AGREEMENT
EXHIBIT 10.41
This is a complete and final Agreement between XXXXX XXXXXXXXXX (for yourself,
your spouse and anyone acting for you) (“you”), and Motorola, Inc. (for itself,
its subsidiaries and affiliates and anyone acting for it) (“Motorola”) that
resolves all matters between you and Motorola. This Agreement has been
individually negotiated and has not been reached as part of a group incentive or
other separation program. In consideration for the payments and benefits
provided under this Agreement, you and Motorola agree to the following terms of
your separation from Motorola:
1. SEPARATION. All your duties and responsibilities as an
employee, officer and/or director of Motorola and its subsidiaries and
affiliates shall end effective August 31, 2007 (the “Transition Date”). Your
employment by Motorola shall continue through December 31, 2007 (“Separation
Date”). At Motorola’s request, you shall execute any and all documents
reasonably necessary to confirm the cessation of your service as a director
and/or officer of Motorola and its subsidiaries and/or affiliates.
2. TRANSITION ALLOWANCE AND SEPARATION ALLOWANCE. Motorola will
pay you at your regular base salary rate at regular payroll intervals, less
applicable state and federal payroll deductions, between your Transition Date
and Separation Date. The total gross amount of these payments is Two Hundred
Ten Thousand Six Hundred Sixteen Dollars and Forty-Four Cents ($210,616.44)
(“Transition Allowance”). Motorola also will pay you a lump sum in the amount
of Two Hundred Twenty-Five Thousand Dollars and No Cents ($225,000.00) within
thirty (30) days after you have signed, returned and not revoked this Agreement
and a lump sum Separation Allowance in the amount of One Million Eight Thousand
One Hundred Thirty-Three Dollars and Fifty-Six Cents ($1,008,133.56), less
applicable state and federal payroll tax deductions, within thirty (30) days
after you have signed, returned and not revoked a supplemental release attached
as Attachment A. Signature of Attachment A is a condition to your receiving the
Separation Allowance and other consideration under this Agreement. The
Transition and Separation Allowances, and the additional lump sum, include and
exceed any paid time off, bonuses (other than an 8/12 pro rata 2007 MIP bonus,
for which you will be eligible per the terms of the MIP Plan if other elected
officers receive a 2007 MIP bonus and a 32/36 pro rata 2005-2007 LRIP bonus for
which you will be eligible per the terms of the 2005 LRIP Plan if other elected
officers receive a 2005-2007 LRIP bonus), or any other amounts that are unpaid
as of your Separation Date. You will only be paid the amounts specifically
identified in this Agreement and will not receive any additional payments from
Motorola.
3. HEIRS/BENEFICIARIES. In the event of your death after the
effective date of this Agreement, your surviving spouse (or heirs if you are
then unmarried) shall be paid any unpaid salary, lump sum payment and any unpaid
Transition and Separation Allowances described in this Agreement. Payments or
benefits, if any, following your death under any of the Motorola benefit or
compensation plans shall be according to the terms of those plans and any
elections and/or beneficiary designations previously made by you thereunder.
4. BENEFIT AND COMPENSATION PLANS.
(a) The effect of your separation and this Agreement upon your participation
in, or coverage under, any of Motorola’s benefit or compensation plans,
including but not limited to the Motorola Elected Officers Supplementary
Retirement Plan, the Motorola Elected Officers Life Insurance Plan, the Motorola
Long Range Incentive Plan for any given performance cycle, the Motorola
Incentive Plan, the Motorola Management Deferred Compensation Plan, the Motorola
Financial Planning Program, the Motorola Omnibus Incentive Plan of 2006, any
other applicable stock option plan and any restricted stock, stock unit or SAR
agreements shall be governed by the terms of those plans and agreements.
Motorola is making no guarantee, warranty or representation in this Agreement
regarding any position that may be taken by any administrator or plan regarding
the effect of this Agreement upon your rights, benefits or coverage under those
plans. Pursuant to the Motorola Management Deferred Compensation Plan, your
deferred compensation elections, and applicable law, your deferred compensation
payments will commence in April, 2008.
