ii) the remaining Deposited Cash to iGo by wire
transfer of immediately available funds;
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(j) 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 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, as instructed in the Depository Agreement, no later than
close of business September 4, 2002.
(k) 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 (g), (h) and (i), 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 (g), (h) and (i) above, shall be changed to "October 31, 2002" and
the aforementioned "October 2, 2002" date referred to in subsection (i) 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").
(l) In the event that the Merger Agreement is terminated: (i)
within ten (10) days following the date of such termination, Mobility shall
deliver to iGo by wire transfer of immediately available funds an amount equal
to: (1) $175,000, plus (2) the product of the Additional Non-Refundable Payments
multiplied by .5; (ii) Rapparport shall retain the Non-Refundable Payment and
the Additional Non-Refundable Payments previously paid to Rapparport; and (iii)
this Agreement shall be deemed to be terminated and of no further force or
effect.
(m) Notwithstanding anything herein to the contrary, the
Parties acknowledge and agree that the Non-Competition Agreement, dated August
29, 2000, by and among the Company, iGo and Rapparport shall expire as of August
31, 2002.
8. CERTAIN REPRESENTATIONS AND WARRANTIES.
(a) XMicro and Rapparport hereby represent and warrant to the
other Parties as follows:
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(i) Rapparport is the sole record and beneficial
owner of the Shares. On the date hereof, the Shares constitute
all of the shares of Common Stock owned of record or
beneficially owned by XMicro and Rapparport. Rapparport 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 the Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(ii) Rapparport owns the Shares free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, or any other encumbrances whatsoever, except for
any such matters arising hereunder or under the Depository
Agreement.
(iii) XMicro and Rapparport acknowledge and
understand that iGo has not yet publicly released its
operating results for the period ending June 30, 2002, and
represent and warrant that neither the nature of those results
(or their similarity to or difference from results of any
prior period[s]) nor the status of any other iGo matters or
those of its subsidiaries (including contracts, disputes,
operations, financial position or liquidity, etc.) are
material to XMicro and Rapparport's respective decisions to
enter into this Agreement, but said acknowledgement is
effective only with regard to said parties' entry into this
Agreement and for no other purpose.
(b) iGo and Mobility hereby represent and warrant to the other
Parties that, to the best of their knowledge, the execution and delivery of this
Agreement by the Parties does not violate any rules or regulations of the
Securities and Exchange Commission or any state securities laws.
9. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement
is executed voluntarily and without any duress or undue
influence on the part or behalf of each of the Parties hereto,
with the full intent of releasing all claims. The Parties
acknowledge and agree that they could have obtained more or
less by pursuing litigation, but have nonetheless determined
that it is in their best interests to settle in accordance
with the terms of this Agreement. Each of the Parties further
acknowledge that:
(a) Such Party has read this Agreement;
(b) Such Party has been represented in the preparation,
negotiation and execution of this Agreement by legal counsel of such Party's own
choice or such Party has voluntarily declined to seek such counsel;
(c) Such Party understands the terms and consequences of this
Agreement and of the releases it contains; and
(d) Such Party is fully aware of the legal and binding effect
of this Agreement.
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10. NON-DISPARAGEMENT. XMicro and Rapparport, on the one hand, and the
Company, iGo, Mobility and the iGo Affiliates, on the other hand, agree not to
disseminate, disclose or communicate to any third party any information or
statements concerning the others, or their respective officers, directors,
employees, predecessors and successors in interest, subsidiary and parent
entities, assigns, attorneys, agents, consultants, general partners and limited
partners, that would tend to disparage, embarrass, defame, liable, slander, cast
aspersions upon, hold up to ridicule or censure, or otherwise damage the
business, reputation or public image of, any such person or entity.
