Exhibit 4.1
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK OF THE COMPANY ISSUABLE UPON
ITS EXERCISE HAVE BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO SUCH
SECURITIES UNDER THE ACT AND APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION, OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
MOBILITY ELECTRONICS, INC.
(A DELAWARE CORPORATION)
$25 MILLION THRESHOLD WARRANT TO PURCHASE
SHARES OF COMMON STOCK
THIS CERTIFIES THAT, for value received, Motorola, Inc., a Delaware
corporation, or its registered successors or assigns (hereinafter, the
"Holder"), is entitled to purchase, subject to the conditions set forth below,
at any time or from time to time during the Exercise Period (as defined below),
Five Hundred Ninety-Five Thousand Two Hundred Thirty-Eight (595,238) fully paid
and non-assessable shares (the "Shares") of common stock, par value $0.01 per
share (the "Common Stock"), of Mobility Electronics, Inc., a Delaware
corporation (the "Company"), at a per share purchase price equal to the Warrant
Price. This warrant (this "Warrant") is issued as of March 31, 2005, pursuant to
that certain Strategic Partners Investment Agreement dated as of March 31, 2005
(the "Investment Agreement"), by and among the Company, the Holder and the other
party thereto.
1. DEFINITIONS
Capitalized terms used and not otherwise defined herein will have the
meanings ascribed thereto in the Investment Agreement. In addition, as used in
this Warrant, the following terms shall have the meanings set forth below:
"Computer Products" means the Company's existing line of universal power
products for computers (including notebook, laptop, handheld, tablet computers
and the like, but excluding personal digital assistants, wireless internet (or
e-mail devices), smartphones and the like (the "Portable Computers")) and all
future versions (including expanded functionality), modifications, enhancements,
and derivatives to such products, and any new universal power product for
Portable Computers which is 60 watts or more in power and is offered for sale by
the Company from time to time. Such products may also include features for
charging non-computer mobile electronic devices.
"Division" means the recently formed iTip Division of the Company, which
Division was formed by the Company for the purpose of designing, developing,
manufacturing, marketing and selling iTip Products; it being acknowledged and
agreed that the Division is not a separate legal entity, but is a part of the
Company.
"Division EBIT" means gross margins of the Division (for the purposes of
this calculation, any revenue derived from licensing or enforcement of
Mobility's Intellectual Property Rights relating to the iTip Products (i.e., if
the Intellectual Property Rights also pertain to non-iTip Products, then only
the revenue derived from licensing or enforcing of the portion relating to the
iTip Products shall be included in revenue) (including, but not limited to, any
settlement amounts and damage awards relating to iTip
1
Products), shall be deemed gross revenue of the Division) less: (i) twenty
percent (20%) of the revenues of the Division; and (ii) the aggregate
Commissions, as defined in the Sales Representative Agreements dated as of March
31, 2005 between the Company and each of the Holder and RadioShack, respectively
(the "Sales Rep Agreements"), payable to the Holder and RadioShack pursuant to
the Sales Rep Agreements), with gross margins and revenues of the Division being
determined in accordance with GAAP as applied in a manner consistent with the
Company's past accounting methodologies.
"EBIT Hurdle" means $25 million of Division EBIT for the Division for a
given calendar year commencing on January 1, 2005.
"Exercise Period" means the period commencing on February 15 of the year
following the calendar year in which the EBIT Hurdle was first achieved and
ending on February 15, 2008; provided, however, that if the EBIT Hurdle is first
achieved in the 2007 calendar year, then the Exercise Period shall be from
February 15, 2008 to August 15, 2008. Notwithstanding the foregoing, in the
event that the Company enters into a definitive agreement relating to (i) a sale
of the Company (whether by merger, sale of all or substantially all assets or
otherwise), (ii) a sale of the Division (whether by merger, sale of all or
substantially all assets or otherwise), or (iii) the exclusive license of all or
substantially all of the iTip Technology (a "Fundamental Event"), the Company
will notify the Holder in writing as soon as reasonably practicable thereafter
but in any event no later than twenty (20) days prior to the consummation of
such Fundamental Event. In connection therewith, the Exercise Period shall
commence, and the Warrant will become immediately exercisable in full, upon
receipt of such notice and will terminate (A) in the case of a Fundamental Event
contemplated by clause (i), immediately prior to the consummation of such
Fundamental Event, and (B) in the case of a Fundamental Event described in
clauses (ii) or (iii), upon the one hundred eighty-first (181st) day thereafter.
