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EXHIBIT 10.6
FORM OF
PROPEL, INC.
EMPLOYEE MATTERS AGREEMENT
This Employee Matters Agreement ("Agreement") is entered into on
______________, 2000 by and among Motorola, Inc., a Delaware corporation
("Motorola"), and Propel, Inc., a Delaware corporation ("Propel" and together
with Motorola, the "Parties").
WHEREAS, the Parties have entered into the Master Separation Agreement
dated _________, 2000 (the "Separation Agreement") providing for, among other
things, the transfer from Motorola to Propel of the Propel Business (as defined
in the Separation Agreement); and
WHEREAS, certain persons who work in or are assigned to the Propel
Business who are directly employed by Motorola or its Affiliates shall become
employees of Propel or its Affiliates pursuant to this Agreement or pursuant to
the operation of local laws; and
WHEREAS, the Parties hereto wish to set forth their agreement as to
certain matters regarding the treatment of, and the employee benefits provided
to, the employees of Propel;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and the Separation Agreement, the Parties agree as
follows:
I. DEFINITIONS
Except as otherwise expressly provided herein, all capitalized terms
used herein shall have the respective meanings assigned to them in the
Separation Agreement. In addition, the following terms, as used herein, shall
have the following meanings:
1.1 "EFFECTIVE DATE" shall have the meaning ascribed to it in the
Master Separation Agreement and for purposes of this Agreement shall commence at
12:01 a.m. on that date.
1.2 "NON-U.S. PROPEL EMPLOYEE" shall mean each person who is (i) an
employee of Motorola or its Affiliates, (ii) assigned to the Propel Business,
and (iii) on a non-U.S. payroll immediately prior to the Effective Date,
including all persons on approved personal leave, long-term disability leave,
short-term disability leave or workers' compensation-related leave immediately
prior to the Effective Date. Each such person shall be listed on Appendix A-3.
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1.3 "PROPEL EMPLOYEE" shall include all U.S. Propel Employees, U.S.
Propel Inactive Employees and Non-U.S. Propel Employees, other than Phoebe Wood.
1.4 "U.S. PROPEL EMPLOYEE" shall mean each person who is (i) an
employee of Motorola or its Affiliates, (ii) assigned to the Propel Business,
and (iii) on a U.S. payroll immediately prior to the Effective Date, including
all persons on approved personal leave other than long-term disability leave,
short-term disability leave or workers' compensation-related leave immediately
prior to the Effective Date, other than Phoebe Wood. Each such person shall be
listed on Appendix A-1.
1.5 "U.S. PROPEL INACTIVE EMPLOYEE" shall mean each person who is
(i) an employee of Motorola or its Affiliates, (ii) assigned to the Propel
Business, (iii) on a U.S. payroll immediately prior to the Effective Date, but
is absent from active service with Motorola or its Affiliates by reason of such
employee's being on short-term disability, long-term disability or workers'
compensation-related leave immediately prior to the Effective Date, other than
Phoebe Wood. Each such person shall be listed on Appendix A-2.
II. U.S. PROPEL EMPLOYEE MATTERS
2.1 U.S. PROPEL EMPLOYEES. On the Effective Date, Propel will hire
each person listed on Appendix A-1, which persons have received and accepted
offers of employment from Propel.
2.2 COMPENSATION. As of the Effective Date, Propel will commence
compensating each U.S. Propel Employee at an annual base wage or base salary
rate which is not less than that provided by Motorola or its Affiliate, as
applicable, immediately prior to the Effective Date. Propel shall maintain the
employee benefit plans and programs set forth on Appendix B-1 for a period of
two years following the Effective Date, which employee benefit plans and
programs are substantially comparable to the comparable Motorola plans and
programs.
2.3 CONTINUED EMPLOYMENT; SEVERANCE. For a period of one year
following the Effective Date, Propel will use its commercially reasonable
efforts to continue to provide employment for the U.S. Propel Employees.
Notwithstanding the foregoing, if Propel determines in good faith that any U.S.
Propel Employee fails to meet Propel's performance standards, Propel will no
longer be obligated to provide such employment. If any U.S. Propel Employee is
terminated by Propel (other than for Cause, as such term is defined below)
within one year of the Effective Date, Propel will provide such employee with a
severance payment consistent with the terms and conditions set forth on Appendix
C. Propel shall recognize service with Motorola or any of its Affiliates based
on Motorola's service club dates for purposes of calculating such severance
payment. For purposes of this Agreement, "Cause" shall mean poor performance or
any misconduct identified as a ground for termination in Propel's human
resources policies, code of business conduct or other written policies or
procedures.
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2.4 VACATION.
(a) On the Effective Date, Propel shall assume and on a timely
basis shall perform, satisfy and discharge all liabilities with respect to
vacation of the U.S. Propel Employees. Propel shall continue to apply the
vacation policy of Motorola that is in effect immediately prior to the
Effective Date for at least the remainder of the calendar year in which the
Effective Date occurs, so that each U.S. Propel Employee shall be entitled
to use any vacation time or receive any vacation pay to which he or she
would otherwise be entitled for that calendar year under the vacation
policy of Motorola applicable immediately prior to the Effective Date.
Propel shall recognize service with Motorola and any of its Affiliates for
purposes of determining an individual's entitlement to vacation. Motorola
shall not, as the result of entering into this Agreement, be required to
pay out accrued vacation to any U.S. Propel Employee or be required to
reimburse Propel for any such payment.
(b) With respect to each U.S. Propel Employee who participates
in the Motorola "Attendance Bonus Plan," on the payroll date immediately
following the Effective Date, Motorola shall make a cash lump sum payment
to such U.S. Propel Employee with respect to such Employee's accrued
benefit under that plan, which payment shall be subject to customary
withholding for federal, state and local taxes.
2.5 RESPONSIBILITY FOR EMPLOYEES. For U.S. Propel Employees, Propel
shall assume and thereafter pay, perform and discharge any and all employment,
compensation and employee benefit liabilities, responsibilities and obligations
of Motorola and any of its Affiliates including, without limitation, any and all
claims of employment discrimination under any local, state, or federal law or
ordinance, including, without limitation, Title VII of the Civil Rights Act of
1964, as amended; the Civil Rights Act of 1991; the Americans with Disabilities
Act of 1990; the Age Discrimination in Employment Act of 1967, as amended by the
Older Workers Benefit Protection Act of 1990; and Section 510 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), which liabilities,
responsibilities and obligations are incurred as the result of incidents
incurred on or after the Effective Date, regardless of whether claims are made
or reported on or after the Effective Date. To the extent that Propel cannot
directly assume any liability, responsibility or obligation, and Motorola or any
employee benefit plan maintained by Motorola thereby directly or indirectly
incurs costs, liabilities or obligations, Propel shall reimburse or indemnify
Motorola for any and all such costs and liabilities immediately upon the demand
of Motorola. Motorola shall remain liable and shall pay, perform and discharge
any and all employment, compensation and employee benefit liabilities,
responsibilities and obligations of Motorola and any of its Affiliates
including, without limitation, any and all claims of employment discrimination
under any local, state, or federal law or ordinance, including, without
limitation, Title VII of the Civil Rights Act of 1964, as amended; the Civil
Rights Act of 1991; the Americans with Disabilities Act of 1990; the Age
Discrimination in Employment Act of 1967, as amended by the Older Workers
Benefit Protection Act of 1990; and Section 510 of ERISA, which liabilities,
responsibilities and obligations are incurred as the result of incidents
incurred prior to the Effective Date, regardless of whether claims are made or
reported as of the Effective Date.
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2.6 U.S. EMPLOYEES ON LEAVE.
(a) Any U.S. Propel Inactive Employee shall be terminated by
Motorola and hired by Propel effective upon such person's ability to return
to active full-time or part-time service as determined under the applicable
Motorola disability plan; provided, that, for the period prior to such
return to active service, such person shall remain a Motorola employee,
covered under the employee benefit plans sponsored by Motorola and Motorola
shall remain responsible for all employee benefit obligations accrued or
incurred by or payable to such person during such period, and the rights of
any such person and his dependents with respect to employment, compensation
and benefits shall be determined by the terms and conditions of employment
applicable immediately prior to the Effective Date and the terms of the
employee benefit plans maintained by Motorola immediately prior to the
Effective Date (as they may be amended from time to time by Motorola).
Motorola shall inform Propel within a reasonable period of time of the
ability of a U.S. Propel Inactive Employee to return to work.
(b) As of the date of hire by Propel, such U.S. Propel Inactive
Employee shall become a U.S. Propel Employee and shall receive or be
entitled to all of the benefits of this Agreement provided to the U.S.
Propel Employees who were actively at work on the Effective Date, unless
prohibited by law or the terms of a U.S. Propel Plan; provided that with
respect to each such U.S. Propel Inactive Employee, Sections 2.2 through
2.15 and Sections 4.1 through 4.5 and Sections 5.1 through 5.11 of this
Agreement shall be read as if the date of hire were substituted for the
Effective Date; provided further that Section 4.2 of this Agreement shall
be further read as if the average high and low price as of the date of hire
were substituted for the initial public offering price.
2.7 SPONSORSHIP OF U.S. EMPLOYEE BENEFIT PLANS. Propel shall
establish employee benefit plans in accordance with the terms of this Agreement
and as set forth on Appendix B-1 (collectively, the "U.S. Propel Plans"). Propel
shall, and shall cause its Affiliates to, honor and provide for payment of
benefits and compensation under all U.S. Propel Plans in accordance with their
terms, as amended from time to time, and subject to the terms of this Agreement.
