Exhibit 2.1 (b)
AMENDMENT NO. 1 TO MASTER ACQUISITION AGREEMENT
THIS AMENDMENT NO. 1 (this “
Amendment
”) to the Master Acquisition Agreement dated as of July 16, 2010 by and between Motorola Solutions, Inc. (f/k/a Motorola, Inc.), a Delaware
corporation (the “
Seller
”), and Nokia Siemens Networks B.V., a Dutch company (the “
Purchaser
”) (as may be amended, modified or supplemented from time to time in accordance with the terms thereof, the “
Master
Agreement
”), is made as of April 12, 2011 by and between the Seller and the Purchaser. Capitalized terms used but not otherwise defined herein shall have the same meanings ascribed to such terms in the Master Agreement.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, pursuant to the Master Agreement, the Seller has agreed to sell and transfer to the Purchaser, and the Purchaser has agreed to
purchase from the Seller, substantially all of the assets of the Seller and the other members of the Seller Group used in or related to the Business;
WHEREAS, as consideration for an amendment to the Purchase Price, Seller desires to obtain additional certainty as to the occurrence of the Initial Closing; and
WHEREAS, the parties desire to amend the Master Agreement on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be
legally bound hereby, subject to the conditions and other terms herein set forth, the Seller and the Purchaser hereby agree as follows:
1.
Amendment
. The Master Agreement is hereby amended as follows:
(a) Section 1.1(a) of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(a)
Real Property
. (i) The Owned Real Property listed on
Schedule 1.1(a)(i)
of the Seller Disclosure Schedule (the “
Acquired Owned Real Property
”), (ii) all
rights in respect of the real property leases or subleases listed on
Schedule 1.1(a)(ii)
of the Seller Disclosure Schedule (the “
Assumed Real Property Leases
”), (iii) all rights of the Seller Group in and to any fixtures
located at each Acquired Owned Real Property and each parcel of real property subject to an Assumed Real Property Lease, and (iv) all security deposits made by a member of the Seller Group and held by the applicable landlord on the Initial
Closing Date with respect to an Assumed Real Property Lease and all other security or similar deposits made by any member of the Seller Group to any third party and held by such third party on the Initial Closing Date with respect to any Acquired
Real Property;”
(b) Section 1.2(e) of the Master Agreement is hereby amended and
restated to read in its entirety as follows:
“(e)
Contracts
. (i) All rights under all Contracts of the
Seller Group (A) set forth on
Schedule 1.2(e)
of the Seller Disclosure Schedule or (B) that are not an Assumed Real Property Lease or an Assumed Contract (including, subject to
Section 10.7
, all global or corporate-level
agreements of the Seller and its Affiliates), and (ii) all rights under all Contracts (including associated Accounts Receivable) of Motorola ZAO with Nokia Siemens Networks OOO with respect to services provided by Motorola ZAO;”
(c) Section 1.2 of the Master Agreement is hereby amended by deleting subsection (m) in its entirety
and replacing it with the following: “(m) [Intentionally Omitted]”.
(d) Section 1.2(r) of the
Master Agreement is hereby amended and restated to read in its entirety as follows:
“(r)
MCC Financing Notes;
Receivables
. All of the promissory notes issued to MCC, or receivables or leasing arrangements otherwise held by MCC, related to financing provided by MCC for the benefit of customers of the Business (the “
MCC Receivables
”);
and”
(e) Section 1.4 of the Master Agreement is hereby amended by deleting “and” at the
end of subsection (h), adding “; and” to the end of subsection (i) in lieu of the period, and adding a new subsection (j) to read in its entirety as follows:
“(j)
Huawei Payables
. All Accounts Payable owed to Huawei Technologies Co., Ltd. (“
Huawei
”) or any of its
Affiliates relating to or arising out of the operation of the Business.”
(f) Section 1.5(f) of the
Master Agreement is hereby amended and restated to read in its entirety as follows:
“(f) such other instruments and
agreements as may be required to effect the purchase and assignment and assumption of the Acquired Company Shares, the JV Interests, the other Acquired Assets and the Assumed Liabilities, including (i) the Equity Transfer Agreement and
(ii) where necessary, separate agreements to effect the transfer of any Acquired Owned Real Property”
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(g) The first sentence of Section 2.1 of the Master Agreement is hereby
amended and restated to read in its entirety as follows:
“The Purchaser will pay the Seller an amount in cash equal to
$975,000,000.00 (Nine Hundred Seventy Five Million Dollars) (the “
Purchase Price
”) for the Acquired Assets at the Initial Closing, subject to the provisions of
Section 2.5
.”
(h) Section 2.1 of the Master Agreement is hereby amended by adding the following at the end of such section:
“To the extent that any member of the Purchaser Group is required under applicable law to make local payment for
Acquired Assets in any particular jurisdiction directly to a member of the Seller Group, such payment will be made in Dollars, if permissible under applicable law, and the Seller will reimburse to the Purchaser (i) each such amount in Dollars
or (ii) if such local payment is made in a currency other than Dollars, the Dollar equivalent based on the “closing mid-point rates” as published at
http://www.FT.com/marketsdata
(in the “Data Archives” section) (the
“
Reference Rate
”) as of the date the local payment is made, within two (2) business days of such local payment being made by such local Purchaser Group member to such local Seller Group member. To the extent that any member of
the Seller Group is required under applicable law to make local payment in any particular jurisdiction directly to a member of the Purchaser Group as a result of the Assumed Liabilities exceeding the Acquired Assets in such jurisdiction, such
payment will be made in Dollars, if permissible under local law, and the Purchaser will reimburse to the Seller (x) each such amount in Dollars or (y) if such local payment is made in a currency other than Dollars, the Dollar equivalent
based on the Reference Rate as of the date the local payment is made, within two (2) business days of such local payment being made by such local Seller Group member to such local Purchaser Group member.”
(i) Section 2.2(a) of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(a) The parties agree to conduct the Initial Closing of the transactions contemplated by this Agreement (all such
transactions, including the transactions contemplated by the Additional Closings, being referred to herein as the “
Contemplated Transactions
”) at the offices of Winston & Strawn LLP, 35 West Wacker Drive, Chicago, Illinois
at 10:00 AM (local time) on April 29, 2011;
provided
,
however
, that in the event the conditions
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precedent to the Initial Closing listed in
Article 6
have not been satisfied or waived on or prior to 12:00 PM, London time, on April 26, 2011, and the Purchaser does not exercise its
right of termination pursuant to
Section 7.1(b)
by May 11, 2011, the Initial Closing shall occur on May 27, 2011 (the date of the Initial Closing, the “
Initial Closing Date
”). The effective time of the Initial
Closing for tax, operational and all other matters will be deemed to be 11:59 PM (local time) in each jurisdiction included in the Initial Closing, on the Initial Closing Date.”
(j) Section 2.2(b) of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(b) The Initial Closing will include the closing of the sale and purchase of Acquired Assets in the United States and
in at least a majority of the Initial Closing Jurisdictions, as well as a majority of the employees and assets of the Business in the Initial Closing Jurisdictions;
provided
,
however
, that with respect to the JV Interests and any
individual country, if the closing cannot be effected on the Initial Closing Date, the closing with respect to such Acquired Assets, or such JV Interest, may be deferred until a later date; and
provided
further
that it is expressly
agreed by the parties that the inability to transfer any Owned Real Property in Poland on the Initial Closing Date will not delay the closing with respect to the sale and purchase of all other Acquired Assets in Poland on the Initial Closing Date.
The parties shall, as soon as reasonably practicable, hold Additional Closings for the purpose of transferring such Acquired Assets in such countries (including with respect to Owned Real Property in Poland, if applicable), or transferring such JV
Interests, as soon as the closing can be effected, unless the parties mutually agree on a different date for such Additional Closing. Each Additional Closing shall occur as of 11:59 PM, local time, on the date of such Additional Closing. For the
purposes of each Additional Closing, references to the “Initial Closing Date” in
Section 1.1
through
Section 1.4
shall be read as references to the ‘applicable Closing Date’.”
(k) Section 2.2(d) of the Master Agreement is hereby amended by replacing the reference to “12:01 AM” with
“11:59 PM”.
(l) Section 2.2 of the Master Agreement is hereby amended by adding a new
subsection (e) to read in its entirety as follows:
“(e) Notwithstanding anything set forth in this
Section 2.2
to the contrary, the completion of the closing of the purchase and sale of the India Acquired Assets and the assignment and assumption of
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the India Assumed Liabilities pursuant to a transfer of business (the “
India Closing
”) shall occur, at such place as the Seller and the Purchaser may agree in writing, on the
last day of the fiscal month of the Seller in which (i) the India Acquired Assets located at Plot No. 12 Hitec City Layout, Madhapur, Serilingampalli Municipality, Ranga Reddy District, Hyderabad have been de-bonded and (ii) a change
in implementing agency with respect to the STP License, along with the India Acquired Assets registered thereunder, located at No. 66/1, Plot No. 5, Bagmane Tech Park, C.V. Raman Nagar Post, Bengaluru 560 093, India, is issued to NSN India
by the Software Technology Parks of India and NSN India receives the approvals from the Indian customs and other authorities for each of such premises, or on such other date as the Seller and the Purchaser may agree in writing. The date on which the
India Closing occurs shall be referred to as the “
India Closing Date
”, and except as expressly provided herein, the India Closing shall for all purposes be deemed effective as of 11:59 PM, India time, on the India Closing
Date.”
(m) Section 2.3(a) of the Master Agreement is hereby amended and restated to read in its
entirety as follows:
“(a) The Seller will deliver, or will cause to be delivered, to the Purchaser all instruments, duly
executed, or other items which are required by the terms hereof to be delivered at the applicable Closing, including:
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(iii)
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the Assignment and Assumption Agreement;
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(iv)
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the Malaysia Asset Transfer Agreement;
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(v)
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the Malaysia Side Letter;
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(vi)
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each Local Asset Transfer Agreement (unless otherwise specified therein);
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(vii)
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the Transition Services Agreement;
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(viii)
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the Lease/Sublease Agreements;
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(ix)
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the Joint Use & Occupancy Agreements;
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(x)
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the Malaysia Interim Operating Agreement;
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(xi)
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the Interim India Agreement;
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(xii)
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the various instruments of assignment, reflecting the Purchaser or another member of the Purchaser Group as the assignee, and other documents referred to in the IP
Agreement;
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(xiii)
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a certificate signed by an officer of the Seller substantially in the form of
Exhibit P
;
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(xiv)
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a certificate signed by an officer of the Seller setting forth the amount of the Undrawn MCC Commitment; and
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(xv)
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all such other bills of sale, special or limited warranty deeds, assignments and other good and sufficient instruments of assignment, transfer or conveyance as the
Purchaser and its counsel shall deem reasonably necessary to evidence and effect the sale, transfer, assignment, conveyance and delivery of all of the Seller Group’s right, title and interest in, to and under the Acquired Assets to the
Purchaser Group and to put the Purchaser Group in actual possession or control of the Acquired Assets.”
