LOCK-UP AGREEMENT
STRICTLY CONFIDENTIAL
---------------------
August 19, 1999
Xxxx X. Xxxxxxxx
c/o Metrowerks Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx
00000
Dear Xx. Xxxxxxxx:
This letter agreement (the "Agreement") sets out the terms and
conditions upon which Motorola, Inc. (the "Purchaser") will cause a direct or
indirect wholly-owned subsidiary of the Purchaser (the "Offeror") to make an
offer (the "Offer") on substantially the terms and conditions set forth in
Schedule A to the offer agreement between Metrowerks Inc. (the "Company") and
the Purchaser dated the date hereof (the "Offer Agreement"), to purchase all of
the issued and outstanding common shares (the "Shares") of the Company.
This Agreement also sets out the terms and conditions of the
agreement by Xxxx X. Xxxxxxxx (the "Shareholder") irrevocably to deposit, or
cause to be deposited, under the Offer: (i) the 1,865,239 Shares presently owned
beneficially by the Shareholder; (ii) the 30,000 Shares issuable upon the
exercise of certain stock options held by the Shareholder, subject to the
acceleration by the Company of the vesting of such options; and (iii) any Shares
subsequently obtained by the Shareholder (the "Shareholder's Shares"), and sets
out the obligations and commitments of the Shareholder in connection therewith.
ARTICLE 1
THE OFFER
---------
1.1_ TIMING OF THE OFFER.
-------------------
The Purchaser agrees to cause the Offeror to make the Offer
for all of the Shares within the time and upon the terms as provided for in the
Offer Agreement, and subject to the conditions therein contained.
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1.2 MODIFICATION OF OFFER.
---------------------
The Purchaser agrees that it will not cause or permit the
Offeror to amend, modify or change the Offer without the prior written consent
of the Shareholder, which consent shall not be unreasonably withheld, and to
provide a draft of any proposed amendment, modification or change to the Offer
to the Shareholder and to consult with the Shareholder with respect to the terms
and conditions of such proposed amendment, modification or change of the Offer.
The covenants in the foregoing sentence shall not apply in respect of any
amendments, modifications or changes to the Offer in accordance with section 1
of Schedule A hereto or where the Purchaser has been notified or becomes aware
of a Competing Transaction (as defined in section 3.1(b) hereof).
1.3 GENERAL.
-------
Subject to the terms and conditions of the Offer Agreement,
the Purchaser hereby covenants to use, and to cause the Offeror to use, its
reasonable commercial efforts to successfully complete the Offer and the
transactions contemplated by this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
------------------------------
2.1 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER.
-------------------------------------------------
The Shareholder hereby represents and warrants to the
Purchaser that:
(a) Authorization. This Agreement has been duly executed and
delivered by the Shareholder and constitutes a legal,
valid and binding agreement enforceable by the Purchaser
against the Shareholder in accordance with its terms
subject, however, to limitations with respect to
enforcement imposed by law in connection with bankruptcy
or similar proceedings, the equitable power of the courts
to stay proceedings before them and the execution of
judgments and to the extent that equitable remedies such
as specific performance and injunction are in the
discretion of the court from which they are sought.
(b) Ownership of Shares. The Shareholder: (i) is the sole
beneficial owner of 1,865,239 Shares which are currently
held by the Shareholder; and (ii) upon the acceleration
of the vesting thereof, will be the sole beneficial owner
of the 30,000 Shares issuable upon the exercise of stock
options held by the Shareholder to acquire such Shares at
an exercise price of U.S. $3.95 per Share. The
Shareholder also holds an aggregate of 26,000 vested and
unvested options to acquire Shares at exercise prices of
U.S. $9.35 per Share or higher. Except as stated in this
paragraph, the Shareholder does not own or control,
directly or indirectly any other Shares or options,
rights or other entitlements to acquire Shares. The
Shareholder has the exclusive right to dispose
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of the Shareholder's Shares as provided in this Agreement
and the Shareholder is not a party to, bound or affected
by or subject to, any charter or by-law provision,
statute, regulation, judgment, order, decree or law of
which a breach would occur as a result of the execution
and delivery of this Agreement or the consummation of any
of the transactions provided for in this Agreement.