Propel shall pay the employer portion of any liabilities and expenses with
respect to the U.S. Propel Plans.
2.8 SERVICE CREDIT. Except as provided in Section 2.12 hereof, Propel
shall, and shall cause its Affiliates to, provide each U.S. Propel Employee with
full credit for service with Motorola, its Affiliates and the controlled group
of companies (as defined in Section 414 of the Code) of which Motorola is a
member or was a member for all purposes (other than pension benefit accrual)
under the U.S. Propel Plans.
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2.9 401(K) PLAN.
(a) Immediately prior to the Effective Date, the U.S. Propel
Employees shall cease to participate in the Motorola, Inc. 401(k) Profit
Sharing Plan (the "Motorola 401(k) Plan") and shall be eligible to commence
participation in the Propel 401(k) Savings and Retirement Plan (the "Propel
401(k) Plan") on the Effective Date.
(b) As soon as is reasonably practicable following the
Effective Date, Motorola shall cause a trust-to-trust transfer of account
balances (including any outstanding loans) related to the U.S. Propel
Employees and the U.S. Propel Inactive Employees from the Motorola 401(k)
Plan to the Propel 401(k) Plan in accordance with the 401(k) Plan Transfer
Agreement to be entered into between the Parties; provided, however, that
such transfer shall not take place prior to January 1, 2001.
(c) If, following the end of the 2000 Plan Year, Motorola
determines that a Profit Sharing Contribution (as defined in the Motorola
401(k) Plan) is payable to the Motorola 401(k) Plan pursuant to the terms
of the Motorola 401(k) Plan, then subject to all legal or other applicable
limits, Motorola shall make a Profit Sharing Contribution to the Motorola
401(k) Plan in accordance with the terms of the Motorola 401(k) Plan and
the pro rata share of such contribution attributable to the contributions
of the U.S. Propel Employees (up to 6% of pay for the period of January 1,
2000 through the Effective Date) determined under Section 10.4(e) of the
Motorola 401(k) Plan shall be directly transferred to the Propel 401(k)
Plan no later than April 30, 2001 and shall be invested in accordance with
the U.S. Propel Employees election in the Propel 401(k) Plan as of the date
of transfer; provided that if such contributions are made prior to the
transfer described in clause (b) above, such contributions shall be part of
the trust-to-trust transfer and no separate transfer shall be made.
2.10 MOTOROLA PENSION PLAN.
(a) Immediately prior to the Effective Date, the U.S. Propel
Employees shall cease to actively participate in the Motorola, Inc. Pension
Plan (the "Motorola Pension Plan").
(b) Motorola shall take any and all necessary action to cause
the accrued benefits of all U.S. Propel Employees who are participants in
the Motorola Pension Plan to become fully vested and nonforfeitable as of
the date Propel ceases to be a Subsidiary (as defined in the Motorola
Pension Plan). Notwithstanding any other provision of this Agreement to the
contrary, Motorola shall take any and all necessary action to cause the
accrued benefits for all U.S. Propel Inactive Employees to become fully
vested and nonforfeitable on the later of (i) the date Propel ceases to be
a Subsidiary (as defined in the Motorola Pension Plan) of Motorola, or (ii)
the date each U.S. Propel Inactive Employee is hired by Propel in
accordance with Section 2.6 hereof.
(c) As soon as practicable after the date Propel ceases to be a
Subsidiary (as defined in the Motorola Pension Plan) of Motorola, Motorola
shall cause
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the Motorola Pension Plan to (i) inform the U.S. Propel Employees who are
participants in such plan of their rights thereunder; and (ii) permit the
U.S. Propel Employees who participate in the portable portion of the
Motorola Pension Plan to elect to take distributions from such plan. Propel
shall cause the administrative committee of the Propel 401(k) Plan to take
any and all necessary action to permit the U.S. Propel Employees, if
requested by them, to roll over their distributions from the Motorola
Pension Plan to the Propel 401(k) Plan.
2.11 HEALTH AND DENTAL PLANS. As of the last day of the calendar month
in which the Effective Date occurs, the U.S. Propel Employees shall cease to
participate in the Motorola, Inc. Employee Medical Benefits Plan (the "Motorola
Medical Plan") and the Motorola Employee Dental Benefits Plan (the "Motorola
Dental Plan") and as promptly as possible after the Effective Date, but in no
event later than the last day of the calendar month in which the Effective Date
occurs, Propel shall provide each U.S. Propel Employee with the option to elect
medical and dental coverage with benefit and employee cost sharing provisions
which are comparable to those provided to such U.S. Propel Employee by Motorola
immediately prior to the Effective Date and, with respect to the medical plan
maintained by Propel, Propel shall waive any waiting period, pre-existing
condition and actively-at-work requirements to the same extent that such period,
conditions and/or requirements are not applicable to or have been satisfied by
such U.S. Propel Employees immediately prior to the Effective Date under the
Motorola Medical Plan. Motorola shall remain liable for all eligible expenses
incurred by the U.S. Propel Employees under the Motorola Medical Plan and the
Motorola Dental Plan prior to the Effective Date, whether or not such claims are
reported on or after such date (but prior to the last date when such claims can
be made under the applicable Motorola plans). Except as provided below, Propel
shall be liable for all medical, dental, vision, hearing and prescription drug
expenses incurred by the U.S. Propel Employees on and after the Effective Date.
The medical plan maintained by Propel shall provide that any claims incurred
before the Effective Date by a U.S. Propel Employee (and his dependents) during
the calendar year of the Effective Date shall be taken into account for purposes
of satisfying the applicable deductible, coinsurance and maximum out-of-pocket
and benefit provisions of the Propel Medical Plans. Notwithstanding the
foregoing, with respect to each U.S. Propel Employee who is, at the Effective
Date, undergoing a series of dental treatments covered under the Motorola Dental
Plan that require multiple appointments (excluding orthodontia) that will not
otherwise be covered from the Effective Date by the Propel dental plan, the
Motorola Dental Plan shall continue to cover such claims, provided that such
treatments are performed within 30 days after the last day of the month in which
the Effective Date occurs. An expense will be deemed incurred at the time the
related services or material (including prescriptions) are rendered or provided.
To the extent that a U.S. Propel Employee is covered under either the Motorola
Medical Plan or the Motorola Dental Plan and the comparable Propel Plan, all
claims shall first be made to the applicable Propel Plan.
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2.12 RETIREE MEDICAL COVERAGE.
(a) Motorola shall permit the persons listed on Appendix D-1
(and his or her eligible dependents) to enroll in the Motorola, Inc.
Retiree Health Plan (the "Motorola Retiree Health Plan") as of the date
such U.S. Propel Employee retires or terminates from employment with
Propel. Motorola shall charge each such U.S. Propel Employee who does
enroll in the Motorola Retiree Health Plan the retiree portion of the
applicable premium, as determined by Motorola. Motorola and Propel shall
cooperate to confirm the following information: the name, date of birth,
years of service, age, and service club date for each person listed on
Appendix D-1.
(b) Motorola shall permit the persons listed on Appendix D-2
(and his or her eligible dependents) to enroll in the Motorola Retiree
Health Plan as of the date such individual retires or terminates from
employment with Propel if, as of such date, such individual has satisfied
the eligibility requirements of the Motorola Retiree Health Plan. To the
extent that Appendix D-2 contains any U.S. Propel Inactive Employee, this
promise is contingent upon such person being hired by Propel directly upon
his termination from Motorola without any break in service or service for
an intermediate employer. Motorola shall charge each such U.S. Propel
Employee who does enroll in the Motorola Retiree Health Plan the retiree
portion of the applicable premium, as determined by Motorola. For purposes
of the Motorola Retiree Health Plan, the employees listed on Appendix D-2
shall be given credit for service with Motorola, Propel and Propel's
successors and Affiliates. Motorola and Propel shall cooperate to confirm
the following information: the name, date of birth, years of service, age,
service club date and qualifying date for each person listed on Appendix
D-2.
(c) Motorola shall cause a U.S. $10,000 bonus payment to be
made to each person listed on Appendix D-3 in lieu of retiree medical
coverage as soon as practicable following the Effective Date.
(d) Notwithstanding any other provision of this Agreement,
Motorola expressly reserves the right to amend, alter, or modify the terms
of or terminate the Motorola Retiree Health Plan at any time and to
interpret the provisions of that coverage, with respect to U.S. Propel
Employees and all of its other current or former employees; provided,
however, that unless rendered commercially impossible or prohibited by law
or governmental regulations or rulings, Motorola shall provide the
employees listed on Appendices D-1 and D-2 (upon satisfaction of the
eligibility requirements) with retiree health benefits only to the same
extent as available to similarly situated employees of Motorola who retire
from Motorola on the same date that such U.S. Propel Employees terminate or
retire from Propel or one of the controlled group of companies (as defined
in Section 414 of the Code) of which Propel is a member. It is understood
and agreed by the Parties that Motorola shall not be responsible or
otherwise liable for the provision of post-retirement medical coverage to
any other U.S. Propel Employee other than as described in this Section
2.12. Propel shall have no obligation to establish successor plans to the
Motorola Retiree Health Plan.
