Exhibit 4.8
FIRST SUPPLEMENTAL INDENTURE
between
MOTOROLA, INC.
and
XXXXXX TRUST AND SAVINGS BANK, AS TRUSTEE
Dated as of February ___, 1999
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS 3
SECTION 1.1 Definition of Terms 3
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES 4
SECTION 2.1 Designation and Principal Amount; Purchase Price; Payment of Principal;
Global Securities 6
SECTION 2.2 Maturity 6
SECTION 2.3 Form and Payment 7
SECTION 2.4 Global Debenture 8
SECTION 2.5 Interest 9
SECTION 2.6 Authorized Denominations 11
SECTION 2.7 Redemption 11
SECTION 2.8 Defeasance 11
SECTION 2.9 No Sinking Fund 11
SECTION 2.10 Depository 11
ARTICLE III
REDEMPTION OF THE DEBENTURES11
SECTION 3.1 Special Event Redemption 11
SECTION 3.2 Optional Redemption 11
SECTION 3.3 Partial Redemption 12
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD 12
SECTION 4.1 Extension of Interest Payment Period 12
SECTION 4.2 Notice of Extension. 13
SECTION 4.3 Limitation of Transactions 13
ARTICLE V
EXPENSES 14
SECTION 5.1 Payment of Expenses 14
SECTION 5.2 Payment Upon Resignation or Removal 15
ARTICLE VI
COVENANT TO LIST ON EXCHANGE 15
SECTION 6.1 Listing on an Exchange 15
ARTICLE VII
FORM OF DEBENTURE 15
SECTION 7.1 Form of Debenture 15
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES 25
SECTION 8.1 Original Issue of Debentures 25
SECTION 8.2 Reports by the Trustee 25
ARTICLE IX
COVENANTS 25
SECTION 9.1 Covenants as to Trust 25
ARTICLE X
DEFAULT 26
SECTION 10.2 Limitations on Waivers and Consents 26
SECTION 10.3 Acknowledgment of Rights 27
ARTICLE XI
MISCELLANEOUS 27
SECTION 11.1 Ratification of Indenture 27
SECTION 11.2 Trustee Not Responsible for Recitals 27
SECTION 11.3 Governing Law 27
SECTION 11.4 Separability 28
SECTION 11.5 Counterparts. 28
SECTION 11.6 Effect of Headings 28
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of February ___, 1999 (the "First
Supplemental Indenture") between Motorola, Inc., a Delaware corporation (the
"Issuer"), and Xxxxxx Trust and Savings Bank, as trustee (the "Trustee") under
the Indenture dated as of February _____, 1999 between the Issuer and the
Trustee (the "Base Indenture" and, as supplemented by this First Supplemental
Indenture, the "Indenture").
WHEREAS, the Issuer executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Issuer's unsecured subordinated
debentures, notes or other evidence of indebtedness (the "Securities") to be
issued from time to time in one or more series as might be determined by the
Issuer under the Indenture, in an unlimited aggregate principal amount which may
be authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Issuer desires to
provide for the establishment of a new series of its Securities to be known as
its ____% Deferrable Interest Junior Subordinated Debentures due 2039 (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture;
WHEREAS, Motorola Capital Trust I, a Delaware statutory business trust (the
"Trust"), is offering to the public up to $500 million aggregate liquidation
amount of its ____% Trust Originated Preferred Securities (the "Preferred
Securities"), representing preferred undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Issuer
of up to $15,463,925 aggregate liquidation amount of its ____% Trust Originated
Common Securities (the"Common Securities"), in up to $515,463,925 aggregate
principal amount of the Debentures;
WHEREAS, the Issuer has requested that the Trustee execute and deliver this
First Supplemental Indenture; and
WHEREAS, all requirements necessary to make this First Supplemental
Indenture a valid instrument in accordance with its terms and to make the
Debentures, when executed by the Issuer and authenticated and delivered by the
Trustee as provided in the Indenture, the valid obligations of the Issuer have
been performed, and the execution and delivery of this First Supplemental
Indenture has been duly authorized in all respects.
