Exhibit 10.38
RSU Form
This Restricted Stock Unit Award (“Award”) is awarded on «Grant_date» (“Date of
Grant”), by Motorola, Inc. (the “Company” or “Motorola”) to «First_Name»
«Last_Name» (the “Grantee”).
WHEREAS, Grantee is receiving the Award under the Motorola Omnibus Incentive Plan of 2006, as
amended (the “2006 Incentive Plan”);
WHEREAS, the Award is being made as a special grant of Motorola restricted stock units
authorized by the Board of Directors and the Board’s Compensation and Leadership Committee (the
“Compensation Committee”); and
WHEREAS, it is a condition to Grantee receiving the Award that Grantee electronically accept
the terms, conditions and Restrictions applicable to the restricted stock units as set forth in
this agreement.
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 Grantee on the
following terms and conditions:
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Award of Restricted Stock Units. The Company hereby grants to Grantee a total of
«Txt_Nbr_of_Shares» («Whole_Nbr_of_Shares») Motorola restricted stock units (the
“Units”) subject to the terms and conditions set forth below. All Awards shall be
paid in whole shares of Motorola Common Stock (“Common Stock”); no fractional shares shall
be credited of delivered to Grantee. |
| 2. |
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Restrictions. The Units are being awarded to Grantee subject to the transfer and
forfeiture conditions set forth below (the “Restrictions”) which shall lapse, if
at all, as described in Section 3 below. For purposes of this Award, the term Units
includes any additional Units granted to the Grantee with respect to Units, still subject
to the Restrictions. |
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a. |
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Grantee may not directly or indirectly, by operation of law or
otherwise, voluntarily or involuntarily, sell, assign, pledge, encumber, charge
or otherwise transfer any of the Units still subject to Restrictions. The Units
shall be forfeited if Grantee violates or attempts to violate these transfer
Restrictions. Motorola shall have the right to assign this Agreement, which
shall not affect the validity or enforceability of this Agreement. This
Agreement shall inure to the benefit of assigns and successors of Motorola. |
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b. |
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Any Units still subject to the Restrictions shall be (x) automatically
forfeited upon the Grantee’s termination of employment with Motorola or a
Subsidiary for any reason other than death, Total and Permanent Disability,
Retirement, or Involuntary Termination due to (i) a Divestiture or (ii) for a
reason other than for Serious Misconduct, and (y) at the discretion of the
Compensation Committee forfeited, if the Grantee is not an appointed vice
president or officer of Motorola
at the end of the “Restriction Period” as defined below. For purposes of
this Agreement, a “Subsidiary” is any corporation or other entity in which a
50 percent or greater interest is held directly or indirectly by Motorola
and which is |
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consolidated for financial reporting purposes. Total and
Permanent Disability is defined in Section 3(a) and Retirement is defined in
Section 3(c). |
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c. |
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If Grantee is a vice president or elected officer on the date of the
Award, or has been approved to become a vice president or elected officer on
the date of the Award, and Grantee engages in any of the following conduct
during, or within two (2) years following the termination of Grantee’s
employment for any reason, in addition to all remedies in law and/or equity
available to the Company, Grantee shall forfeit all restricted stock units
under the Award whose Restrictions have not lapsed, and, for all restricted
stock units under the Award whose Restrictions have lapsed, Grantee shall
immediately pay to the Company the Fair Market Value (as defined in paragraph 7
below) of Motorola Common Stock on the date(s) such Restrictions lapsed,
without regard to any taxes that may have been deducted from such amount: |
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(i) |
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Grantee uses or discloses, except on behalf of the
Company and pursuant to directions during the course of Grantee’s
employment, any Company Confidential Information. “Confidential
Information” means information concerning the Company and its
business that is not generally known outside the Company, and
includes (A) trade secrets; (B) intellectual property; (C) the
Company’s methods of operation and Company processes; (D)
information regarding the Company’s present and/or future products,
developments, processes and systems, including invention
disclosures and patent applications; (E) information on customers
or potential customers, including customers’ names, sales records,
prices, and other terms of sales and Company cost information; (F)
Company personnel data; (G) Company business plans, marketing
plans, financial data and projections; and (H) information received
in confidence by the Company from third parties. Information
regarding products, services or technological innovations in
development, in test marketing or being marketed or promoted in a
discrete geographic region, which information the Company or one of
its affiliates is considering for broader use, shall be deemed
generally known until such broader use is actually commercially
implemented; and/or |
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(ii) |
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Grantee hires, recruits, solicits or induces, or
causes, allows, permits or aids others to hire, recruit, solicit or
induce, or to communicate in support of those activities, any
employee of the Company who possesses Confidential Information of
the Company to terminate his/her employment with the Company and/or
to seek employment with Grantee’s new or prospective employer, or
any other company; and/or |
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(iii) |
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Grantee engages in activities which are entirely
or in part the same as
or similar to activities in which Grantee engaged at any time
during the two years preceding termination of Grantee’s
employment with the Company, for any person, company or entity
in connection with |
