exv10w1



 





Exhibit 10.1




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     This Amended and Restated Employment Agreement (this “Agreement”) is made
and entered into as of April 14, 2004, by and between Mobility Electronics,
Inc., a Delaware corporation (“Employer”), and Charles R. Mollo (“Employee”).
This Agreement supersedes and replaces all other employment agreements between
Employer and Employee, including, without limitation, the Prior Agreements (as
defined in Section 12 below)



W I T N E S S E T H:




     WHEREAS, Employee is currently the Chief Executive Officer and President
of Employer, and Employee and Employer were parties to the Prior Agreements;
and



     WHEREAS, Employer desires to replace the Prior Agreements with this
Agreement;



     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).



     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,
until June 1, 2005 (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”.



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     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. Employee shall also be entitled to receive grants of
stock options as may be determined by the Board from time to time.



          
(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 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



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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 (e) 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.



     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



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(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 six (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.




     “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)



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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; or (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.



     8. Change in Control.



          
(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 (g) 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) (a “Triggering Event”), then, in either event, Employee shall be
entitled to receive a lump-sum payment equal to: (y) Employee’s then current
annual salary, plus (z) an amount equal to Employee’s maximum bonus for the
applicable year (assuming for such purposes, that 100% of the targets were
achieved).




     In addition, following the occurrence of a Triggering Event, Employer
shall continue to provide coverage to Employee under the health plans that the
Company has in effect following the Triggering Event to the same extent as such
coverage is provided to other executive officers of Employer (provided,
however, if Employer’s health insurance plan excludes the continued
participation of Employee or any of his dependents or beneficiaries, then
Employer shall arrange to provide to Employee or such eligible dependents or
beneficiaries substantially similar benefits) until the later of: (y)
Employee’s employment with another company which provides health insurance
generally to its employees; or (z) the fifth anniversary of the date of the
Triggering Event.



     In addition, immediately upon a Change In Control, all stock options held
by Employee shall become immediately and fully vested and exercisable and all
shares of restricted stock issued to Employee under any benefit plan shall
become immediately and fully vested and not subject to restriction, and the
term of any stock option, at the option of Employee, shall be extended to the
maximum term under the applicable stock option agreement (with any such
extended stock option that is an incentive stock option being deemed to be
automatically changed to a non-qualified stock option).



          
(b) Change In Control. A “Change in Control” means the occurrence of one
or more of the following events:



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     (i) Any person within the meaning of Section 13(d) and 14(d)
of the Securities Exchange Act or 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 50 percent 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”);




     (ii) Shares representing 50 percent 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);




     (iii) As a result of, or in connection with, any tender offer
or exchange offer, merger or other business combination, sale 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 or of any successor to Employer;




     (iv) Following the date hereof, Employer is merged or
consolidated with another corporation and as a result of such
merger or consolidation less than 50 percent 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; or




     (v) Employer transfers more than 50 percent of its assets, or
the last of a series of transfers results in the transfer of more
than 50 percent of the assets of Employer, or Employer transfers a
business unit and/or business division responsible for more than
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, as constituted immediately
prior to the occurrence of such event.



     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



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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.
	

	 	17800 N. Perimeter Drive, Suite 200
	

	 	Scottsdale, Arizona 85255
	

	 	Attn: Chief Financial Officer
	

	 	Fax: 480/477-3639
	 
	 	 
	If to Employee:

	 	Charles R. Mollo
	

	 	17800 N. Perimeter Drive, Suite 200
	

	 	Scottsdale, Arizona 85255
	

	 	Fax: 480/477-3639







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 (including, without limitation, those
certain Employment Agreements, dated as of December 1, 1999 and June 1, 2003,
by and between Employer and Employee (the “Prior Agreements”)). 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



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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.



     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. 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.



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     22. 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: 	 	 

	 
	 	

	

	Title: 	 	


	 
	 	

	 
	 	 	 

	 
	
	 

	

	 	     Charles R. Mollo	









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EXHIBIT A




	 	 	 
	A. Base Salary:

	 	Employee shall receive an annual Salary of $327,000,
payable bi-weekly in arrears, which annual Salary shall be subject to
increase from time to time as may be determined by the Board.
	 
	 	 
	B. Bonus
	 	 
	Compensation:

	 	Employee shall be entitled to receive an annual calendar year
bonus (which shall have a minimum targeted bonus of at least seventy
percent (70%) of Employee’s then applicable annual salary), if earned,
pursuant to Employer’s Executive Bonus Plan, as the same may be in force
and effect from time to time
	 
	 	 
	C. Additional
	 	 
	Benefits:

	 	Employee shall have four (4) weeks paid vacation for each 12-month
period during the Term.








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