"Intellectual Property Rights" means all current and future patents,
patentable rights, patents pending, continuations, enhancements, know how,
rights in mask works conferred by the U.S. Semiconductor Chip Protection Act of
1984 or any modification or re-enactment thereof, copyrights, trademarks
(including service marks), trade secrets, and design rights whether registered
or unregistered, and including any applications for registration and any
registration of any of the foregoing, and all rights or forms of protection of a
similar nature or having equivalent or similar effect to any of these, which may
subsist anywhere in the world.
"iTips" means any tip, cord or removable or interchangeable item that
utilizes iTip Technology to remotely program a power product (including the
remote programming of any iTip Product) to correctly determine and provide the
appropriate voltage, current and/or power requirements for the purpose of
operating or charging the battery for an electronic device (e.g., cell phones,
PDA's, digital cameras, MP3 players, CD players, and the like).
"iTip Products" means the Company's existing line of universal power
products for use with mobile electronic devices and all future versions
(including expanded functionality), modifications, enhancements, and derivatives
to such products, and any new universal power products offered for sale by the
Company from time to time, which: (i) are 70 watts or less in power; (ii)
utilize iTip Technology; and (iii) cannot be used to power or charge a Portable
Computer.
"iTip Technology" means the underlying iTip, combination AC/DC,
simultaneous charging and other related Intellectual Property Rights of the
Company that are incorporated into the iTips and products of the Company that
utilize iTips, including, but not limited to, the patents and patents pending
listed on Exhibit A attached hereto.
2
"Warrant Price" means $8.40 per share, subject to appropriate adjustments
for any of the events set forth in Section 5 below.
2. EXERCISE OF WARRANT
The terms and conditions upon which this Warrant may be exercised, and the
Common Stock covered hereby may be purchased, are as follows:
2.1 Method of Exercise. Except as provided in the following sentence, the
Holder may, in its sole and absolute discretion and at any time or from time to
time during the Exercise Period, exercise in whole or in part the purchase
rights evidenced by this Warrant. Notwithstanding the above, if at any time
after the first anniversary of the Effective Date but prior to the expiration of
the Exercise Period, Holder receives written notice from the Company that the
closing price of the Common Stock for any 20 consecutive trading days exceeded
$16.80 per share following the first anniversary of the Effective Date (as
appropriately adjusted for the events described in Section 5 below), and the
Company desires for the Holder to exercise this Warrant (a "Triggering Event"),
then the Holder may exercise in whole or in part the purchase rights evidenced
by this Warrant for a period of one hundred eighty (180) days following the date
of delivery by the Company to the Holder of such written notice; it being
acknowledged and agreed that this Warrant shall automatically terminate
following the expiration of such 180-day period. Exercise of this Warrant shall
be effected by: (a) the surrender of the Warrant, together with a duly executed
copy of the form of subscription attached hereto, to the Chief Financial Officer
of the Company at the Company's Scottsdale, Arizona office; and (ii) the payment
to the Company, by wire transfer to an account designated by the Company, of an
amount equal to the aggregate Warrant Price for the number of Shares for which
the purchase rights hereunder are being exercised.
2.2 Issuance of Shares and New Warrant. In the event the purchase rights
evidenced by this Warrant are exercised in whole or in part, one or more
certificates for the purchased Shares shall be issued as soon as practicable
thereafter to the Holder. Such Holder shall also be issued at such time a new
Warrant representing the number of Shares (if any) for which the purchase rights
under this Warrant remain unexercised and continuing in force and effect. Upon
exercise of this Warrant, the Holder will be entitled to all rights and
privileges granted to the holders of shares of Common Stock.
2.3 No Impairment. The Company will not, by amendment of its certificate
of incorporation or bylaws, each as amended to date (the "Charter Documents"),
or through reorganization, consolidation, merger, amalgamation, dissolution,
issue or sale of securities, sale of assets or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder against impairment.
Notwithstanding the foregoing, the taking of any action by the Company for which
an adjustment is made pursuant to Section 5 hereof and which does not constitute
a breach of the other terms of this Warrant will not be deemed to constitute a
breach of the foregoing provisions or an impairment of this Warrant.
3. TRANSFERS
3.1 Transfers. This Warrant and all rights hereunder are not transferable
in whole or in part by the Holder; provided, however, that the Holder may
transfer this Warrant and all rights hereunder to its Affiliate. The transfer
shall be recorded on the books of the Company upon the surrender of this
Warrant, properly endorsed, to the Chief Financial Officer of the Company at the
Company's Scottsdale, Arizona office and the payment to the Company of all
transfer taxes and other governmental charges imposed on such transfer. In the
event of a partial transfer, the Company shall issue to the several Holders one
or more appropriate new Warrants. Subject to compliance with applicable
securities laws,
3
any Shares acquired upon exercise of this Warrant may not be transferred by the
Holder until thirty-five (35) days after the acquisition thereof.
