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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as of
the 1st day of December, 1999, by and between Mobility Electronics, Inc., a
Delaware corporation ("Employer"), and Xxxxxxx X. Xxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, 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.
2. Duties. Subject to the power of the Board of Directors of Employer (the
"Board") to elect and remove officers, Employee shall serve Employer as Chief
Executive Officer and President 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
Board. As such, Employee shall report directly to the Board. Employee shall be
based in Scottsdale, Arizona, but shall have duties and responsibilities at
and/or with respect to each location at which Employer or any of its
subsidiaries conducts the Business (as hereinafter defined) and shall travel as
reasonably required by his duties under this Agreement. Employee shall devote
his full time, attention, energies and business efforts to his duties hereunder
and to the promotion of the business and interests of Employer and its
subsidiaries as is customary for an executive vice president of a company of
like-size in a service business; provided, however, that Employee may
participate in other business ventures as long a such participation does not
interfere with Employee's duties hereunder (including those contained in this
sentence).
3. Term. The term of this Agreement shall commence as of the date hereof
and shall continue, unless earlier terminated pursuant to Section 7 below, for a
period of two (2) years thereafter (the "Initial Term"); provided, however, that
the term of this Agreement shall thereafter be renewed on a year-to-year basis
thereafter (each, a "Renewal Term"), unless either party gives
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written notice to the other party, at least ninety (90) days prior to the end of
the then current term, of such party's desire to terminate this Agreement at the
end of the then current term. The Initial Term and any Renewal Term(s) are
sometimes collectively referred to herein as the "Term".
4. Compensation. As compensation for his services rendered under this
Agreement, during the Term Employee shall be entitled to receive the following:
(a) Salary. Employee shall be paid a salary as provided in Exhibit A
(the "Salary").
(b) Bonus. Employee shall also be entitled to receive bonuses as
provided in Exhibit A.
(c) Stock Options. As of the date hereof, Employer shall execute and
deliver to Employee a Stock Option Agreement, the form of which is attached
hereto as Exhibit B-1.
(d) Benefits. Employee shall also be entitled to receive such group
benefits as Employer may provide to its other employees at comparable
salaries and responsibilities to those of Employee. In addition, Employee
shall be entitled to receive the benefits set forth on Exhibit A.
(e) Expenses. Employer shall reimburse Employee for the expenses
identified on Exhibit A and for all reasonable out-of-pocket travel and
other expenses incurred by Employee in rendering services required under
this Agreement upon submission of a detailed 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 are the property of
Employer and its affiliates. Employee further acknowledges and understands
that his disclosure of any Trade Secrets may 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, drawing, 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
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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 for a period of
five (5) years thereafter to hold in strict confidence and not to
intentionally disclose (except for such disclosures as are required by law,
in which case, Employee agrees to give Employer notice thereof prior to
making any such disclosure) 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 take
any documents or other information, of whatever type and in whatever form,
or any reproduction or excerpt thereof, containing or pertaining to any
Trade Secrets.
(d) Competition During and After Employment. Employee agrees that
during the Term and for a period of one year thereafter, neither Employee,
nor any of his affiliates, will directly or indirectly act as an investor,
principal, member, partner, officer, director, employee, consultant,
shareholder, lender, or agent of any entity which is engaged in any
business of the same nature as, or in competition with, the business
conducted by Employer and its subsidiaries during the Term (the "Business")
within the World; provided, however, that: (i) this Section 5(d) shall not
prohibit Employee or any of his affiliates from purchasing or holding an
aggregate equity interest of not more than 1% in any business in
competition with the Business being conducted by Employer and its
subsidiaries; (ii) this Section 5(d) shall not apply if a termination
occurs pursuant to subpart (f) of the first paragraph of Section 7 below;
or (iii) this Section 5(d) shall not apply if a termination of Employee's
employment occurs and the conditions of Section 8(a) below have been
satisfied.
6. Prohibition on Disparaging Remarks. Employee shall, from the date of
this Agreement forward, refrain from making disparaging, negative or other
similar remarks concerning Employer or any of its affiliates to any third party.
Similarly, Employer and its affiliates shall from the date of this Agreement
forward, refrain from making disparaging, negative or other similar remarks
concerning Employee to any third party.
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7. 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 as set forth in Section 3 above;
(b) The death of Employee;
(c) The Disability (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 Just Cause;
(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) above, 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, then Employee shall be entitled to
continue to receive the Salary for a period of (6) months following the date of
termination. Notwithstanding anything to the contrary in this Agreement, the
provisions of Sections 5 and 6 above shall survive any termination, for whatever
reason, of Employee's employment under this Agreement.
For purposes of this Section 7 the following terms of 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 Executive 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.
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"Disability" of Employee shall mean his inability, because of mental
or physical illness or incapacity, to perform his duties under this
Agreement for a continuous period of 90 consecutive days or for any 120
days out of a 360-day period. In the event of any disagreement between
Employer and Employee regarding the existence or non-existence of any such
disability, upon written request from either party to the other, Employer
and Employee or his legal guardian or duly authorized attorney-in-fact (if
he is not legally competent) shall each designate one Arizona licensed
physician and the two physicians so designated shall designate a third. All
three physicians so appointed shall personally examine Employee, and the
decision of a majority of such panel of physicians shall determine whether
such disability exists. Employee hereby authorizes the disclosure and
release to Employer of such determination and all supporting medical
records, and both parties hereby agree to be bound by such determination.