(c) Good Title. The Shareholder's Shares to be acquired by
the Offeror directly or indirectly from the Shareholder
pursuant to the Offer will be acquired with good and
marketable title, free and clear of any and all
mortgages, liens, charges, restrictions, security
interests, adverse claims, pledges, encumbrances and
demands or rights of others of any nature or kind
whatsoever.
(d) No Agreements. No person, firm or corporation has any
agreement or option, or any right or privilege (whether
by law, pre-emptive or contractual) capable of becoming
an agreement or option, for the purchase, requisition or
transfer from the Shareholder, or any registered holder
of Shareholder's Shares, of any of the Shareholder's
Shares, or any interest therein or right thereto, except
pursuant to this Agreement.
(e) Voting. Neither the Shareholder nor any registered holder
of the Shareholder's Shares has previously granted or
agreed to grant any ongoing proxy in respect of the
Shareholder's Shares or entered into any voting trust,
vote pooling or other agreement with respect to the right
to vote, call meetings of shareholders or give consents
or approvals of any kind as to the Shareholder's Shares.
(f) No Proceeding Pending. There is no claim, action,
lawsuit, arbitration, mediation or other proceeding
pending or, to the best of the knowledge, information and
belief of the Shareholder, threatened against the
Shareholder, which relates to this Agreement or otherwise
materially impairs the ability of the Shareholder to
consummate the transactions contemplated hereby.
(g) Arm's Length Negotiation. The price payable by the
Purchaser for the Shares pursuant to the Offer (the
"Offer Price") was arrived at through negotiation between
the Shareholder and the Purchaser and, at the time of
such negotiations, the Shareholder had full knowledge of
and access to information concerning the Company such
that the underlying value of the Company was a material
factor considered by the Shareholder in arriving at the
Offer Price, and there were no non- financial factors or
other factors peculiar to the Shareholder which were
considered relevant by the Shareholder in assessing the
price offered by the Purchaser and in arriving at the
Offer Price.
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(h) Company Public Disclosure Documents. To the best of the
knowledge of the Shareholder: (i) all forms, reports,
statements, schedules and documents required to be filed
by the Company with securities regulatory authority under
applicable securities laws (collectively, the "Reports")
did not, at the time filed, contain any untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) the Company has not filed any confidential material
change report with any securities regulatory authority or
stock exchange which at the date of this Agreement
remains confidential; and (iii) the Company has publicly
disclosed in the Reports any information regarding any
event, circumstances or action taken or failed to be
taken by the Company or its subsidiaries which could
individually or in the aggregate reasonably be expected
to constitute a Material Adverse Effect.
(i) Company Representations and Warranties. To the best of
the knowledge of the Shareholder, all of the
representations and warranties of the Company set forth
in the Offer Agreement are true and correct.
2.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
-----------------------------------------------
The Purchaser represents and warrants to the Shareholder as
follows:
(a) Organization. The Purchaser is, and the Offeror will be
at the date of the Offer, a corporation duly organized
and validly existing under the laws of its jurisdiction
of incorporation.
(b) Authority. The Purchaser has all requisite corporate
power and authority to enter into this Agreement, and the
Offeror will have at the date of the Offer all necessary
corporate power and authority to make the Offer and to
carry out the transactions contemplated hereby and by the
Offer. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary
corporate action on the part of the Purchaser, and no
other corporate proceedings on the part of the Purchaser
are necessary to authorize this Agreement. The Agreement
has been duly executed and delivered by the Purchaser and
constitutes a legal, valid and binding agreement
enforceable by the Company against the Purchaser in
accordance with its terms, subject, however, to the usual
limitations with respect to enforcement imposed by law in
connection with bankruptcy or similar proceedings and the
availability of equitable remedies.
(c) Non-Contravention. Neither the execution and delivery of
this Agreement nor the consummation of the transactions
contemplated hereby nor compliance with any of
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the provisions hereof will conflict with or result in any
breach of any provision of the constating documents of the
Purchaser.