3.2 Registered Holder. The Holder agrees that until such time as any
permitted transfer pursuant to subsection 3.1 is recorded on the books of the
Company, the Company may treat the registered Holder as the absolute owner;
provided that nothing herein affects any requirement that transfer of any
Warrant or share of Common Stock issued or issuable upon the exercise thereof by
subject to securities law compliance.
3.3 Form of New Warrants. All Warrants issued in connection with transfers
of this Warrant shall bear the same date as this Warrant and shall be identical
in form and provision to this Warrant, other than such changes as are necessary
to reflect actions taken prior to such transfer (e.g., the name of the Holder,
the number of Shares then-purchasable thereunder, etc.).
4. FRACTIONAL SHARES
Notwithstanding that the number of Shares purchasable upon the exercise of
this Warrant may have been adjusted pursuant to the terms hereof, the Company
shall nonetheless not be required to issue fractions of Shares upon exercise of
this Warrant or to distribute certificates that evidence fractional shares nor
shall the Company be required to make any cash payments in lieu thereof upon
exercise of this Warrant. Except as contemplated in the following sentence, the
Holder hereby waives any right to receive fractional Shares. If a fractional
Share shall result from adjustments in the number of Shares purchasable
hereunder, the number of Shares purchasable hereunder shall, on an aggregate
basis taking into account all adjustments hereunder from the date of issuance of
this Warrant, be rounded up to the next whole number.
5. ANTIDILUTION PROVISIONS
The provisions of this Section 5 shall apply in the event that any of the
events described in this Section 5 shall occur with respect to the shares of
Common Stock at any time on or after the Closing Date:
5.1 Stock Splits and Combinations. If the Company shall at any time
subdivide or combine its outstanding shares of Common Stock, this Warrant shall,
after that subdivision or combination, evidence the right to purchase the number
of shares of Common Stock that would have been issuable as a result of that
change with respect to the Shares which were purchasable under this Warrant
immediately before that subdivision or combination. If the Company shall at any
time subdivide the outstanding shares of Common Stock, the Warrant Price then in
effect immediately before that subdivision shall be proportionately decreased,
and, if the Company shall at any time combine the outstanding shares of Common
Stock, the Warrant Price then in effect immediately before that combination
shall be proportionately increased. Any adjustment under this subsection shall
become effective at the time that such subdivision or combination becomes
effective.
5.2 Reclassification, Exchange and Substitution. If the Shares issuable
upon exercise of this Warrant shall be changed into the same or a different
number of shares of any other class or classes of stock, whether by capital
reorganization, reclassification, or otherwise (other than a subdivision or
combination of shares provided for in subsection 5.1 above), this Warrant shall
represent the right to purchase for the same aggregate consideration, in lieu of
the Common Stock which the Holder would have become entitled to purchase but for
such change, the number of shares of such other class or classes of stock
equivalent to the number of shares of Common Stock that would have been subject
to purchase
4
by the Holder on exercise of this Warrant immediately before that change. In
such an event, the Warrant Price shall be appropriately adjusted.
5.3 Reorganizations, Mergers, Consolidations or Sale of Assets. If at any
time there shall be a capital reorganization, recapitalization, merger,
consolidation, sale of all or substantially all assets or similar transaction
(other than a combination, reclassification, exchange, or subdivision of shares
provided for elsewhere in this Section 5, or a Fundamental Event) (such
transaction, an "Organic Change"), then, as a part of such Organic Change,
lawful provision shall be made so that the Holder shall thereafter be entitled
to receive upon exercise of this Warrant, during the period specified in this
Warrant and upon payment of the Warrant Price then in effect, the number of
shares of Common Stock or other securities or property of the Company to which a
holder of shares of Common Stock deliverable upon exercise of this Warrant would
have been entitled in such Organic Change if this Warrant had been exercised
immediately before such Organic Change. In any such case, appropriate adjustment
(as determined in good faith by the Board, subject to the reasonable approval of
the Holder) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Holder after the Organic Change
to the end that the provisions of this Warrant (including adjustment of the
Warrant Price then in effect and number of Shares purchasable upon exercise of
this Warrant) shall be applicable after that event, as near as reasonably may
be, in relation to any shares or other property deliverable after that event
upon exercise of this Warrant. For the avoidance of any doubt, the foregoing
provisions will similarly apply to successive Organic Changes.
