AGREEMENT
Exhibit 10.53
This is a complete and final Agreement between XXXXXX XXXX (for yourself, your
spouse and anyone acting for you) (“you”), and Motorola, Inc. (for itself, its
subsidiaries and affiliates, its and their successors, and anyone acting for
any of them) (“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 April 4, 2008 (the “Transition Date”) and you
shall no longer be an officer of Motorola as of that date. Your employment by
Motorola shall continue through December 31, 2008 (“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 Four Hundred
Forty-Five Thousand Four Hundred Seventy-Nine Dollars and Forty-Five Cents
($445,479.45) (“Transition Allowance”). Motorola also will pay you a lump sum
Separation Allowance in the amount of One Million Five Hundred Four Thousand
Five Hundred Twenty Dollars and Fifty-Five Cents ($1,504,520.55), 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, provided such amount will in all events be paid no later than
March 15 of the year following the year in which the Transition Date occurs..
Signature of Attachment A is a condition to your receiving the Separation
Allowance and other consideration under this Agreement. The Transition and
Separation Allowances include and exceed any paid time off or any other amounts
that are unpaid as of your Separation Date. You will receive a 2007 bonus
under the Motorola Incentive Plan and a bonus for the 2005-2007 performance
period under the 2005 Motorola Long Range Incentive Plan, and you will be
eligible for a 3/12 pro rata bonus under the 2008 Motorola Incentive Plan. You
agree that you will not receive any other bonuses or incentives under any
Motorola annual or long-range incentive plan and that any claims to such
additional bonuses or incentives are waived and released pursuant to paragraph
13 below. You will only be paid the amounts specifically identified in this
Agreement and will not receive any additional payments from Motorola. Each
payment under this Agreement to you, including payments pursuant to this
Section 2 and reimbursements under Section 7, will be considered a separate
payment and not one of a series of payments for purposes of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”).
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 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) Subject to Section 13 hereof, 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 Supplemental 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 accordance with the schedule outlined in Attachment B. Motorola will
reimburse you pursuant to the Motorola Financial Planning Program for services
received through and including December 31, 2009.
(b) Following your Separation Date, except in the event you violate one or more
of the restrictive covenants outlined in paragraph 8 below, each of your
outstanding stock option grants will be accorded the most favorable treatment
for which each grant qualifies per the terms of the applicable stock option
plans or award documents. Your current equity awards and their treatment upon
separation are outlined in Attachment C to this Agreement.
(c) Benefits coverage in effect on your Separation Date under the Motorola
Employee Medical Benefits Plan (“Medical Plan”), as amended from time to time,
will be continued at the regular employee contribution rate through the end of
October, 2009 , provided that you comply with all terms and conditions of the
Medical Plan, including paying the necessary contributions and provided
further, if you are reemployed with another employer and become covered under
that employer’s medical plan, the medical benefits described herein (if they
are not terminated as provided in COBRA, defined below) shall be secondary to
those provided under such other plan. The parties agree that the difference
between the cost for such coverage under COBRA, as defined below, and the
amount of the necessary contributions that you pay for such coverage will be
considered imputed income to you and you are responsible for the payment of
income tax due as a result of such imputed income. After the total period of
medical benefit continuation provided in this Agreement, you may elect to
continue medical benefits under the Medical Plan at your own expense, in
accordance with COBRA. The period of medical benefit continuation described
immediately above counts toward and reduces the maximum coverage under Section
4980B of the Internal Revenue Code (“COBRA”), as described in Treasury
Regulation Section 54.4980B-7, A-7(a). The COBRA period commences on the first
of the month following the Separation Date.
5. TRANSFER OF EQUIPMENT/OUTPLACEMENT. Effective on or within
fourteen days after your Transition Date, Motorola will transfer to you
ownership of your cellular phone, laptop computer (after removal and
replacement of the hard drive) and docking station. On that date you will
assume responsibility for all insurance, maintenance, service and other fees
related to these items, and Motorola will have no responsibility for them
thereafter. The parties agree that any fair market value of such items 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. Motorola also will
provide senior executive outplacement and career continuation services by a
firm to be selected by Motorola for a period of up to one (1) year if you elect
to participate in such services, provided, however, any senior executive
outplacement and career continuation services will in all events be concluded
no later than the end of the second calendar year following the calendar year
in which the Transition Date occurs.
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 Xxxx Xxxxx, Xxxx Xxxxxxx,
Xxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxx
nor Xxxx Xxxxxx will, in any official capacity on Motorola’s behalf, 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. All reimbursements under this Section 7
will be for expenses incurred by you during your lifetime. Reimbursement will
be made within 90 days following the date you submit evidence that you incurred
such expenses, and in all events prior to the last day of the calendar year
following the calendar year in which you incur the expense. In no event will
the amount of expenses reimbursed in one year affect the amount of expenses
eligible for reimbursement, or in-kind benefit to be provided, in any other
taxable year. 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, unless 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.
Notwithstanding the above, you may disclose a copy of this Agrreement,
excluding the economic terms, to any new or prospective employer.
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, 2010 (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. 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. 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 any
severance pay or benefits related to or payable in connection with change in
control events pursuant to the 2006 Motorola Omnibus Incentive Plan , the
Motorola, Inc. Senior Officer Change in Control Plan, the Motorola, Inc.
Corporate Officer Change in Control Plan , the Motorola, Inc. Corporate Officer
Transition Change in Control Plan, or any other change in control severance
plan, policy or arrangement, whether arising prior to, or following the date
hereof, and further including insurance and any claims under any 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, the
Worker Adjustment and Retraining Notification Act or the Employee Retirement
Income Security 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
favor at the time of executing the release, which if known by him must have
materially affected his 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, nor are you releasing any rights to indemnification under
Motorola’s by-laws and/or insurance policies.
