UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

[Rule 13d-101]

Under the Securities Exchange Act of 1934

(Amendment No. 7)

Xplore Technologies Corp.

(Name of Issuer)

Common Stock, par value $0.001 per share

(Title of Class of Securities)

983950700

 (CUSIP Number)

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

July 5, 2018

 (Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ☐

*  The remainder of this cover page shall be filled out for a reporting person‘s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

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CUSIP No. 983950700

13D

(Page 2 of 14 Pages)

 

1	NAMES OF REPORTING PERSONS
	Phoenix Venture Fund LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)			(a)	☒
				(b)	☐
3
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	OO
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)				☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
			0
		8	SHARED VOTING POWER
			1,021,774 (1)
		9	SOLE DISPOSITIVE POWER
			0
		10	SHARED DISPOSITIVE POWER
			1,021,774 (1)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	1,021,774 (1)
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)				☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	9.26% (2)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

---

1	The co-managers of the managing member of Phoenix Venture Fund LLC (“Phoenix”) are Philip S. Sassower (“Mr. Sassower”) and Andrea Goren (“Mr. Goren”).

2	Based on 11,034,404 shares of common stock outstanding, as set forth in the Issuer’s quarterly report on Form 10-Q for the quarterly period ended December 31, 2017.

 

CUSIP No. 983950700

13D

(Page 3 of 14 Pages)

 

1	NAMES OF REPORTING PERSONS
	SG Phoenix LLC (3)
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)			(a)	☒
				(b)	☐
3
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	OO
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)				☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
			0
		8	SHARED VOTING POWER
			0
		9	SOLE DISPOSITIVE POWER
			0
		10	SHARED DISPOSITIVE POWER
			0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	0
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)				☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	0.00%
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

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3	The co-managers of SG Phoenix LLC (“SG Phoenix”) are Mr. Sassower and Mr. Goren.

 

CUSIP No. 983950700

13D

(Page 4 of 14 Pages)

 

1	NAMES OF REPORTING PERSONS
	Andax LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)			(a)	☒
				(b)	☐
3
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	OO
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)				☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
			0
		8	SHARED VOTING POWER
			43,879 (4)
		9	SOLE DISPOSITIVE POWER
			0
		10	SHARED DISPOSITIVE POWER
			43,879 (4)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	43,879 (4)
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)				☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	0.40% (5)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	00

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4	The manager of Andax LLC is Mr. Goren.

5	Based on 11,034,404 shares of common stock outstanding, as set forth in the Issuer’s quarterly report on Form 10-Q for the quarterly period ended December 31, 2017.

 

CUSIP No. 983950700

13D

(Page 5 of 14 Pages)

 

1	NAMES OF REPORTING PERSONS
	Philip S. Sassower
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)			(a)	☒
				(b)	☐
3
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	OO
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)				☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
			268,249 (6)
		8	SHARED VOTING POWER
			1,021,774 (7)
		9	SOLE DISPOSITIVE POWER
			268,249 (6)
		10	SHARED DISPOSITIVE POWER
			1,021,774 (7)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	1,290,023 (6)(7)
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)				☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	11.41% (8)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

---

6

Consists of 268,249 shares of common stock that Mr. Sassower has the right to acquire under options exercisable within 60 days after July 5, 2018. Mr. Sassower disclaims any beneficial ownership of the securities owned by Phoenix Family Fund, except to the extent of his pecuniary interest, if any, in such securities.

7	Consists of 1,021,774 shares of common stock owned of record by Phoenix.  Mr. Sassower is the co-manager of the managing member of Phoenix. Mr. Sassower disclaims any beneficial ownership of the securities owned by Phoenix except to the extent of his pecuniary interest, if any, in such securities.

8	Based on 11,034,404 shares of common stock outstanding, as set forth in the Issuer’s quarterly report on Form 10-Q for the quarterly period ended December 31, 2017.

 

CUSIP No. 983950700

13D

(Page 6 of 14 Pages)

 

1	NAMES OF REPORTING PERSONS
	Andrea Goren
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)			(a)	☒
				(b)	☐
3
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	OO
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)				☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
			163,787 (9)
		8	SHARED VOTING POWER
			1,021,799 (10)
		9	SOLE DISPOSITIVE POWER
			163,787 (9)
		10	SHARED DISPOSITIVE POWER
			1,021,799 (10)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	1,185,586 (9)(10)
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)				☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	13.14% (11)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

---

9

Consists of (i) 1,659 shares of common stock owned of record by Andrea Goren, (ii) 43,879 shares of common stock owned of record by Andax, an entity in which Mr. Goren has sole voting and dispositive power and (iii) 118,249 shares of common stock that Mr. Goren has the right to acquire under options exercisable within 60 days after July 5, 2018. Mr. Goren disclaims any beneficial ownership of the securities owned by Andax, except to the extent of his pecuniary interest, if any, in such securities.

10

Consists of (i) 1,021,774 shares of common stock owned of record by Phoenix and (ii) 25 shares of common stock owned of record by Mr. Goren’s wife. Mr. Goren is the co-manager of the managing member of Phoenix. Mr. Goren disclaims any beneficial ownership of the securities owned by Phoenix and Ms. Goren, except to the extent of his pecuniary interest, if any, in such securities.

