EXHIBIT 10.2
MOBILITY ELECTRONICS, INC.
OMNIBUS LONG-TERM INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit Award Agreement (the "AGREEMENT") is made this
17th day of July, 2006 (the "GRANT DATE") by and between Mobility Electronics,
Inc. (the "COMPANY") and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "PARTICIPANT").
WHEREAS, Participant is receiving an award of restricted stock units
pursuant to the Mobility Electronics, Inc. Omnibus Long-Term Incentive Plan (the
"PLAN"); and
WHEREAS, it is a condition to Participant receiving the restricted stock
unit award that Participant deliver an executed version of this Agreement to the
Company;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the Company hereby awards
restricted stock units to Participant on the following terms and conditions:
1. AWARD OF RESTRICTED STOCK UNITS. The Company hereby grants to
Participant a total of Fifty Thousand (50,000) restricted stock units (the
"UNITS") subject to the terms and conditions set forth in this Agreement.
2. VESTING SCHEDULE. Subject to the terms and conditions of this Agreement,
the Units shall vest upon the earliest to occur, and subject to the terms and
conditions, of the following (the occurrence of such event referred to herein as
the "VESTING DATE"):
A. Time Based Vesting: On January 13, 2010, one hundred percent (100%)
of the Units shall vest (the "TIME BASED VESTING DATE");
B. Performance Based Accelerated Vesting: Accelerated vesting of an
applicable percentage of the Units (increasing in increments of 12.5% and
ranging between 0% and 100%) will occur automatically upon the Company's
achievement of certain annual revenue targets as set forth on Schedule 1
attached hereto (the "Acceleration Targets").
C. Death; Disability; or Retirement: If the Participant ceases to be
employed by the Company by reason of his death, total and permanent
disability (as certified by an independent medical advisor appointed by the
Company prior to such termination), or "Retirement" (as defined below), a
prorated number of unvested Units shall vest automatically upon such death,
disability, or Retirement, determined by multiplying the number of Units by
a fraction, the numerator of which is the number of complete months of
continuous employment by the Participant with the Company from the Grant
Date and the denominator of which is the number of complete months between
the Grant Date and the Time Based Vesting Date. The balance of the Units
subject to the provisions of this Agreement which have not vested shall
automatically be forfeited by the Participant. "RETIREMENT" means the point
in time at which the Participant retires from the Company and either: (1)
(a) Participant's age is fifty-five (55) years or greater, and (b)
Participant has been employed by the Company for ten (10) years or more; or
(2) Participant's age is sixty-two (62) years or greater;
D. Termination Without Cause: If the Participant ceases to be employed
by the Company by reason of his termination without "Cause" (as defined
below), a prorated number of unvested Units shall vest automatically upon
such event, determined by multiplying the number of Units by a fraction,
the numerator of which is the number of complete months of continuous
employment by the Participant with the Company from the Grant Date plus
twelve (12), and the denominator of which is the number of complete months
between the Grant Date and the Time Based Vesting Date. The balance of the
Units subject to the provisions of this Agreement which have not vested
shall automatically be forfeited by the Participant. "CAUSE" means (i)
Participant's conviction of a felony or commission of any act of fraud,
moral turpitude or dishonesty, (ii) Participant's breach of any of the
terms or conditions of, or the failure to perform any covenant contained
in, the Company's Employee Handbook or Code of Business Conduct and Ethics,
as modified from time to time, or (iii) Participant's violation of
reasonable instructions or policies established by the Company with respect
to the operation of its business and affairs or Participant's failure to
carry out the reasonable instructions required in connection with his or
her employment; and
E. Change in Control: Upon a "Change in Control," as defined below,
one hundred percent (100%) of the Units shall vest automatically. A "CHANGE
IN CONTROL" shall mean the occurrence of one or more of the following
events: (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 the Company (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 the Company's then outstanding common stock or equivalent in voting
power of any class or classes of the Company'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 the Company's voting securities are purchased pursuant to a
tender offer or exchange offer (other than an offer by the Company 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 the Company before the Transaction shall cease to
constitute a majority of the Board or of any successor to the Company; (iv)
following the date hereof, the Company 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 the Company, other than (1) any party to such merger or
consolidation, or (2) any affiliates of any such party; or (v) the Company
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
the Company, or the Company transfers a business unit and/or business
division responsible for more than 35% of the Company'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 the Company. Any
2
determination required above in this subsection (v) shall be made by the
Compensation Committee of the Board of Directors of the Company, as
constituted immediately prior to the occurrence of such event.
3. RESTRICTIONS. This Agreement and the Units granted pursuant hereto shall
be subject to the following restrictions:
A. Termination of Agreement and Rights to Units. Any Units that have
not otherwise vested pursuant to the terms of this Agreement shall be
automatically forfeited upon the Participant's termination of employment or
service with the Company.
B. Non-Assignability. Unless otherwise determined by the Compensation
Committee of the Board of Directors of the Company, the Participant may not
sell, assign, transfer, discount, or pledge as collateral for a loan, or
otherwise anticipate any right to payment under the Plan or this Agreement other
than by will or by the applicable laws of descent and distribution.
4. FORM AND TIMING OF PAYMENT. Any vested Units shall be paid by the
Company in shares of the Company's common stock, par value $0.01 per share (the
"SHARES") on a one-to-one basis on, or as soon as practicable after, the Vesting
Date.
5. TAX WITHHOLDING. Upon the vesting of any Units, the Participant shall
have the option to tender to the Company, and the Company shall accept, a
sufficient number of Shares necessary to satisfy the Participant's and the
Company's tax withholding obligations.
6. CHANGE IN CAPITAL STRUCTURE. The terms of this Agreement, including the
number of Units subject to this Agreement, shall be adjusted as the Compensation
Committee of the Board of Directors of the Company determines is equitably
required in the event the Company effects any merger, reorganization,
consolidation, recapitalization, stock dividend, stock split, reverse stock
split, spin-off, combination, repurchase or exchange of shares or other
securities of the Company, or similar corporate transaction.
7. NO RIGHTS AS A STOCKHOLDER. The Participant shall have no rights as a
stockholder with respect to any Shares until the date of the issuance and
delivery of such Shares.
8. NO RIGHT TO EMPLOYMENT. This Agreement shall not be construed as giving
the Participant the right to be retained in the employ or as a consultant of the
Company or any affiliate of the Company, as the case may be. The Company may at
any time terminate the Participant's employment or a consultant's provision of
services free from any liability or any claim under the Plan or this Agreement.
9. PARTICIPANT BOUND BY PLAN. The Participant hereby acknowledges that a
copy of the Plan and the Prospectus for the Plan has been made available to him
or her and the Participant agrees to be bound by all the terms and provisions of
the Plan.
3
10. CONFLICTS. In the event of any conflict between the provisions of the
Plan as in effect on the Grant Date and the provisions of this Agreement, the
provisions of the Plan shall govern.
11. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the legatees, distributes and personal representatives of the
Participant and the successors of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and interpreted
under, the laws of the State of Arizona without regard to conflicts of law
provisions thereof, and the Participant and the Company irrevocably consent to
the exclusive jurisdiction of and venue in the federal and/or state courts
located in Phoenix, Arizona.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day
and year first above written.
MOBILITY ELECTRONICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
The undersigned Participant hereby accepts, and agrees to, all terms and
provisions of the foregoing Agreement. If you do not sign and return this
Agreement, you will not be entitled to the Units.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Signature
-------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Social Security Number or
Commerce ID Number
-------------------------------------
Address
4