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Exhibit 10.19 to Motorola, Inc.'s Form 10-K
for the year ended December 31, 2000
CONSULTANT AGREEMENT
This Consultant Agreement is effective beginning February 15, 2001
("Agreement") between Motorola, Inc., for itself, its subsidiaries and
affiliates and anyone acting for it ("Motorola") and Xxxx Xxxxxx, an individual,
for yourself, your spouse, heirs, and anyone acting for you or for your estate
("You"). In exchange for each party's promises, you and Motorola agree as
follows:
1. SERVICES. You will perform the services at the compensation rates set forth
on Exhibit A, with direction from Xxxxx Xxxxxx, or the person he designates.
Motorola can perform these services itself or to select others to perform them
for any reason. You will perform all services under this Agreement as an
independent contractor and not as an employee or agent of Motorola. You are
solely responsible to pay or withhold your own taxes (including without
limitation income, social security and unemployment taxes), provide any workers
compensation or any other insurance for yourself, and to fulfill all obligations
relating to those activities. This arrangement is not a joint venture,
partnership or formal business organization of any kind. You cannot make
commitments of any kind on behalf of Motorola without prior Motorola consent,
and vice versa.
2. TERM AND TERMINATION. The term of this Agreement is from February 15, 2001
through December 31, 2001. You or Motorola may terminate this Agreement for any
reason after thirty (30) days written notice. Should you or Motorola commit a
serious breach of the Agreement, or if you or Motorola cannot perform your
respective commitments under the Agreement because of insolvency, the other
party may terminate the Agreement immediately. Your promises in Paragraphs 4,
11, 13, 16 and 17 will remain in force even after termination of the Agreement,
as will any other provisions where the parties intended a commitment to last
beyond the term of the Agreement. All other obligations will cease on the
termination date.
3. PRIOR AGREEMENTS WITH MOTOROLA/MOTOROLA BENEFITS. Because you are a former
employee of Motorola, certain agreements you signed during your employment,
e.g., Stock Option Agreements (containing non-competition provisions), and
agreements for the protection of Motorola's confidential and proprietary
information, continue in force, even though you and Motorola have also entered
into this Agreement. You will not earn any new service credit under the various
Motorola compensation and benefit plans (the "Motorola Plans") during the term
of this Agreement and no fees you earn under this Agreement will count as
compensation under any of the Motorola Plans.
4. GENERAL RELEASE. You release Motorola from any and all legal claims to date
arising from your employment or your separation from employment with Motorola,
whether or not you currently know about them or are presently asserting them.
The claims you are releasing include, but are not limited to, breach of
contract; wrongful termination, defamation, or other common law matters; or
claims of discrimination based on race, sex, age (Age Discrimination in
Employment Act), race, religion, national origin, disability or any other
legally protected status. You are not releasing any rights to benefits under the
Motorola Plans that vested or accrued prior to your retirement, nor are you
waiving any other claims or rights which cannot be waived by law, including the
right to file an administrative charge of discrimination.
5. COOPERATION/INDEMNIFICATION. For as long as reasonably necessary, you agree
to cooperate fully with Motorola in any investigation, negotiation, litigation
or other action arising out of situations in which you were involved or knew
about during your employment. Motorola will indemnify you for judgments,
penalties, settlements and reasonable defense costs for any actual or threatened
investigation, negotiation, litigation or other action arising from your
Motorola employment to the full extent elected officers may be indemnified under
Motorola's Certificate of Incorporation, as it may be restated or amended from
time to time.
6. NO SOLICITATION. You agree that for two years from the date you retired from
Motorola, you will not recruit, solicit, induce or cause, allow, permit aid or
encourage others to recruit, solicit or induce, any Motorola employee to
terminate his/her employment with Motorola and/or to seek employment with any
other employer.
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7. OBLIGATION TO INFORM MOTOROLA. You agree to immediately inform Motorola of
(i) the identity of any new employment, start-up business or self-employment
after your Motorola retirement date (ii) your title, and (iii) your duties and
responsibilities. You will provide additional information when reasonably
requested by Motorola to determine if you are complying with this Agreement. You
authorize Motorola to give a copy of this Agreement to your new employer, or
other entity or business you are associated with.
8. PROTECTION OF MOTOROLA'S BUSINESS. You will not use your knowledge of
Motorola's business for the benefit of any other person or entity or divulge
Motorola's confidential information (as defined below). In good faith, you will
protect Motorola's good will.
9. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION. You agree to all of the
following provisions for the protection of Motorola's intellectual property. In
this Agreement, the term, "invention," includes innovations and ideas, reflected
in any form, and the term, "confidential information," means all business,
financial, scientific, technological and legal information or data, and trade
secrets, in any form, regardless of how you learned it, that relates directly or
indirectly to Motorola's past, present or future business, and that is not
available to the general public. Confidential information includes information
or data listed in footnote 1.
a. You will not disclose to or use in any work performed for Motorola
any confidential information belonging to others, unless Motorola is
otherwise entitled to learn or use it.
b. Except as required to perform services under this Agreement, you
will not use, publish or otherwise disclose to others any confidential
information of Motorola or its customers or suppliers, and will take
all reasonable precautions to prevent improper disclosure.
c. When your work for Motorola ends, you will promptly deliver to the
designated Motorola representative all Motorola-related documents and
other records, and all other Motorola property and materials.
d. All services you perform and all work you prepare which is eligible
for copyright protection in any country shall be deemed work made for
hire and become the sole intellectual property of Motorola. If deemed
not to be a work made for hire, you assign all right, title and
interest in the copyright (including extensions and renewals) in such
work to Motorola. At Motorola's expense, but without additional
compensation to you, you will provide Motorola all the assistance it
reasonably requests to establish, preserve and enforce its copyright in
such work. You waive all moral rights relating to the work, including
without limitation rights of identification of authorship, and rights
of approval, restriction or limitation on use or subsequent
modifications.
e. You assign to Motorola, as its exclusive property, your entire
right, title and interest in all of those inventions you (with or
without others) developed or conceived during and after your work for
Motorola, if they: (a) are made with, in whole or in part, Motorola's
equipment, supplies, facilities, trade secrets, or confidential
information; or (b) relate to Motorola's business or to Motorola's
actual or demonstrably anticipated research or development; or (c)
result from any work you performed for Motorola.
f. You will make and maintain written records of all inventions
referred to above and will promptly submit those records and make
supplemental disclosures to Motorola.
g. At Motorola's request and expense, you will do everything necessary,
even after the term of this Agreement, to help Motorola or its nominees
obtain patents, copyrights and legal protection for inventions in any
country.
h. All inventions, confidential information, notes, drawings, designs,
memoranda, computer programs or other data prepared or produced in the
performance of your work for Motorola shall be the sole property of
Motorola, and shall not be disclosed to anyone outside of Motorola.
i. Neither party shall have the right under this Agreement to use the
name, trademarks or trade names of the other without prior written
approval.
j. You may disclose information that is not confidential information,
provided that you give Motorola reasonable advance written notice of
your intent to do so, so that Motorola has the chance to object before
you disclose information Motorola reasonably believes to be protected.
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10. RECORDS, REPORTS AND INFORMATION. You agree to give Motorola reports about
the services you perform under this Agreement, in the form, and with the content
and timing specified by Motorola.
11. CONFLICT OF INTEREST/CODE OF BUSINESS CONDUCT. Legal and ethical business
conduct is a priority for Motorola, as reflected in the Code of Business Conduct
("COBC") that applies to Motorola employees. Even though you will provide
services under this Agreement as an independent contractor, you agree to abide
by the COBC. Failure to comply with the COBC is grounds for Motorola to
terminate this Agreement immediately.
12. FORCE MAJEURE. Under this Agreement, "force majeure" means an occurrence
beyond the reasonable control of the party affected (e.g., government actions,
natural disasters, wars, accidents, or strikes) which prevents or delays that
party from performing its obligations under this Agreement. To be excused from
performing obligations under the Agreement because of force majeure, the party
claiming force majeure must promptly inform the other party in writing at the
beginning and end of the period of force majeure.
13. COMPLIANCE WITH LAWS AND PROCEDURES. You will comply independently and in
all respects with all applicable foreign, federal, state and local laws,
ordinances, rules, regulations and orders, including those for public health or
environmental protection, equal employment opportunity, and affirmative action.
You will indemnify Motorola and hold it harmless if you violate this promise.
14. PROPERTY. You are responsible to care for all property Motorola provides you
without charge, even though Motorola is the sole owner of the property. You will
pay for all property lost, damaged or destroyed by you.
15. SECURITY. You will comply with all applicable Motorola security regulations.
16. USE OF MOTOROLA COMPUTER RESOURCES. You will comply with Motorola's policy
SOP E-62 regarding appropriate use of computer resources. A copy is attached as
Exhibit B.