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Issuer covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms. Unless the context otherwise requires:
(a) a term defined in the Indenture (including as set forth in the
first paragraph of Section 1.1 of the Indenture) has the same meaning when
used in this First Supplemental Indenture unless otherwise defined herein;
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture unless otherwise specified herein;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration (as defined herein) or in the terms of the Trust Securities (as
defined herein) as established in accordance with the Declaration:
(i) Affiliate;
(ii) Business Day;
(iii) Debenture Issuer;
(iv) Delaware Trustee;
(v) Distribution;
(vi) Investment Company Event;
(vii) Preferred Securities;
(viii) Preferred Security Certificate;
(ix) Pro Rata;
(x) Property Trustee;
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(xi) Regular Trustees;
(xii) Securities;
(xiii) Preferred Securities Guarantee;
(xiv) Special Event;
(xv) Sponsor;
(xvi) Tax Event; and
(xvii) Underwriting Agreement;
(g) The following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Declaration" means the Amended and Restated Declaration of Trust of
Motorola Capital Trust I, a Delaware statutory business trust, dated as of
February ___, 1999.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that as a result of an election by the Issuer,
the Trust is to be dissolved in accordance with the Declaration, and the
Debentures held by the Property Trustee are to be distributed to the holders of
the Trust Securities Pro Rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Extension Conditions" means the following:
(i) the Issuer is not in bankruptcy or otherwise insolvent;
(ii) the Issuer is not in default on any Debentures issued to the
Trust or to any trustee of the Trust in connection with the issuance
of Trust Securities by the Trust;
(ii) the Issuer has made timely payments on the Debentures for
the immediately preceding six quarters without deferrals;
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(iv) the Trust is not in arrears on payments of Distributions on
the Trust Securities;
(v) the Debentures or the Preferred Securities are rated
investment grade by any one of Standard & Poor's Corporation, Xxxxx'x
Investors Service, Inc., Fitch Investor Service, LP, Duff & Xxxxxx
Credit Rating Company or any other nationally recognized statistical
rating organization; and
(vi) the final maturity of such Debentures is no later than the
forty-ninth anniversary of the issuance of the Preferred Securities.
"Global Debenture" shall have the meaning set forth in Section 2.4(a)(i).
"Interest Deduction Date" shall have the meaning set forth in Section
2.2(b).
"Interest Payment Date" shall have the meaning set forth in Section
2.5(a).
"Maturity Date" shall have the meaning set forth in Section 2.2(a).
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a)(ii).
"Optional Redemption Price" shall have the meaning set forth in Section
3.2.
"Preceding Maturity Date" shall have the meaning set forth in Section
2.2(c).
"Redemption Price" shall have the meaning set forth in Section 3.1.
"Scheduled Maturity Date" means __________________, 2039.
"Trust Securities" shall mean the Preferred Securities and the Common
Securities.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
-----------------------------------------------
SECTION 2.1 Designation and Principal Amount; Purchase Price; Payment of
Principal; Global Securities.
(a) There is hereby authorized a series of Securities designated the
"____% Deferrable Interest Junior Subordinated Debentures due 2039,"
limited in aggregate principal amount to $515,463,925 (not including
Debentures authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Debentures pursuant to Sections 3.4,
3.5, 3.6, 9.6 or 11.7 of the Indenture), which amount shall be as set forth
in
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a Company Order for the authentication and delivery of Debentures
pursuant to Section 3.3 of the Indenture.
(b) The Debentures shall be issued for a purchase price equal to 100%
of the principal amount of such Debentures.
(c) The principal of the Debentures shall be due and payable in full
on the Maturity Date.
(d) The Debentures shall initially be issued in fully registered non-
book entry certificated form in the aggregate principal amount specified in
paragraph (a) above.
SECTION 2.2 Maturity.
(a) The "Maturity Date" means the date on which the Debentures mature
and on which the principal shall be due and payable together with all
accrued and unpaid interest thereon (including Compounded Interest, if
any), which date shall be the Scheduled Maturity Date unless the Maturity
Date has been changed pursuant to Section 2.2(c) or (d), in which case the
Maturity Date shall be the Maturity Date most recently established in
accordance with Section 2.2(c) or (d).
(b) The "Interest Deduction Date" shall mean the date which is six
months earlier than the ending date of the maximum term (beginning on the
date of issue of the Debentures and including any extensions thereof), as
determined under any federal statute applicable by its terms to the
Debentures which is enacted at any time after the issuance of the
Debentures (including, but not limited to, at any time after an extension
of the Maturity Date), of a debt instrument for which interest is
deductible for federal income tax purposes.
(c) If the Issuer has elected to dissolve the Trust and cause the
Debentures to be distributed to the holders of the Trust Securities in
liquidation of the Trust in accordance with Section 8.1(a)(v) of the
Declaration, then the Issuer may elect to shorten the Maturity Date to a
date not earlier than ________________, 2004, or extend the Maturity Date
to a date which is not later than the earlier of (i) ___________________,
2048, or (ii) the Interest Deduction Date, and such election shall be made,
and such change in the Maturity Date shall be effective, on such date as
notice thereof has been given in accordance with Section 2.2(e) so long as,
in the case of an extension of the Maturity Date, the Issuer meets the
Extension Conditions on such date; provided that (i) any such extension of
the Maturity Date shall cease to be in effect (and the Maturity Date shall
be the Maturity Date in effect prior to such extension (the "Preceding
Maturity Date")) unless the Extension Conditions also are met on the
Preceding Maturity Date, and (ii) in no event shall an extended Maturity
Date be later than the Interest Deduction Date even if the Maturity Date
has previously been extended to a date beyond the Interest Deduction Date.