11	Based on 11,034,404 shares of common stock outstanding, as set forth in the Issuer’s quarterly report on Form 10-Q for the quarterly period ended December 31, 2017.

 

(Page 7 of 14 Pages)

 

This Amendment No. 7 (the “Statement”) filed by Phoenix Venture Fund LLC (the “Phoenix Venture Fund”), SG Phoenix LLC (“SG Phoenix”), Andax LLC, Philip S. Sassower and Andrea Goren (the “Reporting Persons”) amends and supplements Items 3, 4, 6 and 7 and amends and restates Item 5 of Schedule 13D originally filed by Phoenix Venture Fund LLC, Philip S. Sassower and Andrea Goren on October 1, 2007, as amended by Amendment No. 1 filed on September 25, 2008, Amendment No. 2 filed on June 11, 2009, Amendment No. 3 filed on November 29, 2009, Amendment No. 4 filed on December 16, 2010, Amendment No. 5 filed on November 9, 2012 and Amendment No. 6 filed on August 20, 2014.

ITEM 3.

SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

Item 3 of the Schedule 13D is hereby amended and supplemented as follows:

The response to Item 5(c) is incorporated herein by reference.

ITEM 4.

PURPOSE OF TRANSACTION

Item 4 of the Schedule 13D is hereby amended and supplemented as follows:

See Item 3 of this Statement, which is hereby incorporated by reference, for a discussion of how the securities to which this Statement relates were acquired by the Reporting Persons.

Except as set forth in this Statement, the Reporting Persons do not presently have any specific plans or proposals that relate to or would result in any of the actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

ITEM 5.

INTEREST IN SECURITIES OF THE ISSUER

Item 5 of the Schedule 13D is hereby amended and restated in its entirety as follows:

(a).          The Phoenix Venture Fund, for the purpose of Rule 13d-3 promulgated under the Exchange Act, beneficially owns an aggregate of 1,021,774 shares of common stock, representing approximately 9.26% of the Issuer’s common stock.

SG Phoenix, for the purpose of Rule 13d-3 promulgated under the Exchange Act, beneficially owns an aggregate of 0 shares of common stock, representing approximately 0.00% of the Issuer’s common stock.

Andax, for the purpose of Rule 13d-3 promulgated under the Exchange Act, beneficially owns an aggregate of 43,879 shares of common stock, representing approximately 0.40% of the Issuer’s common stock.

Mr. Sassower, for the purpose of Rule 13d-3 promulgated under the Exchange Act, beneficially owns an aggregate of 1,290,023 shares of common stock, representing approximately 11.41% of the Issuer’s common stock. Mr. Sassower is the co-manager of the managing member of Phoenix. Mr. Sassower disclaims any beneficial ownership of the securities owned by Phoenix except to the extent of his pecuniary interest, if any, therein.

 

(Page 8 of 14 Pages)

 

Mr. Goren, for the purpose of Rule 13d-3 promulgated under the Exchange Act, beneficially owns an aggregate of 1,185,586 shares of common stock, representing approximately 13.14% of the Issuer’s common stock. Mr. Goren is the co-manager of the managing member of Phoenix and the sole manager member of Andax. Mr. Goren disclaims any beneficial ownership of the securities owned by Phoenix and Andax, except to the extent of his pecuniary interest, if any, therein.

(b).          The Phoenix Venture Fund has the sole power to vote and the sole power to dispose of 0 shares of common stock and the shared power to vote and shared power to dispose of 1,021,774 shares of common stock.

SG Phoenix has the sole power to vote and the sole power to dispose of 0 shares of common stock.

Andax has the sole power to vote and the sole power to dispose of  0 shares of common stock and the shared power to vote and shared power to dispose of 43,879 shares of common stock.

Mr. Sassower has the sole power to vote and the sole power to dispose of 268,249 shares of common stock and has the shared power to vote and the shared power to dispose of 1,021,774 shares of common stock.

Mr. Goren has the sole power to vote and the sole power to dispose of 163,787 shares of common stock and has the shared power to vote and the shared power to dispose of 1,021,799 shares of common stock.

Mr. Sassower and Mr. Goren are the co-managers of the managing member of Phoenix. Mr. Sassower and Mr. Goren disclaim any beneficial ownership of the securities owned by Phoenix, except to the extent of their pecuniary interests, if any, therein. Mr. Goren is the managing member of Andax and disclaims any beneficial ownership of the securities owned by Andax, except to the extent of his pecuniary interests, if any, therein.

(c).          Except for the information with respect to the acquisitions by the Reporting Persons as set forth in Items 3 and 4, which is hereby incorporated by reference, none of Phoenix, SG Phoenix, Andax, Mr. Sassower or Mr. Goren has effected any transaction relating to the common stock during the past 60 days.

(d). Not applicable.

(e). Not applicable.

