Exhibit 1.1
EXECUTION COPY
Freescale Semiconductor,
Inc.
Floating Rate Senior Notes due 2009
6.875% Senior Notes due 2011
7.125% Senior Notes due 2014
Purchase
Agreement
July 16, 2004
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
As representatives (the
“Representatives”) of
the several Purchasers
named in Schedule I hereto
Ladies and Gentlemen:
Freescale Semiconductor, Inc. (the
“Company”), a Delaware corporation and a wholly-owned
subsidiary of Motorola, Inc. (“Motorola), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
Purchasers named in Schedule I hereto (the
“Purchasers”) an aggregate of $400,000,000 principal
amount of its Floating Rate Senior Notes due 2009 (the “2009
FRNs”), an aggregate of $350,000,000 principal amount of its
6.875% Senior Notes due 2011 (the “2011 Notes”) and an
aggregate of $500,000,000 principal amount of its 7.125% Senior
Notes due 2014 (the “2014 Notes” and, together with the
2009 FRNs and the 2011 Notes, the
“Securities”).
1. The Company represents and
warrants to, and agrees with, each of the Purchasers
that:
(a) A preliminary offering circular,
dated June 24, 2004 (the “Preliminary Offering
Circular”) and an offering circular, dated July 16, 2004 (the
“Offering Circular”), have been prepared in connection
with the offering of the Securities. Any reference to the
Preliminary
Offering Circular or the Offering
Circular shall be deemed to refer to and include any Additional
Issuer Information (as defined in Section 6(f)) furnished by the
Company prior to the completion of the distribution of the
Securities. The Preliminary Offering Circular and the Offering
Circular and any amendments or supplements thereto did not and will
not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
a Purchaser through you expressly for use therein.
(b) Neither the Company nor any of
its subsidiaries has sustained since the date of the latest audited
financial statements included in the Offering Circular any material
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering
Circular; and, since the respective dates as of which information
is given in the Offering Circular, there has not been any change in
the capital stock (other than de minimis changes approved by
you, which approval shall not be unreasonably withheld) or
consolidated long-term debt of the Company and its subsidiaries
(other than net increases in the consolidated long-term debt of the
Company in an aggregate amount not exceeding $50 million) or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole (“Material Adverse Effect”), otherwise than as
set forth in, or contemplated by, the Offering Circular, including
the pro forma financial and capitalization information included
therein.
(c) The Company and its subsidiaries
have good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Offering Circular or
such as do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as do not materially
interfere with the use made and proposed to be made of such
property and buildings by the Company and its
subsidiaries.
(d) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Offering Circular, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction except where the failure to be
so qualified or in good standing would not reasonably be expected
to result in a Material Adverse Effect; and each subsidiary of the
Company set forth on Schedule II (which includes all significant
subsidiaries of the Company as such term is defined in Rule 1-02(w)
of Regulation S-X, as promulgated by the
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Commission) (each, a
“Significant Subsidiary”) has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, except where the failure
to be in good standing would not reasonably be expected to result
in a Material Adverse Effect.
(e) The Company has an authorized
capitalization as set forth in the Offering Circular, and all of
the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable. All of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
(except for directors’ qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims except such liens, encumbrances,
equities or claims as are (i) described in the Offering Circular,
or (ii) such as do not materially affect the value of such shares
of capital stock.
(f) The Securities have been duly
authorized and, when issued and authenticated by the Trustee (as
defined below) and delivered against payment therefor pursuant to
this Agreement, will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
indenture, as supplemented by the First Supplemental Indenture,
Second Supplemental Indenture and Third Supplemental Indenture,
each to be dated as of July 21, 2004 (as supplemented, the
“Indenture”), between the Company and Deutsche Bank
Trust Company Americas, as Trustee (the “Trustee”),
under which they are to be issued, which will be substantially in
the form previously delivered to you. The Indenture has been duly
authorized and, when executed and delivered by the Company and the
Trustee, the Indenture will constitute a valid and legally binding
instrument, enforceable against the Company and the Guarantors (as
defined in the Indenture), if any, in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles (regardless of whether enforcement is considered in
proceedings of law or in equity). The Securities and the Indenture
will conform to the descriptions thereof in the Offering Circular
and will be in substantially the form previously delivered to
you.
