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EXHIBIT 10.9
XXXXXXXXX, XXXXXXX X.
MOBILITY ELECTRONICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
This Incentive Stock Option Agreement (the "Agreement") dated as of
April 12, 1999 is entered into between Mobility Electronics, Inc., a Delaware
corporation (the "Company"), Xxxxxxx X. Xxxxxxxxx, an employee of the Company
(the "Optionee"). In consideration of the mutual promises and covenants made
herein, the parties hereby agree as follows:
1. GRANT OF OPTION. Under the terms and conditions of the
Company's Amended and Restated 1996 Long Term Incentive Plan (the "Plan"), a
copy of which is attached hereto and incorporated herein by reference, the
Company grants to the Optionee an option (the "Option") to purchase from the
Company all or any part of a total of 100,000 shares of the Company's Common
Stock, par value $.01 per share, at a price of $4.00 per share. The Option is
granted as of the date first above written (the "Date of Grant").
2. CHARACTER OF OPTION. The Option is 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 fifth anniversary of the
Date of Grant or, in the event of the Optionee's termination of employment with
the Company, on such earlier date as may be provided in Section 6(b) of the
Plan.
4. VESTING. Subject to the provisions of Section 6(b) of the
Plan, the Option may be exercised according to the following schedule,
provided, however that this Option shall vest in full if there is a Change In
Control as defined in the Employment Agreement between Optionee and the Company
dated November 20, 1998.
Percentage
Exercisable Period
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33.33% After one year from the Date of Grant
66.66% After two years from the Date of Grant
100% After three years from the Date of Grant
The unexercised portion of the Option from one period may be carried
over to a subsequent period or periods, and the right of the Optionee to
exercise the Option as to such unexercised portion shall continue for the
entire term.
5. PROCEDURE FOR EXERCISE. Exercise of the Option or a portion
thereof shall be effected by the giving of written notice to the Company and
payment of the purchase price prescribed in Section 1 above for the shares to
be acquired pursuant to the exercise.
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6. PAYMENT OF PURCHASE PRICE. Payment of the purchase price for
any shares purchased pursuant to the Option shall be in cash, unless otherwise
agreed to in writing by the Compensation Committee of the Board of Directors of
the Company.
7. TRANSFER OF OPTIONS. The Option may not be transferred except
by will or the laws of descent and distribution and, during the lifetime of the
Optionee, may be exercised only by the Optionee or by the Optionee's legally
authorized representative.
8. TERMINATION. The Option shall terminate on the earlier of (i)
the expiration date set forth in Section 3 above or, (ii) in the event of the
termination of the Optionee's employment, the date provided in Section 6(b) of
the Plan.
9. ACCEPTANCE OF THE PLAN. The Option is granted subject to all
of the applicable terms and provisions of the Plan, and such terms and
provisions are incorporated by reference herein. The Optionee hereby accepts
and agrees to be bound by all the terms and conditions of the Plan.
10. AMENDMENT. This Agreement may be amended by an instrument in
writing signed by both the Company and the Optionee.
11. CONFIDENTIALITY AND NONCOMPETITION. In consideration of the
grant of Option hereunder, Optionee agrees to the following:
(a) Acknowledgment of Proprietary Interest. Optionee
recognizes the proprietary interest of the Company and its affiliates
in any Trade Secrets (as hereinafter defined) of the Company and its
affiliates. Optionee acknowledges and agrees that any and all Trade
Secrets currently known by Optionee or learned by Optionee during the
course of his engagement by the Company or otherwise, whether
developed by Optionee alone or in conjunction with others or
otherwise, shall be and is the property of the Company and its
affiliates. Optionee further acknowledges and understands that his
disclosure of any Trade Secrets will result in irreparable injury and
damage to the Company and its affiliates. As used herein, "Trade
Secrets" means all confidential and proprietary information of the
Company and its affiliates, now owned or hereafter acquired,
including, without limitation, information derived from reports,
investigations, experiments, research, work in progress, drawings,
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 the Company or its
affiliates and information related to the business, products or sales
of the Company or its affiliates, or any of their respective
customers, other than information which is otherwise publicly
available; provided, however, "Trade Secrets" does not include any
information that is known or readily obtainable by companies within
the computer industry.
(b) Covenant Not-to-Divulge Trade Secrets. Optionee
acknowledges and agrees that the Company and its affiliates are
entitled to prevent the disclosure of Trade Secrets. As consideration
for the grant of the options hereunder to Optionee by the Company,
Optionee agrees at all times during his employment with the Company and
thereafter to hold in strict confidence and not to disclose or allow to
be disclosed to any person, firm or corporation, other than to persons
engaged by the Company and its affiliates to further the business of
the Company and its affiliates, and not to use except in the pursuit of
the business of the Company and its
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affiliates, the Trade Secrets, without the prior written consent of the
Company, including Trade Secrets developed by Optionee.
(c) Return of Materials at Termination. In the event of
any termination or cessation of his employment with the Company for
any reason whatsoever, Optionee will promptly deliver to the Company
all documents, data and other information pertaining to Trade Secrets.
Optionee shall not take any documents or other information, or any
reproduction or excerpt thereof, containing or pertaining to any Trade
Secrets.