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(n) Section 2.3(c) of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(c) The Purchaser will deliver, or will cause to be delivered, to the Seller all instruments, duly executed, or other items which are required by the terms hereof to be delivered at the applicable
Closing, including:
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(i)
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an amount equal to the Purchase Price (the “
Cash Payment
”), by wire transfer of immediately available funds in Dollars, to the account set forth on
Schedule 2.3(c)
of the Seller Disclosure Schedule;
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(ii)
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the Assignment and Assumption Agreement;
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(iii)
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the Malaysia Asset Transfer Agreement;
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(iv)
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the Malaysia Side Letter;
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(v)
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each Local Asset Transfer Agreement (unless otherwise specified therein);
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(vi)
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the Transition Services Agreement;
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(vii)
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the Lease/Sublease Agreements;
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(viii)
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the Joint Use & Occupancy Agreements;
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(ix)
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the Malaysia Interim Operating Agreement;
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(x)
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the Interim India Agreement;
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(xi)
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the various instruments of assignment, reflecting the Purchaser or another member of the Purchaser Group as the assignee, and other documents referred to in the IP
Agreement;
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(xii)
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all such other deeds, assumptions and other good and sufficient instruments of conveyance and assumption as the Seller and its counsel shall deem reasonably necessary
for the assumption of the Assumed Liabilities or to vest in the Purchaser (or any member of the Purchaser Group) all of the Seller’s right, title and interest in, to and under the Acquired Assets; and
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(xiii)
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a certificate signed by an officer of the Purchaser substantially in the form of
Exhibit Q
.”
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(o) The first sentence of Section 2.5(b) of the Master Agreement is hereby amended and restated to read in its
entirety as follows:
“As promptly as practicable following the Initial Closing Date but in no event later than ninety
(90) days thereafter, the Purchaser will prepare and deliver to the Seller an unaudited statement of Net Assets as of the close of business (Chicago time) on the Initial Closing Date (the “
Preliminary Closing Date Statement of Net
Assets
”), which statement shall reflect Net Assets as of the Initial Closing Date (as adjusted pursuant to this sentence) (the “
Preliminary Net Assets
”) and which shall be prepared on a basis consistent with the Adjusted
Most Recent Statement of Net Assets;
provided
that such Preliminary Closing Date Statement of Net Assets shall not be adjusted as set forth in
Section 2.5(a)(i)
which shall result, for the avoidance of doubt, in the exclusion of
any factored receivables as of the Initial Closing Date (such adjustment, an illustrative example of which is set forth in
Schedule 2.5(b)
of the Seller Disclosure Schedule, the “
Closing Date Factored Receivables
Adjustment
”); and
provided further
that such Preliminary Closing Date Statement of Net Assets (i) shall not reflect as liabilities any accruals for payroll to be paid by the Seller Group (it being understood such liabilities are
Assumed
7
Liabilities pursuant to
Section 1.3(f)
), (ii) shall not reflect as liabilities any Accounts Payable excluded pursuant to
Section 1.4(j)
, and (iii) shall reflect
as assets any security deposits acquired pursuant to
Section 1.1(a)(iv)
(collectively, together with the Closing Date Factored Receivables Adjustment, the “
Closing Date Adjustments
”).”
(p) Sections 2.5(c) and (d) are hereby amended by replacing all references to “Closing Date Factored Receivables
Adjustment” with “Closing Date Adjustments”.
(q) Article 5 of the Master Agreement is hereby
amended by adding the following new Section 5.14:
“5.14
Post-Amendment Covenants
.
(a)
Conduct of the Business
. Except as required by applicable law or contemplated by this Agreement or any other Transaction
Agreement, during the period from April 12, 2011 (the “
Amendment Date
”) to the Initial Closing Date, the Seller will, and will cause the Acquired Companies and the applicable members of the Seller Group to, (a) conduct the
Business in the Ordinary Course, and (b) use Reasonable Efforts to preserve intact their business organizations related to the Business and preserve their current business relationships with the customers listed on
Schedule 3.17(a)
of
the Seller Disclosure Schedule and all material suppliers, licensors, licensees, distributors and other Persons with which the Seller or the Acquired Companies have business dealings. Without limiting the generality of the foregoing, except as
required by applicable law or contemplated by this Agreement or any other Transaction Agreement, or as set forth on
Schedule 5.1
of the Seller Disclosure Schedule, during the period from the Amendment Date to the Initial Closing Date, the
Seller will not take, and the Seller will cause the Acquired Companies and the other members of the Seller Group not to take, any of the following actions in relation to the Business, without the consent of the Purchaser, which consent will not be
unreasonably withheld, delayed or conditioned:
(i)(A) issue or sell any capital stock, notes, bonds or other
securities of any Acquired Company (or any option, warrant or other right to acquire the same) or (B) redeem any of the capital stock of any Acquired Company;
(ii) amend or restate the articles of incorporation, memorandum of organization, bylaws or other constituent documents of
any Acquired Company in any material respect;
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(iii) enter into any merger, consolidation, business combination, share
exchange, reorganization or similar transaction involving any Acquired Company;
(iv) enter into any
transactions, contracts and understandings with Affiliates that would be binding on the Acquired Companies or the Acquired Assets after the Initial Closing;
(v) lease, license, sell, transfer, encumber or permit to be encumbered the Acquired Company Shares, any material asset of the Acquired Companies or any other material Acquired Assets, other than
(A) licenses granted (excluding real property licenses), products and services sold or assets otherwise disposed of in connection with sales to customers in the Ordinary Course, (B) the factoring of Accounts Receivable in the Ordinary
Course, (C) the transfer of cash or cash equivalents of the Business or any Acquired Company (it being expressly acknowledged and agreed by the Purchaser that the Seller shall be entitled to cause the transfer or distribution by the Seller
Group or the Acquired Companies of all cash and cash equivalents held by the Seller Group or the Acquired Companies, including any cash held in the Transferred Accounts, prior to the Initial Closing), or (D) the renewal, extension or amendment,
in the Ordinary Course and on terms no less favorable in the aggregate than existing on the date hereof and, in the case of a renewal or extension, for no longer than twelve (12) months, of any Assumed Real Property Lease that has an expiration
date on or prior to May 27, 2011;
(vi) waive or release any material right or claim to the extent
relating to or arising from the Acquired Assets or the Assumed Liabilities;
(vii) commence any action, suit,
hearing, proceeding, arbitration or mediation (except, in the case of arbitration or mediation, as required by the terms of a contract) against any customer or supplier of the Business;
(viii) enter into any settlement or release with respect to any action, suit, hearing, proceeding, arbitration,
mediation, audit, inquiry, or investigation (whether civil, criminal, administrative or otherwise) involving any of the Acquired Assets, other than any settlement or release of disputes related to Accounts Payable in the Ordinary Course;
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(ix)(A) terminate any Material Contract, (B) amend any Lease of any
Material Real Property (excluding any renewal, extension or amendment of any Assumed Real Property Lease, which is covered under subsection (v)(D) above), or (C) amend any other Material Contract (excluding any Lease of any Material Real
Property which is covered by clause (B) above);
(x) commit to make any new single capital expenditure
that is in excess of $1,000,000 and that would be binding on the Purchaser Group or an Acquired Company after the Initial Closing Date;
(xi) increase or agree to increase the base compensation of any Transferred Employee other than (A) in the Ordinary Course and in an amount that, with respect to an individual, does not exceed 15% of
such individual’s base compensation as of the date hereof, (B) in connection with any promotion of a Transferred Employee made in the Ordinary Course, or (C) in connection with the annual merit increases decided prior to the Amendment
Date that are being implemented in April and May 2011 by the Seller Group;
(xii) relocate a material number
of Transferred Employees to locations that are greater than thirty (30) miles from such Transferred Employees’ respective work locations as of the date hereof;
(xiii) take any action that would result in the expiration, lapse, termination, or abandonment of any Permit that is
material to the Business;
(xiv) take any action that would reasonably be expected to have a Material Adverse
Effect on the Business;
(xv)(A) other than in the Ordinary Course, issue or enter into any new Seller
Guarantees and Bonds, or (B) except with respect to locations with leases expiring on or prior to May 27, 2011, issue or enter into any Lease Security Instrument in an amount greater than three (3) months of the base rent payable
under the applicable lease which would be binding on the Purchaser or any Acquired Company after the Initial Closing Date, in either case in connection with any obligation of the Business, any Acquired Real Property or any Acquired Company;
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(xvi) enter into any real property lease pursuant to which any Acquired
Company is a party or the Purchaser or any Affiliate will be bound after the Initial Closing Date;
(xvii)
enter into any new arrangements similar to the MCC Financing Contracts or amend any existing MCC Financing Contract, other than the extension of an existing MCC Financing Contract that does not bind the Purchaser or any Affiliate after the Initial
Closing Date; or
(xviii) agree to do any of the things described in the preceding clauses (i) through
(xvii) of this
Section 5.14
.
(b)
Access to Information
. From the Amendment Date until the Initial
Closing, subject to the requirements and limitations of applicable law (including Antitrust Laws), the Seller will provide all reasonable cooperation to enable the Purchaser and its representatives and agents to have reasonable access to
(a) the offices and facilities of the Business and materials and information about the Business, (b) customers and suppliers of the Business, and (c) employees and members of management of the Business and any property manager for any
Acquired Owned Real Property, any Owned Real Property owned by any Acquired Company or any Leases identified on
Schedule 3.16(b)-1
,
Schedule 3.16(b)-2
or
Schedule 3.16(b)-3
of the Seller Disclosure Schedule. Notwithstanding the
foregoing, the Purchaser expressly acknowledges and agrees that to the extent discussions with customers or suppliers of the Business shall take place prior to the Initial Closing Date with respect to the Contemplated Transactions, such discussions
shall be coordinated with the Seller and the Seller shall be entitled to have a representative present in all such discussions.”
(r) Section 6.1(a) of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(a)
Conditions to the Initial Closing
. The obligations of the Seller to effect the Initial Closing are subject to the fulfillment on or before the Initial Closing Date of each of the
following conditions, any one or more of which may be waived by the Seller but only in a writing signed by the Seller:
(i)
No Litigation
. No judgment, writ or order of any Governmental Entity or other legal restraint or prohibition may be in effect that in any case would prevent the Contemplated Transactions.