(g) The exchange and registration
rights agreement, to be dated as of July 21, 2004, between the
Company and the Purchasers (the “Exchange and Registration
Rights Agreement”), has been duly authorized by the Company,
and when executed and delivered by the Company, will constitute a
valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and to
the effect of general principles of equity, and except that any
rights to indemnity and contribution may be limited by federal and
state securities laws and public policy considerations. Pursuant to
the terms and subject to the conditions set forth in the Exchange
and Registration Rights Agreement, the Company and the Guarantors,
if any exist at such time, will agree to use their respective
reasonable best efforts to file with the Commission, under the
circumstances set forth therein, (i) a registration statement under
the Securities Act of 1933, as amended (the “Securities
Act”), relating to, with respect to each series of
Securities, another series of debt securities of the Company with
terms substantially identical to the Securities of such series (the
“Exchange Securities”) to be offered in
exchange
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for the Securities of such series,
and (ii) to the extent required by the Exchange and Registration
Rights Agreement, a shelf registration statement pursuant to Rule
415 of the Securities Act relating to the resale by certain holders
of the Securities, and in each case, to use its reasonable best
efforts to have such registration statements declared effective.
The Exchange Securities have been duly authorized for issuance by
the Company, and when issued and authenticated in accordance with
the terms of the Indenture will be the valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, enforceable against the Company in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and to the effect of general principles of
equity (regardless of whether enforcement is considered in
proceedings of law or in equity).
(h) This Agreement has been duly
authorized, executed and delivered by the Company.
(i) None of the transactions
contemplated by this Agreement (including, without limitation, the
use of the proceeds from the sale of the Securities) will violate
or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations G, T, U, and X of the Board of Governors of the Federal
Reserve System.
(j) Prior to the date hereof,
neither the Company nor any of its affiliates has taken any action
which is designed to or which has constituted or which might have
been expected to cause or result in stabilization or manipulation
of the price of any security of the Company in connection with the
offering of the Securities.
(k) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein
contemplated will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its Significant Subsidiaries is a party or by which the
Company or any of its Significant Subsidiaries is bound or to which
any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, except for such conflicts,
breaches, violations or defaults, liens, charges or encumbrances
that would not, individually or in the aggregate, affect the
validity of the Securities, the ability of the Company to
consummate the transactions herein contemplated or reasonably be
expected to have a Material Adverse Effect, (ii) result in any
violation of any law or statute or any judgment, order, decree,
rule or regulation of any court or arbitrator or governmental or
regulatory authority or body having jurisdiction over the Company
or any of its Significant Subsidiaries or any of their respective
properties or assets, except for such violations that would not,
individually or in the aggregate, affect the validity of the
Securities, the ability of the Company to consummate the
transactions herein contemplated or reasonably be expected to have
a Material Adverse Effect, or (iii) result in any violation of the
provisions of the charter or by laws of the Company; and no
consent, approval, authorization or order of, or filing,
qualification or registration with, any such court or arbitrator or
governmental or regulatory authority or body under any such
statute, judgment, order, decree, rule or regulation is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement
or
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the Indenture except for (a) such
consents, approvals, authorizations, registrations and
qualifications as have been obtained, (b) the filing of a
registration statement by the Company with the Commission, in
accordance with the Securities Act, pursuant to the Exchange and
Registration Rights Agreement, (c) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers, and
(d) such consents, approvals, authorizations, registrations or
qualifications that would not, individually or in the aggregate,
affect the validity of the Securities, the ability of the Company
to consummate the transactions herein contemplated or reasonably be
expected to have a Material Adverse Effect.
(l) Neither the Company nor any of
its Significant Subsidiaries is (i) in violation of its Certificate
of Incorporation or By-laws or (ii) in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound, except, in the case of
(ii) above, for such defaults as would not have a Material Adverse
Effect.
