EXHIBIT 10.6
STOCK ESCROW AGREEMENT
This Stock Escrow Agreement (this "Agreement") is made and entered into
as of February 20, 2002, by and among Xxxxxx Xxxxx (the "Representative"), as
the representative of the persons listed on Schedule I attached hereto (each, a
"Stockholder" and collectively, the "Stockholders"), Mobility Electronics, Inc.,
a Delaware corporation ("Parent"), and Xxxxxxx Xxxxxx L.L.P. ("Escrow Agent").
Terms used herein but not otherwise defined shall have the meanings ascribed
thereto in the Merger Agreement (as defined below).
WHEREAS, Mobility Europe Holdings, Inc., a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), Parent, Portsmith, Inc., a
Delaware corporation (the "Company"), and certain of the stockholders of the
Company, have entered into that certain Agreement and Plan of Merger, of even
date herewith (the "Merger Agreement "), pursuant to which, among other things,
the Company merged with and into Merger Sub; and
WHEREAS, pursuant to Section 2.10 of the Merger Agreement, 400,000 of
the shares of Parent Common Stock to be delivered to the Eligible Stockholders
under Section 2.7(a) the Merger Agreement (the "Escrowed Shares") shall be
deposited hereunder;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Appointment of Escrow Agent. Parent and Representative hereby
designate Xxxxxxx Xxxxxx L.L.P., as Escrow Agent, and Escrow Agent accepts such
appointment for the purposes set forth in this Agreement. The parties hereto
acknowledge and agree that Escrow Agent serves as legal counsel to Parent and
Merger Sub, and Escrow Agent is serving hereunder as a convenience for the
parties hereto; and that Escrow Agent may serve as legal counsel to Parent and
Merger Sub in connection with any dispute and/or procedure under this Agreement;
it being acknowledged and agreed that any conflict with respect to such
activities are hereby waived in their entirety.
2. Deposit into Escrow. Concurrently with the Closing, Parent shall
deliver to Escrow Agent the Escrowed Shares. The Escrowed Shares shall be
allocated among the Stockholders as provided in Schedule I (subject to
forfeiture as provided in Sections 2.2 and 2.11 of the Merger Agreement). The
Escrowed Shares shall be distributed by Escrow Agent only in accordance with
Section 5 below.
3. Duties of Escrow Agent.
(a) The duties of Escrow Agent hereunder shall be limited to
the safekeeping of the Escrowed Shares and to the transfer and distribution of
the same in accordance with the provisions of this Agreement, and no implied
duties or obligations shall be read into this Agreement against Escrow Agent.
Escrow Agent shall be protected in acting in accordance with the provisions of
this Agreement upon any written notice, request, waiver, consent, receipt,
certificate or other document furnished to it, as to its validity, the
effectiveness of its provisions, the identity or authority of the person
executing or depositing the same, the truth and acceptability of any information
therein contained, which Escrow Agent in good faith believes to
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be genuine. Escrow Agent will not be liable for any error of judgment, or any
act or step taken or omitted by it in good faith, or for any mistake of fact or
law or for anything it might do or refrain from doing in connection herewith,
except to the extent such action shall be proved to constitute gross negligence
or willful misconduct on the part of Escrow Agent. Escrow Agent shall have no
duties except those that are expressly stated herein, and it shall not be bound
by any notice of any claim, or demand with respect thereto, or any waiver,
modification, amendment or termination of this Agreement until written notice of
the same shall have been received by it and approved by it.
(b) Escrow Agent shall have no responsibility or obligation of
any kind in connection with this Agreement or the Escrowed Shares except as set
forth herein and shall not be required to deliver the Escrowed Shares or any
part thereof or take any action with respect to any matters that might arise in
connection therewith, other than to receive, hold and deliver the Escrowed
Shares as herein provided.
4. Determinations by Representative. Any and all determinations with
respect to a Claim (as defined below) made by Representative on behalf of the
Stockholders shall be made in accordance with the instructions received from the
holders of a majority-in-interest of the Escrowed Shares. Any and all costs
incurred by Representative in contesting a Claim made by Parent shall be borne
pro rata by all Stockholders.