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(ii)
MOFCOM Approval
. Approval of the Anti-Monopoly Bureau of the
Ministry of Commerce in China to the Contemplated Transactions must have been obtained.
(iii)
Cash
Payment
. The Cash Payment shall have been received by the Seller in accordance with
Section 2.3(c)(i)
.”
(s) Section 6.2(a) of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(a)
Conditions to the Initial Closing
. The obligations of the Purchaser to effect the Initial Closing are subject to the fulfillment on or before the Initial Closing Date of each of the
following conditions, any one or more of which may be waived by the Purchaser but only in a writing signed by the Purchaser:
(i)
No Litigation
. No judgment, writ or order of any Governmental Entity or other legal restraint or prohibition may be in effect that in any case would prevent the Contemplated Transactions.
(ii)
MOFCOM Approval
. Approval of the Anti-Monopoly Bureau of the Ministry of Commerce in China to the
Contemplated Transactions must have been obtained.
(iii)
Third Party Consents
. The Seller shall have
obtained all third party consents and approvals set forth in
Schedule 6.2(a)(viii)
of the Seller Disclosure Schedule.
(iv)
Resolution of Huawei Claims
. (A) The Northern District of Illinois (the “
Illinois Court
”) shall have vacated, with prejudice, the preliminary injunction order entered by
the Illinois Court on February 22, 2011 in connection with the proceeding captioned
Huawei Technologies Co., Ltd. v. Motorola, Inc. et al.
, No. 11-cv-497 (the “
Illinois Action
”), (B) a filing of a dismissal
with prejudice by the parties to the Illinois Action shall have been made with the Illinois Court, (C) the Purchaser shall have received a copy of a written submission filed by Huawei with the ICC Court wherein Huawei confirms that Huawei and
the Seller have reached a full and final settlement with respect to all claims referenced in, and relating to, Huawei’s Request for Arbitration (the “
Swiss Arbitration
”), and wherein Huawei withdraws and dismisses with
prejudice all its claims against the Seller in such arbitration proceedings, and (D) Huawei shall have delivered to the parties the consent in the form attached hereto as
Exhibit R
.”
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(t) Section 7.1 of the Master Agreement is hereby amended and restated
to read in its entirety as follows:
“7.1
Termination
. This Agreement may be terminated at any time prior to the
Initial Closing:
(a) By mutual written consent of the Purchaser and the Seller;
(b) By the Purchaser by May 11, 2011 in the event that the conditions precedent to the Initial Closing listed in
Article 6
have not been satisfied or waived on or prior to 12:00 PM, London time, on April 26, 2011;
provided
,
however
, that the Purchaser cannot terminate this Agreement under this provision if the failure of the
conditions precedent to be satisfied is primarily the result of the failure on the part of the Purchaser to perform any of its obligations hereunder or under any other Principal Agreement; or
(c) By either the Purchaser or the Seller in the event the Initial Closing has not occurred on or before the close of
business, Chicago time, on May 27, 2011;
provided
,
however
, that a party cannot terminate this Agreement under this provision if the failure of the Initial Closing to occur is primarily the result of the failure on the part of
such party to perform any of its obligations hereunder or under any other Principal Agreement (except the failure on the part of such party to satisfy a closing condition over which such party has no control).
Any valid termination of this Agreement in accordance with this
Section 7.1
shall become effective by the delivery of written
notice by the terminating party to the other party. Each of the Principal Agreements will automatically terminate upon the termination of this Agreement without any further action by either party.”
(u) Section 8.1 of the Master Agreement is hereby amended and restated to read it its entirety as follows:
“8.1
Indemnification by the Seller
. From and after the Initial Closing, and subject to the limitations expressly
set forth in
Section 8.5
hereof, the Seller will, during the Indemnification Period, indemnify, defend and hold harmless the Purchaser and its stockholders, directors, officers, employees, agents and Affiliates (collectively, the
“
Purchaser Indemnitees
”) from and against any and all Losses (other than Losses with respect to Taxes, for which the provisions of
Section 9.1(a)
will govern) incurred by the Purchaser Indemnitees arising out of or
resulting from the following:
(a) any failure of any Seller Representation (other than
Section 3.5(c)
) to be true and correct on and as of the Initial Closing Date (or with respect to representations and warranties that are made as of a specific date, the failure of such representations and warranties to be true and
correct as of such date);
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(b) other than with respect to the covenant obligations in
Section 5.1
and
Section 5.10(b)
, any failure of the Seller to duly perform any covenant or agreement to be performed by the Seller pursuant to any of the Principal Agreements;
(c) any Excluded Liability (whether arising prior to or after the Initial Closing Date); and
(d)(i) any failure of the Illinois Court to dismiss with prejudice the Illinois Action or (ii) any failure of the
ICC Court to dismiss with prejudice the Swiss Arbitration.
(v) The second sentence of Section 8.5(a)(i)
of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“Other than with respect to
Losses incurred in connection with (A) the Excluded Liabilities described in Sections 1.4(g) and 1.4(h) or (B) the failure of the actions described in Section 8.1(d) to occur, the Seller’s aggregate Liability for all Losses under
this Agreement (whether under this Article 8, Article 9 or otherwise) and the other Transaction Agreements will in no event exceed the Purchase Price.
(w) Article 8 of the Master Agreement is hereby amended by adding the following new Section 8.8:
“8.8
Special Indemnity Provisions
.
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(a)
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The Seller shall indemnify, reimburse, defend and hold harmless the Purchaser Indemnitees from and against any and all Losses up to a maximum of US
$1.75 million in the aggregate incurred by any and all Purchaser Indemnitees arising out of or resulting from (i) the failure of the Seller or any Affiliate thereof to obtain any permit, license, certification, approval or consent from a
Governmental Entity and/or a third party legally required as a result of any construction at and/or improvement of the approximately nine
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thousand (9,000) square foot portion of the premises designated by the Seller as ZCH17 and commonly known as No. 30, Bohai Road, Development Area, Tianjin, China and identified on the
site plan attached hereto as
Schedule 8.8
(the “
Tianjin Premises
”) by the Seller or any Affiliate thereof including any fee, penalty or similar payment assessed or otherwise required by any Governmental Entity and/or any
costs related to the defense of any action brought by a Governmental Entity or a third party) (any permit, license, certification, approval or consent contemplated by this subsection (i), each a “
Tianjin Consent
”); (ii) the
removal or modification of any structure, improvement or fixture, and/or the removal of any personal property, from the Tianjin Premises, provided that such action is required by any Governmental Entity pursuant to applicable law as the result of
the failure of the Seller or any Affiliate to obtain any Tianjin Consent; or (iii) the relocation by the Purchaser or its Affiliates from the Tianjin Premises to alternate premises, or the construction of any structure or improvement, to the
extent necessary for the Purchaser and its Affiliate to operate the Business as conducted immediately prior to the Initial Closing Date, provided such relocation is a result of any of (i) – (ii) above, including the additional or
incremental cost to the Purchaser and its Affiliates of such alternate premises.
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(b)
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To the extent that the Seller shall have the right and standing to do so in its own name, the Seller may challenge any determination by any
Governmental Entity giving rise to a claim by any Purchaser Indemnitee pursuant to the terms of this
Section 8.8
and, at the Seller’s reasonable request, the Purchaser shall reasonably cooperate with the Seller so long as the Seller
promptly reimburses the Purchaser for all out-of-pocket costs and expenses incurred by the Purchaser in connection therewith. If the Seller does not have the right and/or standing to challenge in its own name any determination by any Governmental
Entity giving rise to a claim by any Purchaser Indemnitee pursuant to the terms of this
Section 8.8
, at the Seller’s reasonable request and so long as and to the extent the Purchaser determines such action is commercially reasonable
(taking into consideration the on-going operations of
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the Purchaser and its Affiliates in China), the Purchaser shall appeal such determination by such Governmental Entity until a final, non-appealable determination has been rendered.
Notwithstanding the foregoing, (i) any claim made by any Purchaser Indemnitee hereunder shall be subject to the procedures and other terms and conditions of
Section 8.3
, including with respect to any Purchaser Indemnitee’s
ability to settle claims made by any Governmental Entity or third party without the Seller’s consent, and (ii) the Seller’s obligations shall not be modified as the result of any delay caused by any challenge or appeal of any
determination by any Governmental Entity as contemplated herein.
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(c)
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Notwithstanding the foregoing, the Seller shall have no obligation hereunder to the extent of any Losses incurred by the Purchaser Indemnitees as the result of any
Purchaser Indemnitee seeking from or voluntarily disclosing to any Governmental Entity or third party any Tianjin Consent (or lack thereof), unless legally required to do so, prior to the time that any Governmental Entity or third party notifies any
Purchaser Indemnitee of its failure to have obtained any Tianjin Consent, or otherwise asserts rights or imposes any obligation on any Purchaser Indemnitee as the result of the failure of the Seller or its Affiliates to obtain any Tianjin Consent.
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(d)
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The Purchaser and any Successor Tianjin Owner shall have the right to assign in whole, but not in part, its rights pursuant to this
Section 8.8
in favor of any Person that acquires the Tianjin Premises (each, a “
Successor Tianjin Owner
”), subject to the limitations set forth herein, and, upon such assignment, the definition of Purchaser Indemnitee
shall be modified to include each such Successor Tianjin Owner and its stockholders, directors, officers, employees, agents and Affiliates. The Purchaser and any Successor Tianjin Owner shall provide the Seller with notice of any such assignment
made pursuant to this
Section 8.8
. For the avoidance of doubt, if the rights pursuant to this
Section 8.8
are assigned to a Successor Tianjin Owner, the Seller’s indemnification and reimbursement obligations hereunder
shall cease with respect to the assignor of such rights and its stockholders, directors, officers,
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employees, agents and Affiliates (each, an “
Assignor
”), provided that the then-current Successor Tianjin Owner entitled to the rights pursuant to this
Section 8.8
may
specify in writing amounts by which one or more Assignors may share in its indemnification and reimbursement rights pursuant to this
Section 8.8
, and, upon receipt by the Seller of such written notice, the Seller’s indemnification
and reimbursement obligations to such Assignor(s) shall continue (and such Assignor(s) shall be entitled to make a claim for such indemnification and reimbursement) up to any such amount specified. Also for the avoidance of doubt, regardless of the
number of assignments made pursuant to this
Section 8.8
or the number of entities sharing in rights to indemnification and reimbursement pursuant to the proviso in the prior sentence, under no circumstances will the Seller be liable to
make payments under this
Section 8.8
in excess of US $1.75 million in the aggregate.
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(e)
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Notwithstanding anything to the contrary contained herein, any amounts required to be paid by the Seller pursuant to its obligations under this
Section 8.8
shall not be subject to the terms and limitations set forth in
Section 8.5
.”