(b) You shall receive coverage under the Motorola Post-Employment Health
Benefits Plan, at your own expense, pursuant to Sections 2.82(iii) and 3.5(ii) thereof.
5. TRANSFER OF EQUIPMENT. Effective on or within fourteen days
after your Transition Date, Motorola will transfer to you ownership of your
cellular phone. On that date you will assume responsibility for all insurance,
maintenance, service and other fees related to this item, and Motorola will
have no responsibility for it thereafter. The parties agree that any fair market
value of such item will be calculated as of the Transition Date and that you are
responsible for the payment of income tax due as a result of this transfer.
6. NO DISPARAGEMENT. You agree that you will not, directly or
indirectly, individually or in concert with others, engage in any conduct or
make any statement calculated or likely to have the effect of undermining,
disparaging or otherwise reflecting poorly upon Motorola or its good will,
products or business opportunities, or in any manner detrimental to Motorola,
though you may give truthful and nonmalicious testimony if properly subpoenaed
to testify under oath. Motorola agrees that neither Xx Xxxxxx, Xxx Xxxxxxxx,
nor Xxxx Xxxxxxx will, acting officially on Motorola’s behalf, directly or
indirectly, individually or in concert with others, engage in any conduct or
make any statement calculated or likely to have the effect of undermining,
disparaging or otherwise reflecting poorly upon you, or in any manner
detrimental to you, though each may give truthful and nonmalicious testimony if
properly subpoenaed to testify under oath.
7. COOPERATION/INDEMNIFICATION. From your Transition Date, and
for as long thereafter as shall be reasonably necessary, you agree to cooperate
fully with Motorola in any investigation, negotiation, litigation or other
action arising out of transactions in which you were involved or of which you
had knowledge during your employment by Motorola. If you incur any business
expenses in the course of performing your obligations under this paragraph, you
will be reimbursed for the full amount of all reasonable expenses upon your
submission of adequate receipts confirming that such expenses actually were
incurred. Motorola will indemnify you for judgments, fines, penalties,
settlement amounts and expenses (including reasonable attorneys fees and
expenses) reasonably incurred in defending any actual or threatened action,
lawsuit, investigation or other similar proceeding arising out of your
employment with Motorola, provided that if the matter is a civil action, you
acted in good faith and in a manner you reasonably believed to be in, or not
opposed to, the best interests of Motorola and if the matter is a criminal
action, you had no reasonable cause to believe your conduct was unlawful (in
each case as determined under Delaware General Corporation Law).
8. RESTRICTIVE COVENANTS. You acknowledge that you have entered
into certain Stock Option Agreements and/or Stock Option Consideration
Agreements and/or Restricted Stock Agreements and/or Restricted Stock Units
Agreements with Motorola, as well as various other agreements for the protection
of Motorola’s confidential proprietary information, and agree that such
agreements, including but not limited to the non-disclosure, non-competition and
non-solicitation provisions therein, continue in full force and effect according
to their terms.
9. CONFIDENTIALITY OF AGREEMENT. You agree to keep the existence
and terms of this Agreement confidential, except to the extent required by law
to disclose this information, or except as needed to be disclosed to your
spouse, legal counsel, financial advisors, outplacement firm, creditors, or
anyone preparing your tax returns.
10. RETURN OF MOTOROLA PROPERTY. You further agree to return to
Motorola by your Transition Date all Motorola property and confidential and/or
proprietary information including the originals and all copies and excerpts of
documents, drawings, reports, specifications, samples and the like that were/are
in your possession at all Motorola and non-Motorola locations, including but not
limited to information stored electronically on computer hard drives or disks.