(m) The statements set forth in the
Offering Circular under the caption “Description of
Notes”, insofar as they purport to constitute a summary of
the terms of the Securities, and under the captions “Certain
United States Federal Income Tax Consequences”,
“Arrangements between Freescale Semiconductor and
Motorola” and “Underwriting”, insofar as they
purport to constitute summaries of certain provisions of the laws
and documents referred to therein, are accurate and complete
summaries of such provisions in all material respects.
(n) Other than as set forth in the
Offering Circular, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate
reasonably be expected to result in a Material Adverse Effect; and,
to the best of the Company’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
(o) When the Securities are issued
and delivered pursuant to this Agreement, the Securities will not
be of the same class (within the meaning of Rule 144A under the
Securities Act) as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act
or quoted in a U.S. automated inter-dealer quotation
system.
(p) The Company is subject to
Section 13 or 15(d) of the Exchange Act.
(q) The Company is not, and after
giving effect to the offering and sale of the Securities, will not
be an “investment company”, as such term is defined in
the United States Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(r) Neither the Company, nor any
person acting on its or their behalf has offered or sold the
Securities by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities
Act or, with respect to Securities sold outside the
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United States to non-U.S. persons
(as defined in Rule 902 under the Securities Act), by means of any
directed selling efforts within the meaning of Rule 902 under the
Securities Act and the Company, any affiliate of the Company and
any person acting on its or their behalf has complied with and will
implement the “offering restriction” within the meaning
of such Rule 902.
(s) Within the preceding six months,
neither the Company nor any other person acting on behalf of the
Company has offered or sold to any person any Securities, or any
securities of the same or a similar class as the Securities, other
than Securities offered or sold to the Purchasers hereunder. The
Company will take reasonable precautions designed to insure that
any offer or sale, direct or indirect, in the United States or to
any U.S. person (as defined in Rule 902 under the Securities Act)
of any Securities or any substantially similar security issued by
the Company, within six months subsequent to the date on which the
distribution of the Securities has been completed (as notified to
the Company by Goldman, Sachs & Co.), is made under
restrictions and other circumstances reasonably designed not to
affect the status of the offer and sale of the Securities in the
United States and to U.S. persons contemplated by this Agreement as
transactions exempt from the registration provisions of the
Securities Act.
(t) KPMG LLP, who have certified
certain financial statements of the Company and its subsidiaries,
are independent public accountants as required by the Securities
Act and the rules and regulations of the Commission
thereunder.
(u) The Company and its subsidiaries
own or possess valid licenses or other rights to use the patents,
trademarks, service marks, trade names, copyrights, know-how, trade
secrets and other intellectual property assigned or licensed to it
pursuant to, and in accordance with the terms of, the Intellectual
Property License Agreement and Intellectual Property Assignment
Agreement (the “Intellectual Property Rights”), and,
except as described in the Offering Circular, such Intellectual
Property Rights are, to the Company’s knowledge, sufficient
to conduct and carry on the business, as described in the Offering
Circular, of the Company and its subsidiaries, except to the extent
that the failure to own, license or possess or the inability to
acquire any of the foregoing would not reasonably be expected to
result in a Material Adverse Effect; and except, as set forth in
the Offering Circular, the Company and its subsidiaries have not
received any written notice of infringement of or asserted rights
of others with respect to any of the foregoing which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material
Adverse Effect.
(v) Each of the Master Separation
and Distribution Agreement, Registration Rights Agreement, Tax
Sharing Agreement, Employee Matters Agreement, Intellectual
Property Assignment Agreement, Intellectual Property License
Agreement, Transition Services Agreement, and Purchase and Supply
Agreement (collectively, the “Intercompany
Agreements”), has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding agreement of the Company.
