EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective as of June 1, 2003, by and between Mobility Electronics, Inc., a
Delaware corporation ("Employer"), and Xxxx Xxxxxxxxx ("Employee"). This
Agreement supersedes and replaces all other employment agreements between
Employer and Employee, including, without limitation, the Prior Agreement (as
defined in Section 11 below).
WITNESSETH:
WHEREAS, Employee is currently an Executive Vice President and Chief
Financial Officer of Employer, and Employer desires to employ Employee as
provided herein, and Employee desires to accept such employment; and
WHEREAS, Employee shall, as an employee of Employer, have access to
confidential information with respect to Employer and its affiliates;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Employment. Employer hereby employs Employee and Employee hereby
accepts employment with Employer upon the terms and conditions hereinafter set
forth with a start date of August 15, 2001.
2. Duties. Subject to the power of the Board of Directors of Employer
to elect and remove officers, Employee shall serve Employer as Executive Vice
President and Chief Financial Officer of Employer, and shall perform, faithfully
and diligently, the services and functions relating to such office or otherwise
reasonably incident to such office as may be designated from time to time by the
Chief Executive Officer or Board of Directors (the "Board") of Employer.
Employee shall report directly to the Chief Executive Officer of Employer.
Employee shall be based in Scottsdale, Arizona, but shall travel as required by
his duties under this Agreement. Employee shall devote her full time, attention,
energies and business efforts to her duties hereunder and to the promotion of
the business and interests of Employer and its affiliates.
3. Term. Unless earlier terminated pursuant to Section 6 below, the
term of this Agreement shall commence as of the date hereof, and shall end on
June 1, 2005; provided, however, that the term shall automatically renew for an
additional one-year period at the end of the original two-year term and any
additional one-year term, unless either party gives written notice to the other
party, at least ninety (90) days prior to the end of the applicable term, of
such party's termination of this Agreement at the end of the applicable term. As
used herein, "Term" shall mean the original term and any additional renewal
term(s).
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4. Compensation. As compensation for services rendered under this
Agreement, during the Term Employee shall be entitled to receive the
compensation as provided in Exhibit A attached hereto. In addition, Employer
shall reimburse Employee for all reasonable and necessary out-of-pocket travel
and other expenses incurred by Employee in rendering services required under
this Agreement, on a monthly basis upon submission of a detailed monthly
statement and reasonable documentation.
5. Confidentiality.
(a) Acknowledgment of Proprietary Interest. Employee recognizes the
proprietary interest of Employer and its affiliates in any Trade Secrets (as
hereinafter defined) of Employer and its affiliates. Employee acknowledges and
agrees that any and all Trade Secrets currently known by Employee or learned by
Employee during the course of his engagement by Employer or otherwise, whether
developed by Employee alone or in conjunction with others or otherwise, shall be
and is the property of Employer and its affiliates. Employee further
acknowledges and understands that his disclosure of any Trade Secrets will
result in irreparable injury and damage to Employer and its affiliates. As used
herein, "Trade Secrets" means all confidential and proprietary information of
Employer and its affiliates, now owned or hereafter acquired, including, without
limitation, information derived from reports, investigations, experiments,
research, work in progress, drawings, designs, plans, proposals, codes,
marketing and sales programs, client lists, client mailing lists, financial
projections, cost summaries, pricing formula, and all other concepts, ideas,
materials, or information prepared or performed for or by Employer or its
affiliates and information related to the business, products or sales of
Employer or its affiliates, or any of their respective customers, other than
information which is otherwise publicly available.
(b) Covenant Not-to-Divulge Trade Secrets. Employee acknowledges and
agrees that Employer and its affiliates are entitled to prevent the disclosure
of Trade Secrets. As a portion of the consideration for the employment of
Employee and for the compensation being paid to Employee by Employer, Employee
agrees at all times during the Term and thereafter to hold in strict confidence
and not to disclose or allow to be disclosed to any person, firm or corporation,
other than to persons engaged by Employer and its affiliates to further the
business of Employer and its affiliates, and not to use except in the pursuit of
the business of Employer and its affiliates, the Trade Secrets, without the
prior written consent of Employer, including Trade Secrets developed by
Employee.