11. NEW EMPLOYMENT. You agree that you will immediately inform
Motorola of (i) the identity of any new employment, start-up business or
self-employment in which you have engaged or will engage between the Transition
Date and December 31, 2009 (the “Notice Period”), (ii) your title in any such
engagement, and (iii) your duties and responsibilities. You hereby authorize
Motorola to provide a copy of this Agreement, excluding the economic terms, to
any new employer or other entity or business by which you are engaged during the
Notice Period. You further agree that during the Notice Period, you will
provide such information to Motorola as it may from time to time reasonably
request in order to determine your compliance with this Agreement.
12. BREACH OF AGREEMENT.
(a) You acknowledge that Motorola’s agreement to make the payments set forth in
Paragraph 2 above is conditioned upon your faithful performance of your
obligations pursuant to Paragraphs 7, 8, 10 and 11 of this Agreement, and you
agree to repay to Motorola all sums received from Motorola under Paragraph 2,
less One Thousand Dollars ($1,000.00), if you breach any of your obligations
under Paragraphs 7, 8, 10 or 11 of this Agreement or the agreements referenced
in Paragraph 8. You further agree that in addition to any other remedies
available in law and/or equity, all of your vested and unvested stock options
will terminate and no longer be exercisable, and for all stock options exercised
within two years prior to your Separation Date or anytime after your Separation Date, you will immediately pay to Motorola
the difference between the exercise price on the date of grant as reflected in
the Award Document and the market price on the date of exercise (the “spread”)
for each affected stock option grant. The above remedies are in addition to and
cumulative with any other rights and remedies Motorola may have pursuant to this
Agreement and/or in law and/or equity, including the recovery of liquidated
damages. In any dispute regarding this Agreement, each party will pay its own
fees and costs.
(b) You acknowledge that the harm caused to Motorola by the breach or
anticipated breach of Paragraph 7, 8, 10 or 11 of this Agreement will be
irreparable and you agree Motorola may obtain injunctive relief against you in
addition to and cumulative with any other legal or equitable rights and remedies
Motorola may have pursuant to this Agreement or law, including the recovery of
liquidated damages. You agree that any interim or final equitable relief
entered by a court of competent jurisdiction, as specified in paragraph 15
below, will, at the request of Motorola, be entered on consent and enforced by
any such court having jurisdiction over you. This relief would occur without
prejudice to any rights either party may have to appeal from the proceedings
that resulted in any grant of such relief.
(c) This Agreement (which includes the agreements referenced in Paragraph 8) is
your entire agreement with Motorola regarding the subject matter. No waiver of
any breach of any provision of this Agreement by Motorola shall be construed to
be a waiver of any succeeding breach or as a modification of such provision.
The provisions of this Agreement shall be severable and in the event that any
provision of this Agreement shall be found by any court as specified in
paragraph 15 below to be unenforceable, in whole or in part, the remainder of
this Agreement as well as the provisions of your prior agreements, if any,
regarding the same subject matter as that which was found unenforceable herein
shall nevertheless be enforceable and binding on the parties. You also agree
that the court may modify any invalid, overbroad or unenforceable term of this
Agreement so that such term, as modified, is valid and enforceable under
applicable law. Further, you affirmatively state that you have not, will not
and cannot rely on any representations not expressly made herein.
13. NON-ADMISSION/GENERAL RELEASE. You and Motorola agree that,
in exchange for the payments and other terms described above, Motorola is not
admitting to any wrongdoing or unlawful action in its dealing with you and you
fully and completely release Motorola and hold it harmless from any and all
legal claims of any type to date arising out of your employment or the
separation of your employment from Motorola or any notice regarding your
separation, whether known or unknown, presently asserted or otherwise. This
includes, but is not limited to, breach of any implied or express employment
contracts or covenants; entitlement to any pay or benefits, including insurance
and any claims under the Elected Officers Supplementary Retirement Plan or any
other retirement plan; claims for wrongful termination, public policy
violations, defamation, emotional distress or other common law matters; or
claims of discrimination based on race, sex, age (Age Discrimination in
Employment Act), religion, national origin, disability, veteran’s status,
sexual preference, marital status or retaliation; or claims under the Family and
Medical Leave Act. If you are employed in Pennsylvania, however, you are not
waiving any claims under the Family and Medical Leave Act. IF YOU ARE EMPLOYED
IN CALIFORNIA, YOU EXPRESSLY WAIVE THE PROTECTION OF SECTION 1542 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA, WHICH STATES THAT: “A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You
understand that by signing this General Release you are not releasing any claims
or rights that cannot be waived by law, including the right to file an
administrative charge of discrimination.
