exv10w45



 








EXHIBIT 10.45




AGREEMENT




This is a complete and final Agreement between ADRIAN NEMCEK (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 and amends and consolidates the restrictive
covenants and remedies in all your prior Stock Option Agreements and Stock Option
Consideration Agreements. This Agreement has been individually negotiated and has
not been reached as part of a group incentive or other termination program.



In consideration for the payments and benefits provided under this Agreement, you
and Motorola agree to the following terms of your retirement from Motorola,
including the amendment and consolidation of the restrictive covenants and remedies
in all your prior Stock Option Agreements and Stock Option Consideration
Agreements:



1. RETIREMENT. You tender and Motorola accepts your retirement as an
employee, director or officer of Motorola and its subsidiaries and affiliates
effective as of June 30, 2006 (the “Retirement Date”). All your duties and
responsibilities shall end on that date. At Motorola’s request, you shall execute
any and all documents reasonably necessary to confirm your retirement as a director
and/or officer of Motorola and its subsidiaries and/or affiliates.



2. RETIREMENT ALLOWANCE. In return for the covenants made by you in this
agreement, Motorola will pay you a lump sum Retirement Allowance in the amount of
Seven Hundred Seventy-Five Thousand Seven Hundred Fifty-Two Dollars and No Cents
($775,752.00), 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 Retirement Allowance and other consideration under this
Agreement. At the time 2006 MIP bonuses, if any, and Long Range Incentive
Plan incentives for the 2005-2007 and 2006-2008 performance periods, if any, are
paid to active employees, you shall be eligible (notwithstanding your retirement as
of June 30, 2006) to receive pro rata bonuses or incentives under the terms of the
respective plans. Your individual performance factor for purposes of calculating
the pro rata 2006 MIP bonus shall be 1.0. Your pro rata LRIP incentive for the
2005-2007 and 2006-2008 performance periods, if any, shall be based solely on
business performance according to the terms of the plan, and shall not be reduced
for individual performance. You shall not be eligible for any 2007 MIP bonus or
any LRIP incentive other than for the performance periods identified above. Other
than as specified in this paragraph, the Retirement Allowance includes and exceeds
any paid time off that is unpaid as of your retirement. The Retirement Allowance
otherwise is in addition to any other amounts you are entitled to receive under any
of the Motorola Plans (as defined below) as of your Retirement Date.



3. CONSULTING SERVICES. Between July 1, 2006 and June 30, 2007, you shall
be available to provide general advice to the Motorola CEO, or his/her designee, as
they may reasonably request, consistent with your other commitments. Motorola
shall compensate you at a per diem rate of Two Thousand Five Hundred Dollars and No
Cents ($2,500.00) for such services, payable in half-day increments, and shall
reimburse you for reasonable travel expenses incurred in the course of performing
such services.



4. 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, unpaid Transition and Retirement Allowances and
any earned but unpaid consulting fees described in this Agreement. Payments or
benefits, if any, following your death under any of the Motorola Plans (as defined
below) shall be according to the terms of those plans and any elections and/or
beneficiary designations previously made by you thereunder.



5. BENEFIT AND COMPENSATION PLANS.



(a) The effect of your retirement 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, any applicable stock option plan and any restricted stock agreements
(collectively, with each Motorola benefit or compensation plan or program in which
you participated at any time during your employment with Motorola, referred to
herein as the “Motorola Plans”) shall be governed by the terms of those plans and
agreements, except as and unless otherwise explicitly provided herein. Except as
and unless explicitly provided herein, 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) Your retirement shall be treated as a “retirement” with respect to each of
your outstanding equity grants, bonuses, incentives and benefits and such treatment
affords you the most favorable treatment under the terms of the applicable Motorola
Plans.



(c) Benefits coverage in effect on your Retirement 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 June, 2007,
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 Retirement 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.



6. TRANSFER OF EQUIPMENT/OUTPLACEMENT. Effective on or within fourteen
days after your Retirement 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 Retirement 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.



7. NO DISPARAGEMENT.



(a) 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 testimony if
properly subpoenaed to testify under oath.



(b) Motorola agrees that neither Ed Zander, Ron Garriques, Greg Brown, Dan
Moloney, Stu Reed, Rich Nottenburg, Patty Morrison, Peter Lawson, Padmasree
Warrior, Ruth Fattori, David Devonshire, George Neill or Patrick Canavan, either
individually or on behalf of Motorola, will, 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 your good will, work product or business or employment
opportunities, or in any manner detrimental to you, though Motorola and its
officers, directors or employees on its behalf may give truthful testimony if
properly subpoenaed to testify under oath.