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(x) Section 9.1(d) of the Master Agreement is hereby amended by adding the following as the second sentence of such
section:
“For the avoidance of doubt, any duties, value added taxes or any other costs or fees payable by the Seller
Group resulting from the debonding of Acquired Assets located in India and China in connection with the Contemplated Transactions shall not be deemed to be Transfer Taxes, and such duties shall be borne solely by the Seller Group.”
(y) Section 9.3(b) of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(b) For the purposes of this
Section 9.3
, any payments made (i) pursuant to
Article 8
or
9
hereof or (ii) pursuant to Section 3.04 of the Interim India Agreement will be treated as adjustments to the Purchase Price and the parties shall make appropriate adjustments to any allocation (whether or not an Agreed Allocation)
to reflect any adjustments to the Purchase Price.”
17
(z) Section 10.1(c) and Exhibit A of the Master Agreement are hereby
amended by replacing all references to “MCC Notes” with “MCC Receivables”.
(aa)
Section 10.7 of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(a) Each
material Shared Contract which, pursuant to its terms, may be assigned in part to the Purchaser, or split or replicated for the benefit of the Purchaser, without the consent of the counterparty thereto or other conditions, including the payment of a
transfer or other fee (the “
Assignable Shared Contracts
”), shall be deemed to be an Assumed Contract hereunder and the Seller shall partially assign to the Purchaser, or split or replicate for the benefit of the Purchaser, as of the
Initial Closing, such Contract in accordance with its terms. Each party shall use its Reasonable Efforts prior to the Initial Closing Date to cause the counterparty to each material Shared Contract that is not an Assignable Shared Contract (the
“
Non-Assignable Shared Contracts
”) to consent to the partial assignment of such Shared Contract to the Purchaser, the split or replication of such Shared Contract for the benefit of the Purchaser, or to otherwise enter into a new
Contract with the Purchaser on substantially the same terms as exist under the applicable Shared Contract, in each case as of the Initial Closing. Each such Shared Contract for which the parties have received consent to the partial assignment, or
split or replication, shall thereafter be deemed to be an Assumed Contract hereunder and, if applicable, the Seller shall partially assign to the Purchaser as of the Initial Closing such Contract in accordance with its terms.
(b) The Seller shall not take any action to terminate prior to its expiration any Shared Contract that is a Material Contract, or take
any action or fail to take any action that would permit the other party to any such Shared Contract to terminate prior to its expiration such Shared Contract, in each case, prior to the date that is twelve (12) months after the Initial Closing
Date. Notwithstanding the foregoing, the Seller shall not be required to partially assign to the Purchaser, or split or replicate for the benefit of the Purchaser, at the Initial Closing any of the material Shared Contracts for which consent has not
been obtained.
(c) With respect to each Non-Assignable Shared Contract for which the arrangements described in
Section 10.7(a)
could not be entered into prior to the Initial Closing Date, the Seller agrees to continue to use Reasonable Efforts from and after the Initial Closing Date until the date that is twelve (12) months following the
Initial Closing Date to cause the counterparty to each such
18
Non-Assignable Shared Contract to consent to the partial assignment of such Non-Assignable Shared Contract to the Purchaser, the split or replication of such Non-Assignable Shared Contract for
the benefit of the Purchaser, or to otherwise enter into a new Contract with the Purchaser on substantially the same terms as exist under the applicable Shared Contract. Until any such consent or new Contract is obtained, the Seller and the
Purchaser will use Reasonable Efforts to cooperate for twelve (12) months following the Initial Closing, in any lawful and reasonable arrangement, to the extent such cooperation would not result in a breach of the terms of such Non-Assignable
Shared Contract, and not prohibited under applicable law, which will provide the Purchaser Group the obligations and benefits of any such Non-Assignable Shared Contract with respect to the Business, including subcontracting, licensing, sublicensing,
leasing or subleasing to the Purchaser Group any or all of the Seller Group’s rights and obligations with respect to such Non-Assignable Shared Contract with respect to the Business;
provided
,
however
, with respect to the
Contracts identified on
Schedule 10.7(c)
of the Seller Disclosure Schedule, the Seller and the Purchaser will use Reasonable Efforts to cooperate until the earlier of two (2) years following the Initial Closing or the expiration of the
remaining term of such Contract. In any such arrangement, the Purchaser will (i) bear the sole responsibility for completion of the work or provision of goods and services, (ii) bear all Taxes with respect thereto or arising therefrom,
(iii) be solely entitled to all benefits thereof, economic or otherwise, (iv) be solely responsible for any warranty or breach thereof, any repurchase, indemnity and service obligations thereof and any damages related to termination of
such Non-Assignable Shared Contracts, and (v) promptly reimburse the reasonable costs and expenses of the Seller and its Affiliates related thereto. If and when such consents or approvals are obtained or such other required actions have been
taken, the partial assignment, or split or replication, of such Non-Assignable Shared Contract will be effected in accordance with the terms of this Agreement.
(d) Notwithstanding the foregoing, with respect to any Shared Contract that was not identified on a list provided to the Purchaser within thirty (30) days after the execution of this Agreement, the
Purchaser shall be entitled to notify the Seller that it does not wish to assume in part such Shared Contract and any such Shared Contract will not be deemed an Assumed Contract for any purpose hereunder;
provided
,
that
, any such
notice by the Purchaser shall have been given to the Seller no later than thirty (30) days after the date on which such Shared Contract has been identified through the electronic data room by the Seller to the Purchaser.
19
(e) The Seller and the Purchaser each agree that “Reasonable Efforts” for
purposes of this
Section 10.7
includes an obligation on the Purchaser to provide financial information, subject to receipt from the counterparty to a Shared Contract of an executed confidentiality agreement, and the Purchaser agrees to,
and agrees to cause any of its subsidiaries to, enter into a guaranty, in each case, as may be reasonably requested by the counterparty to a Shared Contract.”
(bb) Section 10.9(a) of the Master Agreement is hereby amended and restated to read in its entirety as follows:
“(a) The Seller and/or its Affiliates have provided certain corporate guarantees (including bank guarantees, parent
company guarantees and real property lease guarantees) or have obtained certain performance, bid, customs, warranty, court or indemnity bonds and/or letters of credit or letters of comfort as security for performance of the tenant’s obligations
under one or more Assumed Real Property Leases (each, a “
Lease Security Instrument
”). The Purchaser shall use Reasonable Efforts to, or shall cause its Affiliates to use Reasonable Efforts to, replace and otherwise cause to be
released, terminated and returned to Seller the Lease Security Instrument on or prior to the Initial Closing Date or as soon as practicable thereafter. The Purchaser agrees, unconditionally and irrevocably, to reimburse and indemnify the Seller
for and against all payments, costs and expenses incurred after the Initial Closing and relating to any Lease Security Instrument that are not replaced, released, terminated or returned on or prior to the Initial Closing Date (provided that the
Purchaser shall have no obligation for any payments, costs and/or expenses resulting from Excluded Liabilities), in each case until the complete and unconditional release of the Seller’s and its Affiliates’ obligations with respect
thereto. All claims by the Seller hereunder and any reimbursements and indemnities by the Purchaser required hereunder shall be made in accordance with the procedures set forth in
Section 8.3
, but shall not be subject to the
limitations set forth in
Section 8.5
.”
(cc) Section 10.9 of the Master Agreement is
hereby amended by adding a new subsection (f) to read in its entirety as follows:
20
“(f) Nothing contained in any Lease/Sublease Agreement, any Joint Use &
Occupancy Agreement or any deed or similar agreement resulting in the transfer of real property or any interest therein in connection with the Contemplated Transactions shall limit or alter the rights and obligations of the parties under this
Agreement, the Transition Services Agreement or any other Principal Agreement.”
(dd) Each of the
following definitions in
Exhibit A
(
“Certain Definitions”
) to the Master Agreement is hereby amended and restated to read in its entirety as follows:
“
Closing
” means the Initial Closing or any Additional Closing, as applicable, and, (i) in the case of the Malaysia Acquired Assets and Malaysia Assumed Liabilities, the Malaysia
Closing and (ii) in the case of the India Acquired Assets and India Assumed Liabilities, the India Closing.
“
Closing Date
” means the Initial Closing Date or any date upon which an Additional Closing occurs, as applicable, and,
(i) in the case of the Malaysia Acquired Assets and Malaysia Assumed Liabilities, the Malaysia Closing Date and (ii) in the case of the India Acquired Assets and India Assumed Liabilities, the India Closing Date.
“
Employee Matters Agreement
” means that certain Employee Matters Agreement of even date herewith by and between the
Seller and the Purchaser appended hereto as
Exhibit C
, as the same may be amended from time to time.
“
Initial
Closing
” means the closing of the sale and purchase of Acquired Assets and the assumption of Assumed Liabilities with respect to any JV Interests or any country for which closing conditions have been satisfied and for which the closing
otherwise can reasonably be effected.
“
Initial Closing Jurisdictions
” means all jurisdictions in which the
Business is operated on the Initial Closing Date, other than those countries set forth on
Schedule 2.2(b)
.
“
IP
Agreement
” means that certain Intellectual Property Agreement of even date herewith by and between the Seller and the Purchaser appended hereto as
Exhibit B
, as the same may be amended from time to time, pursuant to which the
Seller will and will cause the other members of the Seller Group that are not Acquired Companies to (i) sell to the Purchaser Group certain Intellectual Property rights owned by them, if any, and used exclusively in the Business, and
(ii) license to the Purchaser Group certain Intellectual Property rights owned by the Seller and utilized by the Business.
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“
Non-Assignable Shared Contracts
” has the meaning set forth in
Section 10.7(a)
.
“
Post-Closing Period
” means any taxable period that begins on or after the
Initial Closing Date, or, (i) in the case of the Malaysia Acquired Assets and Malaysia Assumed Liabilities, any taxable period that begins on or after the Malaysia Closing Date, and (ii) in the case of the India Acquired Assets and India
Assumed Liabilities, any taxable period that begins on or after the India Closing Date.
“
Pre-Closing Period
”
means any taxable period that begins before the Initial Closing Date and ends on or before the Initial Closing Date, or, (i) in the case of the Malaysia Acquired Assets and Malaysia Assumed Liabilities, any taxable period that begins before the
Malaysia Closing Date and ends on or before the Malaysia Closing Date, and (ii) in the case of the India Acquired Assets and India Assumed Liabilities, any taxable period that begins before the India Closing Date and ends on or before the India
Closing Date.
“
Transaction Agreements
” means the Principal Agreements, the Lease/Sublease Agreements, the
Joint Use & Occupancy Agreements, the Transition Services Agreement, the Transfer Documents, the Malaysia Asset Transfer Agreement, the Malaysia Interim Operating Agreement, the Malaysia Side Letter, the Interim India Agreement and any
commercial agreements entered into by the parties in connection with the Contemplated Transactions.