ARTICLE 3
COVENANTS OF THE SHAREHOLDER
----------------------------
3.1 GENERAL.
-------
The Shareholder hereby covenants that until the Offeror has
taken up and paid for the Shares under the Offer or abandoned the Offer, or the
terms of this Agreement have been terminated by the Shareholder pursuant to
section 5.1, the Shareholder and any registered holder of the Shareholder's
Shares will:
(a) except as permitted by this Agreement, not take and shall
not authorize or permit any investment banker, financial
advisor, attorney, accountant or other representative of
his or its to take, any action of any kind which may
reduce the likelihood of success of or delay the take up
and payment of Shares deposited under the Offer or the
completion of the Offer, including but not limited to any
action to continue, solicit, initiate, assist or
encourage inquiries, submissions, proposals or offers
from any other person, entity or group, and will cease
immediately and not continue or participate in any
discussions or negotiations regarding, or furnish to any
other person, entity or group, any information with
respect to, or otherwise cooperate in any way with or
assist or participate in, or facilitate or encourage any
effort or attempt with respect to:
(i) the direct or indirect acquisition or disposition of
all or any Shares or any other securities of the
Company or its subsidiaries, or
(ii) any amalgamation, merger, sale of any part of the
Company's or any of its subsidiaries' assets,
take-over bid, plan of arrangement, reorganization,
recapitalization, liquidation or winding-up of,
reverse take-over or other business combination or
similar transaction involving the Company or any of
its subsidiaries or assets;
other than in the Shareholder's capacity as director of
the Company and as required by law in the exercise of his
fiduciary duties as a director (but subject to the terms
and conditions of the Offer Agreement);
(b) notify the Offeror within 24 hours of becoming aware of a
proposal which, if made in writing, could constitute a
"competing offer or transaction" (as defined in section
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10 of the Offer Agreement and referred to herein as a
"Competing Transaction") including the identity of any
prospective offeror;
(c) not option, sell, transfer, pledge, encumber, grant a
security interest in, hypothecate or otherwise convey the
Shareholder's Shares, or any right or interest therein
(legal or equitable), to any person, entity or group or
agree to do any of the foregoing, provided that the
Shareholder shall be entitled to transfer the
Shareholder's Shares to a wholly-owned holding company of
the Shareholder incorporated under the Canada Business
Corporations Act for the purpose of utilizing the Holdco
Alternative referred to in the Offer Agreement, if
available;
(d) not grant or agree to grant any proxy or other right to
vote the Shareholder's Shares, or enter into any voting
trust, vote pooling or other agreement with respect to
the right to vote, call meetings of shareholders or give
consents or approvals of any kind as to the Shareholder's
Shares;
(e) not do indirectly that which it may not do directly in
respect of the restrictions on its rights with respect to
the Shareholder's Shares pursuant to this section 3.1,
including, but not limited to, the sale of any direct or
indirect holding company of the Shareholder (otherwise
than to the Offeror pursuant to the Holdco Alternative,
if available) or the granting of a proxy on the Shares of
any direct or indirect holding company of the Shareholder
which would have, indirectly, the effect prohibited by
this section 3.1, and not to take any action which would
make any representation or warranty of the Shareholder
contained herein untrue or incorrect or have the effect
of preventing or disabling the Shareholder from
performing its obligations under this Agreement;
(f) exercise the voting rights attaching to the Shareholder's
Shares and otherwise use its best efforts to oppose any
proposed action by the Company, its shareholders, any of
its subsidiaries or any other person: (i) in respect of
any amalgamation, merger, sale of the Company's or its
affiliates' or associates' assets, take-over bid, plan of
arrangement, reorganization, recapitalization,
shareholder rights plan, liquidation or winding-up of,
reverse take-over or other business combination or
similar transaction involving the Company or any of its
subsidiaries, (ii) which might reasonably be regarded as
being directed towards or likely to prevent or delay the
take up and payment of Shares deposited under the Offer
or the successful completion of the Offer, or (iii) which
could result in a Material Adverse Effect;
(g) use all reasonable commercial efforts to assist the
Purchaser and the Offeror to successfully complete the
transactions contemplated by this Agreement;
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(h) promptly advise the Purchaser orally and in writing of