17. MISCELLANEOUS.
a. You agree that you are signing this Agreement knowingly and
voluntarily, without coercion, threats or extra promises.
b. You or Motorola may insist on strict performance of any provision of
this Agreement, even though either you or Motorola may not have
insisted on strict performance of that same provision at an earlier
time in the same or similar circumstances.
c. You may not sell, transfer or assign any interests or rights under
this Agreement (by operation of law or otherwise). You may not delegate
your duties or responsibilities under this Agreement to any person,
business or entity. An attempt to do anything prohibited by this
paragraph is automatically void.
d. If Motorola pays any claim you have against it under this Agreement,
that payment may be recouped and/or set off against any present or
future claims that Motorola may have against you.
e. The terms of this Agreement are confidential and you promise not to
disclose any of its terms to any third party except your immediate
family and your financial and legal counsel.
f. You and Motorola will attempt to settle any claim or controversy
through good faith negotiation and with mutual cooperation. You and
Motorola will settle any disputes involving this Agreement (other than
disputes involving intellectual property) through mediation or other
form of alternate dispute resolution. However, Motorola may resort to
judicial proceedings if it deems interim relief from a court is
necessary to prevent serious and irreparable injury.
g. All communications to be transmitted from either party to the other
party under this Agreement must be in writing and must be hand
delivered (and deemed received upon receipt), or sent by facsimile or
courier (and deemed received upon receipt or rejection by the
addressee), addressed as follows or to any new address which has been
communicated in writing: if to Motorola: Motorola, Inc., 0000 Xxxx
Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000, Fax No. (000) 000-0000, Attn: A.
Xxxxx Xxxxxx, General Counsel.
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h. If any provision(s) of this Agreement is/are held to be
unenforceable, this Agreement shall be interpreted as if the
unenforceable provision(s) are not part of the Agreement; you and
Motorola will negotiate in good faith to replace the unenforceable
provision.
i. This Agreement will be construed according to the internal laws, but
not the laws of conflicts, applicable to agreements made in Illinois,
USA.
j. You agree that you have had sufficient time (at least 21 days) to
consider this Agreement and were advised to consult with an attorney,
if desired, before signing below. This Agreement will become effective
seven calendar days after you sign it, during which time you can revoke
it, by delivering a signed revocation letter within the seven-day
period to A. Xxxxx Xxxxxx, Executive Vice President and General
Counsel, Motorola, Inc., 0000 X. Xxxxxxxxx Xx., 00xx Xxxxx, Xxxxxxxxxx,
XX 00000.
k. Except where otherwise specified, this Agreement and Exhibits, is
the final, complete and exclusive expression of the agreement between
you and Motorola. Except where otherwise specified, this Agreement
supersedes and nullifies all prior and concurrent communications and
purchase orders, invoices, acknowledgements and agreements that may
have been made in connection with the same subject matter, even if
signed by you and Motorola. Any alterations to this Agreement must be
in writing, signed by both parties.
IN WITNESS WHEREOF, the parties have signed this Agreement.
XXXX XXXXXX MOTOROLA, INC.
/s/ Xxxxxxxxx X. Xxxxxx /s/ Xxxxxxxxxxx X. Xxxxxx
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(Not to be signed before your By: Xxxxxxxxxxx X. Xxxxxx
Motorola retirement date) Chairman of the Board and Chief
Executive Officer
February 16, 2001 February 16, 2001
--------------------------------- ----------------------------------
(Date) (Date)
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EXHIBIT A
CONSULTING SERVICES/CONSULTING FEES SUBJECT TO THIS AGREEMENT
Services
You shall perform consulting services as directed by Xxxxx Xxxxxx, Motorola
Chairman and Chief Executive Officer, or his designee. These may include, but
are not limited to, executive coaching, teaching at the Motorola Vice President
Institute, and representing Motorola at the CART races, and other like events.
You agree to be accessible within 48 hours of any request to perform services
under this Agreement. You agree to work a minimum of 40 days during the term of
this Agreement.
Fees and Expenses
Motorola will pay you a retainer as follows:
February 15, 2001: $25,000
April 15, 2001: $50,000
July 15, 2001: $50,000
October 15, 2001: $50,000
Motorola will reimburse all your necessary and actual travel expenses, including
first class airfare, incurred in performing duties under this Agreement,
provided that Motorola receives an itemized list of all expenses incurred,
including the receipts therefor, which are to be reimbursed.
Motorola also agrees to provide the following at Motorola's expense:
o Use of the corporate aircraft, where appropriate;
o The services of Corporate Security, as needed and approved by
Xxxxx Xxxxxx or his designee;
o Part-time administrative services;
o Part-time IT services; and
o Continued use of your Motorola financial planning advisor
through December 31, 2001.
Motorola will pay no costs greater than those in this Exhibit A without its
prior written consent.
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