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products, services or technological
developments (existing or planned) that are entirely or in part
the same as, similar to, or competitive with, any products,
services or technological developments (existing or planned) on
which Grantee worked at any time during the two years preceding
termination of Grantee’s employment. This paragraph applies in
countries in which Grantee has physically been present
performing work for the Company at any time during the two years
preceding termination of Grantee’s employment; and/or |
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(iv) |
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Grantee, directly or indirectly, on behalf of
Grantee or any other person, company or entity, solicits or
participates in soliciting, products or services competitive with
or similar to products or services offered by, manufactured by,
designed by or distributed by the Company to any person, company or
entity which was a customer or potential customer for such products
or services and with which Grantee had direct or indirect contact
regarding those products or services or about which Grantee learned
confidential information at any time during the two years prior to
Grantee’s termination of employment with the Company; and/or |
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(v) |
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Grantee, directly or indirectly, in any capacity,
provides products or services competitive with or similar to
products or services offered by the Company to any person, company
or entity which was a customer for such products or services and
with which customer Grantee had direct or indirect contact
regarding those products or services or about which customer
Grantee learned Confidential Information at any time during the two
years prior to termination of Grantee’s employment with the
Company. |
The Company will not be obligated to pay Grantee any consideration whatsoever for forfeited Units.
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Lapse of Restrictions. |
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a. |
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Except as set forth in Section 3(b) below, the Restrictions applicable
to the Units shall lapse, as long as the Units have not been forfeited as
described in Section 2 above, as follows: |
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(i) |
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«Vesting_Schedule» (the “Restriction Period”); |
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(ii) |
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If a Change in Control of the Company occurs and the
successor corporation (or parent thereof) does not assume this
Award or replace it with a comparable award; provided, further,
that with respect to any Award that is assumed or replaced, such
assumed or replaced awards shall provide that the Restrictions
shall lapse for any
Participant that is involuntarily terminated (for a reason other
than “Cause”) or quits for “Good Reason” within 24 months of the
Change in Control. For purposes of this paragraph, the terms
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“Change in Control”, “Cause” and “Good Reason” are defined in
the 2006 Incentive Plan; |
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(iii) |
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Upon termination of Grantee’s employment by Motorola or
a Subsidiary by Total and Permanent Disability. “Total and
Permanent Disability” means for (x) U.S. employees, entitlement to
long term disability benefits under the Motorola Disability Income
Plan, as amended and any successor plan or a determination of a
permanent and total disability under a state workers compensation
statute and (y) non-U.S. employees, as established by applicable
Motorola policy or as required by local regulations; or |
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(iv) |
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If the Grantee dies. |
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b. |
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In the case of Retirement, Involuntary Termination due to (i) a
Divestiture or (ii) for a reason other than for Serious Misconduct before the
expiration of the Restriction Period, if the Units have not been forfeited as
described in Section 2 above, then the Restrictions shall lapse on a pro rata
basis determined by dividing (i) the number of completed full years of service
by the Grantee from the Award Date to the employee’s date of termination by
(ii) the total length of the Restriction Period. |
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c. |
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“Retirement” for purposes of this Agreement means: |
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(i) |
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Retiring at or after age 55 with 20 years of service, |
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(ii) |
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Retiring at or after age 60 with 10 years of service; and |
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(iii) |
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Retiring at or after age 65, without regard to service. |
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“Termination due to a Divestiture” for purposes of this Agreement means
if you accept employment with another company in direct connection with the
sale, lease, outsourcing arrangement or any other type of asset transfer or
transfer of any portion of a facility or any portion of a discrete
organizational unit of Motorola or a Subsidiary, or if you remain employed by a
Subsidiary that is sold or whose shares are distributed to the Motorola
stockholders in a spin-off or similar transaction (a “Divestiture”). |
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e. |
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“Serious Misconduct” for purposes of this Agreement means any
misconduct identified as a ground for termination in the Motorola Code of
Business Conduct, or the human resources policies, or other written policies or
procedures |
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f. |
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If, during the Restriction Period, the Grantee takes a Leave of Absence
from Motorola or a Subsidiary, the Units will continue to be subject to this
Agreement. If the Restriction Period expires while the Grantee is on a Leave
of Absence the