any Material Adverse Effect or any event, condition,
change or development with respect to the Company which
could reasonably be expected to cause the conditions to
the Offer not to be satisfied, known or that becomes
known to the Shareholder;
(i) not purchase or obtain or enter into any agreement or
right to purchase any additional Shares from and
including the date hereof up until the termination or
withdrawal of the Offer (other than pursuant to the
exercise of employee stock options by the Shareholder);
(j) exercise the 30,000 options held by the Shareholder to
acquire Shares at an exercise price of U.S. $3.95 per
Share and deposit the Shares thereby acquired under the
Offer in accordance with the terms of this Agreement, and
surrender to the Company for cancellation (without
payment of any consideration therefor) all of the other
options to acquire Shares that are held by the
Shareholder, provided that such surrender for
cancellation may be made subject to the condition that,
and become effective only upon, the Offeror having taken
up and paid for any Shares under the Offer;
(k) use all reasonable efforts to preserve intact the
goodwill of the Company and its subsidiaries, keep
available the services of their respective present
officers and key employees, and preserve their business
relationships with customers and others having business
relationships with them and not engage in any action,
directly or indirectly, with the intent to adversely
impact the transactions contemplated by the Offer
Agreement; and
(l) resign as a director of the Company effective at the time
and in the manner requested by the Purchaser, after the
Offeror takes up and pays for the Shareholder's Shares.
ARTICLE 4
DEPOSIT AND PAYMENT
-------------------
4.1 DEPOSIT.
-------
Subject to section 4.2, the Shareholder hereby irrevocably and
unconditionally agrees to deposit or cause to be deposited all of the
Shareholder's Shares (including for greater certainty all Shares issued or
issuable to the Shareholder upon the exercise of options or any other rights to
acquire Shares), together with a duly completed and executed letter of
transmittal, under the Offer as soon as practicable and in any event no later
than the expiry of the Offer. In the event that the Shareholder subsequently
obtains any additional Shares as contemplated by section 3.1(i) hereof or
otherwise, such Shares shall likewise be immediately deposited under the Offer.
The
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Shareholder may effect the deposit of the Shareholder's Shares under the Offer
by depositing the Shareholder's Shares and the Holdco Shares (as defined in the
Offer Agreement) in accordance with the Holdco Alternative described in the
Offer Agreement, if available.
4.2 NO WITHDRAWAL.
-------------
The Shareholder hereby irrevocably and unconditionally agrees
that neither it nor any person on its behalf will withdraw or take any action to
withdraw any of the Shareholder's Shares deposited under the Offer, or any
Holdco Shares deposited under the Offer, notwithstanding any statutory rights or
other rights under the terms of the Offer or otherwise which it might have,
unless this Agreement is terminated in accordance with its terms prior to the
taking up of the Shareholder's Shares or Holdco Shares under the Offer or
unless:
(a) in the event that the Offer is not extended in accordance with
Schedule A, the Offeror does not take up and pay for the
Shares under the Offer on or before 60 days after the date of
the Offer;
(b) in the event that the Offer is extended in accordance with
Schedule A, the Offeror does not take up and pay for the
Shares under the Offer on or before the end of the tenth day
following the expiry of the Offer; or
(c) the Shareholder receives the consent of the Purchaser or the
Offeror to so withdraw the Shareholder's Shares.
4.3 APPOINTMENT OF PROXY.
--------------------
The Shareholder hereby grants to, and appoints, the Purchaser
and the Secretary of the Purchaser and the Chief Financial Officer of the
Purchaser, in their respective capacities as officers of the Purchaser, and any
individual who shall hereafter succeed to any such office of the Purchaser, and
any other designee of the Purchaser, each of them individually, the
Shareholder's irrevocable proxy and attorney-in-fact (with full power of
substitution) to vote the Shareholder's Shares, and to sign such Shareholder's
name to any written consent of the holders of the Shares with respect thereto,
in order to give effect to the covenants of the Shareholder contained in this
Agreement and in furtherance of the obligations of the Company contained in the
Offer Agreement. The Shareholder agrees that this proxy is irrevocable until
this Agreement is terminated in accordance with Article 5 hereof and coupled
with an interest and will take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by him with respect to the Shares.