ITEM 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

Item 6 of the Schedule 13D is hereby amended and supplemented as follows:

 

(Page 9 of 14 Pages)

 

Tender and Support Agreement

On July 5, 2018, the Issuer entered into an Agreement and Plan of Merger by and among Zebra Technologies Corporation, a Delaware corporation ("Parent"), Wolfdancer Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Parent ("Purchaser") and the Issuer (the “Merger Agreement”). The Merger Agreement provides for, among other things, (i) the commencement by Purchaser of a tender offer (such offer as it may be amended from time to time as permitted by the Merger Agreement, the “Offer”) to purchase all of the outstanding shares of the common stock of the Issuer; and (ii) following the acceptance for payment of shares of common stock of the Issuer pursuant to the Offer, upon the terms and subject to the conditions set forth in the Merger Agreement, the merger of Purchaser with and into the Issuer, with the Issuer continuing as the surviving corporation (the “Merger”).

Concurrently with the execution and delivery of the Merger Agreement, at the request of the Issuer, Phoenix, Andax and Mr. Goren entered into a Tender and Support Agreement with Parent and Purchaser (the “Support Agreement”) pursuant to which, among other things, they agreed to tender all of their shares of common stock of the Issuer in the Offer and take certain other actions in furtherance of the Merger. The Support Agreement will terminate upon the earliest to occur of (i) the termination of the Merger Agreement, (ii) the effectiveness of the Merger in accordance with the terms and provision of the Merger Agreement, (iii) the acquisition by Parent of all the shares subject thereto, (iv) any amendment, change or waiver to the Merger Agreement without such stockholder’s consent that decreases the amount or changes the form or timing of consideration payable pursuant to the terms of the Merger Agreement or that materially and adversely affects such Stockholder, (v) the termination of the Offer and (vi) as agreed to in writing by such stockholder and Parent.

 

Expense Reimbursement Agreement

 

Concurrently with entry into the Support Agreement, Phoenix and Andax entered into an agreement with the Issuer pursuant to which the Issuer has agreed to reimburse each of them for the reasonable fees and out-of-pocket third party expenses, including reasonable fees of attorneys, incurred by such stockholder in connection with or arising from the execution and delivery of, or performance under, the Support Agreement.

 

The foregoing descriptions of (i) the Support Agreement and the transactions contemplated thereby and (ii) the Expense Reimbursement Agreement, in each case, do not purport to be complete and are qualified in their entirety by reference to the Tender and Support Agreement, which is filed as Exhibit 2 hereto and which is incorporated herein by reference, and the Expense Reimbursement Agreement, which is filed as Exhibit 3 hereto and which is incorporated herein by reference.

 

ITEM 7.

MATERIAL TO BE FILED AS EXHIBITS

Item 7 of the Schedule 13D is hereby supplemented as follows:

 

 

(Page 10 of 14 Pages)

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 13D is true, complete and correct.

 

(Page 11 of 14 Pages)

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 13D is true, complete and correct.

 

(Page 12 of 14 Pages)

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 13D is true, complete and correct.

 

(Page 13 of 14 Pages)

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 13D is true, complete and correct.

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 13D is true, complete and correct.

JOINT FILING AGREEMENT

 

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, each of the undersigned hereby agrees to the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock of Xplore Technologies Corp., and that this Agreement be included as an Exhibit to such joint filing.

Each of the undersigned acknowledges that each shall be responsible for the timely filing of any statement (including amendments) on Schedule 13D, and for the completeness and accuracy of the information concerning him, her, or it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the other persons making such filings, except to the extent that he, she, or it knows or has reason to believe that such information is inaccurate.

Dated: July 5, 2018

 

PHOENIX VENTURE FUND LLC
By:	SG Phoenix Ventures LLC, its Managing Member		By:	/s/ Philip S. Sassower
				Philip S. Sassower
By:	/s/ Andrea Goren		By:	/s/ Andrea Goren
	Name: Andrea Goren			Andrea Goren
	Title:  Managing Member
SG PHOENIX LLC
By:	/s/ Andrea Goren
	Name: Andrea Goren
	Title:  Co-Manager
ANDAX LLC
By:	/s/ Andrea Goren
	Name: Andrea Goren
	Title:  Co-Manager

 

 

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TENDER AND SUPPORT AGREEMENT

This TENDER AND SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of July 5, 2018 by and among Zebra Technologies Corporation, a Delaware corporation (“Parent”), Wolfdancer Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and each of the undersigned stockholders (the “Stockholders”) of Xplore Technologies Corp., a Delaware corporation (the “Company”).

RECITALS

WHEREAS, Parent, Sub and the Company have entered into an Agreement and Plan of Merger of even date herewith (the “Merger Agreement”), which provides for, among other things, (i) the commencement by Sub of a tender offer (such offer, as may be extended and amended from time to time as permitted under, or required by, the Merger Agreement, the “Offer”) to purchase all of the outstanding shares of the common stock, par value $.001 per share, of the Company (the “Company Common Stock”), at a price per share of $6.00, payable net to the seller thereof in cash, without interest (the “Offer Price”); and (ii) following the acceptance for payment of shares of Company Common Stock pursuant to the Offer, upon the terms and subject to the conditions set forth in the Merger Agreement, the merger of Sub with and into the Company, with the Company continuing as the surviving corporation (the “Merger”), pursuant to which each issued and outstanding share of Company Common Stock (other than certain shares to be canceled in accordance with the Merger Agreement and Dissenting Shares) will be converted into the right to receive the Offer Price;

