EXHIBIT 10.6
OPTION AGREEMENT TO PURCHASE STOCK
by and between
MOBILITY ELECTRONICS, INC.
and
CYBEX COMPUTER PRODUCTS corporation
OPTION AGREEMENT TO PURCHASE STOCK
This Option Agreement to Purchase Stock (the "Agreement"), dated as of
March 1, 2002 is by and among Mobility Electronics, Inc., a Delaware corporation
("Seller"), and Cybex Computer Products Corporation d/b/a Avocent-Huntsville, an
Alabama corporation ("Purchaser").
WITNESSETH:
WHEREAS, Seller desires to grant an option to Purchaser for the
purchase of all of the shares of the Series A preferred stock (the "Stock"),
that Seller owns of 2C Computing, Inc. ("2C"); and
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the parties hereto hereby agree as follows:
ARTICLE I
OPTION TO PURCHASE
SECTION 1.1 GRANT OF OPTION. Subject to a right of first offer to 2C
(the "2C Offer"), Seller hereby grants to Purchaser the exclusive option (the
"Option") to purchase the Stock at the price and upon the terms and conditions
set forth in this Agreement.
SECTION 1.2 OPTION TO PURCHASE STOCK. Purchaser shall pay to Seller an
option fee of Twenty-Five Thousand Dollars ($25,000) upon the date that Seller
receives from Purchaser in writing notification that the 2C Offer has expired.
SECTION 1.3 TERMINATION OF OPTION; EXTENSION; TERMINATION. The term of
this Option shall be fifteen (15) days, commencing upon the date that Seller
receives from Purchaser in writing notification that the 2C Offer has expired
(the "Option Date"). Purchaser may extend the Option at its discretion for
additional fifteen (15) day terms by the payment to Seller of an additional
option fee of Twenty-Five Thousand Dollars ($25,000) for each fifteen (15) day
extension. Purchaser may extend the term of the Option for up to seven (7)
extension terms, but, unless the Seller otherwise agrees in writing, the Option
and this Agreement shall automatically terminate one hundred twenty (120) days
after the Option Date. The Purchaser may terminate this Option at any time after
the initial fifteen (15) day term by delivering to Seller in writing notice of
termination.
SECTION 1.4 PURCHASE PRICE. The purchase price for the Stock shall be
the greater of (a) $1,482,000 or (b) the price per share that Purchaser pays
during the one hundred twenty (120) day period from the Option Date for any
outstanding shares of Series A preferred stock of 2C held by stockholders other
than Seller, multiplied by the number of shares held by Seller, minus the Option
fee paid under Section 1.2 hereof and any extension fees paid under Section 1.3
(the "Purchase Price"). Purchase Price shall be payable in cash at the Closing
(as defined in Section 1.5 hereof).
SECTION 1.5 EXERCISE OF OPTION; Purchase and Sale of Stock. Purchaser
may exercise the Option by delivering to Seller in writing a notice of exercise.
Upon the exercise of the Option, Purchaser and Seller shall schedule a closing
(the "Closing") of the purchase and sale of the Stock. Subject to and upon the
terms and conditions contained herein, and provided the Option is exercised by
Purchaser prior to its termination or expiration, then at the Closing, Seller
shall sell, transfer, assign, convey and deliver to Purchaser, free and clear of
all adverse claims, security interests, liens, claims and encumbrances, and
Purchaser shall purchase, accept and acquire from Seller, the Stock.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Seller represents and warrants that the following are true and correct
as of the date hereof and will be true and correct through the Closing Date as
if made at such time:
SECTION 2.1 OWNERSHIP OF THE STOCK. Seller represents that: (i) it
owns, beneficially and of record, good and valid title to the Stock; and (ii) at
the Closing, Seller will convey to Purchaser good and valid title to the Stock
owned by Seller.
SECTION 2.2 ORGANIZATION AND GOOD STANDING; Qualification. The
Corporation is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, with all requisite corporate
power and authority to carry on the business in which it is engaged, to own the
properties it owns, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
SECTION 2.3 AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Seller of the transactions contemplated hereby and thereby, have
been duly authorized by Seller, (ii) this Agreement and the other documents
contemplated by this Agreement, to which it is a party have been or will be as
of the Closing Date executed and delivered by Seller and constitute legal, valid
and binding obligations of Seller, enforceable against Seller in accordance with
their respective terms, except as may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally or the
availability of equitable remedies.