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 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 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.
16. SECTION 409A COMPLIANCE. It is intended that this Agreement
comply with the provisions of Section 409A of the Code. This Agreement will be
administered in a manner consistent with this intent.
XXXXXX XXXX | MOTOROLA, INC. | |||||||
/s/ Xxxxxx Xxxx | By: | /s/ Xxxx X. Xxx | ||||||
Date:
|
March 7, 2008 | Date: | March 7, 2008 | |||||
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, related to or payable in connection with
change in control events pursuant to the 2006 Motorola Omnibus Incentive Plan ,
the Motorola, Inc. Senior Officer Change in Control Plan, the Motorola, Inc.
Corporate Officer Change in Control Plan , the Motorola, Inc. Corporate Officer
Transition Change in Control Plan, or any other change in control severance
plan, policy or arrangement, whether arising prior to, or following the date
hereof, and further including insurance and any claims under the Elected
Officers Supplemental 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
favor at the time of executing the release, which if known by him must have
materially affected his 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, nor are you releasing any rights to indemnification under
Motorola’s by-laws and/or insurance policies. You further agree that you have
had sufficient time (at least 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:
Date: |
||||
(to be signed after December 31, 2008 and before January 31, 2009) |
ATTACHMENT B
Distributions do | ||||||||
not begin until the | ||||||||
quarter following | ||||||||
the quarter in | ||||||||
Last Day | which the date that | |||||||
Worked | is 6 months after | |||||||
(Transition | Transition Date | |||||||
PlanYear | Method | Date) | 6 Months | occurs. | ||||
2005
|
Quarterly Over 15 Years Commencing at Termination | 4/4/08 | 10/4/2008 | 1/4/2009 (Quarterly) | ||||
2006
|
Lump Sum Commencing at Termination | 4/4/08 | 10/4/2008 | 1/4/2009(Lump Sum) | ||||
2007
|
Lump Sum Commencing at Termination | 4/4/08 | 10/4/2008 | 1/4/2009 (Lump Sum) |
Attachment C
Xxxxxx Xxxx as of February 14, 2008
Option Grants | ||||||||||||||||||||||||||||||||||||||
Last | First | Optionee | Grant | Options | Grant | Outstanding | Grant | EXERCISE RIGHTS | ||||||||||||||||||||||||||||||
Name | Name | ID | Date | Granted | Type | Outstanding | Vested | Unvested | Price | Vest Schedule Desc | Additional vesting prior to separation | VESTED | UNVESTED | |||||||||||||||||||||||||
XXXX
|
XXXXXX | 12062216 | 04/22/2005 | 150,000 | NQ | 150,000 | 75,000 | 75,000 | 15.93 | 25% per year for 4 years | additional 25% will vest on 4/22/2008 | Lesser of 1 year or remaining term | Forfeit | |||||||||||||||||||||||||
XXXX
|
XXXXXX | 12062216 | 05/03/2006 | 250,000 | NQ | 250,000 | 62,500 | 187,500 | 21.25 | 25% per year for 4 years | additional 25% will vest on 5/3/2008 | Lesser of 90 days or remaining term | Forfeit | |||||||||||||||||||||||||
XXXX
|
XXXXXX | 12062216 | 07/25/2007 | 100,000 | NQ | 100,000 | 0 | 100,000 | 17.68 | 25% per year for 4 years | 25% will vest on 7/25/2008 | Lesser of 90 days or remaining term | Forfeit | |||||||||||||||||||||||||
XXXX
|
XXXXXX | 12062216 | 05/08/2007 | 150,000 | NQ | 150,000 | 0 | 150,000 | 17.70 | 25% per year for 4 years | 25% will vest on 5/8/2008 | Lesser of 90 days or remaining term | Forfeit |
RSU Grants | ||||||||||||||||||||||||||||||||||||||
Last | First | Optionee | Grant | RSUs | Grant | |||||||||||||||||||||||||||||||||
Name | Name | ID | Date | Granted | Type | Outstanding | Vested | Unvested | Vesting Schedule Desc | Vesting Schedule Dates | Pro-rata under Invol. Term. | Total Vested As Of 12/31/08 | ||||||||||||||||||||||||||
XXXX
|
XXXXXX | 12062216 | 04/22/2005 | 60,000 | RSU | 60,000 | 0 | 0 | 100% after 3 years | 100% will vest on 4/22/2008 | n/a | 60,000 | ||||||||||||||||||||||||||
XXXX
|
XXXXXX | 12062216 | 05/03/2006 | 50,000 | RSU | 50,000 | 0 | 0 | 50% after 30
months, 50% after 60 months |
50% will vest on
November 3, 2008, 50% on May 3, 2011 |
pro-rata for 1 year of completed service | 25,000 | ||||||||||||||||||||||||||
XXXX
|
XXXXXX | 12062216 | 05/08/2007 | 100,000 | RSU | 100,000 | 0 | 0 | 50% after 30 months, 50% after 60 months | 50% will vest on November 8, 2009, 50% on May 8, 2012 | pro-rata for 1 year of completed service | 20,000 | ||||||||||||||||||||||||||
XXXX
|
XXXXXX | 12062216 | 07/25/2007 | 100,000 | RSU | 100,000 | 0 | 0 | 50% after 30 months, 50% after 60 months | 50% will vest on January 25, 2010, 50% on July 25, 2012 | pro-rata for 1 year of completed service | 20,000 |