(d) The Issuer may at any time on or before the date which is 90 days
before the Maturity Date, elect to extend the Maturity Date for one or more
periods, but in no event to
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a date later than the earlier of (i) ______________, 2048, or (ii) the
Interest Deduction Date, and such election shall be made, and such
extension of the Maturity Date shall be effective, on such date as notice
thereof has been given in accordance with Section 2.2(e) so long as the
Issuer meets the Extension Conditions on such date; provided that (i) any
such extension of the Maturity Date shall cease to be in effect (and the
Maturity Date shall be the Preceding Maturity Date) unless the Extension
Conditions also are met on the Preceding Maturity Date, and (ii) in no
event shall an extended Maturity Date be later than the Interest Deduction
Date even if the Maturity Date has previously been extended to a date
beyond the Interest Deduction Date.
(e) If the Issuer desires to change the Maturity Date pursuant to
Section 2.2(c) or (d), the Issuer shall give notice to Holders of the
Debentures, the Property Trustee, the Trust and the Trustee of the new
Maturity Date.
(f) The terms of this Section 2.2 shall govern the maturity and any
extensions thereof of the Debentures, notwithstanding anything in the Base
Indenture to the contrary. The Debentures shall not include the optional
extension rights set forth in Section 3.8 of the Base Indenture.
SECTION 2.3 Form and Payment. Except as provided in Section 2.4, the
Debentures shall be issued as Registered Securities in fully registered
certificated form without interest coupons. The place where principal of and
interest (including the Compounded Interest, if any) on the Debentures will be
payable, the Debentures may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of the
Debentures and the Indenture may be served shall be the Corporate Trust Office
of the Trustee, provided, however, that payment of interest may be made at the
option of the Issuer by wire transfer to an account maintained by a Holder (upon
appropriate instructions from such Holder) or by check mailed to the Holder at
such address as shall appear in the Register. Notwithstanding the foregoing, so
long as the Holder of any Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest, if any) on such
Debentures held by the Property Trustee will be made by wire transfer of
immediately available funds at such place and to such account as may be
designated by the Property Trustee. Payment of principal of the Debentures will
only be made upon surrender of the Debentures to the Trustee. The Debentures
will be denominated in Dollars and payment of principal and interest on the
Debentures shall be made in Dollars.
SECTION 2.4 Global Debenture.
(a) In connection with a distribution of the Debentures to the holders
of the Trust Securities pursuant to the Declaration:
(i) The Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate
principal amount of all Outstanding Debentures of such series (a
"Global Debenture"), to be registered in the name of the
Depository, or its nominee, and delivered by the Trustee to the
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Depository for crediting to the accounts of its participants
pursuant to the instructions of the Regular Trustees. The Issuer
upon any such presentation shall execute a Global Debenture in
such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture. Payments on the
Debentures issued as a Global Debenture will be made to the
Depository.
(ii) If any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be
presented to the Trustee by the Property Trustee and any
Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the Depository
or its nominee ("Non Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in Debentures presented
to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Preferred Securities until such Preferred Security
Certificates are presented to the Registrar for transfer or
reissuance at which time such Preferred Security Certificates
will be canceled and a Debenture, registered in the name of the
holder of the Preferred Security Certificate or the transferee of
the holder of such Preferred Security Certificate, as the case
may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate
canceled, will be executed by the Issuer and delivered to the
Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee
will be deemed to have been canceled.
(b) Unless and until it is exchanged for Debentures in registered
certificated form, a Global Debenture may be transferred, in whole but not
in part, only by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor
Depository selected or approved by the Issuer or a nominee of such
successor Depository.
(c) If at any time the Depository for the Debentures notifies the
Issuer that it is unwilling or unable to continue as Depository for the
Debentures or if at any time the Depository for the Debentures shall no
longer be registered or in good standing as a clearing agency under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, at a time at which the Depository is required to be so
registered to act as Depository for the Debentures, and a successor
Depository for such series is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such condition,
as the case may be, the Issuer will execute, and, subject to Article 3 of
the Indenture, the Trustee, upon written notice from the Issuer, will
authenticate and deliver the Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture in exchange
for such Global Debenture. In addition, the Issuer, in its sole discretion,
may at any
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time determine that the Debentures shall no longer be represented by a
Global Debenture. In such event the Issuer will execute, and subject to
Article 3 of the Indenture, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Issuer, will authenticate
and deliver the Debentures in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for such Global
Debenture. Upon the exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized denominations,
the Global Debenture shall be canceled by the Trustee. Such Debentures in
definitive registered form issued in exchange for the Global Debenture
shall be registered in such names and in such authorized denominations as
the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such registered certificated Debentures in definitive
form in exchange for the Global Debenture to the Depository for delivery to
the Persons in whose names such Debentures are so registered.