(c) Return of Materials at Termination. In the event of any
termination or cessation of his employment with Employer for any reason
whatsoever, Employee will promptly deliver to Employer all documents, data and
other information pertaining to Trade Secrets. Employee shall not retain any
documents or other information, or any reproduction or excerpt thereof,
containing or pertaining to any Trade Secrets.
(d) Competition During Employment. Employee agrees that during the
Term, neither she, nor any of her affiliates, will directly or indirectly: (i)
compete with Employer or its affiliates in the portable or handheld computer
power, docking, and connectivity business, which is defined as product lines or
businesses that are competitive with products that are manufactured, marketed or
sold by Employer and its affiliates during the Term or under
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development during the Term (the "Business"); or (ii) act as an officer,
director, employee, consultant, shareholder, lender, or agent of any entity
which is in competition with Employer; provided, however, that this Section 5(d)
shall not prohibit Employee or any of her affiliates from purchasing or holding
an aggregate equity interest of up to 1% in any publicly-traded company which is
in competition with Employer. Furthermore, Employee agrees that during the Term,
she will undertake no planning for the organization of any business activity
competitive with the Business and Employee will not combine or conspire with any
other employees of Employer and its affiliates for the purpose of the
organization of any such competitive business activity.
(e) Competition Following Employment. Employee agrees that for a
period of one-year after the termination or cessation of his employment for
Employer for any reason whatsoever, neither she, nor any of her affiliates, will
directly or indirectly: (i) compete with Employer or its affiliates in the
Business; (ii) act as an officer, director, employee, consultant, shareholder,
lender, or agent of any entity which is in competition with Employer; or (iii)
undertake or plan for the organization of any business activity in competition
with Employer and Employee will not combine or conspire with any other employees
of Employer or its affiliates for the purpose of the organization of any such
competitive business activity; provided, however, that this Section 5(e) shall
not prohibit Employee or any of his affiliates from purchasing or holding an
aggregate equity interest of up to 1% in any publicly-traded company which is in
competition with Employer.
6. Termination. This Agreement and the employment relationship created
hereby shall terminate upon the occurrence of any of the following events (each,
a "Termination Event"):
(a) The expiration of the Term;
(b) The death of Employee;
(c) The Excessive Absence (as hereinafter defined) of Employee;
(d) Written notice to Employee from Employer of termination for Just
Cause (as hereinafter defined);
(e) Written notice to Employee from Employer of termination for any
reason other than subparts (a), (b), (c) or (d) above;
(f) Written notice to Employer from Employee of termination for any
reason other than Constructive Termination (as hereinafter defined); or
(g) Written notice to Employer from Employee of termination for
Constructive Termination.
In the event of the termination of Employee's employment pursuant to
(a), (b), (c), (d) or (f), then Employee shall be entitled to only the
compensation earned by Employee as of, and payable for the period prior to, the
date of such Termination Event. In the event of the termination of Employee's
employment pursuant to (e) or (g) above, Employee shall (i) continue
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to receive the salary provided for in Exhibit A for a period of six (6) months
following the date of termination. Notwithstanding anything to the contrary in
this Agreement, the provisions of Section 5 above shall survive any termination,
for whatever reason, of Employee's employment under this Agreement.
For purposes of this Section 6 the following terms have the following
meanings:
"Constructive Termination" shall mean: (a) a material
reduction in Employee's duties and responsibilities without Employee's
consent; (b) if Employee is terminated as the Chief Financial Officer
of Employer; (c) any breach by Employer of any of the material terms
of, or the failure to perform any material covenant contained in this
Agreement and following written notice thereof from Employee to
Employer, Employer does not cure such breach or failure within fifteen
(15) days thereafter; provided, however, that Employer will not be
entitled to cure any such breach or failure more than one time in any
consecutive three month period; (d) a required relocation by Employee
from the Phoenix, Arizona metroplex; or (e) a reduction in Employee's
Salary without Employee's prior written consent.
"Excessive Absence" of Employee shall mean her inability, for
whatever reason, to perform his duties under this Agreement for a
continuous period of 60 days or for 120 days out of a continuous period
of 240 days.