(w) The compliance by the Company
with all of the provisions of the Intercompany Agreements and the
consummation of the transactions therein contemplated will not (i)
conflict with or result in a breach or violation of any of the
terms or provisions of, or
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constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any
of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject, except for such conflicts, breaches,
violations or defaults, liens, charges or encumbrances that would
not, individually or in the aggregate, affect the ability of the
Company to consummate the transactions contemplated by the
Intercompany Agreements or reasonably be expected to have a
Material Adverse Effect, (ii) result in any violation of any law or
statute or any judgment, order, decree, rule or regulation of any
court or arbitrator or governmental or regulatory authority or body
having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their respective properties or assets,
except for such violations that would not, individually or in the
aggregate, affect the ability of the Company to consummate the
transactions contemplated by the Intercompany Agreements or
reasonably be expected to have a Material Adverse Effect, or (iii)
result in any violation of the provisions of the charter or by laws
(or similar organizational documents) of the Company or any of its
Significant Subsidiaries; and no consent, approval, authorization
or order of, or filing, qualification or registration with, any
such court or arbitrator or governmental or regulatory authority or
body under any such statute, judgment, order, decree, rule or
regulation is required for the consummation by the Company of the
transactions contemplated by the Intercompany Agreements, except
for (a) such consents, approvals, authorizations, registrations or
qualifications as have been obtained and (b) such consents,
approvals, authorizations, orders, filings, qualifications or
registrations, for which the failure to obtain would not have a
Material Adverse Effect.
2. Motorola represents and warrants
to, and agrees with, each of the Purchasers that:
(a) This Agreement has been duly
authorized, executed and delivered by Motorola and constitutes a
valid and legally binding agreement of Motorola.
(b) Each of the Intercompany
Agreements has been duly authorized, executed and delivered by
Motorola and constitutes a valid and legally binding agreement of
Motorola.
(c) The compliance by Motorola with
all of the provisions of the Intercompany Agreements and the
consummation of the transactions therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Motorola or any of its
subsidiaries (other than the Company or any of its subsidiaries) is
a party or by which Motorola or any of its subsidiaries (other than
the Company or any of its subsidiaries) is bound or to which any of
the property or assets of Motorola or any of its subsidiaries
(other than the Company or any of its subsidiaries) is subject,
except for such conflicts, breaches, violations or defaults, liens,
charges or encumbrances that would not, individually or in the
aggregate, affect the ability of Motorola to consummate the
transactions contemplated by the Intercompany Agreements or
reasonably be expected to have a Material Adverse
Effect.
3. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell
to each of the Purchasers, and each of the Purchasers agrees,
severally and not jointly, to purchase from the Company, at a
purchase price of 97.5% of the principal amount thereof, in
the
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case of the 2009 FRNs, 97.5% of the principal
amount thereof in the case of the 2011 Notes, and 97.5% of the
principal amount thereof in the case of the 2014 Notes, plus
accrued interest, if any, from July 21, 2004 to the Time of
Delivery (as defined below) hereunder, the principal amount of
Securities set forth opposite the name of such Purchaser in
Schedule I hereto (the “Purchase Price”).
4. Upon the authorization by you of
the release of the Securities, the several Purchasers propose to
offer the Securities for sale upon the terms and conditions set
forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the
Company that:
(a) It has offered, and will offer
and sell, the Securities only to: (i) persons who it reasonably
believes are “qualified institutional buyers”
(“QIBs”) within the meaning of Rule 144A under the
Securities Act in transactions meeting the requirements of Rule
144A or, (ii) upon the terms and conditions set forth in Schedule
III to this Agreement;
(b) It is an “accredited
investor” within the meaning of Rule 501 under the
Act.
(c) It has not and will not offer or
sell the Securities by any form of general solicitation or general
advertising, including, but not limited to, the methods described
in Rule 502(c) under the Securities Act.
5. (a) The Securities to be
purchased by each Purchaser hereunder will be represented by one or
more definitive global Securities in book-entry form which will be
deposited by or on behalf of the Company with The Depository Trust
Company (“DTC”) or its designated custodian. The
Company will deliver the Securities to Goldman, Sachs & Co.,
for the account of each Purchaser, against payment by or on behalf
of such Purchaser of the Purchase Price therefor by wire transfer
of Federal (same day) funds, by causing DTC to credit the
Securities to the account of Goldman, Sachs & Co. at DTC. The
Company will cause the certificates representing the Securities to
be made available to Goldman, Sachs & Co. for checking at least
twenty-four hours prior to the Time of Delivery (as defined below)
at the office of DTC or its designated custodian (the
“Designated Office”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on
July 21, 2004 or such other time and date as Goldman, Sachs &
Co. and the Company may agree upon in writing. Such time and date
are herein called the “Time of Delivery”.