(ee)
Exhibit A
(
“Certain Definitions”
) to the Master Agreement is hereby amended to delete the definition of “
Termination Date
” and to add the following definitions:
“
Amendment Date
” has the meaning set forth in
Section 5.14(a)
.
“
Assignor
” has the meaning set forth in
Section 8.8(d)
.
“
Closing Date Adjustments
” has the meaning set forth in
Section 2.5(b)
.
22
“
Equity Transfer Agreement
” means that certain Equity Interest Transfer
Agreement dated as of the Initial Closing Date by and between the Purchaser and Motorola (China) Investment Limited with respect to the transfer of equity in the Hangzhou JV.
“
Huawei
” has the meaning set forth in
Section 1.4(j)
.
“
Illinois Action
” has the meaning set forth in
Section 6.2(a)(iv)
.
“
Illinois Court
” has the meaning set forth in
Section 6.2(a)(iv)
.
“
India Acquired Assets
” means, at any time, the Acquired Assets owned by Motorola India at such time.
“
India Assumed Liabilities
” means, at any time, the Assumed Liabilities of Motorola India at such time.
“
India Closing
” has the meaning set forth in
Section 2.2(e)
.
“
India Closing Date
” has the meaning set forth in
Section 2.2(e)
.
“
Interim India Agreement
” means that certain Interim India Agreement by and between the Seller and the Purchaser to be
entered into at the Initial Closing.
“
Motorola India
” means Motorola India Private Limited.
“
NSN India
” means Nokia Siemens Networks Pvt. Ltd.
“
Reference Rate
” has the meaning set forth in
Section 2.1
.
“
STP License
” means license number 15(9)/91-SDA dated June 24, 1991.
“
Successor Tianjin Owner
” has the meaning set forth in
Section 8.8(d)
.
“
Swiss Arbitration
” has the meaning set forth in
Section 6.2(a)(iv)
.
“
Tianjin Consent
” has the meaning set forth in
Section 8.8(a)
.
“
Tianjin Premises
” has the meaning set forth in
Section 8.8(a)
.
2.
No Implied Amendments
. Except as specifically amended by this Amendment, the Master Agreement shall remain in full force and
effect in accordance with its terms and is hereby ratified and confirmed.
23
3.
Effectiveness of Amendment
. This Amendment shall be deemed to be a modification to
the Master Agreement in accordance with Section 11.7 of the Master Agreement.
4.
Benefit of the Agreement
. This
Amendment shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
5.
Headings
. The headings used in this Amendment are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Amendment.
6.
Governing Law
. This Amendment shall be governed by and interpreted and construed
in accordance with the substantive laws of the State of Delaware without regard to applicable choice of law provisions thereof.
7.
Counterparts
. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic
mail shall be as effective as delivery of a manually executed counterpart of this Amendment.
8.
References to
Agreement
. On and after the date hereof, each reference in the Master Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Master Agreement shall mean the Master Agreement as
amended by this Amendment.
[signature page follows]
24
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Amendment No. 1 to
the Master Acquisition Agreement to be executed as of the date first above written.
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MOTOROLA SOLUTIONS, INC.
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By:
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/s/ Michael Annes
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Name: Michael Annes
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Title: Corporate Vice President
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NOKIA SIEMENS NETWORKS B.V.
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By:
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/s/ Rajeev
Suri
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Name: Rajeev Suri
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Title: Chief Executive Officer
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By:
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/s/ Gerwin Zott
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Name: Gerwin Zott
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Title: Procura Holder
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Exhibit 10.5
MOTOROLA SOLUTIONS, INC.
AMENDED AWARD DOCUMENT
For the
Motorola
Solutions Omnibus Incentive Plan of 2006
Terms and Conditions Related to Employee Nonqualified Stock Options
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Recipient:
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Gregory Q. Brown
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Date of Expiration:
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February 22, 2021
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Commerce ID#:
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Amended Number of Options:
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48,489
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Date of Grant:
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February 22, 2011
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Exercise Price:
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$38.04
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Grant Amended:
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March 14, 2011
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Amendment Effective Date
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February 22, 2011
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Motorola Solutions, Inc. (“Motorola Solutions” or the “Company”) granted you options to purchase shares of Motorola Solutions common stock (“Options”) under the Motorola
Solutions Omnibus Incentive Plan of 2006 (the “Plan”) on February, 22, 2011 (the “Award”). The Award, consisting of 519,887 Options, is hereby amended in accordance with Sections 2 and 21 of the Plan as follows: (i) 471,398
Options are substituted with an equal amount of stock appreciation rights settled in shares of Common Stock of Motorola Solutions, Inc., subject to the terms and conditions set forth in the Motorola Solutions, Inc. Award Document attached hereto as
Addendum A; and (ii) 48,489 Options remain outstanding and subject to the terms and conditions of this Amended Award Document. All other terms and conditions remain unchanged, including the Date of Grant, Date of Expiration, and the Exercise
Price per Option, which was the Fair Market Value on the Date of Grant, all as stated above. Each Option entitles you to purchase one share of Motorola Solutions common stock on the terms described below and in the Plan. Reference is made to the
employment agreement (“Employment Agreement”) by and between Gregory Q. Brown and Motorola, Inc. dated as of the 27th day of August, 2008, as amended from time to time.
Vesting and Exercisability
You cannot exercise the Options until they have vested.
Regular Vesting – The Options will vest in accordance with the following schedule (subject to the other terms hereof); provided that you
remain in the employee of the Company through each vesting date:
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Percentage of Options that Vest
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Vesting Date
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The later to occur of (i) the Milestone Date and (ii) the one year anniversary of the grant date.
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33
1
/
3
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%
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The later to occur of (i) the Milestone Date and (ii) the two year anniversary of the grant date.
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33
1
/
3
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%
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The later to occur of (i) the Milestone Date and (ii) the three year anniversary of the grant date.
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Remainder
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-1-
For purposes of this Option grant, “Milestone Date” shall mean the date on which the average
closing price of Company common stock for any fifteen consecutive trading days is 110% or greater than the average closing price of Company common stock for fifteen trading days immediately preceding the date of grant.
Exercisability
– In general, you may exercise Options at any time after they vest and before they expire as described below. The Employment
Agreement contains additional terms regarding the exercisability of your Options under certain circumstances.
Expiration
All Options expire on the earlier of (1) the Date of Expiration as stated above or (2) such earlier date provided for under
the terms of the Employment Agreement. Once an Option expires, you no longer have the right to exercise it.
Employment Agreement
The vesting, exercisability and forfeiture of your Options will be subject to the terms of Section 5 of the Employment Agreement.
Leave of Absence/Temporary Layoff
If you take a Leave of Absence from Motorola Solutions or a Subsidiary that your employer has approved in writing in accordance with your employer’s Leave of Absence Policy and which does not
constitute a termination of employment as determined by Motorola Solutions or a Subsidiary or you are placed on Temporary Layoff (as defined below) by Motorola Solutions or a Subsidiary the following will apply:
Vesting of Options
– Options will continue to vest in accordance with the vesting schedule set forth above.
Exercising Options
– You may exercise Options that are vested or that vest during the Leave of Absence or Temporary Layoff.
Effect of Termination of Employment or Service
– If your employment or service is terminated during the Leave of Absence or Temporary Layoff,
the treatment of your Options will be determined in accordance with Section 5 of the Employment Agreement.
Other Terms
Method of Exercising – You must follow the procedures for exercising options established by Motorola Solutions from time to time.
At the time of exercise, you must pay the Exercise Price for all of the Options being exercised and any taxes that are required to be withheld by Motorola Solutions or a Subsidiary in connection with the exercise. Options may not be exercised for
less than 50 shares unless the number of shares represented by the Option is less than 50 shares, in which case the Option must be exercised for the remaining amount.
Transferability – Unless the Committee provides, Options are not transferable other than by will or the laws of descent and distribution.
-2-
Tax Withholding – Motorola Solutions or a Subsidiary is entitled to withhold an amount equal to the
required minimum statutory withholding taxes for the respective tax jurisdictions attributable to any share of common stock deliverable in connection with the exercise of the Options. You may satisfy any minimum withholding obligation and additional
withholding, if desired, by electing to have the plan administrator retain Option shares having a Fair Market Value on the date of exercise equal to the amount of the withholding obligation.
Definition of Terms
If a term is used but not defined, it has the meaning given
such term in the Plan.
“Fair Market Value” is the closing price for a share of Motorola Solutions common stock on the date of grant
or date of exercise, whichever is applicable. The official source for the closing price is the New York Stock Exchange Composite Transaction as reported in the Wall Street Journal at www.online.wsj.com.
“Subsidiary” means an entity of which Motorola Solutions owns directly or indirectly at least 50% and that Motorola Solutions consolidates for
financial reporting purposes.
“Temporary Layoff” means a layoff or redundancy that is communicated as being for a period of up to
twelve months and as including a right to recall under defined circumstances.
Consent to Transfer Personal Data
By accepting this award, you voluntarily acknowledge and consent to the collection, use, processing and transfer of personal data as described in this
paragraph. You are not obliged to consent to such collection, use, processing and transfer of personal data. However, failure to provide the consent may affect your ability to participate in the Plan. Motorola Solutions, its Subsidiaries and your
employer hold certain personal information about you, that may include your name, home address and telephone number, date of birth, social security number or other employee identification number, salary, salary grade, hire date, nationality, job
title, any shares of stock held in Motorola Solutions, or details of all options or any other entitlement to shares of stock awarded, canceled, purchased, vested, or unvested, for the purpose of managing and administering the Plan
(“Data”). Motorola Solutions and/or its Subsidiaries will transfer Data amongst themselves as necessary for the purpose of implementation, administration and management of your participation in the Plan, and Motorola Solutions and/or any
of its Subsidiaries may each further transfer Data to any third parties assisting Motorola Solutions in the implementation, administration and management of the Plan. These recipients may be located throughout the world, including the United States.
You authorize them to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may
be required for the administration of the Plan and/or the subsequent holding of shares of stock on your behalf to a broker or other third party with whom you may elect to deposit any shares of stock acquired pursuant to the Plan. You may, at any
time, review Data, require any necessary amendments to it or withdraw the consents herein in writing by contacting Motorola Solutions; however, withdrawing your consent may affect your ability to participate in the Plan.