5. Distributions.
(a) Delivery of all of the Escrowed Shares to the Eligible
Stockholders is contingent upon the Surviving Corporation having at least $8
million of revenues and $250,000 of net income for calendar year 2002 (which
calculation shall use the revenues and net income of the Company prior to the
Merger and the revenues and income of Merger Sub (excluding Subsidiary)
following the Merger (the "Threshold"). As soon as reasonably practicable after
December 31, 2002, but on or prior to April 1, 2003, Parent shall deliver to
Representative and Escrow Agent written notice (the "Claim Notice") that the
Surviving Corporation has not attained the Threshold, together with Parent's
calculation of the revenue and net income of the Surviving Corporation for
calendar year 2002 (the "Claim"). If the Threshold has not been met, once the
Claim becomes a "Final Claim" as defined under subsection (b), (c), (d) or (e)
below, then the Escrow Agent shall deliver a portion of the Escrowed Shares to
Parent pursuant to the following guidelines:
Escrowed Shares to be
2002 Revenue 2002 Net Income delivered to Parent
------------ --------------- ---------------------
Less than $8 million but $7
million or more $ 250,000 100,000
Less than $7 million but $6
million or more $ 187,500 200,000
Less than $6 million but $5
million or more $ 125,000 300,000
Less than $5 million $ 62,500 400,000
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For purposes hereof: (i) "2002 revenue" shall mean the revenues of the Surviving
Corporation, net of returns and allowances, for calendar year 2002; and (ii)
"2002 Net Income" shall mean the net income of the Surviving Corporation, for
calendar year 2002 (taking into account the Bonus Responsibility); in each case,
as determined in accordance with GAAP. After delivery of the Escrowed Shares to
Parent as provided above, Escrow Agent shall deliver all remaining Escrowed
Shares to Representative for delivery to the Stockholders. All deliveries to the
Stockholders under this Section 5 shall be apportioned among the Stockholders
according to the percentages set forth in Schedule I (excluding any percentages
held by Dissenting Stockholders).
(b) If Parent does not deliver the Claim Notice to the
Representative on or prior to April 1, 2003, then upon written notice from the
Representative, Escrow Agent shall, within five (5) business days, deliver all
of the Escrowed Shares to the Representative for delivery to the Stockholders.
(c) If the Representative does not dispute the Claim, the
Representative shall deliver to Escrow Agent a written notice to that effect.
Upon receipt by Escrow Agent of such notice, the Claim shall be considered to be
a "Final Claim" for purposes of subsection (a) above. If no notice is received
by Escrow Agent from the Representative by the thirtieth day after the date of
the Claim Notice, the Claim shall be considered to be a "Final Claim" for
purposes of subsection (a) above.
(d) If the Representative disputes the Claim, the
Representative shall deliver to the Escrow Agent a written notice to that effect
within thirty days after the date of the Claim Notice and Parent and the
Representative shall attempt to reach an agreement with respect to the Claim for
a period of sixty (60) days after the date of the Claim Notice. In the event
Parent and the Representative reach an agreement on the Claim (or any undisputed
portion of a Claim), Parent and Representative shall deliver to Escrow Agent a
joint written notice to that effect, which contains the information required
under subsection (a) above. Upon receipt by Escrow Agent of such notice, the
Claim or undisputed portion (as the case may be) shall be considered to be a
"Final Claim" for purposes of subsection (a) above.
(e) In the event the Representative disputes all or a portion
of the Claim and Parent and the Representative are unable to reach an agreement
regarding the Claim within 90 (ninety) days after the date of the Claim Notice,
the Claim will be submitted to binding arbitration in Scottsdale, Arizona (or
such other venue as agreed to by Parent and the Representative), pursuant to the
Commercial Rules of the American Arbitration Association. In the event that
Parent and the Representative resolve the Claim after arbitration is commenced
but prior to the issuance of the final arbitration decision, Parent and the
Representative shall deliver to Escrow Agent a joint written notice to that
effect, which contains the information required under subsection (a) above. Upon
receipt by Escrow Agent of such notice from Parent and the Representative or
receipt by Escrow Agent of a written arbitration decision that instructs Escrow
Agent to pay the Claim to Parent and contains the information required under
subsection (a) above, the Claim (as described in the joint written notice or
arbitrator's decision) shall be considered to be a "Final Claim" for purposes of
subsection (a) above.
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6. Additional Rights and Obligations.
(a) The Escrowed Shares shall be registered in the name of the
Escrow Agent, as escrow agent pursuant to this Agreement. Subject to the
provisions of subsection (b) below, all stock dividends or stock splits with
respect to the Escrowed Shares shall be paid directly to the Escrow Agent and
shall be deemed to be Escrowed Shares.
(b) If the outstanding shares of Parent Common Stock shall be
changed into or exchanged for a different number or kind of shares of stock or
other shares of Parent or of another corporation, whether through
reorganization, recapitalization, stock split, combination of shares, sale of
assets, merger or consolidation, whether or not Parent is the surviving
corporation, then Parent shall be obligated to substitute for the Escrowed
Shares the number and kind of shares of stock or other securities or other
consideration into which each outstanding share of Parent Common Stock shall be
so changed. In such event, such additional or substituted securities shall be
deemed "Escrowed Shares" as such term is used in this Agreement.
(c) During the time that the Escrowed Shares are held by
Escrow Agent hereunder (the "Escrow Period"), the Stockholders shall be entitled
to exercise the voting power with respect to the Escrowed Shares with respect to
their proportionate share.
