MUTUAL RESTRUCTURING AND
SEPARATION AGREEMENT
This Mutual
Restructuring and Separation Agreement (this “
Agreement ”) is made and entered into as of
May 1, 2007 (the “ Contract Date ”), by and
between Charles R. Mollo (“ Employee ” or
“ You ”) and Mobility Electronics, Inc., a
Delaware corporation (the “ Company ” or “
Employer ”). Employee and the Company are sometimes
each referred to herein as a “ Party ” and
collectively, as the “ Parties ”. Terms used
herein but not otherwise defined shall have the meanings ascribed
thereto in the Employment Agreement (as defined below).
WHEREAS ,
Employee and the Company are parties to that certain Employment
Agreement, dated as of June 1, 2003 (the “ Employment
Agreement ”); and
WHEREAS ,
Employee and the Company desire to restructure their business
relationship as provided herein;
NOW,
THEREFORE , in consideration of the premises and mutual
promises herein contained, it is agreed as follows:
1. Effective
June 8, 2007 (the “ Separation Date ”),
your employment with the Company (including your offices of
Chairman of the Board, Chief Executive Officer and President) is
hereby terminated and the Employment Agreement is hereby terminated
in its entirety and is of no further force or effect, except that
Sections 5, 6, 9 and 10 of the Employment Agreement shall
remain in full force and effect. The Parties understand and agree
that neither the making of this Agreement nor the fulfillment of
any condition or obligation of this Agreement constitutes an
admission of any liability or wrongdoing by the Company, Employee,
any Company Release (as defined below) or any Employee Releasee (as
defined below).
2. This
Agreement supersedes any and all other agreements, written or
verbal, which may exist between the Company and Employee concerning
Employee’s separation from the Company, including without
limitation any representations made to Employee by any executive
officer or director of the Company.
3. Employee
Acknowledgments.
(a) You
have been advised by the Company to consult with the attorney of
your choice prior to signing this Agreement.
(b) You
have been given a period of at least twenty-one (21) days
within which to consider this Agreement.
(c) You
would not be entitled to receive the consideration offered to You
and referred to in Section 6 below but for your signing this
Agreement.
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(d) You
may revoke this Agreement within seven (7) days after the date
You sign it by providing written notice of the revocation to the
Company no later than the seventh day after You sign it. The
written notice of revocation may be mailed to:
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Joan E.
Dawson
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Mobility
Electronics, Inc.
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17800 N.
Perimeter Drive, #200
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Scottsdale, AZ
85255
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Alternatively,
You may fax the written notice of revocation to Joan E. Dawson of
Mobility Electronics, Inc. at (480) 477-3551.
It
is understood and agreed that any notice of revocation received by
the Company after the expiration of this seven (7) day period
shall be null and void.
4. It is
further expressly agreed by the Parties that this Agreement shall
not become effective or enforceable and the consideration referred
to in Section 6 below will not be paid until the seven
(7) day revocation period described in Section 3(d) above has
expired. Therefore, it is expressly agreed by the Parties that the
“ Effective Date ” of this Agreement is the
first day after the date the seven (7) day revocation period
has expired.
5. Employee
represents that he has consulted or has had sufficient opportunity
to discuss with any person, including the attorney of his choice,
all provisions of this Agreement, that he has carefully read and
fully understands all the provisions of this Agreement, that he is
competent to execute this Agreement, and that he is voluntarily
entering into this Agreement of his own free will and accord,
without reliance upon any statement or representation of the
Company or its representatives.
6. Provided
that Employee does not revoke this Agreement and complies with his
obligations hereunder, the Company agrees as follows:
(a) The
Company will pay to Employee an amount equal to:
(i) Employee’s current annual salary of $340,080; and
(ii) Employee’s maximum bonus for 2007 (which assumes
that 100% of the targets were achieved), which amount is $238,056
(collectively, the “ Severance Payout Amount ”).
The Severance Payout Amount shall be paid in accordance with the
Company’s normal bi-weekly pay periods in twenty-six equal
installments of $22,236 (less statutory deductions), commencing on
June 22, 2007, and continuing for twenty-five consecutive pay
periods thereafter.
(b) The
Parties agree that the Severance Payout Amount includes all of
Employee’s accrued and unused paid time off.
(c) The
Company will reimburse Employee for medical and dental benefits,
according to those benefits chosen by Employee for continuation
under The Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended (“COBRA”), until June 8, 2008. As of
June 8, 2008, Employee may elect to continue COBRA coverage at
his own expense. The Company will also continue to provide Employee
with coverage under its existing Execu-Care Policy until
June 8, 2008.
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7. Effective
as of the Separation Date, all restricted stock units granted under
that certain Restricted Stock Unit Award Agreement, dated as of
January 13, 2005 (the “ Restricted Units
Agreement ”), by and between the Company and Employee,
are hereby vested. The Company will use its reasonable commercial
efforts to issue a stock certificate for the shares underlying the
Restricted Units Agreement on June 8, 2007, or as soon as
possible thereafter.
8. Reference
is hereby made to that certain Incentive Stock Option Agreement,
dated as of December 16, 2003, by and between the Company and
Employee (the “ Incentive Stock Option Agreement
”). Effective as of the Separation Date, Sections 2, 3
and 8 of the Incentive Stock Option Agreement are hereby amended to
read in their entirety as follows:
“2.
Character of Option . The Option is not an “incentive
stock option” within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended.”
“3.
Term . The Option will expire on the sixth anniversary of
the Date of Grant.”
“8.
Termination . The Option shall terminate on the expiration
date set forth in Section 3 above.”
This Agreement
shall serve as an amendment to the Incentive Stock Option Agreement
reflecting the above amendments.
9. Reference
is hereby made to that certain Non-Qualified Stock Option
Agreement, dated as of December 16, 2003, by and between the
Company and Employee (the “ Non-Qualified Stock Option
Agreement ”). Effective as of the Separation Date,
Sections 3 and 8 of the Non-Qualified Stock Option Agreement
are hereby amended to read in their entirety as follows:
“3.
Term . The Option will expire on the sixth anniversary of
the Date of Grant.”
“8.
Termination . The Option shall terminate on the expiration
date set forth in Section 3 above.”
This Agreement
shall serve as an amendment to the Non-Qualified Stock Option
Agreement reflecting the above amendments.
10. Except as
provided in Section 6(c) above, Employee’s health insurance
and all other Company benefits will terminate according to the
terms of the plans. This provision is not, however, intended to
waive Employee’s rights under COBRA. Employee acknowledges
that the Company will provide the COBRA notice, in accordance with
federal guidelines, under which Employee may elect continuation of
coverage.
11. Notwithstanding
anything in this Agreement to the contrary, the Parties understand
that to the extent Employee may have vested rights pursuant to
Employer’s group health insurance plans, group life insurance
plans, and the 401(k) plan, such rights are excluded from the scope
of this Agreement and are not terminated or released by
it.
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