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2.13 HEALTH REIMBURSEMENT PLAN AND DEPENDENT CARE PLAN. Immediately
preceding the Effective Date, the U.S. Propel Employees shall cease to
participate in the 1996 Motorola Pre-Tax Health Reimbursement Plan and the 1997
Motorola Dependent Care Plan (the "Motorola Flexible Benefits Plans"). Motorola
shall permit the U.S. Propel Employees to submit eligible claims incurred prior
to the Effective Date to the Motorola Flexible Benefits Plans no later than
March 31, 2001, and the Motorola Flexible Benefits Plans shall reimburse such
eligible expenses in accordance with the terms of such plans. The 1996 Motorola
Pre-Tax Health Reimbursement Plan shall not reimburse the U.S. Propel Employees
for any claims incurred on or after the Effective Date. The 1997 Motorola
Dependent Care Plan shall reimburse the U.S. Propel Employees for claims
incurred during the 2000 calendar year on or after the Effective Date, up to the
amounts residing in each individual U.S. Propel Employee's dependent care
account as of the Effective Date. No contributions will be made to any U.S.
Propel Employee's dependent care account following the Effective Date. As of the
Effective Date, Propel shall provide each U.S. Propel Employee with the option
to participate in plans which are comparable to the Motorola Flexible Benefits
Plans.
2.14 OTHER WELFARE PLANS. Immediately prior to the Effective Date, the
U.S. Propel Employees and their dependents who participate in the Motorola life
insurance plan, supplemental life-insurance plan, accidental death and
dismemberment insurance plan, long-term disability plan, short-term disability
plan, severance plans and tuition reimbursement plan and/or any other employee
welfare benefit plan (as defined in Section 3(1) of ERISA) that is maintained by
Motorola shall cease to actively participate in those plans, except as provided
herein, and the U.S. Propel Employees and their dependents shall become eligible
to participate in comparable plans maintained by Propel on the Effective Date.
2.15 NONQUALIFIED PLANS. Immediately prior to the Effective Date, all
U.S. Propel Employees who participate in the Motorola Supplemental Pension Plan
shall cease to participate in such plan. Effective as of the Effective Date,
Propel shall establish a nonqualified plan which shall provide benefits for
eligible U.S. Propel Employees in excess of the benefits which may be provided
under the Propel 401(k) Plan due to the limitations on compensation that may be
taken into account pursuant to the provisions of the Code.
III. NON-U.S. PROPEL EMPLOYEE MATTERS
3.1 NON-U.S. PROPEL EMPLOYEES. Wherever legally permissible, on the
Effective Date, the Non-U.S. Propel Employees shall become (or in Israel, shall
remain) employees of the applicable Propel Affiliate by operation of applicable
local law and/or pursuant to the terms of any necessary transfer agreement
relating to that jurisdiction. Where such transfer is not possible in the manner
described in the previous sentence, the applicable Propel Affiliate shall offer
Non-U.S. Propel Employees employment in accordance with the procedures required
by applicable local law to effectuate their employment with the appropriate
Propel Affiliate commencing on the Effective Date.
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3.3 COMPENSATION.
(a) As of the Effective Date, Propel shall cause the applicable
Propel Affiliate to (i) commence compensating each Non-U.S. Propel Employee
at an annual base wage or salary which is not less than that provided by
the applicable Motorola Affiliate immediately prior to the Effective Date,
and (ii) provide such employees with terms and conditions of employment,
including employee benefit plans and programs, that are substantially
similar, in the aggregate, to the terms and conditions of such employees'
employment provided by the applicable Motorola Affiliates immediately prior
to the Effective Date. Appendix B-2 sets forth certain terms and conditions
of employment and material employee benefit plans for employees in the
applicable Motorola Affiliate immediately prior to the Effective Date.
Though not necessarily a fully comprehensive list, Appendix B-2 shall be
considered as a reference point for purposes of determining whether terms
and conditions and employee benefit plans are substantially similar, in the
aggregate, as required by this Section. Propel shall cause each Propel
Affiliate to maintain such employee benefit plans, including any
government-mandated employee benefit plans, as shall be required by
applicable law.
(b) In jurisdictions where applicable law would require any of
Propel's Affiliates to offer continued employment as of the Effective Date
to Non-U.S. Propel Employees on specific terms and conditions that are
determined by comparison to the terms and conditions provided by the
applicable Motorola Affiliate to such Non-U.S. Propel Employees immediately
prior to the Effective Date in order to avoid liability for severance or
other termination compensation or damages, and under applicable law, such
Non-U.S. Propel Employee is or becomes entitled to severance, other
termination compensation or benefits on or after the Effective Date for
which Motorola is held liable or Motorola or its Affiliates is or are
subject to damages as a result of the failure of the terms of such offer of
employment to comply with applicable law, the applicable Propel Affiliate
will be responsible for, and will indemnify, Motorola and its Affiliates
from and against, payment of such severance compensation, benefits, and/or
damages to such Non-U.S. Propel Employees.
(c) In those jurisdictions where Motorola's Affiliates have
historically followed a practice of paying non-incentive salary bonuses to
their employees or such bonuses are required by applicable law, Motorola
shall cause its applicable Affiliates to pay the pro rata portion of all
such bonuses to which a Non-U.S. Propel Employee is entitled for the period
beginning on the first day of the applicable accrual period and ending on
the day immediately prior to the Effective Date to such Non-U.S. Propel
Employee, which payment shall be made within a reasonable period of time
following payment of such amounts to employees of the applicable Motorola
Affiliate, but only to the extent that Motorola has not already transferred
an accrual or other funding mechanism to meet such obligation. In the event
an accrual is transferred, Propel shall pay such non-incentive salary bonus
to the full extent of the accrual. For purposes of this Agreement,
non-incentive salary bonuses for Non-U.S. Propel Employees shall include
any payments made to such employees in cash (other than for salary) during
each
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calendar year including, but not limited to the following: Christmas bonus;
13th month payment bonus; vacation premium bonus; savings fund bonus; and
profit sharing bonus.
3.4 CONTINUED EMPLOYMENT; SEVERANCE. For a period of one year
following the Effective Date, Propel shall cause its Affiliates to use their
commercially reasonable efforts to continue to provide employment for the
Non-U.S. Propel Employees. Notwithstanding the foregoing, if any Propel
Affiliate determines in good faith that any Non-U.S. Propel Employee fails to
meet the performance standards of such Propel Affiliate, the applicable Propel
Affiliate will no longer be obligated to provide such employment. If any
Non-U.S. Propel Employee is terminated by any Propel Affiliate (other than for
Cause, as such term is defined in Section 2.3, or under applicable law) within
one year of the Effective Date, Propel shall cause the applicable Affiliate to
provide such employee with a severance payment consistent with the terms and
conditions set forth on Appendix C or, if a higher amount, as required by
applicable law. Propel shall cause its Affiliates to recognize service with
Motorola or any of its Affiliates based on Motorola's service club dates for
purposes of calculating such severance payment.
3.5 VACATION. On the Effective Date, Propel shall cause its
Affiliates to assume and on a timely basis shall perform, satisfy and discharge
all liabilities with respect to the vacation of the Non-U.S. Propel Employees.
Propel shall cause its Affiliates to continue to apply the vacation policy of
the applicable Motorola Affiliate that is in effect immediately prior to the
Effective Date for at least the remainder of the calendar year in which the
Effective Date occurs, so that each Non-U.S. Propel Employee shall be entitled
to use any vacation time or receive any vacation pay to which he or she would
otherwise be entitled for that calendar year under the vacation policy of the
applicable Motorola Affiliate applicable immediately prior to the Effective
Date. Propel shall cause its Affiliates to recognize service with the applicable
Motorola Affiliate for purposes of determining an individual's entitlement to
vacation. Motorola and its Affiliates shall not, as the result of entering into
this Agreement, be required to pay out accrued vacation to any Non-U.S. Propel
Employee, except as required by applicable law, or be required to reimburse
Propel for any such payment.
3.6 RESPONSIBILITY FOR EMPLOYEES. For Non-U.S. Propel Employees,
Propel shall cause its Affiliates to assume and thereafter pay, perform and
discharge any and all employment, compensation and employee benefit liabilities,
responsibilities and obligations of the applicable Motorola Affiliate including,
without limitation, any and all claims under applicable law which liabilities,
responsibilities and obligations are incurred as the result of incidents
incurred on or after the Effective Date, regardless of whether claims are made
or reported on or after the Effective Date. To the extent that the applicable
Propel Affiliate cannot directly assume any liability, responsibility or
obligation, and Motorola and its Affiliates or any employee benefit plan
maintained by Motorola or its Affiliates thereby directly or indirectly incurs
costs, liabilities or obligations, the applicable Propel Affiliate shall
reimburse or indemnify Motorola and its Affiliates for any and all such costs
and liabilities immediately upon the demand of Motorola.
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3.7 SPONSORSHIP OF NON-U.S. EMPLOYEE BENEFIT PLANS.
(a) Propel shall cause its Affiliates to establish (or in the
case of Israel, maintain) employee benefit plans outside of the U.S. in
accordance with the terms of this Agreement and applicable law
(collectively, the "Non-U.S. Propel Plans"). Propel shall, and shall cause
its Affiliates to, honor and provide for payment of benefits and
compensation under all Non-U.S. Propel Plans in accordance with their
terms, as amended from time to time, and subject to the terms of this
Agreement. Propel shall cause its Affiliates to pay the employer portion of
any liabilities and expenses with respect to the Non-U.S. Propel Plans.
