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EXHIBIT 10.46
SEPARATION AGREEMENT
This Separation Agreement (this "Agreement") is entered into as of October
1, 1999, by and among Mobility Electronics, Inc., a Delaware corporation
("Mobility"), Xxxxxxx Xxxxxx ("Xxxxxx"), and CWilson Company, a Delaware
corporation ("CWilson"). Mobility, and Xxxxxx are sometimes referred to herein
as the "Parties".
WHEREAS, Xxxxxx is currently an Executive Vice President and Director of
Mobility; and
WHEREAS, Mobility and Xxxxxx have determined that it is in their mutual
interests to separate their business interests to the extent provided in this
Agreement; and
NOW, THEREFORE, IT IS AGREED that, in consideration of the mutual covenants
and obligations set forth herein, the Parties agree as follows:
1. CERTAIN AGREEMENTS. The Parties agree as follows:
(a) Effective as of the Closing (as hereinafter defined), Mobility
hereby assigns and transfer over to Xxxxxx all membership interests owned
by Mobility in Mobility Electronics, L.L.C., a Delaware limited liability
company ("MELLC"), in consideration for the sum of ten dollars ($10.00).
Mobility hereby represents and warrants to Xxxxxx that Mobility owns 100%
of the issued and outstanding membership interests in MELLC and that MELLC
owns the following percentage interests in the following entities: (i)
Mobility Electronics, SARL (90%); (ii) Mobility Electronics (U.K.) LTD.
(85%); and (iii) Mobility Electronics GMBH (85%) (collectively the
"Subsidiaries"). Effective as of the Closing, Mobility hereby transfers to
MELLC any and all options Mobility has to purchase any ownership interests
in the Subsidiaries.
(b) Mobility explicitly retains the ownership of all cash and cash
equivalents, inventory, and accounts receivable, which may be included in
MELLC, and will immediately transfer any and all such items to Mobility.
Additionally, at October 1, 1999, the Parties agree to cause the
intercompany account balance between the Corporation and each of its
subsidiaries to be set at zero. Mobility will be responsible for all
expenses incurred prior to October 1, 1999 by MELLC and its subsidiaries.
(c) Effective as of the Closing, Xxxxxx hereby resigns as an officer
and employee of Mobility.
(d) Effective as of the Closing, Xxxxxx and Mobility shall execute and
deliver that certain First Amendment to Stock Option Agreement, dated as of
the date hereof, the form of which is attached hereto as Exhibit A.
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(e) At the Closing, Mobility, on the one hAnd, and Xxxxxx and each
member of management of the Subsidiaries who have options (collectively,
the "Options") to purchase common stock, par value $.01 per share (the
"Common Stock"), of Mobility (each, an "Optionee"), on the other hand,
shall execute and deliver Option Termination Agreements, the form of which
is attached hereto as Exhibit B, pursuant to which all outstanding Options
shall be canceled. At the Closing, Mobility shall deliver to each Optionee
a Nonqualified Stock Option of Mobility substantially similar to the
Options so terminated (except that such new options shall be nonqualified
stock options).
(f) At the Closing, Mobility and Xxxxxx and MELLC shall execute and
deliver that certain Sales Representative and Operations Support Agreement,
the form of which is attached hereto as Exhibit C (the "Sales
Representative Agreement").
2. Books and Records. Following the Closing, Mobility and Xxxxxx (on his
own behalf and on behalf of MELLC and the Subsidiaries) shall have reasonably
necessary access to the books and records of each other, and at the request of
the other, will make available to the requesting party its books and records
relating to the matters set forth in this Agreement or the Separation Documents
(as hereinafter defined), including, without limitation, all financial
information and records relating or pertaining to the matters discussed in this
Agreement and the Separation Documents. The terms and provisions of this Section
2 shall terminate upon the termination of the Sales Representative Agreement.
3. Closing and Closing Date. As used herein, the terms: (a) "Closing" shall
mean the closing of the transactions contemplated in this Agreement, which shall
occur at 10:00 a.m., local time, on the Closing Date in the offices of Xxxxxxx
Xxxxxx L.L.P., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, or at such
other time and place as shall be mutually agreed in writing by the Parties; and
(b) "Closing Date" shall mean the date of this Agreement.