Acknowledgement of Discretionary Nature of the Plan; No Vested Rights
You acknowledge and agree that the Plan is discretionary in nature and limited in duration, and may be amended, cancelled, or terminated by Motorola Solutions or a Subsidiary, in its sole discretion, at
any time. The grant of awards under the Plan is a one-time benefit and
-3-
does not create any contractual or other right to receive an award in the future or to future employment. Nor shall this or any such grant interfere with your right or the Company’s right to
terminate such employment relationship at any time, with or without cause, to the extent permitted by applicable laws and any enforceable agreement between you and the Company. Future grants, if any, will be at the sole discretion of Motorola
Solutions, including, but not limited to, the timing of any grant, the amount of the award, vesting provisions, and the exercise price.
No Relation to Other Benefits/Termination Indemnities
Your acceptance of this award and participation under the Plan is voluntary. The value of your stock option awarded herein is an extraordinary item of compensation. Except as provided in the Employment
Agreement, the stock option is not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension, or retirement benefits or similar
payments, notwithstanding any provision of any compensation, insurance agreement or benefit plan to the contrary.
Substitute Stock
Appreciation Right
Subject to compliance with Section 409A of the Internal Revenue Code of 1986, as amended, Motorola Solutions
reserves the right to substitute a Stock Appreciation Right for your Options in the event certain changes are made in the accounting treatment of stock options. Any substitute Stock Appreciation Right shall be applicable to the same number of shares
as your Option and shall have the same Date of Expiration, Exercise Price, and other terms and conditions. Any substitute Stock Appreciation Right may be settled only in common stock.
Acceptance of Terms and Conditions
By accepting the Options and stock appreciation
rights as subject to Addendum A, you agree to be bound by these terms and conditions, the Plan and the Stock Option Consideration Agreement.
Other Information about Your Options and the Plan
You can find other information about options and the Plan on the Motorola Solutions website
http://my.mot-solutions.com/go/EquityAwards
. If you do not have access to the website, please contact
Motorola Solutions Global Rewards, 1303 E. Algonquin Road, Schaumburg, IL 60196 USA;
GBLRW01@motorolasolutions.com
; 847-576-7885; for an order form to request Plan documents.
-4-
ADDENDUM A
MOTOROLA SOLUTIONS, INC.
AWARD DOCUMENT
For the
Motorola
Solutions Omnibus Incentive Plan of 2006
Terms and Conditions Related to Substitute Employee Stock Appreciation Rights
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Recipient:
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Gregory Q. Brown
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Date of Expiration:
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February 22, 2021
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Commerce ID#:
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Number of Stock Appreciation Rights:
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471,398
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Date of Grant:
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February 22, 2011
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Exercise Price:
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$38.04
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Motorola Solutions, Inc. (“Motorola Solutions” or the “Company”) is pleased to substitute stock appreciation rights (“SARs”) with respect to 471,398 shares of Motorola
Solutions common stock under the Motorola Solutions Omnibus Incentive Plan of 2006 (the “Plan”) for 471,398 options to purchase shares of common stock of Motorola Solutions originally awarded on February 22, 2011. The number of SARs
awarded to you and the Exercise Price per share of Motorola Solutions common stock (the “Grant Date FMV”), which is the Fair Market Value on the Date of Grant, are stated above. Each SAR entitles you upon exercise to receive payment from
Motorola Solutions in an amount (the “Settlement Amount”) equal to the product of (1) the excess of the Fair Market Value of a share of Motorola Solutions common stock on the date of exercise (the “Exercise Date FMV”) over
the Grant Date FMV, multiplied by (2) the number of shares of Motorola Solutions common stock with respect to which the SAR is exercised, such payment to be made in a number of shares of Motorola Solutions common stock equal to the quotient of
(x) the Settlement Amount divided by (y) the Exercise Date FMV; provided that any fractional shares will be settled in cash based on the Exercise Date FMV. Reference is made to the employment agreement (“Employment Agreement”) by
and between Gregory Q. Brown and Motorola, Inc. dated as of the 27th day of August, 2008, as amended from time to time.
Vesting and
Exercisability
You cannot exercise a SAR until it has vested.
Regular Vesting – The SARs will vest in accordance with the following schedule (subject to the other terms hereof); provided that you remain an employee of the Company through each vesting date:
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Percentage of SARs that Vest
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Vesting Date
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The later to occur of (i) the Milestone Date and (ii) the one year anniversary of the grant date.
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33
1
/
3
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%
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The later to occur of (i) the Milestone Date and (ii) the two year anniversary of the grant date.
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33
1
/
3
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%
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The later to occur of (i) the Milestone Date and (ii) the three year anniversary of the grant date.
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Remainder
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-5-
For purposes of this SAR grant, “Milestone Date” shall mean the date on which the average closing
price of Company common stock for any fifteen consecutive trading days is 110% or greater than the average closing price of Company common stock for fifteen trading days immediately preceding the date of grant.
Exercisability
– In general, you may exercise SARs at any time after they vest and before expire as described below. The Employment Agreement
contains additional terms regarding the exercisability of your SARs under certain circumstances.
Expiration
All SARs expire on the earlier of (1) the Date of Expiration as stated above or (2) such earlier date provided for under the terms of the
Employment Agreement. Once the SAR expires, you no longer have the right to exercise it.
Employment Agreement
The vesting, exercisability and forfeiture of your SARs will be subject to the terms of Section 5 of the Employment Agreement.
Leave of Absence/Temporary Layoff
If you take a Leave of Absence from Motorola Solutions or a Subsidiary that your employer has approved in writing in accordance with your employer’s
Leave of Absence Policy and which does not constitute a termination of employment as determined by Motorola Solutions or a Subsidiary or you are placed on Temporary Layoff (as defined below) by Motorola Solutions or a Subsidiary the following will
apply:
Vesting of SAR
– SARs will continue to vest in accordance with the vesting schedule set forth above.
Exercising the SAR
– You may exercise SARs that are vested or that vest during the Leave of Absence or Temporary Layoff.
Effect of Termination of Employment or Service
– If your employment or service is terminated during the Leave of Absence or Temporary Layoff,
the treatment of your SAR will be determined in accordance with Section 5 of the Employment Agreement.
Other Terms
Method of Exercising – You must follow the procedures for exercising stock appreciation rights established by Motorola Solutions
from time to time. At the time of exercise, you must pay any taxes that are required to be withheld by Motorola Solutions or a Subsidiary in connection with the exercise. SARs may not be exercised for less than 50 shares subject to the SAR unless
the number of shares remaining subject to the SAR is less than 50 shares, in which case the SAR must be exercised for the remaining amount.
Transferability – Unless the Committee provides, SARs are not transferable other than by will or the laws of descent and distribution.
Tax Withholding – Motorola Solutions or a Subsidiary is entitled to withhold an amount equal to the required minimum statutory withholding taxes for
the respective tax jurisdictions attributable to any share of common stock deliverable in connection with the exercise of the SARs. You may satisfy any minimum withholding obligation and additional withholding, if desired, by electing to have the
plan administrator retain shares of Motorola Solutions common stock having a Fair Market Value on the date of exercise equal to the amount of the withholding obligation.
-6-
Definition of Terms
If a term is used but not defined, it has the meaning given such term in the Plan.
“Fair
Market Value” is the closing price for a share of Motorola Solutions common stock on the date of grant or date of exercise, whichever is applicable. The official source for the closing price is the New York Stock Exchange Composite Transaction
as reported in the Wall Street Journal at www.online.wsj.com.
“Subsidiary” means an entity of which Motorola Solutions owns
directly or indirectly at least 50% and that Motorola Solutions consolidates for financial reporting purposes.
“Temporary Layoff”
means a layoff or redundancy that is communicated as being for a period of up to twelve months and as including a right to recall under defined circumstances.
Consent to Transfer Personal Data
By accepting this award, you voluntarily
acknowledge and consent to the collection, use, processing and transfer of personal data as described in this paragraph. You are not obliged to consent to such collection, use, processing and transfer of personal data. However, failure to provide
the consent may affect your ability to participate in the Plan. Motorola Solutions, its Subsidiaries and your employer hold certain personal information about you, that may include your name, home address and telephone number, date of birth, social
security number or other employee identification number, salary, salary grade, hire date, nationality, job title, any shares of stock held in Motorola Solutions, or details of all options or any other entitlement to shares of stock awarded,
canceled, purchased, vested, or unvested, for the purpose of managing and administering the Plan (“Data”). Motorola Solutions and/or its Subsidiaries will transfer Data amongst themselves as necessary for the purpose of implementation,
administration and management of your participation in the Plan, and Motorola Solutions and/or any of its Subsidiaries may each further transfer Data to any third parties assisting Motorola Solutions in the implementation, administration and
management of the Plan. These recipients may be located throughout the world, including the United States. You authorize them to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing,
administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required for the administration of the Plan and/or the subsequent holding of shares of stock on your behalf to a broker or other third
party with whom you may elect to deposit any shares of stock acquired pursuant to the Plan. You may, at any time, review Data, require any necessary amendments to it or withdraw the consents herein in writing by contacting Motorola Solutions;
however, withdrawing your consent may affect your ability to participate in the Plan.
Acknowledgement of Discretionary Nature of the
Plan; No Vested Rights
You acknowledge and agree that the Plan is discretionary in nature and limited in duration, and may be amended,
cancelled, or terminated by Motorola Solutions or a Subsidiary, in its sole discretion, at any time. The grant of awards under the Plan is a one-time benefit and does not create any contractual or other right to receive an award in the future or to
future employment. Nor shall this or any such grant interfere with your right or the Company’s right to terminate such employment relationship at any time, with or without cause, to the extent permitted by applicable laws and any enforceable
agreement between you and the Company. Future grants, if any, will be at the sole discretion of Motorola Solutions, including, but not limited to, the timing of any grant, the amount of the award, vesting provisions, and the exercise price.
-7-
No Relation to Other Benefits/Termination Indemnities
Your acceptance of this award and participation under the Plan is voluntary. The value of the SAR awarded herein is an extraordinary item of compensation.
Except as provided in the Employment Agreement, the SAR is not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension, or retirement
benefits or similar payments, notwithstanding any provision of any compensation, insurance agreement or benefit plan to the contrary.
Acceptance of Terms and Conditions
By accepting the SARs, you agree to be bound by these terms and conditions, the Plan and the Stock Option Consideration Agreement in connection with the
original award of stock options on February 22, 2011.
Other Information about Your SARs and the Plan
You can find other information about stock appreciation rights and the Plan on the Motorola Solutions website
http://my.mot-solutions.com/go/EquityAwards
. If you do not have access to the website, please contact Motorola Solutions Global Rewards, 1303 E. Algonquin Road, Schaumburg, IL 60196 USA;
GBLRW01@motorolasolutions.com
; 847-576-7885; for
an order form to request Plan documents.
-8-
Exhibit 10.6
Policyholder: Accident Benefits for Motorola Solutions, Inc.