(d) Competition During Employment. Optionee agrees that
during his employment with the Company, neither he, nor any of his
affiliates, will directly or indirectly compete with the Company or
its affiliates in the portable or handheld computer power, docking,
and connectivity business, which is defined as product lines or
businesses that are competitive with products that are manufactured,
marketed or sold by the Company and its affiliates during the term of
his employment or under development during the term of his employment
(the "Business"); and that he will not act as an officer, director,
employee, consultant, shareholder, lender, or agent of any entity
which is competitive with the Business; provided, however, that this
Section shall not prohibit Optionee or any of his affiliates from
purchasing or holding an aggregate equity interest of up to 1% in any
business in competition with the Business. Furthermore, Optionee
agrees that during his employment with the Company, he will undertake
no planning for the organization of any business activity competitive
with the Business and Optionee will not combine or conspire with any
other Optionee of the Company and its affiliates for the purpose of
the organization of any such competitive business activity.
(e) Competition Following Employment. Optionee agrees
that for a period of one-year after the termination or cessation of
his employment for the Company for any reason whatsoever, neither he,
nor any of his affiliates, will directly or indirectly: (1) compete
with the Company or its affiliates in the Business, and that he will
not act as an officer, director, Optionee, consultant, shareholder,
lender, or agent of any entity which is engaged in the Business;
provided, however, that this Section shall not prohibit Optionee or
any of his affiliates from purchasing or holding an aggregate equity
interest of up to 1% in any business in competition with the Business.
Furthermore, Optionee will not combine or conspire with any other
Optionees of the Company and its affiliates for the purpose of the
organization of any such competitive business activity.
12. INVENTIONS. In consideration of the grant of Option
hereunder, Optionee agrees to the following:
(a) Disclosure to Company. Optionee agrees to promptly
disclose to the Company any and all inventions, discoveries,
improvements, trade secrets, formulas, compositions, coded designs,
programs, techniques, processes, and know-how, whether or not reduced
to writing or practice, conceived by Optionee during the period of his
or her employment with the Company, either alone or jointly with
others, which relate to or result from the actual or anticipated
business, work, research or investigations of the Company, or which
result, to any extent, from use of the Company's premises or property
(the work being hereinafter collectively referred to as the
"Intellectual Property"). Further, Optionee shall disclose in
confidence to the Company all patent and copyright applications filed
by or on behalf of Optionee during the term of his employment with the
Company and, to the extent such application related to the business of
the
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Company at the date Optionee's employment terminates, for a period of
three (3) years thereafter.
(b) Intellectual Property as Sole Property of the
Company. Optionee acknowledges and agrees that all the Intellectual
Property shall be the sole property of Optionee or any other entity
designated by it, and Optionee hereby assigns to the Company his or
her entire right and interest in and to all Intellectual Property.
Optionee further agrees as to all Intellectual Property to assist the
Company in every way (at the Company's expenses) to obtain and from
time to time enforce patents and copyrights on the Intellectual
Property in any and all countries during the term of this Agreement.
To that end, by way of illustration but not limitation. Optionee will
testify in any suit or other proceeding involving any of the
Intellectual Property, execute all documents which the Company
reasonably determines to be necessary or convenient for use in
applying for and obtaining patents and copyrights thereon and
enforcing same, and execute all necessary assignments thereof to the
Company or persons designated by it. Optionee's obligation to assist
the Company in obtaining and enforcing patents and copyrights for the
Intellectual Property shall continue beyond the termination of his
employment, but the Company shall compensate Optionee at a reasonable
rate after such termination for the time actually spent by Optionee at
the Company's request as such assistance and the Company's requests
for assistance shall be reasonable in light of Optionee's then
existing business commitments. Optionee hereby irrevocably appoints
the Company, and its duly authorized officers and agents, as
Optionee's agent and attorney-in-fact to act for and on behalf of
Optionee in filing all patent and copyright applications, amendments,
renewals, and all other appropriate documents in any way related to
Intellectual Property. The Company will promptly notify Optionee
following any such filing, provided that the Company will not be
obligated to make such notification if as a result the Company would
be in violation of any agreement or order to which it is subject or
bound.
(c) List of Prior Inventions. As a matter of record,
Optionee has set forth on Exhibit "A" attached hereto a complete list
separately identifying each invention, discovery, improvement, trade
secret, formula, composition, code, design, program, technique,
process and know-how made or discovered by Optionee prior to his
employment with the Company. Optionee represents and covenants that
such list is complete. As a matter of record, Optionee has set forth
on Exhibit "A" attached hereto a complete list of all inventions,
programs, discoveries, or improvements relating to the Company's
business which have been made by Optionee prior to his employment with
the Company. Optionee represents and covenants that such list is
complete. All such matters set forth in Exhibit "A", if any, which
Optionee made prior to his employment by the Company are excluded from
the scope of this Agreement.
(d) Time of Invention; Presumption. For the purposes of
this Agreement, an invention or other Intellectual Property is deemed
to have been made or conceived during the duration of employment if
during such time, the invention or other Intellectual Property was
conceived or first actually reduced to writing or practice; and
Optionee agrees that any disclosure of an invention, Intellectual
Property or any patent or copyright application made within one (1)
year after termination of his employment shall be presumed to relate
to an invention or other Intellectual Property which was made or
conceived during the term of Optionee's employment unless Optionee
provides satisfactory and compelling evidence to the contrary.
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(e) Training and Experience. Nothing herein is intended
to prevent or restrict the use by Optionee of Optionee's education,
training and experience, except insofar as is expressly provided.
13. MISCELLANEOUS. This Agreement will be construed and enforced
in accordance with the State of Delaware and will be binding upon and inure to
the benefit of any successor or assign of the Company and any executor,
administrator, trustee, guardian or other legal representative of the Optionee.
Executed as of the date first above written.
MOBILITY ELECTRONICS, INC.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Chief Executive Officer
OPTIONEE:
/s/ XXXXXXX. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
[WITHHELD]
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Social Security Number of Optionee