SECTION 2.5 Interest.
(a) The Debentures will bear interest at the fixed rate of ______% per
annum (the "Coupon Rate") from the original date of issuance or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for until the principal thereof becomes due and payable, and on
any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the Coupon Rate, compounded quarterly, payable (subject to the provisions
of Article IV) quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each, an "Interest Payment Date"), commencing on
, 1999. Interest on the Debentures (except defaulted interest) shall be
paid to the Persons in whose name the Debentures are registered, at the
close of business on the regular Record Date for such interest installment
(including Debentures that are cancelled after the Record Date and before
the Interest Payment Date), which, with respect to any Debentures of which
the Property Trustee is the Holder or with respect to a Global Debenture,
shall be the close of business on the Business Day next preceding that
Interest Payment Date. Notwithstanding the foregoing sentence, if the
Preferred Securities are no longer in book-entry only form or if, pursuant
to the Indenture and this First Supplemental Indenture the Debentures are
distributed to the holders of the Trust Securities and are not represented
by a Global Debenture, the Issuer may select a regular Record Date for such
interest installment which shall conform to the rules of any securities
exchange, interdealer quotation system or other organization on which the
Debentures are listed and which shall be more than ten Business Days but
less than 60 Business Days before the applicable Interest Payment Date.
Notwithstanding the foregoing, any interest that is payable at maturity
shall be payable to the Person to whom principal payable at maturity shall
be payable.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months, and for any period
shorter than a full quarter on the basis of the actual number of days
elapsed in such 90-day quarter. In the event that any date on which
interest is payable on the Debentures is not a Business Day, then payment
of
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the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, notwithstanding any provision of
the Indenture to the contrary, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date.
(c) If, at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessment or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Property Trustee,
such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal
to the amounts the Trust and the Property Trustee would have received had
no such taxes, duties, assessments or other government charges been
imposed.
SECTION 2.6 Authorized Denominations. The Debentures shall be issuable in
denominations of $25 and integral multiples of $25 in excess thereof.
SECTION 2.7 Redemption. The Debentures are not subject to conversion at the
option of the Holder. The Debentures are not subject to redemption at the option
of the Holder and are subject to redemption at the option of the Issuer or
otherwise as provided in Article III hereof.
SECTION 2.8 Defeasance. The Debentures shall be subject to the provisions
of Articles 4 and 15 of the Indenture concerning the satisfaction and discharge
of the Issuer's indebtedness and obligations under the Indenture and the
termination of certain covenants of the Issuer under the Indenture.
SECTION 2.9 No Sinking Fund. The Debentures shall not be entitled to the
benefit of any sinking fund or analogous provision.
SECTION 2.10 Depository. The Depository Trust Company (or its nominee)
shall act as the initial Depository for any Global Debenture which may be issued
pursuant to this First Supplemental Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
----------------------------
SECTION 3.1 Special Event Redemption. If a Special Event has occurred and
is continuing then, notwithstanding Section 3.2 hereof but subject to the
provisions of Article XI of the Indenture, the Issuer shall have the right, upon
not less than 30 days' nor more than 60 days' notice to the Holders of the
Debentures, to redeem the Debentures, in whole or in part, for cash within 90
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days following the occurrence of such Special Event at a redemption price equal
to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon (including Compounded Interest, if any) to the date of such
redemption (the "Redemption Price"). The Redemption Price shall be paid prior to
12:00 noon, New York time, on the date of such redemption or at such earlier
time as the Issuer determines and specifies in the notice of redemption,
provided the Issuer shall deposit with the Trustee an amount sufficient to pay
the Redemption Price at least one hour prior to the time such Redemption Price
is to be paid.
SECTION 3.2 Optional Redemption. Subject to the provisions of Section
3.3 hereof and Article 11 of the Indenture, the Issuer shall have the right to
redeem the Debentures, in whole or in part, at any time or from time to time, on
or after___________________, 2004, at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon,
(including Compounded Interest, if any), to the date of such redemption (the
"Optional Redemption Price"). Any redemption pursuant to this paragraph will be
made upon not less than 30 days nor more than 60 days notice to the Holder of
the Debentures, at the Optional Redemption Price. The Optional Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of such redemption
or at such earlier time as the Issuer determines and specifies in the notice of
redemption, provided that the Issuer shall deposit with the Trustee an amount
sufficient to pay the Optional Redemption Price at least one hour prior to the
time such Optional Redemption Price is to be paid.