5.4 Common Stock Dividends; Distributions. In the event the Company should
at any time prior to the expiration of this Warrant fix a record date for the
determination of the holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock or other
securities or rights convertible into or entitling the holder thereof to
receive, directly or indirectly, additional shares of Common Stock (hereinafter
referred to as the "Common Stock Equivalents") without payment of any
consideration by such holder for the additional shares of Common Stock or Common
Stock Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such distribution, split or subdivision if no record date is fixed), the Warrant
Price shall be appropriately decreased and the number of shares of Common Stock
issuable upon exercise of the Warrant shall be appropriately increased in
proportion to such increase of outstanding shares.
5.5 Adjustments of Other Distributions. In the event the Company shall
declare a distribution payable in securities of other persons, evidences of
indebtedness issued by the Company or other persons, assets (excluding cash
dividends) or options or rights not referred to in subsection 5.4, then, in each
such case for the purpose of this subsection 5.5, upon exercise of this Warrant
the Holder hereof shall be entitled to a proportionate share of any such
distribution as though such Holder was the holder of the number of shares of
Common Stock into which this Warrant may be exercised as of the record date
fixed for the determination of the holders of Common Stock entitled to receive
such distribution.
5.6 Certificate as to Adjustments. In the case of each adjustment or
readjustment of the Warrant Price pursuant to this Section 5, the Company will
promptly compute such adjustment or readjustment in accordance with the terms
hereof and cause a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based,
to be delivered to the Holder. The Company will, upon the written request at any
time of the Holder, furnish or cause to be furnished to such Holder a
certificate setting forth: (a) such adjustments and readjustments; (b) the
Warrant Price at the time in effect; and (c) the number of shares of Common
Stock issuable upon exercise of the Warrant and the amount, if any, of other
property at the time receivable upon the exercise of the Warrant.
5
5.7 Reservation of Stock Issuable Upon Exercise. The Company shall at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock solely for the purpose of effecting the exercise of this Warrant
such number of shares of Common Stock as shall from time to time be sufficient
to effect the exercise of this Warrant and, if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the exercise of this Warrant, in addition to such other remedies as shall be
available to the Holder, the Company will use its best efforts to take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purposes.
6. RIGHTS PRIOR TO EXERCISE OF WARRANT
This Warrant does not entitle the Holder to any of the rights of a
stockholder of the Company. If, however, at any time prior to the expiration of
this Warrant and prior to its exercise, any of the following events shall occur:
(a) the Company shall declare any dividend payable in any securities
upon the shares of Common Stock or make any distribution (other than a cash
dividend) to the holders of shares of Common Stock;
(b) the Company shall offer to all of the holders of shares of
Common Stock any additional shares of Common Stock or securities convertible
into or exchangeable for shares of Common Stock or any right to subscribe for or
purchase any thereof; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with an Organic Change) shall be proposed and action by the
Company with respect thereto has been approved by the Board (each, a "Material
Action");
Then the Company shall give notice in writing of such Material Action to the
Holder at its last address as it shall appear on the Company's records at least
twenty (20) days' prior to the date fixed as a record date or the date of
closing the transfer books for the determination of the stockholders entitled to
such dividends, distribution, or subscription rights, or for the determination
of stockholders entitled to vote on the Material Action. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. Failure to publish, mail or receive such notice or any defect therein or
in the publication or mailing thereof shall not affect the validity of the
Material Action.
Each person in whose name any certificate for Shares is to be issued shall
for all purposes be deemed to have become the holder of record of such Shares on
the date on which this instrument was surrendered and payment of the Warrant
Price was made, irrespective of the date of delivery of such stock certificate,
except that, if the date of such surrender and payment is a date when the stock
transfer books of the Company are closed, such person shall be deemed to have
become the holder of such Shares at the close of business on the next succeeding
date on which the stock transfer books are open.
7. SUCCESSORS AND ASSIGNS; TRANSFEREES
The terms and provisions of this Warrant shall inure to the benefit of,
and be binding upon, the Company and the Holder and their respective successors
and permitted assigns and other transferees. Any successor, assign or other
transferee of this Warrant, by its acceptance thereof, agrees to be bound by the
terms of this Warrant with the same force and effect as if a signatory thereto.
