CHANGE IN CONTROL
AGREEMENT
This Change in
Control Agreement (the “ Agreement ”) is made
and entered into effective as of ___by and between Mobility
Electronics, Inc., a Delaware corporation (“ Employer
”), and ___(“ Employee ”).
WHEREAS, Employee
currently serves as a key employee of Employer whose services and
knowledge are valuable to Employer; and
WHEREAS, the Board
of Directors of Employer has determined that it is in the best
interests of Employer and its stockholders to secure
Employee’s continued services and to ensure Employee’s
continued dedication and objectivity in the event of any threat or
occurrence of, or negotiation or other action that could lead to,
or create the possibility of, a Change in Control (as defined in
Section 1 below) of Employer, without concern as to whether
Employee might be hindered or distracted by personal uncertainties
and risks created by any such possible Change in Control, and to
encourage Employee’s full attention and dedication to
Employer;
NOW THEREFORE, for
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1.
Definition of Terms . The following terms referred to in
this Agreement shall have the following meanings:
(a)
“ Change In Control ” shall mean the occurrence
of one or more of the following events:
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(i)
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Any
person within the meaning of Section 13(d) and 14(d) of the
Securities Exchange Act of 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 fifty percent (50%) 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
”);
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(ii)
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Shares representing fifty percent
(50%) 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);
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(iii)
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As
a result of, or in connection with, any tender offer or exchange
offer, merger or other business combination, sale
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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 of Directors of Employer or
of any successor to Employer;
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(iv)
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Following the date hereof, Employer
is merged or consolidated with another corporation and as a result
of such merger or consolidation less than fifty percent (50%) of
the outstanding voting 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, where an “affiliate” means any
person controlling, controlled by or under common control with such
party; or
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(v)
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Employer transfers more than fifty
percent (50%) of its assets, or the last of a series of transfers
results in the transfer of more than fifty percent (50%) of the
assets of Employer, or Employer transfers a business unit and/or
business division responsible for more than thirty-five percent
(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 of Directors of
Employer, as constituted immediately prior to the occurrence of
such event.
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(b)
“ Involuntary Termination ” shall mean:
(i) a material reduction in Employee’s duties and
responsibilities without Employee’s consent; (ii) a
required relocation by Employee from the Phoenix, Arizona
metroplex; (iii) a reduction in Employee’s Salary
without Employee’s prior written consent; (iv) any
purported termination of Employee by Employer which is not effected
for Just Cause; or (v) Employer’s failure to obtain the
assumption of this Agreement by any successors as contemplated in
Section 5 below.
(c)
“ Just Cause ” shall mean (i) conviction of
a felony or commission of any act of fraud, moral turpitude or
dishonesty, (ii) an intentional, material violation of a
statutory or fiduciary duty not corrected within ten (10) days
after notice from Employer, or (iii) Employee’s
violation of reasonable instructions or policies establi
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