(b) The documents to be delivered at
the Time of Delivery by or on behalf of the parties hereto pursuant
to Section 8 hereof, including the cross-receipt for the Securities
and any additional documents requested by the Purchasers pursuant
to Section 8(m) hereof, will be delivered at such time and date at
the offices of Sullivan & Cromwell LLP, 125 Broad Street, New
York, New York 10004 (the “Closing Location”), and the
Securities will be delivered at the Designated Office, all at the
Time of Delivery. A meeting will be held at the Closing Location at
4:00 p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the
purposes of this Section 5, “New York Business Day”
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to
close.
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6. The Company agrees with each of
the Purchasers:
(a) To prepare the Offering Circular
in a form approved by you; to make no amendment or any supplement
to the Offering Circular which shall be disapproved by you promptly
after reasonable notice thereof; and to furnish you with copies
thereof.
(b) Promptly from time to time to
take such action as you may reasonably request to qualify the
Securities for offering and sale under the securities laws of such
U.S. jurisdictions or such Canadian jurisdictions as you may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Securities; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation for doing business in
any jurisdiction; and provided , further , that the
expense of maintaining any such qualification more than one year
from the date of this Agreement shall be at your
expense.
(c) To furnish the Purchasers with
copies of the Offering Circular and each amendment or supplement
thereto with the report(s) of the independent registered public
accounting firm in the Offering Circular, and any amendment or
supplement containing amendments to the financial statements
covered by such report(s), signed by the accountants, and
additional written and electronic copies thereof in such quantities
as you may from time to time reasonably request, and if, at any
time prior to the expiration of nine months after the date of the
Offering Circular, any event shall have occurred as a result of
which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Offering Circular is delivered, not misleading, or, if for any
other reason it shall be necessary or desirable during such same
period to amend or supplement the Offering Circular, to notify you
and upon your request to prepare and furnish without charge to each
Purchaser and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request
of an amended Offering Circular or a supplement to the Offering
Circular which will correct such statement or omission or effect
such compliance.
(d) During the period beginning from
the date hereof and continuing until the date 180 days after the
Time of Delivery, not to offer, sell contract to sell or otherwise
dispose of, except as provided hereunder any securities of the
Company that are substantially similar to the Securities without
the prior written consent of Goldman, Sachs & Co. on behalf of
the Purchasers.
(e) Not to be or become, at any time
prior to the expiration of three years after the Time of Delivery,
an open-end investment company, unit investment trust, closed-end
investment company or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
(f) At any time during the two-year
period following the later of the Time of Delivery and the date of
issue with respect to any additional Securities when the Company is
not subject to Section 13 or 15(d) of the Exchange Act, for the
benefit of holders from time to time of Securities, to furnish at
its expense, upon request, to holders of Securities and prospective
purchasers of Securities designated by such holders information
(the “Additional
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Issuer Information”)
satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Securities Act.
(g) To use its best efforts to cause
such Designated Securities to be eligible for the PORTAL trading
system of the National Association of Securities Dealers,
Inc.
(h) Upon the terms and subject to
the conditions set forth in the Indenture, to furnish to the
holders of the Securities the information required by Section 4.04
of the Indenture.
(i) During a period of three years
from the date of the Offering Circular, to furnish to you copies of
all reports or other communications (financial or other) furnished
to stockholders, and to deliver to you as soon as they are
available, copies of any reports and financial statements furnished
to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed;
provided that the Company may satisfy the requirements of
the subsection by making any such reports or other communications
generally available on its web site.
(j) During the period of two years
after the Time of Delivery, the Company will not, and will not
permit any of its “affiliates” (as defined in Rule 144
under the Securities Act) to, resell any of the Securities which
constitute “restricted securities” under Rule 144 that
have been reacquired by any of them.
(k) The Company shall comply with
all its obligations pursuant to the Exchange and Registration
Rights Agreement.