14. CONDITIONS OF AGREEMENT. You agree that you are signing this
Agreement knowingly and voluntarily, that you have not been coerced or
threatened into signing this Agreement and that you have not been promised
anything else in exchange for signing this Agreement. You agree that if any
part of this Agreement is found to be illegal or invalid, the rest of the
Agreement will still be enforceable. You further agree that you have had
sufficient time (at least twenty-one (21) days) to consider this Agreement and
you were advised to consult with an attorney, if desired, before signing below.
You understand and agree that any change, whether material or otherwise, to the
initial terms of this Agreement shall not restart the running of this twenty-one
(21) day period. This Agreement will not become effective or enforceable until
seven days after you sign it, during which time you can revoke it if you wish,
by delivering a signed revocation letter within the seven-day period to Xxxx X.
Xxxxx, Corporate Vice President, Law — Labor and Employment, Motorola, Inc.,
0000 Xxxx Xxxxxxxxx Xx., Xxxxxxxxxx, Xxxxxxxx 00000. Any alterations to this
Agreement must be in writing, signed by both parties.
15. GOVERNING LAW/VENUE. You and Motorola agree that this
Agreement is governed by the laws of Illinois, without giving effect to
principles of Conflicts of Laws, and any legal action related to this Agreement
shall be brought only in a federal or state court located in Illinois, USA. You
accept the jurisdiction of these courts and consent to service of process from
said courts solely for legal actions related to this Agreement.
XXXXX XXXXXXXXXX
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MOTOROLA, INC. | ||||||
/s/ Xxxxx Xxxxxxxxxx
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By: | /s/ Xxxx X. Xxxxxxx | |||||
Date:
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September 18, 2007 | Date: | September 18, 2007 | ||||
ATTACHMENT A
In consideration for the promises made by Motorola in the Agreement to which
this is Attachment A, you fully and completely release Motorola and hold it
harmless from any and all legal claims of any type to date arising out of your
employment or the separation of your employment from Motorola, whether known or
unknown, presently asserted or otherwise. This includes, but is not limited to,
breach of any implied or express employment contracts or covenants; entitlement
to any pay or benefits, including insurance and any claims under the Elected
Officers Supplementary Retirement Plan or any other retirement plan; claims for
wrongful termination, public policy violations, defamation, emotional distress
or other common law matters; or claims of discrimination based on race, sex, age
(Age Discrimination in Employment Act), religion, national origin, disability,
veteran’s status, sexual preference, marital status or retaliation; or claims
under the Family and Medical Leave Act. IF YOU ARE EMPLOYED IN CALIFORNIA, YOU
EXPRESSLY WAIVE THE PROTECTION OF SECTION 1542 OF THE CIVIL CODE OF THE STATE OF
CALIFORNIA, WHICH STATES THAT: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You understand by signing this
General Release you are not releasing any claims or rights that cannot be waived
by law, including the right to file an administrative charge of discrimination.
You further agree that you have had sufficient time (at least twenty-one (21)
days) to consider the attached Agreement and you were advised to consult with an
attorney, if desired, before signing below. This Attachment A will not become
effective or enforceable until seven days after you sign it, during which time
you can revoke it if you wish, by delivering a signed revocation letter within
the seven-day period to Xxxx X. Xxxxx, Corporate Vice President, Law — Labor
and Employment, Motorola, Inc., 0000 Xxxx Xxxxxxxxx Xx., Xxxxxxxxxx, Xxxxxxxx
00000.
Agreed to and accepted by: |
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XXXXX XXXXXXXXXX |
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Date: |
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(to be signed after December 31, 2007 and before January 31, 2008 |