WHEREAS, each Stockholder is the beneficial owner (as defined in Rule 13d‑3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of such number of shares of Company Common Stock as is indicated on the signature page of this Agreement; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Sub have required the Stockholders, and in order to induce Parent and Sub to enter into the Merger Agreement, each Stockholder (solely in the Stockholder’s capacity as such) has agreed, to enter into this Agreement and tender all of the Subject Shares as described herein.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement agree as follows:

1.             Certain Definitions.  All capitalized terms that are used but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.  For all purposes of and under this Agreement, the following terms shall have the following respective meanings:

 

(a)           “Expiration Date” shall mean the earliest to occur of such date and time as (i) the Merger Agreement shall have been terminated for any reason; (ii) the Merger shall become effective in accordance with the terms and provisions of the Merger Agreement; (iii) the acquisition by Parent of all the Subject Shares of the Stockholders, whether pursuant to the Merger or otherwise; (iv) any amendment, change or waiver to the Merger Agreement as in effect on the date hereof, without each Stockholder’s consent, that (A) decreases the amount, or changes the form or timing (except with respect to extensions of time of the Offer in accordance with the terms of the Merger Agreement) of consideration payable to the Stockholders pursuant to the terms of the Merger Agreement as in effect on the date hereof or (B) materially and adversely affects such Stockholder; (v) the Offer shall have been terminated without acceptance for payment of the Subject Shares pursuant to the Offer; or (vi) is agreed to in writing by Parent and each Stockholder.

(b)           “Lien” shall mean any lien, hypothecation, adverse claim, charge, security interest, pledge or option, proxy, right of first refusal, preemptive right, voting trust or any other similar right.

(c)           “Permitted Lien” shall mean (i) any Lien arising (A) hereunder or (B) under securities laws; and (ii) any right, agreement, understanding or arrangement which represents an interest in cash received upon sale of the Subject Shares and not an Lien upon the Subject Shares prior to such sale.

(d)           “Subject Shares” shall mean, other than nontransferable restricted shares of Company Common Stock, with respect to each Stockholder, (i) all shares of Company Common Stock beneficially owned by such Stockholder as of the date hereof; and (ii) all additional shares of Company Common Stock of which such Stockholder acquires beneficial ownership during the period from the date of this Agreement through the Expiration Date (including by way of stock dividend or distribution, split-up, recapitalization, combination, exchange of shares or issued upon the exercise of any options, the settlement of any restricted stock or other conversion of any convertible securities).

(e)           “Transfer.”  A person shall be deemed to have effected a “Transfer” of a Subject Share if such person, directly or indirectly, (i) sells, pledges, creates a Lien with respect to (other than Permitted Liens), assigns, exchanges, grants an option with respect to, transfers, gifts, disposes of or enters into any derivative arrangement with respect to such Subject Share or any interest therein or (ii) enters into an agreement or commitment providing for the sale, pledge, creation of a Lien (other than Permitted Liens), assignment, exchange, transfer, gift, disposition of or any derivative arrangement with respect to, or grant of an option with respect to, such Subject Share or any interest therein.

 

2.             Transfer of Subject Shares.

(a)           Transfer Restrictions.  Except as expressly contemplated by this Agreement or the Merger Agreement, prior to the Expiration Date, no Stockholder shall cause or permit any Transfer of any of the Subject Shares to be effected.

(b)           Transfer of Voting Rights.  Prior to the Expiration Date, each Stockholder shall not (i) deposit (or permit the deposit of) any Subject Shares in a voting trust or grant any proxy or power of attorney or enter into any voting agreement or similar agreement with respect to any of the Subject Shares or (ii) subject to Section 3(b), take or permit any other action that would in any way restrict, limit or interfere with the performance of the Stockholder’s obligations hereunder or otherwise make any representation or warranty of the Stockholder herein untrue or incorrect.  Any action taken in violation of the foregoing sentence shall be null and void ab initio and such Stockholder agrees that any such prohibited action may and should be enjoined.

(c)           Exceptions.  Nothing in this Section 2 shall prohibit a Transfer of Subject Shares by each Stockholder:  (i) if the Stockholder is an individual, pursuant to applicable laws of descent and distribution; (ii) if the Stockholder is a partnership, limited liability company or trust, to one or more partners or members of the Stockholder or to an affiliated corporation under common control with the Stockholder or to any trustee or beneficiary of the trust; provided, however, that a Transfer referred to in this Section 2(c) shall be permitted only if the transferee agrees in writing, reasonably satisfactory in form and substance to Parent, to be bound by the terms of this Agreement.

(d)           Involuntary Transfer.  If any involuntary Transfer of any of the Subject Shares shall occur (including, but not limited to, a sale by a Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Subject Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement.