4. Representations and Warranties of the Parties.
(a) Mobility represents and warrants to Xxxxxx as follows:
(i) Mobility is a corporation duly organized, validly existing
and in good standing under the laws of its state of incorporation,
with all requisite corporate power and authority to execute and
deliver this Agreement and the other documents, instruments and
agreements contemplated hereby (collectively, the "Separation
Documents") and to consummate the transactions contemplated hereby and
thereby.
(ii) The execution, delivery and performance by Mobility of this
Agreement and the Separation Documents, and the consummation of the
transactions contemplated hereby and thereby, have been duly
authorized by Mobility. This Agreement and the Separation Documents
have been duly executed and delivered by Mobility and constitute
legal, valid and binding obligations of Mobility, enforceable
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against Mobility in accordance with their respective terms, except as
may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally or the availability of equitable
remedies.
(iii) Neither the execution, delivery or performance of this
Agreement or the Separation Documents nor the consummation of the
transactions contemplated hereby or thereby will: (1) conflict with,
or result in a violation or breach of the terms, conditions or
provisions of, or constitute a default under the Certificate of
Incorporation or Bylaws of Mobility or any agreement, indenture or
other instrument under which Mobility is bound or subject; or (2)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court of any public, governmental or regulatory
agency or body having jurisdiction over Mobility.
(iv) There are no outstanding liens on Mobility's ownership
interests in MELLC or its subsidiaries.
(b) Xxxxxx represents and warrants to Mobility as follows:
(i) Xxxxxx is fully competent and authorized, empowered and
directed to execute, deliver and perform this Agreement.
(ii) This Agreement and the Separation Documents have been duly
executed and delivered by Xxxxxx and constitute legal, valid and
binding obligations of Xxxxxx, enforceable against Xxxxxx in
accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally or the availability of equitable remedies.
(iii) Neither the execution, delivery or performance of this
Agreement or the Separation Documents nor the consummation of the
transactions contemplated hereby or thereby will: (1) conflict with,
or result in a violation or breach of the terms, conditions or
provisions of, or constitute a default under any agreement, indenture
or other instrument under which Xxxxxx is bound or subject; or (2)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court of any public, governmental or regulatory
agency or body having jurisdiction over Xxxxxx.
5. Disclosure. The Parties agree that this Agreement and the Separation
Documents, the terms hereof and thereof and the negotiations or discussions
leading to the execution of this Agreement and the Separation Documents shall
remain strictly confidential to the Parties and shall not be made available to
any third party by any of the Parties, except the Parties may make any (i)
disclosure necessary to comply with any law or regulation (including without
limitation, securities laws), (ii) necessary disclosure to attorneys,
accountants and insurers, which disclosure shall be made on a confidential
basis, (iii) necessary disclosure to tax or other governmental authorities and
(iv)
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any disclosure required by court order; provided, however, that the Party
ordered to disclose information shall use its best efforts to give reasonable
advance notice of the order requiring disclosure.
6. Entire Agreement. This Agreement (including the Exhibits attached
hereto) contains the complete and entire agreement and understanding of the
Parties concerning the matters contained herein and may not be altered, amended,
modified or changed in any manner except by a writing duly executed by the
Parties. No statements, promises or representations have been made by any Party
to another, or are relied upon, and no consideration has been, or is, offered,
promised, expected or held out, other than as stated in this Agreement. No Party
is relying on any representations other than those expressly set forth herein.
There are no oral or written collateral agreements.
7. Severability. If any provision of this Agreement is held to be invalid
or unenforceable, all other provisions shall nevertheless continue in full
force and effect.
8. Fees and Expenses. Each Party shall pay its own fees and expenses in
connection with the negotiation, execution and delivery of this Agreement and
the Separation Documents. If any action at law or in equity, including an action
for declaratory or injunctive relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing Party shall be entitled to all of
its costs in prosecuting or defending said action, including a reasonable amount
for its attorney's fees and expenses, in addition to any other relief to which
the prevailing Party may be entitled.
9. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS OF LAWS) OF THE STATE OF
ARIZONA.
10. Assistance. Each Party agrees to execute any and all additional
documents or instruments reasonably necessary or desirable to complete the
transactions contemplated by this Agreement and the Separation Documents.
11. Counterparts. This Agreement may be executed in counterparts, which
taken together shall constitute one document, which shall become binding when
counterparts are executed that in total contain the signatures of all of the
undersigned.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
as of the date first set forth above.
MOBILITY ELECTRONICS, INC.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx, President
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
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