8. RESTRICTED SECURITIES
6
In order to enable the Company to comply with the Securities Act and
applicable state laws, the Company may require the Holder as a condition of the
transfer or exercise of this Warrant, to give written assurance satisfactory to
the Company that the Warrant, or in the case of an exercise hereof the Shares
subject to this Warrant, are being acquired for his or her own account, for
investment only, with no view to the distribution of the same, and that any
disposition of all or any portion of this Warrant or the Shares issuable upon
the due exercise of this Warrant shall not be made, unless made in compliance
with the requirements of the Securities Act and applicable securities laws of
any State or other jurisdiction. Holder acknowledges that this Warrant is, and
each of the shares of Common Stock issuable upon the due exercise hereof will
be, a restricted security, and that the certificates evidencing securities
issued to the Holder upon exercise of this Warrant will bear a legend
substantially similar to the legend set forth on the front page of this Warrant.
9. LOSS OR MUTILATION
Upon receipt by the Company of satisfactory evidence of the ownership, and
the loss, theft, destruction, or mutilation, of any Warrant, and (i) in the case
of loss, theft, or destruction, upon receipt by the Company of indemnity
satisfactory to it, or (ii) in the case of mutilation, upon receipt of such
Warrant and upon surrender and cancellation of such Warrant, the Company shall
execute and deliver in lieu thereof a new Warrant representing the right to
purchase an equal number of shares of Common Stock.
10. CERTAIN COVENANTS
10.1 Further Assurances. The Company acknowledges that the issuance of the
Warrant pursuant to the Investment Agreement is a material inducement to the
Holder to (i) enter into the Investment Agreement, (ii) to purchase the Shares
thereunder and (iii) to enter into commercial relationships with the Company. In
connection therewith and in order to ensure that the intent of the parties with
respect to this Warrant are realized in full, the Company (on behalf of itself
and its Subsidiaries) hereby agrees to act in good faith and in the spirit of
the Investment Agreement, the commercial agreements to be entered into by the
parties and the Warrant and shall at all times comply with its obligations
hereunder in a manner consistent with the performance standards described in the
Sales Rep Agreements as such standards relate to the Sales Rep (as such term is
defined therein).
10.2 Reports. On or before the thirtieth (30th) day following each fiscal
quarter, the Company will inform the Holder in writing of the Division EBIT for
the prior quarter and any adjustments to the Division EBIT as reported to the
Holder during any prior quarter. Such reports will be prepared from the books
and records of the Company in good faith.
10.3 Meetings. The Company agrees that, if requested by the Holder, it
will meet with the Holder once each fiscal quarter at the principal executive
offices of the Company to discuss the level of sales of the iTip Products. The
Company agrees that it will cause such executives and managers as the Holder may
reasonably request to attend such meeting.
10.4 Audit Right. The Holder will have the right, at its sole expense, to
audit the books and records of the Company (including, without limitation, the
books and records relating to the Division's financial performance) in the event
that the Holder reasonably believes that the EBIT Hurdle has been achieved
during a prior fiscal year; provided, however, that no more than one audit may
be conducted each calendar year. Any audit conducted pursuant to Section 3(d) of
the Sales Rep Agreement will also be considered an audit for purposes of this
limitation. This audit right may be exercised by written notice to the Company
and will be conducted in manner so as not to unreasonably interfere with the
conduct of the business of the Company. The Holder agrees to execute, and will
cause its accountants to execute,
7
customary and appropriate documentation to assure the Company that any
information obtained in the course of such audit will be treated as confidential
information.
11. MISCELLANEOUS
11.1 Entire Agreement. This Warrant, together with the Investment
Agreement and the other agreements and instruments contemplated thereby
constitute the entire agreement of the parties regarding the subject matter
hereof, and supersede all prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
11.2 Amendment. No supplement, modification or amendment of this Agreement
shall be binding, unless executed in writing by the Company and the Holder.
11.3 Remedies in General. No delay or omission on the part of any party in
exercising any right or remedy shall operate as a waiver of said right or remedy
or any other right or remedy. A waiver on any one occasion shall not be
construed as a bar to or a waiver of any right on any future occasion. Every
right and remedy of a party shall be cumulative and in addition to every other
right and remedy expressed in this Agreement or allowed by law or equity, and
may be exercised singularly or concurrently.
11.4 Governing Law. This Warrant and any dispute, disagreement or issue of
construction of interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided herein or performance shall be
governed or interpreted according to the internal laws of the State of Delaware
without regard to conflicts of law.
11.5 Notices. All notices, requests, demands and other communications
under this Warrant shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the date of mailing if mailed to the party to whom notice is
to be given, by first class mail, registered or certified, postage prepaid, and
properly addressed as follows: if to the Holder, at its address set forth in
Section 8.9 of the Investment Agreement or as otherwise shown in the Company
records; and if to the Company, at its Scottsdale, Arizona office, attention:
Chief Financial Officer. Any party may change its address for purposes of this
Section by giving the other party written notice of the new address in the
manner set forth above.