Policy Number: ADD N04156870
Term of Coverage: January 1, 2011 to January 1, 2012
You are a Covered Person
and eligible for coverage under the plan, if you are in the eligible class defined below. For benefits to be payable the Policy must be in force, the required premium must be paid and you must be engaging in one of the Covered Activities described
below. If you are not in Active Service on the date your insurance would otherwise be effective, it will go into effect on the date you return to Active Service.
Class Description:
All Non-employee Directors of the Policyholder.
Your Dependents (your
lawful spouse and unmarried children, subject to the age limits shown in the Policy) are also covered, if they are traveling with you.
Period of Coverage:
You will be insured on the later of the Policy Effective Date or the date that you become eligible. Your coverage will end on
the earliest of the date: 1) the Policy terminates; 2) you are no longer eligible; or 3) the period ends for which the required premium is paid. Dependents coverage will end on the earliest of the date: 1) he or she is no longer a Dependent; 2) your
coverage ends; or 3) the period ends for which the required premium is paid.
Covered Activities
Exposure & Disappearance -
Coverage includes exposure to the elements after the forced landing, stranding, sinking, or wrecking of a
vehicle in which you were traveling. You are presumed dead if you are in a vehicle that disappears, sinks, or is stranded or wrecked on a trip covered by this Policy; and the body is not found within one year of the Covered Accident.
24-Hour Coverage -
We will pay the benefits described in the Policy when you suffer a Covered Accident any time while insured by the Policy.
Unless otherwise specified, We will pay benefits only once for a Covered Accident.
Business Travel -
The Covered Accident must take
place while traveling: 1) on business for the Policyholder; and 2) in the course of the Policyholder’s business. This coverage does not include commuting between home and the place of work.
This coverage will start at the actual start of the trip. It does not matter whether the trip starts at your home, place of work, or other place. It will
end on the first of the following dates to occur: 1) the date you return to your home; 2) the date you return to your place of work; or 3) the date your Personal Deviation is more than 14 day(s). “Personal Deviation” means: 1) an activity
that is not reasonably related to the Policyholder’s business; and 2) not incidental to the purpose of the trip.
Felonious Assault -
The Covered Accident must: 1) take place on the Policyholder’s premises; 2) be in the course of your job; and, 3) be caused by or result directly and independently from a Felonious Assault, as defined below. The assault must be inflicted by
a person other than another person covered by the Policy, your Immediate Family Member, or Household Member. A police report detailing the Felonious Assault must be provided.
The Covered Accident must occur during any of the following: 1) actual or attempted robbery or holdup; or 2) actual or attempted kidnapping; or 3) any other type of intentional assault that is a crime
classified as a felony by the governing statute or common law in the state where the assault occurred. “Felonious Assault” means a criminal act or an act of physical violence against a person covered by this Policy. “Immediate Family
Member” means your parent, sister, brother, husband, wife, or children. “Household Member” means a person who maintains residence at the same address as you.
Hijacking and Air Piracy -
The Covered Accident must: 1) take place during the: a) hijacking of an Aircraft; b) air piracy; or c) unlawful seizure or attempted seizure of an Aircraft; and 2) take
place while you are in the course of the Policyholder’s business. Coverage begins with the onset of the hijacking or air piracy and continues while you are subject to the control of the person or persons responsible for the hijacking/air piracy
and during travel directly to your home or scheduled destinations. “Hijacking” or “Air Piracy,” as used here, means the unlawful seizure or wrongful exercise of control of an aircraft or conveyance, or the crew thereof, in which
you are traveling solely as a passenger.
Owned, Leased, or Controlled Aircraft -
The Covered Accident must take place while: 1) you are riding
in, or getting on or off of, a covered aircraft; or 2) as a result of you being struck by a covered aircraft. 3) away from the Policyholder’s premises in your city of permanent assignment; 4) on business for the Policyholder; and 5) in the
course of the Policyholder’s business.
This coverage will start at the actual start of the trip. It does not matter whether the trip
starts at your home, place of work, or other place. It will end on the first of the following dates to occur: 1) the date you return to your home; 2) the date you return to your place of work; or 3) the date your Personal Deviation is more than 14
day(s). “Personal Deviation” means: 1) an activity that is not reasonably related to the Policyholder’s business; and 2) not incidental to the purpose of the trip. An aircraft will be deemed “controlled” by the Policyholder
if the Policyholder may use it for more than 10 straight days, or more than 15 days in any year.
Aircraft Restrictions -
If the
Covered Accident happens while you are riding in, or getting on or off of, an aircraft, We will pay benefits, but only if: 1) you are riding as a passenger only, and not as a pilot or member of the crew (except as provided by the Policy); and 2) the
aircraft has a valid certificate of airworthiness; and 3) the aircraft is flown by a pilot with a valid license; and 4) the aircraft is not being used for: (i) crop dusting, spraying, or seeding; firefighting; skywriting; skydiving or hang
gliding; pipeline or power line inspection; aerial photography or exploration; racing, endurance tests, stunt or acrobatic flying; or (ii) any operation which requires a special permit from the FAA, even if it is granted (this does not apply if
the permit is required only because of the territory flown over or landed on). 5) the aircraft is a military transport aircraft flown by the U.S. Military Airlift Command (MAC), or similar air transport service of another country.
Relocation -
The Covered Accident must take place while you are traveling on a Relocation Trip at the expense and direction of the Policyholder.
“Relocation Trip” means a trip in connection with your transfer or proposed transfer by the Policyholder to a new worksite.
This
coverage will start at the actual start of the trip. It does not matter whether the trip starts at your home, place of work, or other place. It will end on the first of the following dates to occur: 1) the date you return to your home; 2) the date
you return to your place of work; or 3) the date your Personal Deviation is more than 14 day(s). “Personal Deviation” means: 1) an activity that is not reasonably related to the Policyholder’s business; and 2) not incidental to the
purpose of the trip.
Terrorism -
The Covered Accident must: 1) take place while you are on the Policyholder’s premises, or in the
course of a) the Policyholder’s business and/or b) your job; and, 2) be caused by or results directly and independently from Terrorism or Terrorist Act, as defined below.
“Terrorism or Terrorist Acts” means an activity that: 1) involves any violent act or any act dangerous to human life and that threatens or causes Injury to persons; and 2) appears to be in any
way intended to: a) intimidate or coerce a civilian population; or b) disrupt any segment of a nation’s economy; or c) influence the policy of a government by intimidation or coercion; or d) affect the conduct of a government by mass
destruction, assassination, kidnapping, or hostage taking; or e) respond to governmental action or policy. It includes any incident declared to be an act of terrorism by an official, department, or agency that has been specifically authorized by
federal statute to make such a determination. It shall also include the use of any nuclear weapon or device or the emission, discharge, dispersal, release, or escape of any solid liquid or gaseous chemical or biological agent.
Description of Benefits
Aggregate Limit
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We will not pay more than per Covered Accident: $15,000,000; for all losses. If, in the absence of this provision, We
would pay more than this amount for all losses under the policy, then the benefits payable to each person with a valid claim will be reduced proportionately.
Accidental Death and Dismemberment Benefits -
If your Injury results, within 365 days from the date of a Covered Accident, in any one of the losses shown below, We will pay the Benefit Amount shown
below for that loss. Your Principal Sum is $500,000. Your spouse’s Principal Sum is $50,000. Your child’s Principal Sum is $25,000. If multiple losses occur, only one Benefit Amount, the largest, will be paid for all losses due to the same
Covered Accident.
Schedule of Covered Losses
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Covered Loss
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Benefit Amount
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Life
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100
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%
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of the Principal Sum
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Two or more Members
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100
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%
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of the Principal Sum
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Quadriplegia
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100
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%
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of the Principal Sum
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One Member
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50
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%
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of the Principal Sum
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Hemiplegia
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75
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%
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of the Principal Sum
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Paraplegia
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75
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%
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of the Principal Sum
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Thumb and Index Finger of the Same Hand
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25
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%
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of the Principal Sum
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“Quadriplegia” means total
Paralysis of both upper and lower limbs. “Hemiplegia” means total Paralysis of the upper and lower limbs on one side of the body. “Paraplegia” means total Paralysis of both lower limbs or both upper limbs. “Paralysis”
means total loss of use. A Doctor must determine the loss of use to be complete and not reversible at the time the claim is submitted.
“Member” means Loss of Hand or Foot, Loss of Sight, Loss of Speech and Loss of Hearing. “Loss of Hand or Foot” means complete
Severance through or above the wrist or ankle joint. “Loss of Sight” means the total, permanent Loss of Sight of one eye. “Loss of Speech” means total and permanent loss of audible communication that is irrecoverable by natural,
surgical or artificial means. “Loss of Hearing” means total and permanent Loss of Hearing in both ears that is irrecoverable and cannot be corrected by any means. “Loss of a Thumb and Index Finger of the Same Hand” means complete
Severance through or above the metacarpophalangeal joints of the same hand (the joints between the fingers and the hand). “Severance” means the complete separation and dismemberment of the part from the body.
Coma Benefit -
We will pay 1% of the Principal Sum per month up to 11 months and thereafter in a lump sum of 100% of the Principal Sum if you
become Comatose within 31 days of a Covered Accident and remain in a Coma for at least 31 days. We reserve the right, at the end of the first 31 days of Coma, to require proof that you remain Comatose. This proof may include, but is not limited to,
requiring an independent medical examination at Our expense. Monthly payments will end on the first of the following dates: 1) the end of the month in which you die; 2) the end of the 11th month for which this benefit is payable; 3) the end of the
month in which you recover from the Coma.
You are deemed “Comatose” or in a “Coma” if you are in a profound stupor or
state of complete and total unconsciousness, as the result of a Covered Accident.
Disability Benefit (Permanent Total Disability) (Does
not apply to Dependents) -
We will pay 100% of the Principal Sum if you are under age 70 and Permanently Totally Disabled as a direct result of, and from no other cause but, a Covered Accident. Permanent Total Disability must begin within 365
days from the date of your Covered Accident. Disability Benefits will begin when: 1) the applicable Benefit Waiting Period of 365 days is satisfied; and 2) you provide satisfactory proof of Permanent Total Disability to Us.
“Total Disability” or “Totally Disabled” means, due to an Injury from a Covered Accident, you: 1) if employed, cannot do any work for
which you are, or may become, qualified by reason of education, experience or training; and 2) if not employed, cannot perform the normal and customary activities of a healthy person of like age and sex. “Permanent Total Disability” or
“Permanently Totally Disabled” means you are Totally Disabled and are expected to remain so disabled, as certified by a Doctor, for the rest of your life. Permanent Total Disability must be the result of the same Covered Accident that
caused the Total Disability.