8. COOPERATION/INDEMNIFICATION. From your Retirement Date, and for as long
thereafter as shall be reasonably necessary, you agree to cooperate fully with
Motorola in any investigation, negotiation,



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litigation or other action arising out of transactions in which you were involved
or of which you had knowledge during your employment by Motorola. Motorola will
use reasonable efforts to provide you with reasonable advance notice of any such
required cooperation and will use reasonable efforts to schedule the time and
place of related required meetings or events in a manner consistent with your other
commitments. Should Motorola request your cooperation under this paragraph to
consult for more than five (5) business days during any twelve (12) consecutive
month period after June 30, 2006, Motorola shall compensate you at a per diem rate
of Two Thousand Five Hundred Dollars and No Cents ($2,500), payable in half-day
increments, in exchange for your time. If you incur any travel or other 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). Your right to indemnification provided by this paragraph shall be in
addition to and not in lieu of any other rights to indemnification you may now have
or in the future be entitled to under applicable law, Motorola’s certificate of
incorporation, by-laws, directors’ and officers’ insurance or by agreement.



9. RESTRICTIVE COVENANTS.



(a) You agree that during your employment and thereafter, you will not use or
disclose any Motorola Confidential Information, except on behalf of Motorola and
pursuant to its directions, or except as may otherwise be required by law or legal
process. Confidential Information means information concerning Motorola and its
business that is not generally known outside Motorola. Confidential Information
includes: (i) trade secrets; (ii) intellectual property; (iii) Motorola’s methods
of operation and Motorola processes; (iv) information regarding Motorola’s present
and/or future products, developments, processes and systems, including invention
disclosures and patent applications; (v) information on customers or potential
customers, including customer’s names, sales records, prices, and other terms of
sales and Motorola cost information; (vi) Motorola personnel data; (vii) Motorola
business plans, marketing plans, financial data and projections; and (viii)
information received in confidence by Motorola from third parties. Information
regarding products or technological innovations in development, in test marketing
or being marketed or promoted in a discrete geographic region, which information
Motorola or one of its affiliates is considering for broader use, shall not be
deemed generally known until such broader use is actually commercially implemented.
Nothing in this Agreement is intended to prohibit you from disclosing information
about Motorola, its customers, successors or assigns, or its affiliated entities,
or about its or their products, services or business opportunities that is not
confidential or proprietary. You shall give Motorola reasonable advance written
notice of your intent to disclose any confidential information obtained by you as a
result of your employment by Motorola.



(b) You agree that during your employment and for a period of two years following
your Retirement Date, you will not hire, recruit, solicit or induce, or cause,
allow, permit or aid others to hire, recruit, solicit or induce, or to communicate
in support of those activities, any employee of Motorola who possesses Confidential
Information of Motorola to terminate his/her employment with Motorola and/or to
seek employment with your new or prospective employer, or any other company.



(c) You agree that during your employment and for a period of two years following
your Retirement Date, you will not engage in activities which are entirely or in
part the same as or similar to activities in which you engaged at any time during
the two years preceding termination of your employment, for any person, company or
entity in connection with 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 you worked at any time during the two years preceding the date of
your retirement. This paragraph applies in the countries in which you have
physically been present performing work for Motorola at any time during the two
years preceding your retirement.



(d) You agree that for a period of two years following your Retirement Date, you
will not, directly or indirectly, on behalf of yourself or any other person,
company or entity, solicit or participate in soliciting,



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products or services competitive with or similar to products or services offered
by, manufactured by, designed by or distributed by Motorola to any person, company
or entity which was a customer or potential customer for such products or services
and with which you had direct or indirect contact regarding those products or
services or about which you learned Confidential Information at any time during the
two years prior to your retirement.



(e) You agree that for a period of two years following your Retirement Date, you
will not directly or indirectly, in any capacity, provide products or services
competitive with or similar to products or services offered by Motorola to any
person, company or entity which was a customer for such products or services and
with which customer you had direct or indirect contact regarding those products or
services or about which customer you learned Confidential Information at any time
during the two years prior to your retirement.