11.6 Severability. If for any reason any clause or provision of this
Agreement, or the application of any such clause or provision in a particular
context or to a particular situation, circumstance, or Person, should be held
unenforceable, invalid or in violation of law by any court or other tribunal,
then the application of such clause or provision in contexts or to situations,
circumstances or Persons other than that in or to which it is held
unenforceable, invalid or in violation of law shall not be affected thereby, and
the remaining clauses and provisions hereof shall nevertheless remain in full
force and effect. In lieu of such illegal, invalid or unenforceable provision,
there shall be added automatically as part of this Agreement a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
legal, valid and enforceable. Further, where state or federal law governs any
aspect of matters or services covered by this Agreement, such state or federal
law shall prevail over inconsistent provisions in this Agreement.
11.7 Expenses. If any action at law or in equity is necessary to enforce
or interpret the terms of this Warrant, the prevailing party will be entitled to
reasonable attorneys' fees, costs and necessary disbursements, in addition to
any other relief to which such party may be entitled.
8
11.8 Captions. The captions included in this Agreement have been inserted
as a matter of convenience only and in no way are intended to define, limit or
to be used in connection with the interpretation of this Agreement.
(This space intentionally left blank)
9
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be executed
as of the date first set forth above.
MOBILITY ELECTRONICS, INC.
By: /s/ Charles R. Mollo
--------------------
Charles R. Mollo,
Chief Executive Officer
10
SUBSCRIPTION
MOBILITY ELECTRONICS, INC.
Attn: Chief Financial Officer
17800 N. Perimeter Drive, Suite 200
Scottsdale, Arizona 85255
Ladies and Gentlemen:
The undersigned, _________________________________________, hereby elects
to purchase, pursuant to the provisions of the foregoing Warrant held by the
undersigned, ____________ shares (the "Shares") of the common stock, par value
$0.01 per share (the "Common Stock"), of Mobility Electronics, Inc., a Delaware
corporation.
Payment of the purchase price for the Shares being purchased, as required
under such Warrant, accompanies this subscription.
The undersigned hereby represents and warrants that the undersigned is
acquiring the Shares for the account of the undersigned and not for resale or
with a view to distribution of such Shares or any part hereof; that the
undersigned is fully aware of the transfer restrictions affecting restricted
securities under the pertinent securities laws; and the undersigned understands
that the Shares purchased hereby are restricted securities and that the
certificate or certificates evidencing the same will bear a legend to that
effect.
DATED: ________________.
Signature:____________________________
Printed:______________________________
Address: _____________________________
_____________________________
EXHIBIT A
ITIP TECHNOLOGY
ISSUED POWER PATENTS
ISSUED PATENT # TITLE
- --------------- ----------------------------------------------------------
5,347,211 Selectable Output Power Converter
6,643,158 Dual input AC/DC to Programmable DC Output Converter
6,700,808 Dual Input AC and DC Power Supply Having a Programmable
DC Output Utilizing A Secondary Buck Converter
6,650,560 Dual Input AC and DC Power Supply Having a Programmable
DC Output Utilizing Single-Loop Optical Feedback
6,751,109 Dual Input AC/DC Battery Operated Power Supply
6,064,177 Two-Part Battery Charger/Power Cable Article with
Multiple Device Capability
6,433,274 Power Converter Device
6,775,163 Dual Input AC/DC to Programmable DC Output Converter
6,791,853 Dual Input AC/DC Power Converter Having a Programmable
Peripheral Power Hub Module
D2004/1351/A Singapore - 5 Watt Connector Solid Lines
D2004/1352/H Singapore - 5 Watt Receptacle Solid Lines