Emergency Medical Benefits -
We will pay up to $10,000 for Covered Expenses incurred for emergency
medical services to treat you if you: 1) suffer a Medical Emergency during the course of a Trip; and 2) are traveling 100 miles or more away from your place of permanent residence. Covered Expenses include expenses for guarantee of payment to a
medical provider, Hospital or treatment facility. Benefits for these Covered Expenses will not be payable unless the charges incurred: 1) are Medically Necessary and do not exceed the charges for similar treatment, services or supplies in the
locality where the expense is incurred; and 2) do not include charges that would not have been made if there were no insurance. Benefits will not be payable unless We authorize in writing, or by an authorized electronic or telephonic means, all
expenses in advance, and services are rendered by Our assistance provider.
Emergency Medical Evacuation Benefit -
We will pay 100% of
Covered Expenses incurred for your medical evacuation if you: 1) suffer a Medical Emergency during the course of the Trip; 2) require Emergency Medical Evacuation; and 3) are traveling 100 miles or more away from your place of permanent residence.
Covered Expenses; 1) Medical Transport: expenses for transportation under medical supervision to a different hospital, treatment facility or to your place of residence for Medically Necessary treatment in the event of your Medical Emergency and upon
the request of the Doctor designated by
Our assistance provider in consultation with the local attending Doctor. 2) Dispatch of a Doctor or
Specialist: the Doctor’s or specialist’s travel expenses and the medical services provided on location, if, based on the information available, your condition cannot be adequately assessed to evaluate the need for transport or evacuation
and a doctor or specialist is dispatched by Our service provider to your location to make the assessment. 3) Return of Dependent Child(ren): expenses to return each Dependent child who is under age 18 to his or her principal residence if a) you are
age 18 or older; and b) you are the only person traveling with the minor Dependent child(ren); and c) you suffer a Medical Emergency and must be confined in a Hospital. 4) Escort Services: expenses for an Immediate Family Member or companion who is
traveling with you to join you during your emergency medical evacuation to a different hospital, treatment facility or your place of residence.
Benefits for these Covered Expenses will not be payable unless: 1) the Doctor ordering the Emergency Medical Evacuation certifies the severity of your
Medical Emergency requires an Emergency Medical Evacuation; 2) all transportation arrangements made for the Emergency Medical Evacuation are by the most direct and economical conveyance and route possible; 3) the charges incurred are Medically
Necessary and do not exceed the Usual and Customary Charges for similar transportation, treatment, services or supplies in the locality where the expense is incurred; and 4) do not include charges that would not have been made if there were no
insurance.
Benefits will not be payable unless We authorize in writing, or by an authorized electronic or telephonic means, all expenses in
advance, and services are rendered by Our assistance provider. In the event you refuse to be medically evacuated, we will not be liable for any medical expenses incurred after the date medical evacuation is recommended.
Repatriation of Remains Benefit -
We will pay 100% of Covered Expenses for preparation and return of your body to your home if you die as a result
of a Medical Emergency while traveling 100 miles or more away from your place of permanent residence. Covered expenses include: 1) expenses for embalming or cremation; 2) the least costly coffin or receptacle adequate for transporting the remains;
3) transporting the remains; and 4) Escort Services which include expenses for an Immediate Family Member or companion who is traveling with you to join your body during the repatriation to your place of residence.
All transportation arrangements must be made by the most direct and economical route and conveyance possible and may not exceed the Usual and Customary
Charges for similar transportation in the locality where the expense is incurred. Benefits will not be payable unless We authorize in writing, or by an authorized electronic or telephonic means, all expenses in advance, and services are rendered by
Our assistance provider.
Special Adaptation Benefit -
We will pay 10% of the Principal Sum up to $10,000, if you suffer a
“Presumptive Disability” and require a special housing adaptation or a special Vehicle to accommodate the disability. Benefits will not be payable unless your Doctor certifies them as necessary. “Presumptive Disability” means We
will presume you are Totally Disabled if you suffer the complete and irrecoverable loss of sight of both eyes, speech, hearing in both ears, or of any two limbs, hands or feet, provided the loss occurs within one year of the Covered Accident.
“Vehicle” means a private passenger land motor vehicle. It includes automobiles, vans, and four wheel drive vehicles. It does not include a vehicle used for farming, commercial business, racing or any type of competitive speed event.
Special Counseling Benefit -
We will pay $100 per session for up to 10 counseling sessions for mental health counseling to assist you
in dealing with a Covered Loss, if you suffer a Covered Loss for which benefits are payable; and obtain mental health counseling. The Maximum Amount for this benefit is $1,000 per Covered Loss.
Exclusions and Limitations:
We will not pay benefits for any loss or Injury that is caused by, or results from:
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•
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intentionally self-inflicted Injury.
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•
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suicide or attempted suicide.
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•
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war or any act of war, whether declared or not (except as provided by the Policy).
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a Covered Accident that occurs while on active duty service in the military, naval or air force of any country or international organization. Upon Our
receipt of proof of service, We will refund any premium paid for this time. Reserve or National Guard active duty training is not excluded unless it extends beyond 31 days.
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sickness, disease, bodily or mental infirmity, bacterial or viral infection, or medical or surgical treatment thereof, except for any bacterial
infection resulting from an accidental external cut or wound or accidental ingestion of contaminated food.
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This insurance
does not apply to the extent that trade or economic sanctions or regulations prohibit Us from providing insurance, including, but not limited to, the payment of claims.
War Risk Coverage
:
We will pay benefits for Covered Losses due to Covered Accidents resulting from war or acts of war anywhere in the world, except the following countries:
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The Covered Person’s Home Country
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The Covered Person’s Country of Permanent Assignment
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The war exclusion is deleted to the extent coverage is provide by the terms and conditions of War Risk Coverage.
“Home Country” means a country from which you hold a passport. If you hold passports from more than one Country, your Home Country will be the country that you declared to Us in writing as your
Home Country.
“Country of Permanent Assignment” means a country, other than your Home Country, in which the Policyholder requires
you to work for a period of time that exceeds 180 continuous days.
We will not pay more than $15,000,000 per occurrence for war risk
benefits. This limit shall apply to Injuries sustained from all acts of war in a consecutive 72-hour period. If but for this limit We would pay more than $15,000,000, then the benefits We will pay to each Covered Person will be reduced in the same
proportion, so that the total amount We will pay for war risk coverage is $15,000,000.
Definitions: “Covered Accident”
means
an accident that occurs while coverage is in force for you and results directly of all other causes in a loss or Injury covered by the Policy for which benefits are payable. “
Covered
Person”
means any eligible person for whom
the required premium is paid. “
Injury
” means accidental bodily harm sustained by you that results directly from all other causes from a Covered Accident. All injuries sustained by one person in any one Covered Accident, including
all related conditions and recurrent symptoms of these injuries, are considered a single Injury. “
Medical
Emergency”
means a condition caused by an Injury or Sickness that manifests itself by symptoms of sufficient severity
that a prudent lay person possessing an average knowledge of health and medicine would reasonably expect that failure to receive immediate medical attention would place the health of the person in serious jeopardy. “
Sickness
” means
an illness, disease or condition that causes a loss for which you incur medical expenses while covered under this Policy. All related conditions and recurrent symptoms of the same or similar condition will be considered one Sickness.
“
Trip
” means travel by air, land, or sea from your Home Country. “
We, Our, Us”
means the insurance company underwriting this insurance or its authorized agent.
You must notify ACE USA within 90 days of an Accident or Loss. If notice cannot be given within that time, it must be given as soon as reasonably
possible. This notice should identify you, your employer, and the Policy Number.
Policy Number: ADD N04156870, Underwritten by ACE American
Insurance Company, 436 Walnut Street, Philadelphia, PA 19106
Contact Information
: For customer service, eligibility verification,
plan information, or to file a claim, contact: ACE USA at 800-336-0627 (from inside the U.S.) or 302-476-6194 (from outside the U.S.); fax 302-467-6154 for claims or inquiries or e-mail diane.basa@acegroup.com. Mail claims to: ACE USA, PO Box
15417, Wilmington, DE 19850. For medical evacuation, repatriation, or other assistance services call: Europ Assistance at 800-243-6124 (inside the U.S.) or call collect 202-659-7803 (from outside the U.S.) or e-mail OPS@europassistance-usa.com.
To access ACE’s Travel Assistance Website go to www.acetravelassistance.com and enter your user ID and password (shown on your
Travel Assistance ID card).
Travel Assistance Services:
In addition to the insurance protection provided by this plan, ACE USA has
arranged with Europ Assistance USA to provide you with access to its travel assistance services around the world. These services include:
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Medical Assistance including referral to a doctor or medical specialist, medical monitoring when you are hospitalized, emergency medical evacuation to
an adequate facility, medically necessary repatriation, and return of mortal remains.
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Personal Assistance including pre-trip medical referral information and while you are on a trip: emergency medication, embassy and consular
information, lost document assistance, emergency referral to a lawyer, translator or interpreter access, medical benefits verification, and medical claims assistance.
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Travel Assistance including emergency travel arrangements, arrangements for the return of your traveling companion or dependents, and vehicle return.
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Access to a secure, web-based system for tracking global threats and health or location based risk intelligence.
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Crisis hotline and on the ground security assistance to help address safety concerns or to secure immediate assistance while traveling.
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When you call, please be prepared with the following information: 1) name of caller, phone number, fax number, and
relationship to the Covered Person; 2) Covered Person’s name, age, sex, and the policy number for your insurance plan, and
your Plan Number (01AH585); 3) a description of the insured’s condition; 4) name, location, and
telephone number of the hospital or other service provider; and 5) other insurance information including health insurance, workers’ compensation, or auto insurance if the insured was involved in an accident.
This information provides you with a brief outline of the services available to you. These services are subject to the terms and conditions of the Policy
under which you are insured. A third party vendor may provide services to you. Europ Assistance makes every effort to refer you to appropriate medical and other service providers. It is not responsible for the quality or results of service provided
by independent providers. In all cases, the medical provider, facility, legal counsel, or other professional service provider suggested by Europ Assistance are not employees or agents of Europ Assistance and the choice of provider is yours alone.
Europ Assistance assumes no liability for the services provided to you under this arrangement, nor is it liable for any negligence or other wrongful acts or omissions of any of the legal or health care professionals providing services to you. Travel
assistance services are not available if your coverage under the Policy providing insurance benefits is not in effect.
This Description of
Coverage is a brief description of the important features of the insurance plan. It is not a contract of insurance. The terms and conditions of coverage are set forth in the Policy issued to your employer. The Policy is subject to the laws of the
state in which it was issued. Coverage may not be available in all states or certain terms or conditions may be different if required by state law. Please keep this information as a reference.