(b) Immediately prior to the Effective Date, Motorola and/or
its Affiliates shall cease all responsibility or liability with respect to
coverage for any Non-U.S. Propel Employee under any pension, retirement,
medical, dental, disability, severance, life insurance, accident insurance
or other retirement or welfare benefit plan, program or policy which is
maintained by Motorola or any of its Affiliates. To the extent such
coverages are permitted to cease under applicable law, they shall do so
immediately prior to the Effective Date. To the extent such coverages
continue under applicable law, Propel shall indemnify Motorola and its
Affiliates and reimburse them for any and all expenses incurred under the
said plans on or after the Effective Date.
(c) As of the Effective Date, each Non-U.S. Propel Employee
shall be provided by the applicable Propel Affiliate with employee benefit
plan coverages which are substantially similar in the aggregate (or which
protect the employees' actual terms and conditions of employment), to the
maximum extent required by applicable law and which are, in the reasonable
judgment of Propel, appropriate or customary for the employee's position
and work location.
3.8 SERVICE CREDIT. Propel shall cause its Affiliates to provide each
Non-U.S. Propel Employee with full credit for service with Motorola and its
Affiliates for all purposes (other than pension benefit accrual) under the
Non-U.S. Propel Plans.
3.9 PROPEL GUARANTY. Propel shall or shall take all action necessary
to cause the applicable Propel Affiliates to fulfill the terms of this
Agreement.
3.10 ISRAELI NON-U.S. PROPEL EMPLOYEES. Notwithstanding anything in
this Agreement to the contrary, Motorola and Propel acknowledge that the Propel
Business in Israel is being separated from the Motorola business in Israel by
means of a split transaction to be effected pursuant to Israeli law and a
separate Split Agreement and the Propel Business in Israel will remain with
Motorola Israel Limited (whose name will be changed following the Effective
Date)(herein referred to as "Propel Israel"). As a result, the Israeli Non-U.S.
Propel Employees will remain employees of Propel Israel. Although no transfer of
the Israeli Non-U.S. Propel Employees will take place, Propel agrees to cause
Propel Israel to treat such Israeli Non-U.S. Propel Employees as Non-U.S. Propel
Employees for purposes of this Article III.
IV. ALL PROPEL EMPLOYEES
4.1 RETENTION BONUS.
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(a) Appendix F-1, as attached hereto, sets forth the name of
each Propel Employee who will be eligible for a retention bonus. The amount
of such bonus for each such Propel Employee shall be agreed upon by Propel
and Motorola, but shall not exceed U.S. $5,000,000 in the aggregate. Such
amounts shall be paid by Propel, or any successor of Propel, if and only if
the applicable individual is employed continuously by Propel, or any
successor of Propel, from the Effective Date through the first anniversary
of the Effective Date or the second anniversary of the Effective Date, as
applicable, except in the event of death, involuntary termination due to
disability, or termination without cause, as provided below. Motorola will
reimburse Propel, or any successor of Propel, for the payment of this bonus
less the tax-effected value of any compensation deduction, assuming the
highest applicable tax rate, within 30 days following receipt by Motorola
of an invoice from Propel, or any successor of Propel, showing the amounts
paid. Provided that an individual listed on Appendix F-1 meets all of the
criteria set forth in this Section 4.1, 50% of the bonus will become
payable on the first anniversary of the Effective Date and the remaining
50% will become payable on the second anniversary of the Effective Date. In
the event of a Propel Employee's death, involuntary termination due to
disability, or termination without cause prior to the second anniversary of
the Effective Date, the employee (or his estate, if applicable) shall be
entitled to receive 100% of the applicable amount agreed upon by Propel and
Motorola. Involuntary termination due to disability shall be as defined in
Propel's disability benefits plan and/or its written human resources
policies. Applicable payroll and other tax deductions will be made from all
such bonus payments.
(b) Appendix F-2, as attached hereto, sets forth the name of
each Propel Employee with whom Motorola has entered into cash retention
bonus agreements, copies of which have been provided to Propel. These
retention bonus agreements will entitle such individuals to a cash
retention bonus equal to their Motorola annual base salary as of the
Effective Date, payable 50% within 30 days of the Effective Date and the
remainder within 30 days of the first anniversary of the Effective Date,
only if the applicable individual is employed by Motorola as of the
Effective Date and continuously by Propel, or any successor of Propel, from
the Effective Date through the first anniversary of the Effective Date,
except in the event of death, involuntary termination due to disability, or
termination without cause, as provided below. Propel hereby assumes the
obligations of Motorola under these retention bonus agreements. Motorola
will reimburse Propel, or any successor of Propel, for the payment of this
bonus less the tax-effected value of any compensation deduction, assuming
the highest applicable tax rate, within 30 days following receipt by
Motorola of an invoice from Propel, or any successor of Propel, showing the
amounts paid. In the event of a Propel Employee's death, involuntary
termination due to disability, or termination without cause prior to the
first anniversary of the Effective Date, the employee (or his estate, if
applicable) shall be entitled to receive 100% of the applicable retention
bonus as set forth in such retention bonus agreements. Involuntary
termination due to disability shall be as defined in Propel's disability
benefits plan and/or its written human resources policies. Applicable
payroll and other tax deductions will be made from all such bonus payments.
4.2 FOUNDER'S GRANTS, RESTRICTED STOCK GRANTS, OPTION CONVERSION.
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(a) FOUNDERS GRANTS. As of the Effective Date, all Propel
Employees and Propel non-employee directors (other than directors who are
employees of Motorola), will be awarded founders grant options to purchase
shares of Propel common stock. The amount of such grants, valued at the
initial public offering price, for each Propel Employee and Propel
non-employee director shall be agreed upon by Propel and Motorola, but
shall not exceed U.S. $104,500,000 in the aggregate. These stock options
will vest over four years, with vesting on the anniversary of the grant as
follows: 10% vest on the first anniversary; 20% vest on the second
anniversary; 30% vest on the third anniversary; and 40% vest on the fourth
anniversary. The exercise price per share of these stock options will be
equal to the initial public offering price of shares of Propel common
stock. The options will have a ten-year exercise period.
(b) RESTRICTED STOCK GRANTS.
(i) J. Michael Norris, Richard D. Haning and Robert S. Young
participated in the Motorola, Inc. Elected Officers Supplementary
Retirement Plan (the "SERP") which could, under certain circumstances,
provide for benefits to those executives if they were to remain with
Motorola or its Affiliates. As of the Effective Date, these executives
will no longer be eligible to participate in the SERP. As of the
Effective Date, Propel shall make a grant of restricted common stock
of Propel to Messrs. Norris, Haning and Young in lieu of such
individuals receiving benefits under the SERP and in full satisfaction
of their rights under the SERP. The dollar amount of restricted stock,
valued at the initial public offering price, to be issued is as
follows: Mr. Norris - U.S. $4,588,874; Mr. Haning - U.S. $2,882,594;
and Mr. Young - U.S. $2,233,602. Propel will guarantee a minimum
dollar value per share of these restricted shares during the period
commencing on the date such restricted shares vest and ending on the
later to occur of (A) one year after the date of vesting or (B) one
year after the date on which Motorola owns less than 50% of Propel's
common stock (the "Stop-Loss Period"). The minimum dollar value per
share shall be equal to 50% of the initial public offering price (the
"Guaranteed Amount") and shall be payable to the applicable individual
if and only if such individual sells all or any portion of his
restricted shares during the Stop-Loss Period. Assuming that such sale
occurs during the Stop-Loss Period for a per share amount less than
the Guaranteed Amount, such individual shall be eligible to collect
from Propel a per share amount equal to the difference between the per
share sale price and the Guaranteed Amount, multiplied by the number
of shares of vested restricted stock which such individual sold.
Motorola will reimburse Propel for cash payments made under this "stop
loss guarantee" in accordance with the foregoing terms. Mr. Norris'
restricted stock will vest 50% six months after the Effective Date and
50% on his 55th birthday. Messrs. Haning and Young's restricted stock
will vest 1/3 six months after the Effective Date, 1/3 eighteen months
after the Effective Date and 1/3 thirty months after the Effective
Date.
(ii) As of the Effective Date, Michael E. Babka, Michael Van
Parys, Thomas P. Holden and Craig Thomson will receive special grants
of Propel restricted stock valued at the initial public offering price
in connection with their
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employment with Propel equal to the greater of one-half their current
Motorola base salary or U.S. $100,000. Such grants will vest on the
earlier of the fifth anniversary of the grant and the date the grantee
reaches age 55 and will not be subject to the "stop-loss guarantee"
described in clause (i), above.
(iii) As of the Effective Date, Craig Thomson will receive a
special grant of shares of Propel restricted stock valued at the
initial public offering price in connection with his employment with
Propel in an amount equal to U.S. $1,000,000. Mr. Thomson's restricted
stock will vest 1/3 six months after the Effective Date, 1/3 eighteen
months after the Effective Date and 1/3 thirty months after the
Effective Date and will not be subject to the "stop-loss guarantee"
described in clause (i), above.
(c) OPTION CONVERSION.
(i) Propel Employees who hold unvested Motorola options as
of the Effective Date will be granted shares of Propel restricted
stock as of the Effective Date to compensate them for the possibility
that their unvested Motorola options will expire prior to the time
that they can be exercised or exchanged for Propel options. The number
of shares of Propel restricted stock granted to each Propel Employee
will be determined by taking the value of their unvested Motorola
options as of the Effective Date and dividing that number by the
initial public offering price of shares of Propel common stock. The
value of the unvested Motorola options will be calculated using a
Black-Scholes valuation methodology and based on the price of the
Motorola common stock on the Effective Date, as agreed to by Motorola
and Propel. These Propel restricted stock awards will be subject to
the same vesting schedule and terms, other than the exercise price, as
the unvested Motorola options that these awards are intended to
replace.