Grantee will be entitled to the Units even if the Grantee has not returned
to active employment. “Leave of Absence” means an approved leave of absence
from |
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Motorola or a Subsidiary that is not a termination of employment, as
determined by Motorola. |
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g. |
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To the extent the Restrictions lapse under this Section 3 with respect
to the Units, they will be free of the terms and conditions of this Award. |
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Adjustments. If the number of outstanding shares of Common Stock is changed as a
result of a stock split or the like without additional consideration to the Company, the
number of Units subject to this Award shall be adjusted to correspond to the change in the
outstanding shares of Common Stock |
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Dividends. No dividends (or dividend equivalents) shall be paid with respect to
Units credited to the Grantee’s account. |
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Delivery of Certificates or Equivalent. Upon the lapse of Restrictions
applicable to the Units, the Company shall, at its election, either (i) deliver to the
Grantee a certificate representing a number of shares of Common Stock equal to the number
of Units upon which such Restrictions have lapsed, or (ii) establish a brokerage account
for the Grantee and credit to that account the number of shares of Common Stock of the
Company equal to the number of Units upon which such Restrictions have lapsed plus. |
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Withholding Taxes. The Company is entitled to withhold applicable taxes for the
respective tax jurisdiction attributable to this Award or any payment made in connection
with the Units. Grantee may satisfy any withholding obligation in whole or in part by
electing to have Motorola retain shares of Common Stock deliverable in connection with the
Units having a Fair Market Value on the date the Restrictions applicable to the Units
lapse equal to the minimum amount required to be withheld. “Fair Market Value” for this
purpose shall be the closing price for a share of Common Stock on the last trading day
before the date the Restrictions applicable to the Units lapse as reported for the New
York Stock Exchange- Composite Transactions in the Wall Street Journal, Midwest edition. |
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Voting and Other Rights. |
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a. |
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Grantee shall have no rights as a stockholder of the Company in
respect of the Units, including the right to vote and to receive cash
dividends and other distributions until delivery of certificates
representing shares of Common Stock in satisfaction of the Units. |
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b. |
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The grant of Units does not confer upon Grantee any right to
continue in the employ of the Company or a Subsidiary or to interfere with
the right of the Company or a Subsidiary, to terminate Grantee’s employment
at any time. |
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Consent to Transfer Personal Data. By accepting this award, you voluntarily
acknowledge and consent to the collection, use, processing and transfer of personal data
as described in this paragraph. You are not obliged to consent to such collection, use,
processing and transfer of personal data. However, failure to provide the consent may
affect your ability to participate
in the Plan. Motorola, its Subsidiaries and your employer hold certain personal
information about you, that may include your name, home address and telephone number,
date of birth, |
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social security number or other employee identification number, salary
grade, hire data, salary, nationality, job title, any shares of stock held in Motorola,
or details of all restricted stock units or any other entitlement to shares of stock
awarded, canceled, purchased, vested, or unvested, for the purpose of managing and
administering the Plan (“Data”). Motorola and/or its Subsidiaries will transfer Data
amongst themselves as necessary for the purpose of implementation, administration and
management of your participation in the Plan, and Motorola and/or any of its
Subsidiaries may each further transfer Data to any third parties assisting Motorola in
the implementation, administration and management of the Plan. These recipients may be
located throughout the world, including the United States. You authorize them to
receive, possess, use, retain and transfer the Data, in electronic or other form, for
the purposes of implementing, administering and managing your participation in the Plan,
including any requisite transfer of such Data as may be required for the administration
of the Plan and/or the subsequent holding of shares of stock on your behalf to a broker
or other third party with whom you may elect to deposit any shares of stock acquired
pursuant to the Plan. You may, at any time, review Data, require any necessary
amendments to it or withdraw the consents herein in writing by contacting Motorola;
however, withdrawing your consent may affect your ability to participate in the Plan. |
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Nature of Award. By accepting this Award Agreement, the Grantee acknowledges his
or her understanding that the grant of Units under this Award Agreement is completely at
the discretion of Motorola, and that Motorola’s decision to make this Award in no way
implies that similar awards may be granted in the future or that you have any guarantee of
future employment. Nor shall this or any such grant interfere with Grantee’s right or the
Company’s right to terminate such employment relationship at any time, with or without
cause, to the extent permitted by applicable laws and any enforceable agreement between
Grantee and the Company. In addition, the Grantee hereby acknowledges that he or she has
entered into employment with Motorola or a Subsidiary upon terms that did not include this
Award or similar awards, that his or her decision to continue employment is not dependent
on an expectation of this Award or similar awards, and that any amount received under this
Award is considered an amount in addition to that which the Grantee expects to be paid for
the performance of his or her services. Grantee’s acceptance of this Award is voluntary.