(l) To use the net proceeds received
by it from the sale of the Securities pursuant to this Agreement in
the manner specified in the Offering Circular under the caption
“Use of Proceeds”.
7. The Company covenants and agrees
with the several Purchasers that the Company will pay or cause to
be paid the following: (i) the fees, disbursements and expenses of
the Company’s counsel and accountants in connection with the
issue of the Securities and all other expenses in connection with
the preparation, printing and filing of the Preliminary Offering
Circular and the Offering Circular and any amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Purchasers and dealers; (ii) the cost of printing or
producing any Agreement among Purchasers, this Agreement, the
Indenture , the Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with
the qualification of the Securities for offering and sale under
state securities laws as provided in Section 6(b) hereof, including
the fees and disbursements of counsel for the Purchasers in
connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) the cost
of preparing the Securities; (vi) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements
of counsel for the Trustee in connection with the Indenture and the
Securities; (vii) any costs incurred in connection with the
designation of the Securities for trading in PORTAL; and all other
costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as
provided
10
in this Section, and Sections 9 and 12 hereof,
the Purchasers will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses
connected with any offers they may make.
8. The obligations of the Purchasers
hereunder shall be subject, in their discretion, to the condition
that all representations and warranties and other statements of the
Company herein are, at and as of the Time of Delivery, true and
correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) Sullivan & Cromwell LLP,
counsel for the Purchasers, shall have furnished to you such
written opinion or opinions, dated the Time of Delivery, with
respect to the incorporation of the Company, the validity of the
Securities and such other related matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters.
(b) Wachtell, Lipton, Rosen &
Katz, counsel for the Company and Motorola, shall have furnished to
you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with the power
and authority (corporate and other) necessary in all material
respects to own its properties and conduct its business as
described in the Offering Circular;
(ii) The Company has an authorized
capitalization as set forth in the Offering Circular, and all of
the issued shares of capital stock of the Company (including the
shares of Class A common stock, par value $0.01 per share, being
delivered at the Time of Delivery pursuant to the Underwriting
Agreement, dated July 16, 2004 (the “Underwriting
Agreement”), by and among the Company, Motorola, and Goldman,
Sachs & Co., Citigroup Global Markets Inc. and J.P. Morgan
Securities Inc., as representatives of the several Underwriters
named in Schedule I thereto, when issued and paid for in accordance
with the terms of the Underwriting Agreement) have been duly and
validly authorized and issued and are fully paid and
non-assessable;
(iii) This Agreement has been duly
authorized, executed and delivered by the Company and by
Motorola;
(iv) The Indenture has been duly
authorized, executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles;
(v) The Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the
Securities and the Indenture conform to the descriptions thereof in
the Offering Circular;
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(vi) The issue and sale of the
Securities being delivered at such Time of Delivery by the Company
and the compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
agreement or instrument filed as an exhibit to the Company’s
registration statement on Form S-1 (File No. 333-111250) (the
“Registration Statement”), except for such conflicts,
breaches, violations or defaults that would not, individually or in
the aggregate, affect the validity of the Securities, the ability
of the Company to consummate the transactions therein contemplated
or reasonably be expected to have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the
charter or by laws of the Company or any statute under the laws of
the State of New York, the Delaware General Corporation Law or the
federal securities laws of the United States of America or any
order, rule or regulation known to such counsel of any governmental
agency or body or, to such counsel’s knowledge, court in the
State of New York having jurisdiction over the Company or any of
its subsidiaries or any of their properties, except for such
violations that would not, individually or in the aggregate, affect
the validity of the Securities, the ability of the Company to
consummate the transactions therein contemplated or reasonably be
expected to have a Material Adverse Effect;
(vii) No consent, approval,
authorization or order of, or filing, qualification or registration
with, any governmental agency or body or, to such counsel’s
knowledge, court in the State of New York or Delaware or of the
United States having jurisdiction over the Company or any of its
subsidiaries is required for the issue and sale of the Securities
or the consummation by the Company of the transactions contemplated
by this Agreement or the Ind