SECTION 2.4 CONSENTS. No consent, authorization, approval, permit or
license of, or filing with, any governmental or public body or authority, any
lender or lessor or any other person or entity is required to authorize, or is
required in connection with, the execution, delivery and performance of this
Agreement or the agreements contemplated hereby on the part of Seller.
SECTION 2.5 TRANSFERABILITY OF THE STOCK; NO VIOLATIONS. Other than the
2C Offer set forth in the Warrant Purchase Agreement between Seller and 2C dated
as of August 30, 2000, the Stock is freely transferable by Seller, and there are
no restrictions or limitations of any kind prohibiting or conditioning the grant
of the Option or the sale and transfer of the Stock to Purchaser. Neither the
execution, delivery or performance of this Agreement nor the consummation of the
transactions contemplated hereby will (a) conflict with, or result in a
violation or breach of the terms, conditions or provisions of, or constitute a
default under, the Articles of Incorporation or bylaws of Seller or any
agreement, indenture or other instrument under which Seller is bound or to which
any of the Stock is subject, or result in the creation or
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imposition of any security interest, lien, charge or encumbrance upon any of the
Stock or (b) violate or conflict with any judgment, decree, order, statute, rule
or regulation of any court or any public, governmental or regulatory agency or
body having jurisdiction over Seller or the Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants that the following are true and
correct as of the date hereof and will be true and correct through the Closing
as if made at such time:
SECTION 3.1 ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Alabama, with all requisite power and authority to carry on the
business in which it is engaged, to own the properties it owns, to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
SECTION 3.2 AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Purchaser of this Agreement and the documents contemplated by
this Agreement, and the consummation of the transactions contemplated thereby,
have been duly authorized by Purchaser.
SECTION 3.3 NO VIOLATIONS. Neither the execution, delivery or
performance of this Agreement nor the consummation of the transactions
contemplated hereby will (a) conflict with, or result in a violation or breach
of the terms, conditions or provisions of, or constitute a default under, the
Articles of Incorporation or bylaws of Purchaser or any agreement, indenture or
other instrument under which Purchaser is bound (b) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over Purchaser.
ARTICLE IV
CLOSING DELIVERIES
SECTION 4.1 DELIVERIES OF THE SELLER. At the Closing, Seller shall
deliver to Purchaser the following, all of which shall be in form and content
satisfactory to Purchaser and its counsel and dated as of the Closing Date
unless otherwise specified:
(a) certificates representing the Stock, accompanied by stock
powers, executed in blank;
(b) such other instrument or instruments of transfer as shall
be necessary or appropriate, as Purchaser or its counsel shall reasonably
request, to vest in Purchaser good and marketable title to the Stock being sold
to Purchaser.
SECTION 4.2 DELIVERIES OF PURCHASER. At the Closing, Purchaser shall
deliver to the Seller, the Purchase Price in immediately available funds.
SECTION 4.3 TRANSACTION TAXES. Each party shall be responsible for any
taxes such party may have as a result of the transactions contemplated herein.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 ASSIGNMENT. Neither this Agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto.
SECTION 5.2 ENTIRE AGREEMENT. The Agreement constitutes 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.
SECTION 5.3 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING
CONFLICTS OF LAWS) OF THE STATE OF DELAWARE.
SECTION 5.4 NOTICE. Any notice or demand which is permitted or required
hereunder will be deemed to have been received (except as otherwise provided
herein) (a) upon receipt when personally delivered, (b) or one day after sent by
overnight delivery by a nationally recognized courier or telecopy providing
confirmation or receipt of delivery, or (c) three days after being sent by
certified or registered mail, postage and charges prepaid, return receipt
requested to the following addresses: (i) if to Seller: 7955 East Redfield Road,
Scottsdale, Arizona 85260, Attn: Chief Executive Officer; and (ii) if to
Purchaser: 4991 Corporate Drive, Huntsville, Alabama 35805, Attn: Chief
Executive Officer; with a copy to Sam Saracino, Esq., Senior Vice President of
Legal and Corporate Affairs, General Counsel, 9911 Willows Road N.E., Redmond,
Washington 98052.
SECTION 5.5 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 parties hereto have duly executed this
Agreement as of the date first written above.
SELLER:
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MOBILITY ELECTRONICS, INC.
By: /s/ Charles R. Mollo
---------------------------------
Title: Chief Executive Officer
PURCHASER:
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CYBEX COMPUTER PRODUCTS CORPORATION
By: /s/ Doyle C. Weeks
---------------------------------
Title: Executive Vice President
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