D2004/1353/D Singapore - 15 Watt Connector Solid Lines
D2004/1354/J Singapore - 15 Watt Receptacle Solid Lines
D2004/1355/G Singapore - 25 Watt Connector Solid Lines
D2004/1356/C Singapore - 25 Watt Receptacle Solid Lines
D2004/1357/Z Singapore - 35 Watt Connector Solid Lines
D2004/1358/F Singapore - 35 Watt Receptacle Solid Lines
157405 Australia - 15 Watt Connector Solid Lines
157401 Australia - 15 Watt Receptacle Solid Lines
157404 Australia - 15 Watt Connector Solid Lines
157507 Australia - 15 Watt Receptacle Solid Lines
157403 Australia - 15 Watt Plug only
157400 Australia - 25 Watt Receptacle Solid Lines
157406 Australia - 25 Watt Connector Solid Lines
157503 Australia - 25 Watt Receptacle Solid Lines
157506 Australia - 25 Watt Plug only
157402 Australia - 35 Watt Receptacle Solid Lines
157399 Australia - 35 Watt Connector Solid Lines
157505 Australia - 35 Watt Receptacle Solid Lines
157502 Australia - 35 Watt Connector Solid Lines
157508 Australia - 35 Watt Plug only
A-1
PENDING POWER PATENT APPLICATIONS
SERIAL # TITLE
- -------- --------------------------------------------------------
10/790,654 Dual Input AC and DC Power Supply Having a Programmable
DC Output Utilizing A Secondary Buck Converter
10/715,259 Dual Input AC and DC Power Supply Having A Programmable
DC Output Utilizing Single-Loop Optical Feedback
US02/03542 PCT Dual Input AC and DC Power Supply Having a Programmable
DC Output Utilizing A Secondary Buck Converter
US02/34766 PCT Dual Input AC/DC Battery Operated Power Supply
US02/34749 PCT Dual Input AC and DC Power Supply Having a Programmable
DC Output Utilizing Single-Loop Optical Feedback
US02/34748 PCT Dual Input AC/DC to Programmable DC Output Converter
10/623,060 Programmable Power Converter
60/494,860 Dual Input AC/DC Fuel Cell Operated Power Supply
10/663,868 Compact Electronics Plenum
60/525,857 Retractable Cable System For Power Converter
02707726.2 Dual Input AC and DC Power Supply Having a Programmable
DC Output (Europe)
02815764.8 Dual Input AC and DC Power Supply Having a Programmable
DC Output (China)
10-2004-7002345 Dual Input AC and DC Power Supply Having a Programmable
DC Output (South Korea)
2003-541,122 Dual Input AC and DC Power Supply Having a Programmable
DC Output (Japan)
2004104345 Dual Input AC and DC Power Supply Having a Programmable
DC Output (Russia)
2002242115 Dual Input AC and DC Power Supply Having a Programmable
DC Output (Australia)
160167 Dual Input AC and DC Power Supply Having a Programmable
DC Output Utilizing a Secondary Buck Converter (Israel)
2004/0930 Dual Input AC and DC Power Supply Having a Programmable
DC Output (South Africa)
00315/DELNP/2004 Dual Input AC and DC Power Supply Having a Programmable
DC Output (India)
2004 0455 Dual Input AC and DC Power Supply Having a Programmable
DC Output (Norway)
200400703-5 Dual Input AC and DC Power Supply Having a Programmable
DC Output (Singapore)
2,454,044 Dual Input AC and DC Power Supply Having a Programmable
DC Output (Canada)
10/790,877 Key Universal Power Tip and Power Source Connectors
A-2
- -------- --------------------------------------------------------
US2004/007084 PCT Dual Input AC/DC Power Converter Having A Programmable
Peripheral Power Hub Module
US04/16292 PCT Key Universal Power Tip and Power Source Connectors
10-2004-7006621 Dual Input AC/DC Battery Operated Power Supply (South
Korea)
2003-541,121 Dual Input AC/DC Battery Operated Power Supply (Japan)
2002342210 Dual Input AC/DC Battery Operated Power Supply
(Australia)
US02/34766 Dual Input AC/DC Battery Operated Power Supply ( China)
02776371.3 Dual Input AC/DC Battery Operated Power Supply (Europe)
2,466,162 Dual Input AC/DC Battery Operated Power Supply (Canada)
01172/DELNP/200 Dual Input AC/DC Battery Operated Power Supply (India)
US04/19301 PCT Programmable Power Converter
US04/16292 Key Universal Power Tip and Power Source Connectors
(China)
10-2004-7013263 Key Universal Power Tip and Power Source Connectors
(South Korea)