(ii) Propel Employees will continue to hold their vested and
unvested Motorola options after the Effective Date on the same terms
and conditions under which they were held prior to the Effective Date;
provided that at the time Motorola owns less than 50% of Propel's
common stock (the "Exchange Date"), all Propel Employees holding
vested Motorola options will have the right to elect to exchange their
vested Motorola options for vested Propel options using the Financial
Accounting Standards Board 90-9 Rule, such that the dollar value of
each Propel Employee's vested Motorola options shall equal the dollar
value of the substitute vested Propel options and the ratio of the
exercise price per Propel option to the fair market value per Propel
share shall equal the ratio of the exercise price per Motorola option
to the fair market value per Motorola share. Accordingly, for each
grant of unexercised vested Motorola options (A) the number of
exchanged vested Propel options will be calculated by dividing the
Fair Market Value (as defined below) of the Motorola common stock on
the Exchange Date by the Fair Market Value of the Propel common stock
on the Exchange Date and multiplying the resulting number by the
number of Motorola options in such grant and (B) and the exercise
price of the exchanged
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vested Propel options will be calculated by dividing the Fair Market
Value of the Propel common stock on the Exchange Date by Fair Market
Value of the Motorola common stock on the Exchange Date and
multiplying the resulting number by the exercise price of the Motorola
options being exchanged. Fair Market Value shall be equal to the
average high and low price for the applicable common stock on the
applicable date. Any unvested Motorola options held by Propel
Employees at the Exchange Date will automatically expire. The terms
and conditions of each substitute award will be the same as those of
the replaced Motorola option, including, the time or times when, and
the manner in which, each substitute Propel option will be
exercisable, the duration of the exercise period, the permitted method
of exercise, settlement and payment and the rules that will apply in
the event of termination of employment of the employee. Any vested
Motorola options held at the Exchange Date that are not exchanged for
Propel options can continue to be exercised to acquire Motorola common
stock for up to twelve months depending on the terms of the Motorola
stock option plan they were granted under and in accordance with the
terms of the original grant.
(d) STOCK COMPENSATION LIMITS. Notwithstanding anything herein
to the contrary, Propel shall not issue nonqualified stock options,
incentive stock options, stock appreciation rights, restricted stock,
performance shares, performance units or other similar rights to its
employees and/or directors, which in the aggregate exceed more than 10% of
the issued and outstanding shares of capital stock of Propel without
Motorola's prior written consent until such time as Motorola owns less than
50% of Propel's common stock. Notwithstanding the foregoing, no more than
4.5% of the issued and outstanding shares of capital stock of Propel, on a
fully diluted basis assuming exercise of all stock options and similar
rights to capital stock of Propel, shall be issued to Propel Employees and
Propel non-employee directors as of the Effective Date. Written consent
pursuant to this Agreement shall not constitute written consent under any
other agreements between Propel and Motorola.
4.3 INCENTIVE PLANS. Immediately prior to the Effective Date, all
Propel Employees who participate in the Motorola Incentive Plan of 1998, the
Motorola Omnibus Incentive Plan of 2000, various pre-1998 stock option plans,
and the Motorola, Inc. Elected Officers Supplementary Retirement Plan shall
cease to participate in such plans. Motorola shall be liable for the payment of
any benefits that may be payable under the terms of the Motorola Incentive Plan
of 1998, the Motorola Omnibus Incentive Plan of 2000 and the various pre-1998
stock option plans to Propel Employees in accordance with the terms of those
plans.
4.4 MOT SHARE PLAN. Immediately prior to the Effective Date, all
Propel Employees who participate in the Motorola Employee Stock Purchase Plan of
1999 (the "MOT Share Plan") shall cease to participate in and contribute to such
plan; provided that prior to the Effective Date Motorola shall take any and all
necessary action to allow the contributions of the Propel Employees made prior
to the Effective Date and then held in their applicable MOT Share Plan account
to be used to purchase shares of Motorola common stock in accordance with the
following: If the Effective Date is within three months of the end of the
current MOT Share Plan period, such purchase shall take place as of the end of
the then applicable six month period under the MOT Share Plan and pursuant to
the terms of such plan. If the Effective Date is not within
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three months of the end of the current MOT Share Plan period, such purchase
shall take place as of the Effective Date as if the Effective Date was the last
day of such period and pursuant to all the other terms of such plan; provided,
that any deductions made from a Propel Employee's paycheck with respect to any
period after the Effective Date shall be returned to the Propel Employee as
promptly as practicable.
4.5 INCENTIVE COMPENSATION PLANS.
(a) As of the Effective Date, Propel shall establish an
Incentive Compensation Plan in the form of the plan attached as Appendix E
and retroactive to January 1, 2000, which shall be substantially similar to
the Annual Incentive Plan ("AIP") administered by the Propel Business
immediately prior to the Effective Date. If following the end of the 2000
plan year, Propel determines that an AIP bonus is payable to the Propel
Employees pursuant to the terms of the AIP, Propel will pay a pro rata
share of such AIP incentive bonus to employees whose employment on the
Effective Date was with Motorola or its Affiliates with respect to the
Propel Business, but who did not receive or accept offers to work for
Propel, it being understood that determination of amounts payable, if any,
under such programs and plans is in the sole discretion of Propel. Motorola
will cooperate in recommending individual performance scoring for the
Propel Employees to the extent necessary to allow determinations of amounts
payable under the AIP.
(b) If, following the end of the 2000 plan year, Motorola
determines that a Motorola Executive Incentive Program (which program is
being replaced by the Performance Excellence Equals Rewards Program
("MEIP")), Communications Enterprise Incentive Pay Plan ("IPP") or
Corporate Incentive Pay Plan ("CIPP") incentive bonus is payable to
participating employees pursuant to the terms of the MEIP, IPP or CIPP,
Motorola will pay a pro rata share of the MEIP, IPP or CIPP incentive
bonuses to Propel Employees who participated in those programs immediately
prior to the Effective Date, it being understood that determination of
amounts payable, if any, under such programs and plans is in the sole
discretion of Motorola. Propel will cooperate in recommending individual
performance scoring for the Propel Employees to the extent necessary to
allow determinations of amounts payable under the MEIP, IPP or CIPP.
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V. MISCELLANEOUS
5.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof.
5.2 GOVERNING LAW . This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois regardless of the laws that
might otherwise govern under principles of conflicts of laws applicable thereto.
5.3 COOPERATION. Motorola and Propel agree to and to cause their
Affiliates to cooperate and use reasonable efforts to (i) comply with all
requirements of this Agreement, ERISA, the Code and other applicable law and
regulations which may be applicable to the matters addressed herein, and (ii) to
promptly provide each other with such information reasonably requested by the
other party to assist the other party in administering its employee benefit
plans and complying with applicable law and regulations and the terms of this
Agreement.
5.4 NO ASSUMPTION OF MOTOROLA EMPLOYEE BENEFIT PLANS. Except as set
forth herein, the Parties agree that Propel does not and shall not assume the
sponsorship of, or the responsibility for contributions to, or any liability in
connection with any employee benefit plan (as defined in Section 3(3) of ERISA)
directly maintained by Motorola, its successors and its Affiliates. In addition,
with respect to U.S. Propel Employees, the parties agree that Motorola shall
offer and be liable for any continuation health coverage (including any
penalties, excise taxes or interest resulting from the failure to provide
continuation coverage) required by Section 4980B of the Code due to qualifying
events which occur on or before the Effective Date. Notwithstanding the
foregoing or anything herein to the contrary, to the extent that Motorola or
Propel holds a controlling interest in an Affiliate that maintains an employee
benefit plan (as defined above) separate and apart from the Motorola or Propel
plans, and such Affiliate becomes an Affiliate of Propel as a result of the
separation of Propel from Motorola, the plans of such Affiliate shall become the
responsibility of such Affiliate and no division or split-up of such plan will
occur as a result of the separation of Propel from Motorola.
5.5 THIRD PARTY BENEFICIARIES. This Agreement shall not confer
third-party beneficiary rights upon any Propel Employee or any other person or
entity. Nothing in this Agreement shall be construed as giving to any Propel
Employee or other person any legal or equitable right against Motorola or
Propel. This Agreement shall not constitute a contract of employment and will
not give any Propel Employee a right to be retained in the employ of the
employers.
5.6 BENEFIT PLAN EXPENSES. Each party shall bear all costs and
expenses, including but not limited to legal and actuarial fees incurred in the
design, drafting and implementation of its plans and compensation structures and
the amendment of its existing plans or compensation structures.
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5.7 EMPLOYMENT RECORDS. The parties agree that on or within a
reasonable time period after the Effective Date, Motorola or its Affiliates, as
applicable, shall provide to Propel or its Affiliates, as applicable, all
employment records for the U.S. Propel Employees and the Non-U.S. Propel
Employees required to be kept under applicable law or necessary for the conduct
of the Propel Business, provided (a) that such records shall not include any
records to the extent such a transfer would violate applicable law or cause
Motorola or its Affiliates, as applicable, to break any agreement with a third
party, and (b) that such records are in the possession of the Motorola or its
Affiliates, as applicable. Motorola and/or the Motorola Affiliates may keep
copies of such records. After the Effective Date, as may be necessary for any
business purpose of Motorola or its Affiliates or to permit Motorola or its
Affiliates to respond to any government inquiry or audit, defend any claim or
lawsuit or administer any MIN C employee benefit plan, Propel will or will cause
the applicable Propel Affiliate to allow the Motorola or its Affiliates, as
applicable, reasonable access to and, if requested, copies of any records
relating to such employees.