4.4 STOP TRANSFER ORDER.
-------------------
In furtherance of the transactions contemplated by this
Agreement and the Offer Agreement, the Shareholder hereby authorizes the
Purchaser to instruct the Company to direct its
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transfer agent to place a stop transfer order on the Shareholder's Shares and
not to amend, terminate or waive any of the terms of such stop transfer order
(other than to permit the transfer of the Shareholder's Shares to the Offeror)
during the term of this Agreement.
ARTICLE 5
TERMINATION BY THE SHAREHOLDER AND BY THE PURCHASER
---------------------------------------------------
5.1 TERMINATION BY THE SHAREHOLDER.
------------------------------
The Shareholder, when not in default in performance of his
obligations under this Agreement, may, without prejudice to any other rights,
terminate this Agreement by notice to the Purchaser if
(a) the Offer has not been made as provided in section 1.1
hereof,
(b) the Offer does not substantially conform with, or subject
to section 1.2 hereof is modified in a manner so as not
to conform with, the description in Schedule A hereto or
the provisions of this Agreement; or
(c) Shares deposited under the Offer (including the
Shareholder's Shares) have not, for any reason
whatsoever, been taken up and paid for on or before the
end of the tenth day following the expiry of the Offer.
5.2 TERMINATION BY THE PURCHASER.
----------------------------
The Purchaser, when not in default in performance of its
obligations under this Agreement, may, without prejudice to any other rights,
terminate this Agreement by notice to the Shareholder if
(a) the Shareholder has not complied in all material respects
with its covenants to the Purchaser contained herein;
(b) any of the representations and warranties of the
Shareholder contained herein is untrue or inaccurate;
(c) the Company has not complied in all material respects
with its covenants to the Purchaser under the Offer
Agreement;
(d) the conditions in section 4 of Schedule A hereto are not
satisfied or waived by the Offeror on or prior to the
expiry of the Offer; or
(e) the Purchaser terminates the Offer Agreement.
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5.3 EFFECT OF TERMINATION.
---------------------
In the case of any termination of this Agreement pursuant to
this Article 5, this Agreement shall be of no further force and effect. Such
termination shall not relieve any party from liability for any breach of this
Agreement prior to such termination.
ARTICLE 6
GENERAL
-------
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
------------------------------------------
The representations and warranties shall not survive the
consummation of the Offer, provided that the representations and warranties of
the Shareholder in section 2.1(a) through (e) of this Agreement shall survive
indefinitely and the other representations and warranties of the Shareholder in
section 2.l of this Agreement shall terminate upon the expiry of the Offer. No
investigations made by or on behalf of the Purchaser, the Offeror or any of
their authorized agents at any time shall have the effect of waiving,
diminishing the scope of or otherwise affecting any representation or warranty
or covenant made by the Shareholder in or pursuant to this Agreement.
6.2 DISCLOSURE.
----------
Except as may otherwise be required by law or by regulatory
authorities having discretion over such matters, each party hereto agrees that
it will not make any public disclosure with respect to this Agreement or the
negotiations related to this Agreement in each case without the prior approval
of the other party, which approval will not be unreasonably withheld. If any
party deems that it is required by law or such regulatory authority to make any
public announcement or release concerning this Agreement, such party agrees to
provide a written copy thereof to the other party in advance of any such
announcement or release and to reasonably consider any suggested modifications,
which will be provided by the other party in a timely matter. The parties
acknowledge that the terms of this Agreement will be summarized in the Offer and
in the Directors' Circular relating to the Offer.
6.3 ASSIGNMENT.
----------
This Agreement shall not be assigned by operation of law or
otherwise, except that the Purchaser may assign all or any of its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of the
Purchaser, provided that no such assignment shall relieve the Purchaser of its
obligations hereunder if such assignee does not perform such obligations.
6.4 TIME.
----
Time shall be of the essence of this Agreement.
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6.5 CURRENCY.
--------
All sums of money referred to in this Agreement shall mean
U.S. funds.
6.6 GOVERNING LAW.
-------------
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein. The parties hereto irrevocably submit to the non-exclusive
jurisdiction of the courts of the Province of Ontario in respect of the
interpretation and enforcement of this Agreement.