SECTION 3.3 Partial Redemption.
(a) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange, interdealer quotation system or other organization on
which the Preferred Securities are then listed, the Issuer shall not be
permitted to effect such partial redemption and may only redeem the
Debentures in whole.
(b) The Issuer may not redeem fewer than all of the Outstanding
Debentures unless all accrued and unpaid interest on the Debentures has
been paid as of the Interest Payment Date next preceding the Redemption
Date.
(c) If the Debentures are only partially redeemed pursuant to Section
3.2, the Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided that, if at the time of redemption
the Debentures are registered as a Global Debenture, the Depository shall
determine, in accordance with its procedures, the principal amount of such
Debentures credited to each of its participant accounts to be redeemed.
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ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
------------------------------------
SECTION 4.1 Extension of Interest Payment Period. The Issuer shall have the
right, at any time and from time to time during the term of the Debentures, to
defer payments of interest on the Debentures by extending the interest payment
period of the Debentures for a period not exceeding 20 consecutive quarters (the
"Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended Interest
Payment Period may extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1, will bear
interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extended Interest Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Issuer shall pay all interest accrued and
unpaid on the Debentures, including any Compounded Interest (all such interest
the "Deferred Interest") that shall be payable to the Holders of the Debentures
in whose names the Subordinated Debentures are registered in the Register as of
the Record Date relating to the Interest Payment Date that corresponds to the
end of such Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Issuer may further extend such period,
provided that such period together with all such previous and further extensions
thereof shall not exceed 20 consecutive quarters or extend beyond the Maturity
Date. Upon the termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Issuer may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Issuer may prepay at any time all or any
portion of the Deferred Interest accrued during an Extended Interest Payment
Period.
SECTION 4.2 Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Issuer selects an Extended Interest Payment
Period, the Issuer shall give written notice to the Trustee, the Regular
Trustees and the Property Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities are payable,
or (ii) the date the Regular Trustees, on behalf of the Trust, are required
to give notice of the record date, or the date such Distributions are
payable, to holders of the Preferred Securities (or any national securities
exchange or self-regulatory organization on which the Preferred Securities
are listed).
(b) If the Property Trustee is not the only Holder of the Debentures
at the time the Issuer selects an Extended Interest Payment Period, the
Issuer shall give the Trustee, the Property Trustee and the Holders of the
Debentures written notice of its selection of such Extended Interest
Payment Period 10 Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Issuer is required
to give notice of the
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record or payment date of such interest payment to the New York Stock
Exchange or other applicable self-regulatory organization or to Holders of
the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
SECTION 4.3 Limitation of Transactions. If the Issuer shall exercise its
right to defer payment of interest as provided in Section 4.1, then, prior to
the payment of all accrued interest on outstanding Debentures, the Issuer shall
not (a) declare or pay dividends on, make a distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock, (b) make any payment of interest, principal or premium, if
any, on, or repay, repurchase or redeem, any debt securities issued by the
Issuer that rank equal with or junior to the Debentures or (c) make guarantee
payments with respect to the foregoing (other than pursuant to the Preferred
Securities Guarantee); provided, however, that the restriction in clause (a)
shall not apply to (i) purchases or acquisitions of the Issuer's capital stock
in connection with the satisfaction of its obligations under any employee
benefit plans, stock option plans, employee stock purchase plans or direct
reinvestment plans as may be in effect from time to time or the satisfaction of
its obligations pursuant to any contract or security outstanding on the date of
such event requiring the Issuer to purchase its capital stock (other than a
contractual obligation ranking equal with or junior to the Debentures), (ii)
reclassifications of the Issuer's capital stock or the exchange or conversion of
one class or series of the Issuer's capital stock, provided that such
reclassification, exchange or conversion does not result in a change in the
priority vis-a-vis the Preferred Securities of any class or series of capital
stock that is being so reclassified or that is the subject of such exchange or
conversion, (iii) purchases of fractional interests in shares of the Issuer's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security bring converted or exchanged, (iv) stock dividends paid by
the Issuer where the dividend stock is the same stock as that on which the
dividend is being paid or (v) redemptions or purchases of any rights pursuant to
purchase rights contained in any rights agreement as shall be in effect from
time to time, which purchase rights are substantially similar to those contained
in the Issuer's Rights Agreement dated November 5, 1998.