5.8 FREEZE ON MOVEMENT. Unless Propel and Motorola otherwise mutually
agree in writing, for the period beginning on the Effective Date and ending on
the second anniversary thereof, neither Propel nor Motorola will, nor will they
permit their applicable subsidiaries and Affiliates to, employ any employee of
the other or of the other's subsidiaries or Affiliates.
5.9 INDEPENDENT CONTRACTORS. On the Effective Date, Motorola shall
use its reasonable efforts to cause all contracts or agreements with the
transferred independent contractors listed on Appendix G to be transferred or
assigned to Propel or its Affiliates, as applicable. The Parties hereto agree to
use their reasonable efforts to cause any contracts with transferred independent
contractors that cannot be assigned and that do not transfer (for any reason) by
operation of law to be novated to Propel or its Affiliates, as applicable
effective as of the Effective Date.
5.10 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered in person,
by telecopy with answer back, by express or overnight mail delivered by a
nationally recognized air courier (delivery charges prepaid), or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties as follows:
if to Motorola:
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: General Counsel
Telecopy: (847) 576-3628
with a copy to:
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Chief Financial Officer and Chief Accounting
Officer
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Telecopy: (847) 576-4768
and, if delivered pursuant to SECTION 4, with a copy to:
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Senior Vice President, Director of Worldwide Tax,
Corporate Finance
Telecopy: (847) 576-0903
if to Propel or its subsidiaries:
Propel, Inc.
425 North Martingale Road
18th Floor
Schaumburg, Illinois 60173
Attention: General Counsel
Telecopy: (847) 435-3916
with a copy to:
Propel, Inc.
425 North Martingale Road
18th Floor
Schaumburg, Illinois 60173
Attention: Chief Financial Officer
Telecopy: (847) 435-3916
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
notice or communication delivered in person shall be deemed effective on
delivery. Any notice or communication sent by telecopy shall be deemed effective
on the day at the place such notice or communication is received if confirmed by
return facsimile. Any notice or communication sent by air courier shall be
deemed effective on the day at the place at which such notice or communication
is received if delivery is confirmed by the air courier. Any notice or
communication sent by registered or certified mail shall be deemed effective on
the fifth Business Day at the place from which such notice or communication was
mailed following the day on which such notice or communication was mailed.
5.11 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and their legal Representatives
and successors and each Affiliate of the parties hereto, and nothing in this
Agreement, express or implied, is intended to confer upon any other Person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
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5.12 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which shall
constitute one and the same agreement.
5.13 ASSIGNMENT. This Agreement may not be assigned by any party
hereto; provided, however, that Motorola may assign this Agreement in connection
with the sale of all or substantially all of its assets.
5.14 AMICABLE RESOLUTION.
(a) Motorola and Propel mutually desire that friendly
collaboration will develop between them. Accordingly, they will try to
resolve in an amicable manner all disagreements and misunderstandings
connected with their respective rights and obligations under this
Agreement, including any amendments thereto. In furtherance thereof, in the
event of any dispute or disagreement between Motorola and Propel as to the
interpretation of any provision of this Agreement executed in connection
herewith (or the performance of obligations hereunder or thereunder), the
matter, upon written request of either party, will be referred for
resolution to a steering committee established pursuant to the Separation
Agreement (the "Steering Committee"). The Steering Committee will have two
members, one of which will be appointed by Motorola and one of which will
be appointed by Propel The initial members of the Steering Committee will
be the individuals named on Schedule 5.7 of the Separation Agreement. Each
of Motorola and Propel will use its good faith reasonable efforts to avoid
replacing the initial members of the Steering Committee with another of
their Representatives for the first year after the Effective Date.
Thereafter, Motorola and Propel will, to the extent practicable, honor the
other's reasonable objections to any replacements of Steering Committee
members. While any person is serving as a member of the Steering Committee,
such person may not designate any substitute or proxy for purposes of
attending or voting at a Steering Committee meeting. The Steering Committee
will make every good faith effort to promptly resolve all disputes or
disagreements referred to it. Upon a unanimous vote, Steering Committee
decisions will be binding on Motorola and on Propel. If the Steering
Committee does not agree to a resolution of the dispute or disagreement
within 90 days after the reference of the matter to it, each of Motorola
and Propel will be free to exercise the remedies available to it under
applicable law, subject to Section 5.15. Notwithstanding anything to the
contrary in this Section 5.14, no amendment to the terms of this Agreement
will be effected except in writing signed by an authorized officer of both
parties. The Steering Committee will be self-regulating.
(b) Between the Effective Date and the first anniversary of the
Effective Date the Steering Committee will hold meetings every six weeks on
dates established at the organizational meeting of the Steering Committee,
which will be held as promptly as practicable after the Effective Date.
Such meeting dates may be rescheduled by the Steering Committee if it
becomes reasonably impracticable to hold such a meeting. After the first
anniversary of the Effective Date, the Steering Committee will hold
regularly scheduled meetings as determined by the Steering Committee.
5.15 MEDIATION AND ALTERNATE DISPUTE RESOLUTION.
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(a) To the extent that any misunderstanding or dispute with
respect to one or more of the terms of this Agreement ("Dispute") cannot be
resolved in a friendly manner as set forth in Section 5.14, the parties
intend that such Dispute be resolved by an alternative dispute resolution
process ("ADR"), which shall require the escalation of any Dispute, first,
to the level of one senior executive of each of Motorola and Propel (the
"Senior Officers") and then to the head of Motorola's Communications
Enterprise (or its successor) and the CEO of Propel in an attempt to
resolve any such Dispute by negotiation. If the Senior Officers and/or the
head of Motorola's Communications Enterprise and the Propel CEO are unable
to resolve the Dispute within ten days after the matter is referred to
them, either Motorola or Propel may demand mediation of the Dispute by
written notice to the other. The two parties shall select a mediator within
ten days after the demand and neither of the parties may unreasonably
withhold consent to the selection of the mediator and both parties shall
share the cost of mediation equally. The parties may agree to replace
mediation with some other form of non-binding ADR such as neutral fact
finding or mini-trial. Nothing in this paragraph shall prevent either
Motorola or Propel from commencing formal litigation proceedings if (i)
good faith efforts to resolve the Dispute under these procedures have been
unsuccessful, or (ii) any delay resulting from efforts to mediate such
dispute could result in serious and irreparable injury to either Motorola
or Propel. The use of any ADR procedures will not be construed under the
doctrines of laches, waiver or estoppel to affect adversely the rights of
either party.
(b) Each of Motorola and Propel will bear its costs of mediation
or ADR, but both parties shall share the costs of the mediation or ADR
equally.
5.16 JURISDICTION. In the event a Dispute under this Agreement is to
be submitted to judicial proceedings, each of Motorola and Propel consents to
the exclusive jurisdiction of the federal or state courts of Illinois for any
such legal action, suit or proceeding and agrees that any such action, suit, or
proceeding may be brought only in such courts. Each of Motorola and Propel
further waives any objection to the laying of venue for any suit, action or
proceeding in such courts. Each party also waives its rights to a trial by jury.
Each party agrees to accept and acknowledge service of any and all process that
may be served in any suit, action or proceeding. Each party agrees that any
service of process upon it mailed by registered or certified mail, return
receipt requested to such party at the address provided in Section 5.10 above
will be deemed in every respect effective service of process upon such party in
any such suit, action or proceeding. Each party agrees to waive any right it
might have to a trial by jury in any such suit, action or proceeding.
5.17 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the fullest extent
possible.
21
<PAGE>
5.18 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure
or delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. Subject to Section 5.14, all rights and remedies
existing under this Agreement are cumulative to, and not exclusive of, any
rights or remedies otherwise available.
5.19 AMENDMENT. No changes, amendment or waiver will be made to this
Agreement except by an instrument in writing signed on behalf of each of the
parties to this Agreement. Propel may not amend the terms of any arrangement for
which Motorola has agreed to reimburse Propel or any of its Affiliates without
Motorola's prior written consent.
5.20 AUTHORITY. Each of the parties hereto represents to the other
that (a) it has the corporate or other requisite power and authority to execute,
deliver and perform this Agreement, (b) the execution, delivery and performance
of this Agreement by it have been duly authorized by all necessary corporate or
other action, (c) it has duly and validly executed and delivered this Agreement,
and (d) this Agreement is a legal, valid and binding obligation, enforceable
against it in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general equity principles.
5.21 INTERPRETATION. The headings contained in this Agreement, in any
Schedule hereto and in the table or contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any capitalized term used in any Schedule but not otherwise
defined therein, shall have the meaning assigned to such term in this Agreement.
When a reference is made in this Agreement to an Article or a Section or a
Schedule, such reference shall be to an Article or Section of, or a Schedule to,
this Agreement unless otherwise indicated. The Schedules attached hereto or
referred to herein are an integral part of this Agreement and are hereby
incorporated into this Agreement and made a part hereof as if set forth in full
herein. After the Effective Date, the Propel Business shall be deemed to be the
business of Propel and the Propel Affiliates and all references made herein to
Propel as a party which operate as of a time following the Effective Date, shall
be deemed to refer to Propel and the Propel Affiliates as a single party.
* * *
22
<PAGE>
MOTOROLA, INC.
By:_______________________
Its:_______________________
PROPEL, INC.
