AGREEMENT
EXHIBIT
10.51
This is a complete and final Agreement between XXXX XXXXXXX (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 January 11, 2008 (the “Transition Date”). Your
employment by Motorola shall continue through November 14, 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
Fourteen Thousand Six Hundred Twelve Dollars and No Cents ($414,612.00)
(“Transition Allowance”). Motorola also will pay you a lump sum Separation
Allowance in the amount of One Hundred Ninety-Seven Thousand Eight Hundred
Eighty-Eight Dollars and No Cents ($197,888.00), 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 include and exceed any paid time off, bonuses, or any
other amounts that are unpaid as of your Separation Date. You will not be
eligible for an MIP bonus for the 2008 performance year or for any LRIP bonus
for the 2006-2008 or 2007-2009 performance periods, pursuant to the terms of the
2006 Long Range Incentive Plan. 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, the Xxxx X. Xxxxxxx Revocable Trust dated May
10, 2006 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) 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.
(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.
(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
April, 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. 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. If you are eligible for coverage under the Motorola
Post-Employment Health Benefits Plan or any restated or successor plan (the
“Retiree Plan”), you may apply for such coverage, provided that you make an
election for such coverage, in accordance with the terms and conditions for such
coverage under the Retiree Plan. You may wait until the end of the period of
continued Medical Plan coverage provided for in this Agreement before electing
to begin coverage under the Retiree Plan. Note that if you commence coverage
under the Retiree Plan before you have exhausted the continued Medical Plan
coverage provided for in this Agreement, the continued Medical Plan coverage
will end.
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. 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. 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.
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.
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, 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.
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
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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 November 14, 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, 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 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
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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.
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.
| XXXX XXXXXXX | MOTOROLA, INC. | |||||||
/s/ Xxxx X. Xxxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxx
|
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Date:
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December 20, 2007
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Date: | December 20, 2007
|
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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 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. 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:
|
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(to be signed after November 14, 2008 and before December 14, 2008)
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