ARTICLE V
EXPENSES
--------
SECTION 5.1 Payment of Expenses. In connection with the offering, sale and
issuance of the Debentures to the Property Trustee in connection with the sale
of the Trust Securities by the Trust and during the existence of the Trust, the
Issuer, in its capacity as borrower with respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting
12
Agreement and compensation of the Trustee under the Indenture in accordance
with the provisions of Section 6.7 of the Indenture;
(b) pay other debts and obligations of the Trust (other than with
respect to the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the
organization, maintenance and dissolution of the Trust, the offering, sale
and issuance of the Trust Securities (including commissions to the
underwriters payable pursuant to the Underwriting Agreement), the
retention of the Regular Trustees, reimbursement of the Regular Trustees
as provided in the Declaration, the fees and expenses of the Property
Trustee and the Delaware Trustee, the trustee under the Preferred
Securities Guarantee, the costs and expenses relating to the operation of
the Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing and disposition of Trust assets,
and the fees and expenses related to the enforcement by the Property
Trustee of the rights of the holders of the Preferred Securities) and all
other amounts payable by the Issuer pursuant to the Declaration;
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(d) pay any and all taxes, duties, assessments or governmental charges
of whatever nature (other than withholding taxes) imposed on the Trust or
its assets and all liabilities, costs and expenses of the Trust with
respect to such taxes, duties, assessments or governmental charges.
SECTION 5.2 Payment Upon Resignation or Removal. Upon termination of this
First Supplemental Indenture or the Indenture or the removal or resignation of
the Trustee pursuant to Section 6.10 of the Indenture, the Issuer shall pay to
the Trustee all amounts due to the Trustee in accordance with Section 6.7 of the
Indenture. Upon termination of the Declaration or the removal or resignation of
the Delaware Trustee or the Property Trustee, as the case may be, pursuant to
Section 5.7 of the Declaration, the Issuer shall pay to the Delaware Trustee or
the Property Trustee, as the case may be, all amounts due to such trustee
accrued to the date of such termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
----------------------------
SECTION 6.1 Listing on an Exchange. If the Debentures are to be distributed
to the holders of the Preferred Securities as described in Section 2.4(a), the
Issuer will, if the Debentures are not already so listed, use its best efforts
to list such Subordinated Debentures on The New York
13
Stock Exchange, Inc. or on such other exchange or other organization as the
Preferred Securities are then listed.
ARTICLE VII
FORM OF DEBENTURE
-----------------
SECTION 7.1 Form of Debenture. The Debentures and the Trustee's Certificate
of Authentication to be endorsed thereon are to be substantially in the
following forms:
This Debenture is one of a duly authorized series of Debentures (herein
sometimes referred to as the "Debentures") of Motorola, Inc., a Delaware
corporation (the "Company," which term includes any successor corporation under
the Indenture hereinafter referred to), specified in and all issued or to be
issued in one or more series under and pursuant to an Indenture dated as of
February ____, 1999 (as originally executed or as it may from time to time be
supplemented or amended by one or more supplemental indentures, including the
First Supplemental Indenture dated as of February ____, 1999, the "Indenture"),
duly executed and delivered between the Company and Xxxxxx Trust and Savings
Bank, as Trustee (in such capacity, the "Trustee"), to which a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Debentures, and to all of
which provisions the Holder of this Debenture by acceptance hereof, assents and
agrees. By the terms of the Indenture, the Debentures are issuable in series
that may vary as to amount, date of maturity, rate of interest and in other
respects as provided in the Indenture. This series of Debentures is limited in
aggregate principal amount as specified in said Indenture. Defined terms used
but not otherwise defined in this Debenture have the meanings set forth in the
Indenture.
(IF THE DEBENTURE IS TO BE A GLOBAL INDENTURE, INSERT - This Debenture is
in Global form within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depository or a nominee of a Depository. Unless
and until it is exchanged in whole or in part for securities in certificated
form in the limited circumstances described in the indenture, this security may
not be transferred except as a whole by the depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of DTC (and any payment hereon is made to Cede &
Co. or to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.)
14
MOTOROLA, INC.
____% DEFERRABLE INTEREST JUNIOR SUBORDINATED DEBENTURE
No. 1 DUE _______________, 2039 REGISTERED
$515,463,925
The Company, for value received, hereby promises to pay to Xxxxxx Trust and
Savings Bank, as Property Trustee under that certain Amended and Restated
Declaration of Trust, dated as of February __, 1999, among the Trustees of
Motorola Capital Trust I named therein, the Company and the holders from time to
time of undivided beneficial interests in the assets of Motorola Capital Trust
I, or registered assigns, the principal sum of Five Hundred Fifteen Million Four
Hundred Sixty Three Thousand Nine Hundred Twenty Five Dollars ($515,463,925) on
____________, 2039 (or on such date that is no earlier than ____________, 2004
or such date that is no later than the earlier of: (i) __________________, 2048
or (ii) the Interest Deduction Date, if the Company elects to shorten or extend
the Maturity Date as further described herein), and to pay interest on said
principal sum from the date of issuance, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year commencing 1999, at the rate of ________% per annum until the principal
hereof shall have become due and payable, and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarter on the basis of
the actual number of days elapsed in such 90-day quarter. The principal of and
the interest on this Debenture shall become due and payable, in the manner, with
the effect and subject to the conditions and limitations provided in the
Indenture.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Debt, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her attorney-in-
fact for any and all such purposes. Each Holder hereof, by his or her
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Debt, whether now outstanding or hereafter incurred, and waives reliance
by each such holder upon said provisions.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture at the time and place and at the rate and in the money herein
prescribed. All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
15
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
* * * * * * * * *
16
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: February , 1999. MOTOROLA, INC.