3.             Agreement to Tender; Voting Agreement.

(a)           Tender of Shares.  Subject to the terms of this Agreement, each Stockholder shall tender, pursuant to and in accordance with the terms of the Offer, the Subject Shares.  No later than ten (10) business days after commencement of the Offer, each Stockholder shall (a) deliver to the depositary designated in the Offer all documents or instruments required to be delivered by such Stockholder in order to tender the Subject Shares pursuant to the terms of the Offer, and/or (b) instruct his or its broker or such other person who is the holder of record of any Subject Shares to tender such shares for exchange in the Offer pursuant to the terms and conditions of the Offer.  Prior to the Expiration Date, each Stockholder shall not tender the Subject Shares into any exchange or tender offer commenced by a third party other than Parent or Sub.  Notwithstanding anything to the contrary herein, each Stockholder may withdraw such Subject Shares from the Offer at any time following the termination of this Agreement or upon the Offer being terminated in accordance with the terms of the Merger Agreement. For the avoidance of doubt, (x) each Stockholder shall not be required, for purposes of this Agreement, to exercise any unexercised Company equity award held by such Stockholder and (y) no Stockholder shall have any obligation under this Section 3 to tender (or caused to be tendered) any Subject Shares into the Offer to the extent such tender could cause such Stockholder to incur liability under Section 16(b) of the Exchange Act.

 

(b)           Voting Agreement.  Unless this Agreement shall have been terminated in accordance with its terms, subject to the terms of this Agreement, (i) each Stockholder hereby agrees to vote all Subject Shares that such Stockholder is entitled to vote at the time of any vote to approve and adopt the Merger Agreement and the Merger at any meeting of the stockholders of the Company, and at any adjournment thereof, at which such Merger Agreement is submitted for the consideration and vote of the stockholders of the Company and (ii) each Stockholder hereby agrees that he or it will not vote any Subject Shares in favor of, and will vote such Subject Shares against the approval of, any Company Acquisition Proposal.  Each Stockholder hereby revokes any and all previous proxies granted with respect to the Subject Shares.

(c)           Company Adverse Recommendation Change.  Notwithstanding Section 3(a) or Section 3(b) hereof, in the event of a Company Adverse Recommendation Change pursuant to Section 5.3(d) or 5.3(e) of the Merger Agreement and in compliance with the Merger Agreement, (i) the obligation of each Stockholder to tender the Subject Shares in the Offer as set forth in Section 3(a) or to vote the Subject Shares pursuant to Section 3(b) shall be modified (without any further notice or any action by the Company or such Stockholder) such that the Stockholder, in such Stockholder’s sole discretion, shall be entitled to tender or vote, as applicable, all of the Subject Shares in any manner such Stockholder may choose and upon the exercise of such discretion, the obligation of the Stockholder to tender the Subject Shares as set forth in Section 3(a) or to vote the Subject Shares pursuant to Section 3(b) shall be null and void and of no further force or effect and (ii) to the extent such Stockholder has previously tendered any Subject Shares pursuant to Section 3(a) and wishes to withdraw such Subject Shares, the Stockholder may so withdraw such Subject Shares and Parent and Sub shall promptly return, and shall cause any depository or paying agent, acting on behalf of Parent and Sub, to promptly return all tendered Subject Shares to such Stockholder.

(d)           Return of Shares.  If the Offer is terminated or withdrawn by Sub or the Merger Agreement is terminated prior to the purchase of Subject Shares in the Offer, Parent and Sub shall promptly return, and shall cause any depository or paying agent, acting on behalf of Parent and Sub, to promptly return all tendered Subject Shares to the applicable Stockholder.

4.            Directors and Officers.  Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall (or shall require either Stockholder to attempt to) limit or restrict any Stockholder in his capacity as a director or officer of the Company or any designee of the Stockholder who is a director or officer of the Company from acting in such capacity or voting in such person’s sole discretion on any matter (it being understood that this Agreement shall apply to each Stockholder solely in such Stockholder’s capacity as a stockholder of the Company).

 

5.             No Ownership Interest.  Nothing contained in this Agreement shall be deemed to vest in Parent or Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Stockholders, and neither Parent nor Sub shall have the authority by virtue of this Agreement or the transactions to be consummated pursuant hereto to manage, direct, superintend, restrict, regulate, govern, or administer any of the policies or operations of the Company or exercise any power or authority to direct the Stockholders in the voting of any of the Subject Shares to the extent such Subject Shares are entitled to be voted, except as otherwise provided herein.

6.             Representations and Warranties of the Stockholder. Each Stockholder, severally and not jointly, hereby represents and warrants to Parent and Sub as follows:

(a)           Power; Binding Agreement.  The Stockholder has full power and authority to execute and deliver this Agreement, to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby.  The execution and delivery by the Stockholder of this Agreement, the performance by the Stockholder of his or its obligations hereunder and the consummation by the Stockholder of the transactions contemplated hereby have been duly and validly authorized by the Stockholder and no other actions or proceedings on the part of the Stockholder are necessary to authorize the execution and delivery by the Stockholder of this Agreement, the performance by the Stockholder of its obligations hereunder or the consummation by the Stockholder of the transactions contemplated hereby.  This Agreement has been duly executed and delivered by the Stockholder, and, assuming this Agreement constitutes a valid and binding obligation of Parent and Sub, constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except that such enforceability: (i) may be limited by fraudulent transfer, reorganization, moratorium or other laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity.