6.7 ENTIRE AGREEMENT.
----------------
This Agreement, including Schedule A hereto, constitutes and
comprises the entire agreement and understanding between the parties hereto with
regard to the subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, between the parties with respect to the
subject matter hereof.
6.8 AMENDMENTS.
----------
This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by each of the parties hereto. Either party hereto may (a) extend the
time for the performance of any of the obligations or other acts of the other
party hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any of the agreements or conditions contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
6.9 DEFINITIONS.
-----------
For the purposes of this Agreement the term:
(a) "affiliates" and "associates" means the persons,
companies and other entities included in the definitions
of such terms under the Securities Act (Ontario);
(b) "business day" means any day, other than a Saturday or
Sunday, on which chartered banks in the City of Austin,
Texas and the City of Toronto, Ontario are open for
business;
(c) "Effective Date" means any date upon which the Offeror
takes up and pays for Shares under the Offer;
(d) "Material Adverse Effect" has the meaning ascribed to
such term in the Offer Agreement;
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(e) "material fact", "material change" and
"misrepresentation" are used as defined under the
Securities Act (Ontario); and
(f) "Shares" shall include any shares into which the Shares
may be reclassified, subdivided, consolidated or
converted and any rights and benefits arising therefrom
including any extraordinary distributions of securities
which may be declared in respect of the Shares.
For the purposes of this Agreement, if the last day of a
period of days is not a business day, the period shall be extended to the next
following day which is a business day.
6.10 SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS.
-----------------------------------------------
Each of the parties recognizes and acknowledges that this
Agreement is an integral part of the transactions contemplated in the Offer,
that the Purchaser would not contemplate causing the Offer to be made and the
Shareholder would not agree to its covenants to the Purchaser herein and to
irrevocably deposit the Shareholder's Shares to the Offer unless this Agreement
was executed and that a breach by a party of any covenants or other commitments
contained in this Agreement will cause the other party to sustain injury for
which it would not have an adequate remedy at law for money damages. Therefore,
each of the parties agrees that in the event of any such breach, the aggrieved
party shall be entitled to the remedy of specific performance of such covenants
or commitments and preliminary and permanent injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity, and the parties further agree to waive any requirement for the securing
or posting of any bond in connection with the obtaining of any injunctive or
other equitable relief.
6.11 NOTICES.
-------
Any notice required or permitted to be given hereunder shall
be written, and shall be either (i) personally delivered, (ii) sent by a
reputable common carrier guaranteeing next business day delivery, or (iii) sent
by facsimile, to the respective addresses of the parties set forth below, or to
such other place as any party hereto may by notice given as provided herein
designate for receipt of notices hereunder. Any such notice shall be deemed
given and effective upon receipt or refusal of receipt thereof by the primary
party to whom it is to be sent.
(a) If to the Purchaser or the Offeror, addressed as follows:
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx
00000
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Attention: Corporate Business Development
Facsimile: (000) 000-0000
with a copy to:
Motorola, Inc.
Law Department
0000 Xxxx Xxxxxxxxx Xxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx
00000
Attention: General Counsel
Facsimile: (000) 000-0000
(b) to the Shareholder, addressed as follows:
Xx. Xxxx X. Xxxxxxxx
c/o Metrowerks Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx
00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Tory Xxxx XxxXxxxxxxx & Xxxxxxxxxx
Suite 3000, Aetna Tower
X.X. Xxx 000
Xxxxxxx-Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
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6.12 EXPENSES.
--------
Each of the parties shall pay all of its own legal, financial
advisory and accounting costs and expenses incurred in connection with the
preparation, execution and delivery of this Agreement and all documents and
instruments executed or prepared pursuant hereto and any other costs and
expenses whatsoever and howsoever incurred.
6.13 SEVERABILITY.
------------
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
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6.14 COUNTERPARTS.
------------
This Agreement may be executed by facsimile signature, or
otherwise, in two or more counterparts, all of which taken together will
constitute one binding agreement.
MOTOROLA, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Corporate Vice President and
Director, Strategic Management
and Planning, Semiconductor
Products Sector
Agreed and accepted as of this 19th day of August, 1999.
____________________________________________
Xxxx X. Xxxxxxxx