11. CONFIDENTIALITY. XMicro and Rapparport, on the one hand, and the
Company, iGo, Mobility and the iGo Affiliates, on the other hand, agree that
with respect to communications with persons not Parties hereto, they may not
disclose the negotiations, discussions or circumstances leading up to this
Agreement, except to accountants, lawyers and other advisors of the Parties on a
"need to know" basis; it being agreed and understood that iGo is required to
file this Agreement under the Securities Exchange Act of 1934, as amended. In
the event that any Party becomes legally compelled (by deposition notice or
subpoena, interrogatory, request for documents, subpoena, civil investigative
demand or similar process) to disclose any of the information described in the
previous sentence, then such Party shall provide prompt written notice of such
requirement to all other Parties so that any other Party may seek a protective
order or other appropriate remedy.
12. MISCELLANEOUS.
(a) 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) This Agreement shall not be assignable by any Party
without the prior written consent of all the other Parties. 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. Except for the Rapparport
Releasees and the iGo Releasees, who shall be deemed to be third party
beneficiaries of this Agreement, nothing expressed or referred to in this
Agreement is intended or shall be construed to give any person or entity 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.
(c) The Parties 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
harm or posting any bond, in addition to any other remedy to which such party
may be entitled at law or in equity.
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(d) 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 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,
unless otherwise expressly provided. 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.
(e) 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.
(f) 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.
(g) 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 addresses listed on
EXHIBIT C attached hereto or to such other address or fax number as any Party
may have furnished to the other Parties in writing in accordance herewith.
(h) 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.
(i) This Agreement may be executed in any number of
counterparts and by facsimile transmission, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
document.
(signature page follows)
10
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
date first set forth above.
XTEND MICRO PRODUCTS, INC.
By: /S/ XXXXX XXXXXXXXXX
------------------------
Title: CFO
------------------------
IGO CORPORATION
By: /S/ XXXXX XXXXXXXXXX
------------------------
Title: CFO
------------------------
XMICRO HOLDING COMPANY, INC.
By: /S/ XXXX XXXXXXXXXX
------------------------
Title: PRESIDENT
------------------------
/S/ XXXX XXXXXXXXXX
---------------------------------
Xxxx Xxxxxxxxxx
MOBILITY ELECTRONICS, INC.
By: /S/ XXXXXXX X. XXXX
------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------
IGO AFFILIATES:
INSTITUTIONAL VENTURE PARTNERS VIII, L.P.
By: Institutional Venture Management VIII, /S/ XXX XXXX
LLC ---------------------------------
Its: General Partner XXX XXXX, Individually and as
Trustee of the Xxxxxxx X. Xxxx
Grantor Retained Annuity Trust
By: /S/ XXXX X. XXXXXX
-------------------------------------
Managing Director
/S/ XXXXX XXXXXXX
---------------------------------
XXXXX XXXXXXX
IVM INVESTMENT FUND VIII, LLC
By: Institutional Venture Management
VIII, LLC
Its: Manager /S/ XXXXXX XXXXXXX XXXXX
---------------------------------
XXXXXX XXXXXXX XXXXX
Trustee UTA dated August 26, 1994
By: /S/ XXXX X. XXXXXX
------------------------------------
Managing Director
/S/ XXXXXX XXXXXX XXXXX
---------------------------------
XXXXXX XXXXXX XXXXX
Trustee UTA dated August 26, 1994
IVM INVESTMENT FUND VIII-1, LLC
By: Institutional Venture Management
VIII, LLC
Its: Manager /S/ XXXX XXXX, PH.D.
---------------------------------
XXXX XXXX, PH.D.
By: /S/ XXXX X. XXXXXX
------------------------------------
Managing Director
/S/ XXXXX XXXXX
---------------------------------
XXXXX XXXXX
IVP FOUNDERS FUND I, L.P.
By: Institutional Venture Management VI,
L.P.
Its: General Partner
/S/ XXXXX XXXXXXXXXX
---------------------------------
By: /S/ REID W. XXXXXX XXXXX XXXXXXXXXX
-------------------------------------
General Partner
/S/ XXXX X. XXXXXX
-----------------------------------------