------------------------- --------------
By: /s/
-----------------------
Name:
Title:
17
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures referred to in the within-mentioned
Indenture.
XXXXXX TRUST AND SAVINGS BANK, as Trustee
By: /s/
--------------------------------------
Authorized Signatory
18
Except as provided in the next paragraph with respect to the occurrence of
a Special Event, the Debentures may not be redeemed by the Company prior to
____________________, 2004. The Company shall have the right to redeem this
Debenture, in whole or in part at any time and from time to time on or after
_______________, 2004 (an "Optional Redemption"), at a redemption price equal to
100% of the principal amount to be redeemed plus any accrued and unpaid interest
thereon (including any Compounded Interest, if any), to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 days nor more than 60 days notice
to the Holder(s) of the Debentures at the Optional Redemption Price, in the
manner, with the effect and subject to the conditions and limitations provided
in the Indenture.
If, at any time, a Tax Event or an Investment Company Event (each, as
defined in the Indenture, a "Special Event") shall occur and be continuing, the
Company shall have the right, upon not less than 30 nor more than 60 days'
notice, to redeem the Debentures in whole or in part for cash at the Optional
Redemption Price within 90 days following the occurrence of such Special Event,
in the manner, with the effect and subject to the conditions and limitations
provided in the Indenture.
The Company shall have the right at any time during the term of the
Debentures from time to time to extend the interest payment period of such
Debentures for up to 20 consecutive quarters, in the manner, with the effect and
subject to the conditions and limitations provided in the Indenture.
The Company will have at any time the right to dissolve the Trust and cause
the Debentures to be distributed to the holders of the Trust Securities in
liquidation of the Trust, in the manner, with the effect and subject to the
conditions and limitations provided in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions and limitations provided
in the Indenture.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Company and the Holder agree (i) that for United States federal, state
and local tax purposes it is intended that the Debenture constitute indebtedness
and (ii) to file all United States federal, state and local tax returns and
reports on such basis (unless the Company or the Holder, as the case may be,
shall have received an opinion of independent nationally recognized tax counsel
19
to the effect that as a result of a change in law after the date of the issuance
of the Debenture the Company or the Holder, as the case may be, is prohibited
from filing on such basis).
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
----------------------------
SECTION 8.1 Original Issue of Debentures. Debentures in the aggregate
principal amount of $515,463,925 may, upon or after execution of this First
Supplemental Indenture, be executed by the Issuer and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
such Debentures to or upon the written order of the Issuer, signed by its
Chairman, its President, or any Vice President and its Treasurer or an Assistant
Treasurer or its Secretary or an Assistant Secretary, without any further action
by the Issuer.
SECTION 8.2 Reports by the Trustee. Up until and including the Maturity
Date, the Trustee shall, in respect of each applicable date, make such reports
within such time periods as are required to be made by the Trustee under the
Trust Indenture Act and the Indenture.
ARTICLE IX
COVENANTS
---------
SECTION 9.1 Covenants as to Trust. In the event Debentures are issued and
sold to the Property Trustee in connection with the issuance of Trust Securities
by the Trust, for so long as the Trust Securities remain outstanding, the Issuer
will (i) maintain 100% direct or indirect ownership of the Common Securities of
the Trust; provided, however, that any permitted successor of the Issuer under
the Indenture may succeed to the Issuer's ownership of the Common Securities;
(ii) not voluntarily dissolve, wind-up or terminate the Trust, except in
connection with the distribution of Debentures upon a Dissolution Event or
otherwise, and in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration; (iii) timely perform its duties as
sponsor of the Trust; (iv) use its reasonable efforts to cause the Trust (a) to
remain a business trust, except in connection with the distribution of
Debentures as provided in the Declaration, the redemption of the Trust
Securities or in connection with certain mergers, consolidations or
amalgamations as permitted by the Declaration, and (b) otherwise continue not to
be treated as an association taxable as a corporation or partnership for United
States federal
20
income tax purposes; and (v) use its reasonable efforts to cause each holder of
Trust Securities to be treated as owning an individual beneficial interest in
the Debentures. This covenant is intended solely for the benefit of the Holders
of the Debentures issued pursuant to this First Supplemental Indenture and shall
not be applicable to the Securities of any other series issued pursuant to the
Indenture.