"Just Cause" shall mean (a) conviction of a felony or
commission of any act of fraud, moral turpitude or dishonesty, (b) an
intentional, material violation of a statutory or fiduciary duty not
corrected within ten days after notice from Employer, (c) any material
breach by Employee of any of the terms or conditions of, or the failure
to perform any material covenant contained in, this Agreement and
Employee does not cure such breach or failure within ten days following
notice from Employer; provided, however, that Employee will not be
entitled to cure any breach or failure under this subclause (c) more
than one time in any consecutive three (3) month period, or (d) the
violation by Employee of reasonable instructions or policies
established by Employer with respect to the operation of its business
and affairs or Employee's failure to carry out the reasonable
instructions of the Chief Executive Officer, or Board and following
notice thereof from Employer to Employee, Employee does not cure any
such violation or failure within ten days following notice from
Employer; provided, however, that Employee will not be entitled to cure
any breach or failure under this subclause (d) more than one time in
any consecutive three (3) month period.
7. Change in Control.
(a) Termination Payment. Notwithstanding anything to the contrary
contained in Section 6 above, if Employee's employment with Employer is
terminated by: (i) Employer by reason of subpart (e) of the first paragraph of
Section 6 above; or (ii) Employee by reason of subpart (g) of the first
paragraph of Section 6 above, and, in either case, such termination occurred
within two (2) years following a Change In Control (as defined in subparagraph
(b) below) (a "Triggering Event"), then, in either event, Employee shall be
entitled to receive a lump-sum payment equal to: (y) Employee's then current
annual salary, plus (z) an
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amount equal to Employee's maximum bonus for the applicable year (assuming for
such purposes, that 100% of the targets were achieved).
In addition, following the occurrence of a Triggering Event: (i)
Employer shall continue to provide coverage to Employee under the health plans
that the Company has in effect following the Triggering Event to the same extent
as such coverage is provided to other executive officers of Employer (provided,
however, if Employer's health insurance plan excludes the continued
participation of Employee or any of his dependents or beneficiaries, then
Employer shall arrange to provide to Employee or such eligible dependents or
beneficiaries substantially similar benefits) until the later of: (y) Employee's
employment with another company which provides health insurance generally to its
employees; or (z) the fifth anniversary of the date of the Triggering Event; and
(ii) all stock options held by Employee shall become immediately and fully
vested and exercisable and all shares of restricted stock issued to Employee
under any benefit plan shall become immediately and fully vested and not subject
to restriction, and the term of any stock option, at the option of Employee,
shall be extended to the maximum term under the applicable stock option
agreement (with any such extended stock option that is an incentive stock option
being deemed to be automatically changed to a non-qualified stock option).
(b) Change In Control. A "Change in Control" means the occurrence of
one or more of the following events:
(i) Any person within the meaning of Section 13(d) and
14(d) of the Securities Exchange Act or 1934, as
amended (the "Exchange Act"), other than Employer
(including its subsidiaries, directors or executive
officers) has become the beneficial owner, within the
meaning of Rule 13d-3 under the Exchange Act, of 50
percent or more of the combined voting power of
Employer's then outstanding common stock or
equivalent in voting power of any class or classes of
Employer's outstanding securities ordinarily entitled
to vote in elections of directors ("voting
securities");
(ii) Shares representing 50 percent or more of the
combined voting power of Employer's voting securities
are purchased pursuant to a tender offer or exchange
offer (other than an offer by Employer or its
subsidiaries, directors or executive officers);
(iii) As a result of, or in connection with, any tender
offer or exchange offer, merger or other business
combination, sale of assets or contested election, or
any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of
Employer before the Transaction shall cease to
constitute a majority of the Board or of any
successor to Employer;
(iv) Following the date hereof, Employer is merged or
consolidated with another corporation and as a result
of such merger or consolidation less than 50 percent
of the outstanding voting
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securities of the surviving or resulting corporation
shall then be owned in the aggregate by the former
stockholders of Employer, other than (1) any party to
such merger or consolidation, or (2) any affiliates
of any such party; or
(v) Employer transfers more than 50 percent of its
assets, or the last of a series of transfers results
in the transfer of more than 50 percent of the assets
of Employer, or Employer transfers a business unit
and/or business division responsible for more than
35% of Employer's revenue for the twelve-month period
preceding the month in which such transfer occurred,
in either case, to another entity that is not
wholly-owned by Employer. Any determination required
above in this subsection (v) shall be made by the
Compensation Committee of the Board, as constituted
immediately prior to the occurrence of such event.
