This Employment
Agreement (this “ Agreement ”) is made and
entered into as of May 1, 2007 (the " Effective Date
”), by and between Mobility Electronics, Inc., a Delaware
corporation (“ Employer ”), and Michael D. Heil
(“ Employe e”).
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 a Chief Executive Officer and President of a
company of like-size in a comparable 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). In
addition, on the Employment Commencement Date (as defined below),
the Board shall appoint Employee as a director of
Employer.
3. Term .
The term of employment under this Agreement shall commence on
June 11, 2007 (the “ Employment Commencement Date
”) and shall continue, unless earlier terminated pursuant to
Section 7 below, until June 11, 2011 (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 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 ”. Notwithstanding anything
1
in this
Agreement to the contrary, although this Agreement is entered into
as of the Effective Date, and is a binding agreement between
Employer and Employee, the actual employment period of Employee by
Employer shall commence on the Employment Commencement Date, and
neither Employer nor Employee shall have any rights or obligations
under this Agreement until the Employment Commencement
Date.
4.
Compensation . As compensation for his 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 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.
(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 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.
2
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; and (ii) this Section 5(d)
shall not apply if a termination occurs pursuant to subpart
(e) or (g) of the first paragraph of Section 7
below.
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.
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 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
(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 (a),
(b), (c), (e) or (g) above, then Employee shall be
entitled to continue to receive the following: (i) an amount
equal to one-year of Employee’s then applicable salary,
payable in the normal course of business; (ii) an amount equal
to Employee’s
3
targeted bonus
for the applicable calendar year multiplied by a fraction, the
numerator of which shall be the actual days Employee was employed
by Employer during such calendar year, and the denominator of which
shall be 365; and (iii) a percentage of the Time-Based
RSU’s (as defined in Exhibit A ) shall vest by an
amount equal to: (1) a percentage equal to: (A) the
number of months Employee was employed by Employer; divided by
(B) forty eight (48); less (2) the percentage of
the Time Based RSU’s which were vested as of the date of such
termination. Notwithstanding anything to the contrary in this
Agreement, the provisions of Sections 5 and 6 above shall
survive any termination, fo
|