(b)           No Conflicts.  Except for filings under the Exchange Act, no filing with, and no permit, authorization, consent, or approval of, any Governmental Authority is necessary for the execution and delivery by the Stockholder of this Agreement, the performance by the Stockholder of its obligations hereunder and the consummation by the Stockholder of the transactions contemplated hereby.  None of the execution and delivery by the Stockholder of this Agreement, the performance by the Stockholder of its obligations hereunder or the consummation by the Stockholder of the transactions contemplated hereby will (i) conflict with or result in any breach of any organizational documents applicable to the Stockholder; (ii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, loan agreement, bond, mortgage, indenture, commitment, arrangement, understanding or other agreement to which the Stockholder is a party or by which the Stockholder or any of the Stockholder’s properties or assets may be bound; or (iii) violate any order, writ, injunction, decree, judgment, order, statute, rule, or regulation applicable to the Stockholder or any of the Stockholder’s properties or assets, except, in the case of clauses (ii) and (iii), for matters that, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the consummation by the Stockholder of the transactions contemplated hereby.

 

(c)           Ownership of Shares.  As of the date hereof, the Stockholder (i) is the beneficial owner of the shares of Company Common Stock indicated on the signature page of this Agreement, all of which are free and clear of any Liens (other than Permitted Liens).  As of the date hereof, the Stockholder does not own, beneficially or otherwise, any securities of the Company other than as indicated on the signature page of this Agreement.

(d)           Voting and Disposition Power.  The Stockholder has full voting power with respect to the Subject Shares and full power of disposition, full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Subject Shares. The party signing this Agreement on behalf of the Stockholder (if the Stockholder is an entity) has been duly authorized by all necessary action under the limited liability company agreement, operating agreement or similar organizational agreement of the Stockholder (“Organizational Agreement”) to execute and deliver this Agreement on behalf of the Stockholder. None of the shares of Company Common Stock indicated on the signature page of this Agreement are subject to any stockholders’ agreement, proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Shares, except as contained in the Organizational Agreement of the Stockholder.

(e)           Reliance.  The Stockholder has been represented by or had the opportunity to be represented by independent counsel of its own choosing and has had the right and opportunity to consult with its attorney, and to the extent, if any, that such Stockholder desired, such Stockholder availed itself of such right and opportunity. Stockholder is competent to execute this Agreement and has executed this Agreement free from coercion, duress or undue influence.  The Stockholder understands and acknowledges that the Company, Parent and Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.

(f)           Absence of Litigation.  With respect to the Stockholder, as of the date hereof, there is no action, suit, claim, proceeding, charge, arbitration or investigation pending against, or, to the actual knowledge of the Stockholder, threatened in writing against the Stockholder or any of the Stockholder’s properties or assets (including the Subject Shares) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Stockholder of the transactions contemplated by this Agreement or otherwise materially impair the Stockholder’s ability to perform its obligations hereunder.

 

(g)           Brokers.  No broker, finder, financial advisor, investment banker or other person is entitled to any brokerage, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Stockholder.

7.             Representations and Warranties of Parent and Sub. Parent and Sub represent and warrant to the Stockholder as follows:

(a)           Power; Binding Agreement.  Each of Parent and Sub has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.  The execution and delivery by Parent and Sub of this Agreement, the performance by each of Parent and Sub of its obligations hereunder and the consummation by Parent and Sub of the transactions contemplated hereby have been duly and validly authorized by each of Parent and Sub and no other actions or proceedings on the part of Parent or Sub are necessary to authorize the execution and delivery by Parent or Sub, the performance by either Parent or Sub of its obligations hereunder or the consummation by Parent or Sub of the transactions contemplated hereby.  This Agreement has been duly executed and delivered by each of Parent and Sub, and, assuming this Agreement constitutes a valid and binding obligation of the Stockholders, constitutes a valid and binding obligation of each of Parent and Sub, enforceable against each of Parent and Sub in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors and (ii) rules of law governing specific performance and other equitable remedies.

(b)           No Conflicts.  Except for filings under the Exchange Act, no filing with, and no permit, authorization, consent, or approval of, any Governmental Authority is necessary for the execution and delivery by Parent or Sub of this Agreement, the performance by each of Parent or Sub of its obligations hereunder and the consummation by Parent or Sub of the transactions contemplated hereby.  None of the execution and delivery by Parent or Sub of this Agreement, the performance by each of Parent or Sub of its obligations hereunder or the consummation by Parent or Sub of the transactions contemplated hereby will (i) conflict with or result in any breach of any organizational documents applicable to Parent or Sub; (ii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, loan agreement, bond, mortgage, indenture, commitment, arrangement, understanding or other agreement to which Parent or Sub is a party or by which Parent or Sub or any of Parent’s or Sub’s properties or assets may be bound; or (iii) violate any order, writ, injunction, decree, judgment, order, statute, rule, or regulation applicable to Parent or Sub or any of Parent’s or Sub’s properties or assets, except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated hereby.

 

8.             Disclosure.  Each Stockholder shall permit the Parent and Sub to publish and disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document that Parent and Sub reasonably determine to be required in connection with the Offer, the Merger and any transactions related thereto, the Stockholder’s identity and ownership of Subject Shares and the nature of the commitments, arrangements and understandings under this Agreement.  Parent and Sub shall permit each Stockholder to publish and disclose in all disclosure documents required by Law (including any Schedule 13D/A filing), the nature of the commitments, arrangements and understandings under this Agreement.