8. Remedies. Employee recognizes and acknowledges that in the event of
any default in, or breach of any of, the terms, conditions or provisions of this
Agreement (either actual or threatened) by Employee, Employer's and its
affiliates remedies at law shall be inadequate. Accordingly, Employee agrees
that in such event, Employer and its affiliates shall have the right of specific
performance and/or injunctive relief in addition to any and all other remedies
and rights at law, in equity or provided herein, and such rights and remedies
shall be cumulative.
9. Acknowledgments. Employee acknowledges and recognizes that the
enforcement of any of the provisions set forth in Section 5 above by Employer
and its affiliates will not interfere with Employee's ability to pursue a proper
livelihood. Employee recognizes and agrees that the enforcement of this
Agreement is necessary to ensure the preservation and continuity of the business
and good will of Employer and its affiliates.
10. Notices. Any notices, consents, demands, requests, approvals and
other communications to be given under this Agreement by either party to the
other shall be deemed to have been duly given if given in writing and personally
delivered or sent by facsimile transmission, courier service, overnight delivery
service or by mail, registered or certified, postage prepaid with return receipt
requested, as follows:
If to Employer: Mobility Electronics, Inc.
00000 X. Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxxxx L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
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If to Employee: Xxxx Xxxxxxxxx
c/o Mobility Electronics, Inc.
00000 X. Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Notices delivered personally or by facsimile transmission, courier service or
overnight delivery shall be deemed communicated as of actual receipt; mailed
notices shall be deemed communicated as of three days after the date of mailing.
11. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written between the parties hereto
with respect to the subject matter hereof (including, without limitation, that
certain Employment Agreement, dated as of August 15, 2001, by and between
Employer and Employee (the "Prior Agreement")). No modification or amendment of
any of the terms, conditions or provisions herein may be made otherwise than by
written agreement signed by the parties hereto.
12. Governing Law and Venue. THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE INTERPRETED, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO ITS CHOICE OF LAW PRINCIPLES.
13. Parties Bound. This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of Employer and
Employee, and their respective heirs, personal representatives, successors and
assigns. Employer shall have the right to assign this Agreement to any affiliate
or to its successors or assigns. The terms "successors" and "assigns" shall
include any person, corporation, partnership or other entity that buys all or
substantially all of Employer's assets or all of its stock, or with which
Employer merges or consolidates. The rights, duties or benefits to Employee
hereunder are personal to her, and no such right or benefit may be assigned by
Employee. The parties hereto acknowledge and agree that Employer's affiliates
are third-party beneficiaries of the covenants and agreements of Employee set
forth in Section 5 above.
14. Estate. If Employee dies prior to the payment of all sums owed, or
to be owed, to Employee pursuant to Section 4 above, then such sums, as they
become due, shall be paid to Employee's estate.
15. Enforceability. If, for any reason, any provision contained in this
Agreement should be held invalid in part by a court of competent jurisdiction,
then it is the intent of each of the parties hereto that the balance of this
Agreement be enforced to the fullest extent permitted by applicable law.
Accordingly, should a court of competent jurisdiction determine that the scope
of any covenant is too broad to be enforced as written, it is the intent of each
of the parties that the court should reform such covenant to such narrower scope
as it determines enforceable.
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16. Waiver of Breach. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any party.
17. Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
18. Costs. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
19. Affiliate. An "affiliate" of any party hereto shall mean any person
controlling, controlled by or under common control with such party.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument, but only one of which need be produced.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MOBILITY ELECTRONICS, INC.
By:/s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx,
Chief Executive Officer
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
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EXHIBIT A
1. Annual Salary: Annual Salary will be at the rate of $215,000 per year,
subject to periodic increase at the discretion of the Board.
2. Bonuses: Employee shall be eligible to receive an annual calendar year
bonus (which shall have a minimum targeted bonus of at least fifty
percent (50%) of Employee's then applicable annual Salary), if earned,
pursuant to Employer's Executive Bonus Plan, as the same may be in
force and effect from time to time.
3. Benefits: Employee shall be entitled to receive such group benefits as
Employer may provide to its other employees at comparable salaries and
responsibilities to those of Employee, which shall specifically include
three weeks of paid vacation per calendar year (pro rated for partial
years).
4. Stock Options: Employee shall be entitled to receive grants of stock
options as may be determined by the Board from time to time.
A-1