US04/16292 Key Universal Power Tip and Power Source Connectors
(Japan)
US04/16292 Key Universal Power Tip and Power Source Connectors
(Russia)
2004208705 Key Universal Power Tip and Power Source Connectors
(Australia)
US04/16292 Key Universal Power Tip and Power Source Connectors
(Israel)
2004/6728 Key Universal Power Tip and Power Source Connectors
(South Africa)
US04/16292 Key Universal Power Tip and Power Source Connectors
(India)
US04/16292 Key Universal Power Tip and Power Source Connectors
(Norway)
US04/16292 Key Universal Power Tip and Power Source Connectors
(Singapore)
2,475,060 Key Universal Power Tip and Power Source Connectors
(Canada)
29/198,752 CONNECTOR ( 5 Watt Connector TIP)
29/198,801 CONNECTOR (15 Watt Connector TIP)
29/198,777 CONNECTOR (25 Watt Connector TIP)
29/198,775 CONNECTOR (35 Watt Connector TIP)
29/198,754 CONNECTOR ( 5 Watt Receptacle)
29/198,776 CONNECTOR (15 Watt Receptacle)
29/198,755 CONNECTOR (25 Watt Receptacle)
29/198,756 CONNECTOR (35 Watt Receptacle)
29/206,090 CONNECTOR (5 Watt Connector-Revised)
A-3
- -------- --------------------------------------------------------
29/206,089 CONNECTOR (5 Watt Receptacle-Revised)
CANADA
08-901134CA 5 Watt Connector Dashed/Solid Lines
08-901135CA 5 Watt Receptacle Dashed/Solid Lines
08-901136CA 15 Watt Connector Dashed/Solid Lines
08-901137CA 15 Watt Receptacle Dashed/Solid Lines
08-901138CA 25 Watt Connector Dashed/Solid Lines
08-901139CA 25 Watt Receptacle Dashed/Solid Lines
08-901140CA 35 Watt Connector Dashed/Solid Lines
08-901141CA 35 Watt Receptacle Dashed/Solid Lines
CHINA
DIM040859 5 Watt Connector/Receptacle Solid Lines
DIM040860 15 Watt Connector/Receptacle Solid Lines
DIM040869 25 Watt Connector/Receptacle Solid Lines
DIM040870 35 Watt Connector/Receptacle Solid Lines
EUROPE
000213889 5 Watt Connector/Receptacle (Revised)
000188958 15,25,35 Watt Connector/Receptacle
INDIA
TBD 5 Watt Connector Solid Lines
TBD 5 Watt Receptacle Solid Lines
TBD 15 Watt Connector Solid Lines
TBD 15 Watt Receptacle Solid Lines
TBD 25 Watt Connector Solid Lines
TBD 25 Watt Receptacle Solid Lines
TBD 35 Watt Connector Solid Lines
TBD 35 Watt Receptacle Solid Lines
ISRAEL
39540 5-35 Watt Connector/Receptacle Dashed/Solid
JAPAN
2004-023,370 5 Watt Connector Dashed/Solid Lines
2004-023,371 5 Watt Receptacle Dashed/Solid Lines
2004-023,377 15 Watt Connector Dashed/Solid Lines
2004-023,378 15 Watt Receptacle Dashed/Solid Lines
2004-023,379 25 Watt Connector Dashed/Solid Lines
2004-023,381 25 Watt Receptacle Dashed/Solid Lines
2004-023,383 35 Watt Connector Dashed/Solid Lines
2004-023,384 35 Watt Receptacle Dashed/Solid Lines
NORWAY
TBD 5-35 Watt Connector/Receptacle
RUSSIA
2004502018 5-35 Watt Connectors - Solid Lines
2004502019 5-35 Watt Receptacle - Solid Lines
SOUTH AFRICA
2004/1001 5 Watt Connector Dashed/Solid Lines
2004/1000 5 Watt Receptacle Dashed/Solid Lines
2004/1003 15 Watt Connector Dashed/Solid Lines
2004/1002 15 Watt Receptacle Dashed/Solid Lines
2004/1005 25 Watt Connector Dashed/Solid Lines
A-4
- -------- --------------------------------------------------------
2004/1004 25 Watt Receptacle Dashed/Solid Lines
2004/1007 35 Watt Connector Dashed/Solid Lines
2004/1006 35 Watt Receptacle Dashed/Solid Lines
SOUTH KOREA
30-2004-0023709 5 Watt Connector Dashed Lines
30-2004-0023710 5 Watt Receptacle Dashed Lines
30-2004-0023711 15 Watt Connector Dashed Lines
30-2004-0023712 15 Watt Receptacle Dashed Lines
30-2004-0023713 25 Watt Connector Dashed Lines
30-2004-0023714 25 Watt Receptacle Dashed Lines
30-2004-0023715 35 Watt Connector Dashed Lines
30-2004-0023716 35 Watt Receptacle Dashed Lines
TAIWAN
93304600 5 Watt Connector Dashed/Solid Lines
93304601 5 Watt Receptacle Dashed/Solid Lines
93304602 15 Watt Connector Dashed/Solid Lines
93304603 15 Watt Receptacle Dashed/Solid Lines
93304604 25 Watt Connector Dashed/Solid Lines
93304605 25 Watt Receptacle Dashed/Solid Lines
93304606 35 Watt Connector Dashed/Solid Lines
93304607 35 Watt Receptacle Dashed/Solid Lines
A-5