The Award is not part of normal or expected compensation for purposes of calculating any
severance, resignation, redundancy, end of service payments, bonuses, long-service awards,
pension, or retirement benefits or similar payments, notwithstanding any provision of any
compensation, insurance agreement or benefit plan to the contrary, |
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Remedies for Breach. Grantee hereby acknowledges that the harm caused to the
Company by the breach or anticipated breach of paragraphs 2(c)(i), (ii), (iii), (iv)
and/or (v) of this Agreement will be irreparable and further agrees the Company may obtain
injunctive relief against the Grantee in addition to and cumulative with any other legal
or equitable rights and remedies the Company may have pursuant to this Agreement, any
other agreements between the Grantee and the Company for the protection of the Company’s
Confidential Information, or law, including the recovery of liquidated damages. Grantee
agrees that any interim or final equitable relief entered by a court of competent
jurisdiction, as specified in paragraph 14 below, will, at the request of the Company, be
entered on consent and enforced by any such court having jurisdiction over the Grantee.
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. |
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Acknowledgements. With respect to the subject matter of paragraphs 2(c)(i),
(ii), (iii), (iv) and (v) and paragraphs 11 and 14 hereof, this Agreement is the entire
agreement with the Company. No waiver of any breach of any provision of this Agreement by
the Company 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 14 below to be unenforceable, in whole or in part, the remainder of this
Agreement shall nevertheless be enforceable and binding on the parties. Grantee hereby
agrees 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, by accepting any Award under this Agreement, Grantee affirmatively states that
(s)he has not, will not and cannot rely on any representations not expressly made herein. |
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Funding. No assets or shares of Common Stock shall be segregated or earmarked by
the Company in respect of any Units awarded hereunder. The grant of Units hereunder shall
not constitute a trust and shall be solely for the purpose of recording an unsecured
contractual obligation of the Company. |
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Governing Law. All questions concerning the construction, validity and
interpretation of this Award shall be governed by and construed according to the law of
the State of Illinois without regard to any state’s conflicts of law principles. Any
disputes regarding this Award or Agreement shall be brought only in the state or federal
courts of Illinois. |
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Waiver. The failure of the Company to enforce at any time any provision of this
Award shall in no way be construed to be a waiver of such provision or any other provision
hereof. |
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Actions by the Compensation Committee. The Committee may delegate its authority
to administer this Agreement. The actions and determinations of the Compensation
Committee or delegate shall be binding upon the parties. |
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Acceptance of Terms and Conditions. By electronically accepting this Award
within 30 days after the date of the electronic mail notification by the Company to you of
the grant of this Award (“Email Notification Date”), you agree to be bound by the
foregoing terms and conditions, the 2006 Incentive Plan and any and all rules and
regulations established by Motorola in connection with awards issued under the 2006
Incentive Plan. If you do not electronically accept this Award within 30 days of the
Email Notification Date you will not be entitled to the Units. |
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Plan Documents. The 2006 Incentive Plan and the Prospectus for the 2006
Incentive Plan are available at xxxx://xxxx.xxx.xxx/xxxxxxxx/xxxxx_xxxxxxx/xxxxx.xxx or
from Global Rewards, 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 (847) 576-7885. |