9.            Further Assurances.  Subject to the terms and conditions of this Agreement, each party shall use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary to fulfill such party’s obligations under this Agreement.

10.           Termination.  This Agreement and the covenants and agreements set forth in this Agreement shall automatically terminate (without any further action of the parties) and shall have no further force or effect upon the Expiration Date.  Notwithstanding the foregoing, nothing set forth in this Section 10 or elsewhere in this Agreement shall relieve any party hereto from liability, or otherwise limit the liability of any party hereto, for any material breach of this Agreement.

11.           Miscellaneous Provisions.

(a)           Amendment or Supplement.  This Agreement may be amended or supplemented in any and all respects by written agreement signed by all of the parties hereto.

(b)           Extension of Time, Waiver, etc.  Any party may, subject to applicable Law, solely as to itself: (i) waive any inaccuracies in the representations and warranties of any other party hereto; (ii) extend the time for the performance of any of the obligations or acts of any other party hereto; or (iii) waive compliance by any other party with any of the agreements contained in this Agreement or, except as otherwise provided in this Agreement, waive any of such party’s conditions set forth in this Agreement.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.  Notwithstanding the foregoing, no failure or delay by either Stockholder, Parent or Sub in exercising any right hereunder shall operate as a waiver of rights, nor shall any single or partial exercise of such rights preclude any other or further exercise of such rights or the exercise of any other right hereunder.

(c)           Entire Agreement; No Third Party Beneficiary; Effectiveness.  This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter of this Agreement.  This Agreement is not intended, and shall not be deemed, to confer any rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns or to otherwise create any third-party beneficiary hereto.  This Agreement shall not be effective unless and until (i) the Company Board has voted to approve the Merger Agreement, (ii) the Merger Agreement is executed by all the parties thereto, and (iii) this Agreement is executed by all the parties hereto.

 

(d)           Applicable Law; Jurisdiction.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws.  All actions and proceedings arising out of or relating to this Agreement or the negotiation, validity or performance of this Agreement, shall be heard and determined in the Court of Chancery of the State of Delaware, and the parties irrevocably submit to the jurisdiction of such court (and, in the case of appeals, the appropriate appellate court therefrom), in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any person other than the parties hereto.  The parties agree that service of any court paper may be made in any manner as may be provided under the applicable Laws or court rules governing service of process in such court.  The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.  EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.

(e)           Specific Enforcement.  The parties hereto agree that irreparable damage would occur for which monetary damages would not be an adequate remedy in the event that any of the provisions of this Agreement are not performed in accordance with the terms hereof or are otherwise breached, and that the party seeking to enforce this Agreement against such nonperforming party under this Agreement shall be entitled to specific performance and the issuance of injunctive and other equitable relief.  The parties hereto further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief, this being in addition to any other remedy to which they are entitled at law or in equity.

(f)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto, in whole or in part (whether by operation of Law or otherwise), without the prior written consent of the other parties, and any attempt to make any such assignment without such consent shall be null and void, except that Sub may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to any one or more direct or indirect wholly owned subsidiaries of Parent without the consent of the Stockholders, but no such assignment shall relieve Sub of any of its obligations under this Agreement.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.

 

(g)           Notices.  All notices and other communications hereunder shall be in writing and shall be deemed duly delivered: (i) two (2) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid; (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; or (iii) on the date of confirmation of receipt (or the first (1st) Business Day following such receipt if the date of such receipt is not a Business Day) of transmission by electronic mail or facsimile, in each case to the intended recipient as set forth below (or to such other address, electronic mail address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):

if to Parent or Sub:

Zebra Technologies Corporation

3 Overlook Point

Lincolnshire, Illinois 60069

Attention: General Counsel

Email: Zebralegal@zebra.com

Facsimile No: 847-821-1492

 

with a copy to (which copy shall not constitute notice):

 

Kirkland & Ellis LLP

300 North LaSalle Street

Chicago, Illinois 60654

Attention:  R. Scott Falk, P.C. and Maggie Flores

Email: scott.falk@kirkland.com; maggie.flores@kirkland.com

Facsimile No:  (312) 862-2200

 

if to the Stockholders:

 

with a copy to (which copy shall not constitute notice):

Pillsbury Winthrop Shaw Pittman LLP

1540 Broadway

New York, New York 10036

Attention:  Jonathan J. Russo

Email:  jonathan.russo@pillsburylaw.com

Facsimile No:  (212) 858-1500

 

(h)           Severability.  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.  If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified.  In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the Agreement be consummated as originally contemplated to the fullest extent possible.

(i)            Construction.

(i)          For purposes of this Agreement, whenever the context requires: (A) the singular number shall include the plural, and vice versa; (B) the masculine gender shall include the feminine and neuter genders; (C) the feminine gender shall include the masculine and neuter genders; and (D) the neuter gender shall include the masculine and feminine genders.

(ii)         The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(iii)        As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(j)            Descriptive Headings.  The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

(k)           Counterparts; Signatures.  This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties hereto and delivered to the other parties, it being understood that all parties need not sign the same counterpart.  This Agreement may be executed and delivered by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, each of which shall be deemed an original.