ARTTICLE X
DEFAULT
-------
SECTION 10.1 Additional Event of Default. There is hereby established as an
additional Event of Default (as contemplated by Section 5.1(7) of the Indenture)
the following:
In the event the Debentures are issued and sold to the Property Trustee in
connection with the issuance of Trust Securities by the Trust, the Trust shall
have voluntarily or involuntarily dissolved, wound-up its business or otherwise
terminated its existence except in connection with (i) the distribution of the
Debentures to holders of Trust Securities in liquidation or redemption of their
interests in the Trust, (ii) the redemption of all or part of the outstanding
Trust Securities of the Trust or (iii) certain mergers, consolidations or
amalgamations of the Trust, each as permitted by the Declaration of the Trust.
The foregoing Event of Default is intended solely for the benefit of the
Holders of the Debentures issued pursuant to this First Supplemental Indenture
and shall not be applicable to any other series of Securities heretofore or
hereafter issued pursuant to the Indenture.
SECTION 10.2 Limitations on Waivers and Consents.
(a) Notwithstanding anything to the contrary contained in Section 5.4
of the Indenture, if the Debentures are held by the Trust or by the
Property Trustee, a waiver of a past default or any modification to a
waiver of a past default shall not be effective until the holders of a
majority in liquidation amount of Trust Securities shall have consented to
such waiver or modification; provided, however, that if the consent of the
Holder of each Outstanding Debenture is required in connection with such
waiver or modification, such waiver or modification shall not be effective
until each holder of the Trust Securities shall have consented to such
waiver or modification.
(b) Except for any supplemental indenture provided under Section 9.1
of the Indenture and notwithstanding anything to the contrary contained in
Section 9.2 of the Indenture, if the Debentures are held by the Trust or by
the Property Trustee, a supplemental indenture shall not be effective until
the holders of not less than 66 2/3% in principal amount
21
of Trust Securities shall have consented to such supplemental indenture;
provided, however, that if the consent of the Holder of each Outstanding
Debenture is required in connection with a supplemental indenture, such
supplemental indenture shall not be effective until each holder of the
Trust Securities shall have consented to such supplemental indenture.
SECTION 10.3 Acknowledgment of Rights.
The Issuer acknowledges that, with respect to any Debentures held either by
the Trust or by the Property Trustee, if the Property Trustee fails to enforce
its rights to the fullest extent permitted by law under the Indenture, this
First Supplemental Indenture or the Debentures as the Holder of the Debentures
held as the assets of the Trust, any record holder of Preferred Securities may
institute legal proceedings directly against the Issuer to enforce the Property
Trustee's rights under the Indenture, this First Supplemental Indenture or the
Debentures without first instituting any legal proceedings against such Property
Trustee or any other person or entity. Notwithstanding the foregoing, if an
Event of Default under the Declaration has occurred and is continuing and such
event is attributable to the failure of the Issuer to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the applicable redemption date), the Issuer
acknowledges that a holder of Preferred Securities may institute a proceeding
directly against the Issuer for enforcement of payment to the holder of the
Preferred Securities of the principal of or interest on the Debentures on or
after the respective due date specified in the Debentures, and the amount of
payment will be based on the holder's pro rata share of the amount due and owing
on all the Preferred Securities.
ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.1 Ratification of Indenture. The Indenture, as supplemented by
this First Supplemental Indenture, is in all respects ratified and confirmed,
and this First Supplemental Indenture shall be deemed part of the Indenture in
the manner and to the extent herein and therein provided.
SECTION 11.2 Trustee Not Responsible for Recitals. The recitals contained
herein and in the Debentures, except for the Trustee's certificate of
authentication, shall be taken as the statements of the Issuer and not of the
Trustee, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representation as to the validity or sufficiency of
this First Supplemental Indenture or of the Debentures.
SECTION 11.3 Governing Law. This First Supplemental Indenture and each
Debenture shall be deemed to be a contract made under the laws of the State of
New York, and for
22
all purposes shall be construed in accordance with the laws of said State,
except as may otherwise be required by mandatory provisions of law.
SECTION 11.4 Separability. In case any one or more of the provisions
contained in this First Supplemental Indenture or in the Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
SECTION 11.5 Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 11.6 Effect of Headings. The Article and Section headings herein
and the Table of Contents hereto are for convenience only and shall not affect
the construction hereof.
23
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
MOTOROLA, INC.
By:______________________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK, as Trustee
By:______________________________________
Name:
Title:
24