"Just Cause" shall mean: (a) the commission by Employee of any act
involving moral turpitude or the commission by Employee of any act or the
suffering by Employee of any occurrence or state of facts, which renders
Employee incapable of performing his duties under this Agreement (other
than Disability), or adversely affects or could be expected to adversely
affect Employer's business reputation; (b) Employee's being convicted of a
felony; (c) any breach by Employee 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 Employer to Employee, Employee does
not cure such breach or failure within fifteen (15) days thereafter;
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 six
month period; (d) the violation by Employee of reasonable and appropriate
instructions or policies established by Employer which have been
communicated to Employee with respect to the operation of their businesses
and affairs or Employee's failure to carry out the reasonable instructions
of the Board and following written notice thereof from Employer to
Employee, Employee does not cure any such violation or failure within
fifteen (15) days thereafter; provided, however, that Employee will not be
entitled to cure any violation or failure under this subclause (d) more
than one time in any consecutive six month period; or (e) the commission by
Employee of any act or the existence of any state of facts which would
legally justify an employer in terminating a contract of employment.
8. Change in Control; Change in Chief Executive Officer.
(a) Termination Payment. Notwithstanding anything to the contrary
contained in Section 7 above, if Employee's employment with Employer is
terminated by: (i) Employer by reason of subpart (e) of the first paragraph
of Section 7 above; or (ii) Employee by reason of subpart (h) of the first
paragraph of Section 7 above, and, in either case, such termination
occurred within two (2) years following a Change In Control (as defined in
subparagraph (b) below), then, in either event, Employee shall be entitled
to continue to receive a lump-sum payment equal to the Employee's then
current Salary for the remainder of the then applicable Term.
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(b) Change In Control. A "Change In Control" will be deemed to have
occurred for purposes hereof: (i) upon the consolidation or merger of
Employer with or into another corporation or business entity pursuant to
which immediately following such merger or consolidation, Employer's
stockholders fail to hold at least a majority of the voting stock of the
surviving entity or its ultimate parent corporation; (ii) upon the sale or
other transfer in a single transaction or a series of related transactions
of all or substantially all of the assets of Employer, except to a
subsidiary of Employer; or (iii) upon the acquisition of beneficial
ownership, directly or indirectly, by any person (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended) of securities of Employer representing more than fifty percent
(50%) of the combined voting power of Employer's then outstanding voting
securities.
9. 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.
10. Acknowledgments. Employee acknowledges and recognizes that the
enforcement of any of the provisions set forth in Section 5 and 6 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.
11. 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.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
Fax: 602/000-0000
If to Employee: Xxxxxxx X. Xxxxx
0000 Xxxxxx Xxxxxxxxx, X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
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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.
12. Entire Agreement. This Agreement, including the Exhibits attached
hereto, 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 hereto. 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.
13. 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 DELAWARE, WITHOUT REGARD TO ITS CHOICE OF LAW PRINCIPLES.
ANY ACTION BROUGHT BY EITHER PARTY HERETO INVOLVING ENFORCEMENT, TERMINATION,
INTERPRETATION, OR MODIFICATION HEREOF, OR OTHERWISE RELATED TO THIS AGREEMENTS
IN ANY WAY SHALL BE BROUGHT IN A COURT LOCATED IN PHOENIX, ARIZONA, AND NEITHER
PARTY HERETO SHALL BE HEARD TO ASSERT THE DEFENSE OF INCONVENIENT FORUM IN ANY
SUCH ACTION.
14. 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 him, and no such right, duty or benefit may be
assigned by him. The parties hereto acknowledge and agree that Employer's
affiliates are third-party beneficiaries of the covenants and agreements of
Employee set forth in Sections 5 and 6 above.
15. Arbitration. Any dispute or claim arising under or with respect to this
Agreement shall be settled by arbitration in Phoenix, Arizona, pursuant to the
rules and guidelines of the American Arbitration Association - Commercial
Division. The decision of the arbitrators shall be final and binding upon
Employer and Employee, and any decision or award rendered by the arbitrators may
be entered as a judgment or order in any court having jurisdiction.
16. 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.
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17. 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.
18. 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.
19. 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.
20. Costs. If any action at law or in equity, or by reason of Section 14
above, 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.
21. Other Obligations. Employee represents and warrants that he is not
subject to any agreement which would be violated or breached as a direct or
indirect result of Employee executing this Agreement or Employee becoming an
employee of Employer.
22. Affiliate; Subsidiary. An "affiliate" of any party hereto shall mean
any person controlling, controlled by or under common control with such party. A
"subsidiary" of Employer is any partnership, corporation, limited liability
company or other entity in which Employer owns an equity interest. For purposes
of this Agreement, the term "control", when used with respect to any specified
person or entity means the power to direct or cause the direction of the
management and policies of such person or entity, directly or indirectly,
whether through the ownership of voting securities of ten percent (10%) or more,
by contract, or otherwise, and the term "controlled" has the meaning correlative
to the foregoing.
23. 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. XXXXXXXXX
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Title: CFO
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/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
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EXHIBIT A
A. Base Salary: Employee shall receive an annual Salary of $200,000, payable
bi-weekly in arrears (provided, however, that such Annual
Salary shall automatically be increased by $25,000 per annum
upon the consummation of an initial public offering by
Employer), which annual Salary shall be subject to increase
from time to time as may be determined by the Board; but
which increase must be made as of the first anniversary of
the date of this Agreement in the amount of at least seven
percent (7%) if Employer has positive net income for fiscal
year 2000.
B. Bonus
Compensation: Employee shall be entitled to receive a cash bonus of up to
fifty percent (50%) of Employee's then current base salary
for each fiscal year of Employer during the Term
(i.e., ended December 31 of each year) as to be determined
under a discretionary bonus plan of Employer to be developed
by the Board for Employer's executive officers.
C. Additional
Benefits: Employee shall have four (4) weeks paid vacation for each
12-month period during the Term.
D. Additional
Expenses: Employer shall pay for an apartment in Scottsdale, Arizona
for Employee and a rental car in Phoenix, Arizona.