 

(l)            No Recourse.  Parent and Sub agree that no Stockholder (in his or its capacity as a stockholder of the Company) will be liable for claims, losses, damages, liabilities or other obligations resulting from the Company’s breach of the Merger Agreement.

(m)          Several Obligations.  The obligations of each Stockholder hereunder shall be several, and not joint, and no Stockholder shall be liable for any breach of the terms of this Agreement by any other Stockholder.

 

[Remainder of Page Intentionally Left Blank]

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed to be effective as of the date first above written.

 

 

[Signature Page to Tender and Support Agreement]

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed to be effective as of the date first above written.

 

 

 

[Signature Page to Tender and Support Agreement]

 

 

 

 

[Signature Page to Tender and Support Agreement]

 

 

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July 5, 2018

 

Phoenix Venture Fund LLC

110 East 59^th Street, Suite 1901

New York, New York 10022

Attention:  Andrea Goren

RE:  Tender and Support Agreement — Expense Reimbursement

Dear Mr. Goren:

Reference is hereby made to the (i) Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), to be executed concurrently with this letter agreement (this “Letter Agreement”) by and among Zebra Technologies Corporation (“Parent”), Wolfdancer Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Xplore Technologies Corp., a Delaware corporation (the “Company”), and (ii) the Tender and Support Agreement, dated as of the date hereof (the “Tender Agreement”), to be executed concurrently with this Letter Agreement by and among Parent, Merger Sub and each of Phoenix Venture Fund LLC (“Phoenix”) and Andax LLC (together with Phoenix, the “Stockholders”).  Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Merger Agreement.

WHEREAS, as a condition to their willingness to enter into and perform its obligations under the Merger Agreement, Parent and Merger Sub required that each Stockholder enter into the Tender Agreement;

WHEREAS, the Company requested that each Stockholder enter into the Tender Agreement;

NOW, THEREFORE, in consideration of the foregoing and of the covenants and agreements herein contained, and intending to be legally bound hereby, the Company and the Stockholders hereto agree as follows:

1.             Expense Reimbursement.  The Company shall reimburse each Stockholder for the reasonable fees and out-of-pocket third party expenses, including reasonable fees of attorneys, incurred by such Stockholder in connection with or arising from the execution and delivery of, or performance under, the Tender Agreement within ten (10) Business Days of written request therefor from such Stockholder; provided that such reimbursement obligation for reasonable attorneys’ fees shall not exceed $10,000 for both Stockholders in the aggregate without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

 

2.             Counterparts.  This Letter Agreement may be executed and delivered (including by e-mail of a .pdf attachment) in two (2) or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

3.             Governing Law; Submission to Jurisdiction; Selection of Forum.

 

a.          This Letter Agreement shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

 

b.          Each of the Company and each Stockholder hereby submits to the exclusive jurisdiction of the Delaware Court of Chancery or, if (but only if) the Delaware Court of Chancery shall be unavailable, any other court of the State of Delaware or any federal court sitting in the State of Delaware, for the purpose of any action or proceeding arising out of or relating to this Letter Agreement and each of the parties hereto hereby irrevocably agrees that all claims in respect to such action or proceeding may be heard and determined in any such court.

 

c.          Each of the parties hereto (i) irrevocably consents to the service of the summons and complaint and any other process in any action or proceeding relating to the transactions contemplated by this Letter Agreement, on behalf of itself or its property, by personal delivery of copies of such process to such party and nothing in this Section 3 shall affect the right of any party to serve legal process in any other manner permitted by applicable Law, (ii) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery, any other court of the State of Delaware and any federal court sitting in the State of Delaware in the event any dispute arises out of this Letter Agreement or the transactions contemplated by this Letter Agreement and (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court.  Each of the Company and each Stockholder agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

 

4.             Waiver of Jury Trial.  EACH OF THE COMPANY AND EACH STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE ACTIONS OF THE COMPANY OR THE STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.  EACH PARTY (A) MAKES THIS WAIVER VOLUNTARILY AND (B) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 4.

 

5.             Severability.  If any term or other provision of this Letter Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other provisions of this Letter Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Letter Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the Letter Agreement be consummated as originally contemplated to the fullest extent possible.

 

6.             Amendment.  Neither this Letter Agreement nor any term hereof may be amended other than by an instrument in writing signed by the Company and the Stockholders.  No provision of this Letter Agreement may be waived, discharged or terminated other than by an instrument in writing signed by the party against whom the enforcement of such waiver, discharge or termination is sought.

 

7.             Assignment; Successors.  Neither this Letter Agreement nor any rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties hereto, except that the Agreement may be assigned by any party to an Affiliate of such party; provided, that the party making such assignment shall not be released from its obligations hereunder.  Subject to the preceding sentence, this Letter Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

[Remainder of page intentionally left blank]

 

Please execute this letter and return a copy to us to confirm your agreement to the above.

 

[Signature page to Expense Reimbursement Side Letter]

 

Accepted and agreed as of the date first written above:

 

 

[Signature page to Expense Reimbursement Side Letter]

 

 

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