By:_______________________
Its:_______________________
23
<PAGE>
APPENDIX A-1
U.S. PROPEL EMPLOYEES
<TABLE>
<CAPTION>
<S> <C> <C>
Babka, Michael E. Haleem, Ahmad Y. Pratt, Marion K.
Barona, Jesus J. Haning, Richard D. Quinlan, Denis J.
Barry, Carol O. Hoets, Hendrik P. Ramos, Maribel
Bartell, Don G. Holden, Thomas P. Reyes, Ana C.
Beneda, James S. Honigschmidt, Shelly A. Rojas, Peter J.
Borges, Suny Hrynewycz, Sonia Sebastian, Carol
Burmeister, Deborah J. Ide, James F. Shabib, Mohammad A.
Calmes, Jere C. Kallianis, Peter Smilie, William
Carr, Mary Jo Kearns, Margaret Stoner, Jennifer
Cockrell, Richard Larrea, Wilma T. Traversa, Halyna M.
Combetto, Jorge Lin, Lynn Van Parys, Mike
Cooley, Sandra M. McGurn, Maureen Washington, Christina
Dagher, Michael S. Meek, Brian K. Weston, Mark M.
Davis, Carolyn Miller, Mary Ann Wiley, Kevin J.
Deeb, Ossama M. Minkus, Loren S. Worman, Jonathan P.
Ford, Mary Ellen Norris, J. Michael Wyman, Scott
Gaceta, Melvin A. Pelaez, Patricia Young, Robert S.
Gould, Michael P.
Dorn, Mark
Raja, Adnan
</TABLE>
ON PERSONAL LEAVE: Pistorio, Tammy
24
<PAGE>
APPENDIX A-2
U.S. PROPEL INACTIVE EMPLOYEES
None.
25
<PAGE>
APPENDIX A-3
NON-U.S. PROPEL EMPLOYEES
<TABLE>
<CAPTION>
<S> <C>
HONG KONG: ISRAEL:
Djoko, Sumi Arviv, Herzl
Lau, Coty Armon, Eran
Tong, Ada Ben-Yaakov, Tal
Wang, Michael Hazan, Shmuel
Cohen, Izhak
IRELAND: Fainblum, Jasmin
Kearney, Paul Harari, Shackar
Karilker, Orna
MEXICO: Kashi, Ephriem
Kanavek, Sara
Manon, Patricia Kilkar, Michael
Layani, Yehiel
UNITED KINGDOM: Landsman, Tzahi
Levi, Ran
Akhtar, Sarah Lugaci, Moshe
Balzan, John Nagar, Moshe
Bennett, Phillippa Nepommiashy, Alexander
Firth, Barry Porat, Amir
Khaliq, Zouhair Pridan, Yuval
Paulin, Mario Revah, Moris
Terry, Sarah Rosenzwaig, Leonid
Thomson, Craig Shor, Shlomo
Whiston, Carol Tal, Ronen
Zahavi, Ilan
Aharoni, Erez
Nir, Haim
</TABLE>
ON PERSONAL LEAVE:
Whittingham, Karen (UK)
26
<PAGE>
APPENDIX B-1
U.S. EMPLOYEE BENEFIT PLANS AND PROGRAMS:
Propel 401(k) Savings Plan
Medical Plan
Dental Plan
Life Insurance Plan
Supplemental Life Insurance Plan
Long-Term Disability Plan
Short-Term Disability Plan
Health Care Reimbursement Plan
Dependent Care Plan
Nonqualified Excess Benefit Plan
Retention Bonus Program
Incentive Compensation Plan
Severance Plan
Flex Fund Program
Paid Vacation Days
Paid Personal Days
Paid Holidays
27
<PAGE>
APPENDIX B-2
NON-US TERMS AND CONDITIONS OF EMPLOYMENT AND EMPLOYEE BENEFIT PLANS
TERMS AND CONDITIONS OF EMPLOYMENT:
HONG KONG:
EMPLOYMENT, BONUS, INCENTIVE, TRANSPORTATION, SEVERANCE OR OTHER AGREEMENTS:
Form Employment Contracts
A. Grade E-10 or above
B. Grade E-04 to E-09
C. Contract for Sales Personnel
D. Individual Contract for Overseas Hiring
BENEFITS PROVIDED TO BUSINESS EMPLOYEES:
1. Staff Handbook
A. Human Resources Policies & Procedures
1. Employment
a. Employment
b. Personal Details
c. Hours of Work
d. Punctuality & Attendance
e. Probationary Period
f. Performance Management
g. Internal Opportunity System
h. Referral Bonus
i. Termination of Employment
2. Compensation
a. Compensation Philosophy & Administration
b. Payment of Salaries
c. Cash/Housing Allowance
d. Year-end Bonus
e. Performance Bonus
f. Shift Premium
g. Overtime Payment
3. Benefits
a. Holidays
b. Leaves
c. Provident Fund Scheme
d. Group Life Insurance
e. Group Medical Insurance
f. Employees' Compensation Insurance
g. Business Travel Accident Insurance
28
<PAGE>
h. Holiday Allowance
i. Subsidized Medical Check-up
4. Training & Development
a. Key Objectives
b. 5-Day Training Policy
c. Training Opportunities
d. Individual Performance & Training Planner
B. Communication
1. Direct Dealing Policy
2. Communication Programs
a. Mass Communication Meetings
b. General Manager Dialogue
c. Human Resources Director/Manager Dialogue
d. Other Communication Programs
3. Speak-out Program
4. Motorola East
5. Notice Boards
6. Grievance Procedures ("Open Door" Policy)
C. Employee Services & Facilities
1. Cafeteria
2. Recreational Activities
3. Health Services
D. Award & Recognition Programs
1. Service Awards
2. Small Wins Recognition Program
3. Shark's Fin Soup
4. Patent Awards
E. Rules & Regulations
1. Code of Conduct
2. Disciplinary Procedures
F. Confidential Information
G. Security & Safety
1. Employee Badge
2. Access Card
3. Material Pass
4. Company and Non-company Property Pass
5. Bag Check
6. Photo-taking
7. Sign-in Visitor
8. Reporting
9. Parking Facility
10. Security Corners/Notice Boards
11. Safety Programs
12. Typhoon/Black Rainstorm Warning Signal Arrangement
2. Employee staff handbook specifying working conditions
29
<PAGE>
A. Application of the Employment Ordinance
B. Contract of Employment
C. Termination of Contracts of Employment
D. Employment Protection
E. Wages
F. Rest days
G. Holidays with Pay
H. Paid Annual Leave
I. Sickness Allowance
J. Maternity Protection
K. End of Year Payment
L. Severance Payment
M. Long Service Payment
N. Wages and Employment Records
3. Human Resources Policy
A. Recruitment
B. Employee Referral Program
C. Internal Opportunity System
D. New Employee Orientation
E. Transfer
F. Employee Badge
G. Personnel Record
H. Probation Employment Period
I. Attendance Record (time sheet)
J. Typhoon and Black Rain Storm Warning
K. Year-End Bonus
L Overtime
M. Shift Premium
N. Medical Insurance
O. Provident Fund Scheme
P. Group Life Insurance
Q. Business Travel Accident Insurance
R. Health Subsidy
S. Retirement
T. Tax Effective Plan
U. Company Holidays
V. Annual Leave
W. Sick Leave
X. Marriage Leave
Y. Maternity Leave
Z. Compassionate/Jury Leave
AA. Paternity Leave
BB. Training and Development Sponsorship Policy
CC. Company Sponsored Professional Examination
DD. Company Sponsored Professional Bodies
30
<PAGE>
EE. Membership
FF. Internal Instructor Allowance
GG. Employee Recreation
HH. Food Committee
II. Company Publications
JJ. General Manager/Site Manager/Human Resources Manager Dialogue
KK. Mass Communication Meeting
LL. Shift Committees
MM. "Speak Out"
NN. Daily Briefing Sessions
OO. Floral/Gift Offering
PP. Equal Employment Opportunity
QQ. Small Wins
RR. Departmental Celebration Fund
SS. Photo/Video taking
TT. SHC Car Parking
UU. Rules of Conduct
VV. Disciplinary Procedures
WW. Tardiness
XX. Termination of Employment
YY. Performance Improvement Plan (PIP)
4. Summary of Benefits
5. Summary of HR policies, benefits, and compensation programs and plans
6. Motorola Hong Kong Provident Fund Scheme-Sample Balanced Investment Fund,
Asian Fund, & Deposit Fund
7. American International Assurance Company Limited Group Life Policy, with
endorsements.
8. American International Assurance Company Limited Group Hospital & Surgical
Policy, with endorsements.