(f) Notwithstanding the above, Motorola agrees to waive the requirements of
paragraph 9(c) of this Agreement with respect to your service on the Hewlett
Packard Advisory Board and on the Board of Directors of IP Unity. Such waiver does
not extend to the requirements of paragraphs 9(a), (b), (d) or (e), which shall
remain in full force and effect.



10. 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,



11. RETURN OF MOTOROLA PROPERTY. You further agree to return to Motorola
by your Retirement 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.



12. 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 Retirement Date and June 30, 2008
(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.



13. BREACH OF AGREEMENT.



(a) You acknowledge that Motorola’s agreement to make the payments set forth
in Paragraph 2, 3 and 8 above is conditioned upon your faithful performance of your
obligations under this Agreement, and you agree to repay to Motorola all sums
received from Motorola under Paragraphs 2, 3 and 8, less Five Thousand Dollars
($5,000.00), if you breach any of your obligations under Paragraph 9 of this
Agreement. 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 retirement or anytime after your retirement, 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 9 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 16 below, will, at the request of Motorola, be entered on
consent and enforced by any such court having jurisdiction over you. This relief
would



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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 is your entire agreement with Motorola with respect to the
subject matter hereof, and it amends and consolidates all previous oral or written
understandings or agreements, if any, made by or with Motorola with respect to the
subject matter hereof. 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 16 below to be unenforceable, in whole or in
part, the remainder of this Agreement 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.



14. 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, except
as otherwise provided in this paragraph, 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 retirement 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;
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.” Notwithstanding the foregoing you understand that by
signing this General Release you are not releasing any claims or rights under the
Motorola Plans other than those known by you on or before your Retirement Date to
be disputed nor any claims or rights that cannot be waived by law, including the
right to file an administrative charge of discrimination, and that under no
circumstances shall this General Release release any claims or rights you may now
or at any time have to indemnification under the provisions of this Agreement or as
you may otherwise be entitled under applicable law, Motorola’s certificate of
incorporation, by-laws, directors’ and officers’ insurance or by agreement.



15. 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 Jill A. Goldy, Corporate Vice President, Law —
Labor and Employment, Motorola, Inc., 1303 East Algonquin Rd., Schaumburg, Illinois
60196. Any alterations to this Agreement must be in writing, signed by both
parties.



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16. 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.



17. NO MITIGATION/BINDING EFFECT. In no event shall you be obligated to
seek other employment or take ay other action to mitigate the amounts payable to
you or benefits to which you are entitled under any of the provisions of this
Agreement. This Agreement shall be binding on, and inure to the benefit of the
successors and assigns of Motorola and your successors, assigns, heirs and personal
representatives.



	 	 	 	 	 	 	 
	ADRIAN NEMCEK

	 	MOTOROLA, INC.
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Adrian Nemcek

	 	By:
	/s/ Ruth Fattori
	 
	 

	 	 
	 

	 	 	 	Executive Vice President, Human Resources
	 
	 	 	 	 
	 
	 	 	 	 
	Date:

	July 18, 2006
	 	Date:
	July 18, 2006
	 

	 
	 	 	 





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ATTACHMENT A




In consideration for the promises made by Motorola in the Agreement to which this
is Attachment A is attached and except as and unless otherwise provided herein, 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 retirement 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; 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.” Notwithstanding the
foregoing, you understand that by signing this General Release you are not
releasing any claims or rights under the Motorola Plans other than those known by
you on or before your Retirement Date to be disputed nor any claims or rights that
cannot be waived by law, including the right to file an administrative charge of
discrimination and that under no circumstances shall this General Release release
any claims or rights you may now or at any time have to indemnification under the
provisions of this Agreement or as you may otherwise be entitled to under
applicable law, Motorola’s certificate of incorporation, by-laws, directors’ and
officers’ insurance or by agreement. 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 Jill A. Goldy, Corporate Vice
President, Law — Labor and Employment, Motorola, Inc., 1303 East Algonquin Rd.,
Schaumburg, Illinois 60196.



	 	 	 	 
	Agreed to and accepted by:
	 
	 	 	 	 
	 

	 
	/s/ Adrian Nemcek	 

	 
	 	 

	 
	ADRIAN NEMCEK	 

	 
	 
	 	 	 	 
	 
	 	 	 	 
	Date:

	 	July 18, 2006
	 	 	 

	 
	(to be signed after June 30, 2006 and before July 30, 2006)

	 







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