(d) During the Escrow Period, the Stockholders shall be not
entitled to sell any of the Escrowed Shares.
7. Indemnification. Parent and the Representative, jointly and
severally, hereby agree to indemnify and defend Escrow Agent against and hold
Escrow Agent harmless from, any costs, damages, judgments, attorneys' fees,
expenses, obligations and liabilities of any kind or nature that may be suffered
or incurred by Escrow Agent as a result of, in connection with or hereby arising
out of the acts or omissions of Escrow Agent in the performance of, or pursuant
to, this Agreement. If any controversy arises between the parties or with any
other person with respect to the subject matter of this Agreement, Escrow Agent
shall not be required to determine the same or to take any action thereupon, but
may await the settlement or disposition of any such controversy. In such event,
Escrow Agent shall not be liable for interest or damages, except to the extent
such action shall be proved to constitute gross negligence or willful misconduct
on the part of Escrow Agent.
8. Right of Interpleader. Should any controversy arise involving the
parties hereto or any of them or any other person, firm or entity with respect
to this Agreement or the Escrowed Shares, or should a substitute escrow agent
fail to be designated as provided in Section 12 hereof, or if Escrow Agent
should be in doubt as to what action to take, Escrow Agent shall have the right,
but not the obligation, either to (a) withhold delivery of the Escrowed Shares
until the controversy is resolved, the conflicting demands are withdrawn or its
doubt is resolved or (b) institute a petition for interpleader in any court of
competent jurisdiction to determine the rights of the parties hereto. In the
event Escrow Agent is a party to any dispute, Escrow Agent shall have the
additional right to refer such controversy to binding arbitration.
9. Notices. All notices given by any party to any other party under
this Agreement shall be in writing and shall either be delivered by facsimile,
overnight courier or in person to the
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intended addressee. For purposes of such notice, the addresses of the party
shall be as set forth in the Agreement and Plan of Merger, and shall be deemed
given as provided in the Agreement and Plan of Merger. The address of Escrow
Agent is 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000.
10. Governing Law. This Agreement and the obligations of the parties
hereunder shall be governed and construed in accordance with the laws of the
State of
Delaware.
11. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof. This
Agreement may be amended, extended or changed only by appropriate written
instrument or by instruments duly executed by each party to this Agreement.
12. Successors and Assigns. This Agreement and all of the terms,
provisions and conditions hereof shall be binding upon and inure to the benefit
of the parties hereto, their respective heirs, legal representatives, successors
and assigns. Escrow Agent may resign at any time by giving Parent and the
Stockholders thirty (30) days prior written notice. In the event of such
resignation, Parent and the Stockholders shall agree within fifteen (15) days of
such notice upon a successor escrow agent, and failing such agreement, the
successor escrow agent shall be any national banking association selected by
Parent with deposits in excess of $100,000,000.00. In the event a successor
escrow agent is not appointed by the end of such 30-day period, Escrow Agent may
petition a court of competent jurisdiction for the appointment of a successor
escrow agent, and Escrow Agent shall retain the Escrowed Shares until such
appointment.
13. Counterparts. 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, the undersigned have executed this Agreement as of
the day and year first above written.
MOBILITY ELECTRONICS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
REPRESENTATIVE:
/s/ Xxxxxx Xxxxx
-----------------------------------------
Xxxxxx Xxxxx,
ESCROW AGENT:
XXXXXXX XXXXXX L.L.P.
By: /s/Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Partner
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SCHEDULE I
Stockholders Percentage Escrowed Shares
------------ ---------- ---------------
Xxxxxx and Xxxxxx Xxxxx 31.2015850% 124,806
Xxxxxxx Xxxxxxx 13.4115675% 53,646
Xxx Xxxxxx 11.7305494% 46,922
Jess Asla 9.6511468% 38,605
Xxxxx Xxxxxxxx 8.5105540% 34,042
Xxxxxxx Xxxx 7.4095862% 29,638
Xxxx Xxxxxxx 5.3341462% 21,337
Xxx Xxxxx 4.5419492% 18,168
Xxxx Xxxxxxxx 2.6300693% 10,520
Xxxxx Xxxxxx 1.2497142% 4,999
Xxxxx Xxxxxxxxxx 1.2192334% 4,877
Xxxxx Xxxxxxxxx 0.7620209% 3,048
Xxxxxxxxx Xxxxxxx 0.6705784% 2,682
Xxxxxxx Xxxx 0.4876934% 1,951
Xxxxx Xxxxx 0.4572125% 1,829
Fenwick & West LLP 0.3429094% 1,372
Xxxxxx Xxxxxxxx 0.1608778% 644
Xxxxx Xxxxxxxxxx 0.1524042% 000
Xxxxxx Xxxxxx 0.0762021% 305
------------ -------
TOTAL 100.0000000% 400,000
SI-1