9 . American International Assurance Co., Evacuation and Repatriation Benefit
(5/18/98)
10. Travel Insurance Policy
11. Company Automobile Policy (2/1/99)
12. On-the-Spot Recognition Program 1999 (3/15/99)
IRELAND:
BENEFITS PROVIDED TO BUSINESS EMPLOYEES
1. Motorola Retirement & Death Benefit Plan
2. Motorola Medical Aid Scheme
3. Irish Life Disability and Life Insurance
4. Holiday Bonus
ISRAEL:
31
<PAGE>
EMPLOYMENT, BONUS, INCENTIVE, TRANSPORTATION, SEVERANCE OR OTHER AGREEMENTS:
1. A sample of a contract for an MIL Employee (Hebrew)
2. A sample of a job offer, global and overtime (Hebrew)
BENEFITS PROVIDED TO BUSINESS EMPLOYEES:
1. A booklet containing Motorola Israel's "Working Constitution" (Hebrew)
2. Benefits Eligibility for Each of the Company's E-Grade (Hebrew)
3. Summary of Benefits
4. 1998 Compensation Package and Benefits Package
5. Sample Pension Contract (Hebrew)
6. Provident Fund
7. Medical Plan
8. Disability Plan
9. Life Insurance Plan
UNITED KINGDOM:
EMPLOYMENT, BONUS, INCENTIVE, TRANSPORTATION SEVERANCE OR OTHER AGREEMENTS:
Form of Statement of Terms and Conditions of Employment - UK, revised 4/17/98
BENEFITS PROVIDED TO BUSINESS EMPLOYEES:
1. UK Benefit Plan, for membership from April 6, 1997
2. UK Money Purchase Plan, for membership from April 6, 1997
3. Motorola Healthcare Plan
4. American Life Insurance Company (AIG Life), Group Policy No. 300A0130,
dated August 16, 1996
5. Group Life Terms and Conditions (AIG Life), effective April 1, 1996
6. Delaware American Life Insurance Company, for Motorola UK, Group Policy No.
3217, effective date May 1, 1997
7. Motorola Limited Group Long Term Disability Insurance Policy, GS/277309,
issued by UNUM Limited on November 25, 1998, effective January 1, 1998
8. Statement of Terms and Conditions of Employment (Hours of work and shift
premium, salary payment, overtime, holidays, termination of employment,
absence, medical examination, corrective action procedure, grievance
procedure, business travel, standards of business conduct, M.I.S.
Guidelines, patent and right to search)
9. Human Resources Policy
A. Pregnancy Policy
B. Payment of Professional Fees.
C. Service Recognition
D. Employment of Related Employees
E. Smoking Policy
F. Internal Recruitment
32
<PAGE>
G. Shift Pattern
H. Training Policy
I. Payment of Overtime
J. Grievance Policy
K. Annual Holiday Review
L. Maternity Policy
M. Employee Introduction Bonus
N. Employee Termination
O. Salary Reviews
P. Absence Management
Q. Recognition Policy
R. Educational Assistance
S. Stage Down of Shift Premium
T. Disciplinary Rules and Procedures
U. Performance Appraisal
V. Employee Privacy/File Security
W. Temporary Shift Work
X. International Relocation
Y. Salary Planning Process
Z. Compensation for Travel Out With Normal Working Hours
AA. Annual Merit Review
BB. Equal Opportunity Employment
CC. Status Change Procedure
DD. Leave of Absence Policy
EE. Performance Improvement Policy
FF. Employment Agencies and Consultants
10. UNUM Group Long Term Disability Insurance Policy No. GS/277309 dated
November 25, 1998
11. Delaware American Life Insurance Co. Group Policy No. 3217, effective
May 1, 1997
12. AIG Life Group Terms and Conditions with Amendments to Policy No. 300A0130
13. American Life Insurance Company (AIG Life) Group Policy No. 300A0130
Group Life Insurance
14. Motorola Benefits Plans ("Your Motorola Pension Choices"), Sept. 1997
15. UK Benefit Plan for membership from April 6, 1997
16. Additional Voluntary Contributions (AVCs) Plan
17. Motorola UK Benefit Plan Enrolment Form
18. Healthcare Plan
19. Motorola UK Dental Plan
20. Money Purchase Plan
21. UK Additional Voluntary Contribution Plan
22. Holiday Bonus
EMPLOYEE BENEFIT PLANS:
HONG KONG:
33
<PAGE>
Motorola Hong Kong Provident Fund Scheme
Group Hospital & Surgical Policy No. GHS-25724
Group Life Insurance
Health Subsidy
Business Travel Accident Insurance
Employees' Compensation Insurance
Tax Effective Plan
IRELAND:
Motorola Retirement & Death Benefit Plan
Motorola Medical Aid Scheme
Irish Life Disability and Life Insurance
ISRAEL:
Retirement Provident Fund
Medical Plan/Dental Plan
Disability Plan
Life Insurance Plan
Pension Plan/Severance Plan
Education Plan
MATERIAL EMPLOYEE BENEFIT PLANS IN UNITED KINGDOM
UK Pension/Benefit Plan
UK Money Purchase Plan
UK Additional Voluntary Contribution Plan
Motorola Healthcare Plan
Group Life/Total Disability
Group Long-Term Disability Insurance
Motorola UK Dental Plan
34
<PAGE>
APPENDIX C
SEVERANCE PLAN
U.S. PROPEL EMPLOYEES
Each U.S. Propel Employee shall be entitled to separation pay equal to one
week of pay for every year of such employee's combined service with
Motorola, Propel and their respective Affiliates, with a minimum of one
month of pay. Separation pay shall be prorated for completed calendar
months of service based on the service club date (combined total Motorola
and Propel service). Under certain circumstances Propel and its Affiliates
may elect to provide more generous severance pay, with the written approval
of the corporate director of human resources.
NON-U.S. PROPEL EMPLOYEES
UNITED KINGDOM: 1 month for every year of service, calculated using basic pay
plus holiday bonus only and subject to a maximum payout of
24 months (including any pay in lieu of notice).
IRELAND: 6 weeks of salary for each year of service. Maximum severance
payment is equivalent to 2 years gross salary inclusive of any
statutory entitlement.
ISRAEL: Based on age and years of service according to the attached
table.
HONG KONG: Separation payment at 1 month of wages per year of service,
prorated for incomplete years; subject to a cap of 30 months of
wages or projected earnings to normal retirement age, whichever
is less; notice payment or payment in lieu; provident fund
employer entitlements (I.E., no off-setting); annual leave
encashment and year-end bonus are payable in compliance with
employment ordinance; one year waiting period for rehire; the
package applies to any length of service.
35
<PAGE>
APPENDIX D
PROPEL EMPLOYEES ENTITLED TO RETIREE MEDICAL COVERAGE
(PURSUANT TO SECTION 2.12 OF THE AGREEMENT):
APPENDIX D-1 (PURSUANT TO SECTION 2.12(a)):
FULL NAME
Babka, Michael E.
Minkus, Loren S.
Norris, J. Michael
APPENDIX D-2 (PURSUANT TO SECTION 2.12(b)):
FULL NAME
Haning, Richard D.
Ford, Mary Ellen
Holden, Thomas P.
Shabib, Mohammad A.
Young, Robert S.
Traversa, Halyna M.
APPENDIX D-3 (PURSUANT TO SECTION 2.12(c)):
FULL NAME
Larrea, Wilma T.
Van Parys, Mike
Burmeister, Deborah
Cooley, Sandra M.
Bartell, Don G.
Wyman, Scott
Hoets, Hendrik P.
Smilie, William
Sebastian, Carol
Hyrnewycz, Sonia
Beneda, James S.
Pratt, Marion K.
Carr, Mary Jo
Meek, Brian K.
36
<PAGE>
APPENDIX E
INCENTIVE COMPENSATION PLAN
See attached.
37
<PAGE>
APPENDIX F - 1
RETENTION BONUSES
(PURSUANT TO SECTION 4.1(a) OF THE AGREEMENT)
Babka, Michael E.
Holden, Thomas P.
Thomson, Craig
Beneda, James S.
Dagher, Michael S.
Deeb, Ossama M.
Haleem, Ahmad Y.
Ide, James F.
Meek, Brian K.
Paulin, Mario
Van Parys, Mike
Weston, Mark M.
Wiley, Kevin J.
Whittingham, Karen
Balzan, John
Barona, Jesus J.
Barry, Carl O.
Bartell, Don G.
Bennett, Phillipa
Borges, Suny
Burmeister, Deborah, J.
Calmes, Jere C.
Cockrell, Richard
Combetto, Jorge
Davis, Carolyn
Ford, Mary Ellen
Gaceta, Melvin A.
Galbavy, Mary
Hoets, Hendrik P.
Kearney, Paul
Khaliq, Zouhair
Lin, Lynn
Manon, Patricia
Dorn, Mark
Raja, Adnan
Kallianis, Peter
38
<PAGE>
APPENDIX F - 1 (CONTINUED)
RETENTION BONUSES
(PURSUANT TO SECTION 4.1(a) OF THE AGREEMENT)
Minkus, Loren S.
Quinlan, Denis J.
Rojas, Peter J.
Shabib, Mohammad A.
Smilie, William
Traversa, Halyna M.
Worman, Jonathan P.
Wyman, Scott
Cooley, Sandra M.
Firth, Barry
Gould, Michael P.
Honigschmidt, Shelley A.
Pelaez, Patricia
Pratt, Marion K.
Ramos, Maribel
Stoner, Jennifer L.
Washington, Christina
Akhtar, Sarah
Carr, Mary Jo
Hyrnewycz, Sonia
Kearns, Margaret
Larrea, Wilma T.
McGurn, Maureen
Miller, Mary Ann
Pistorio, Tammy
Reyes, Ana C.
Sebastian, Carol
Terry, Sarah
Whiston, Carol
39
<PAGE>
APPENDIX F - 2
RETENTION BONUSES
(PURSUANT TO SECTION 4.1(b) OF THE AGREEMENT)
Babka, Michael E.
Barona, Jesus J.
Holden, Thomas P.
Norris, J. Michael
Thomson, Craig
Wiley, Kevin J.
Young, Robert S.
40
<PAGE>
APPENDIX G
(TRANSFERRED INDEPENDENT CONTRACTORS)
41
