Exhibit 2.1
EXECUTION COPY
REORGANIZATION AGREEMENT
by and among
MOTOROLA, INC.,
SCG HOLDING CORPORATION
and
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
dated
as of May 11, 1999
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..............................................................................1
1.1 Previously Defined Terms..................................................................1
1.2 General Definitions.......................................................................1
1.3 Interpretation...........................................................................21
ARTICLE II TRANSFERS.............................................................................21
2.1 Prior Transfers..........................................................................21
2.2 Transfers of Certain Operations..........................................................22
2.3 BRAZIL...................................................................................23
2.4 Canada...................................................................................23
2.5 China....................................................................................23
2.6 Czech Republic...........................................................................24
2.7 Finland..................................................................................24
2.8 France...................................................................................25
2.9 Germany..................................................................................25
2.10 Hong Kong................................................................................26
2.11 India....................................................................................27
2.12 Israel...................................................................................27
2.13 Italy....................................................................................28
2.14 Japan....................................................................................28
2.15 Korea....................................................................................29
2.16 Malaysia.................................................................................29
2.17 Mexico...................................................................................30
2.18 The Netherlands..........................................................................31
2.19 The Philippines..........................................................................31
2.20 Puerto Rico..............................................................................32
2.21 Singapore................................................................................32
2.22 Spain....................................................................................33
2.23 Sweden...................................................................................33
2.24 Switzerland..............................................................................34
2.25 Taiwan...................................................................................34
2.26 Thailand.................................................................................35
2.27 United Kingdom...........................................................................35
ARTICLE III CLOSINGS AND CLOSING DELIVERIES.......................................................36
3.1 Closing Date.............................................................................36
3.2 Deliveries for Closing...................................................................36
3.3 Collateral Agreements....................................................................61
3.4 Cooperation..............................................................................62
ARTICLE IV PRE-CLOSING FILINGS, CONSENTS AND OTHER MATTERS........................................62
4.1 Governmental Filings.....................................................................62
4.2 Consent of Third Parties.................................................................62
4.3 Asset or Liability Dispute Resolution....................................................63
4.4 Shared Contracts.........................................................................64
4.5 Entity Classification....................................................................65
4.6 SEI Tax Return Filings...................................................................65
-i-
ARTICLE V FOREIGN REAL PROPERTY MATTERS...........................................................65
5.1 Foreign Real Property....................................................................65
5.2 REAL PROPERTY TITLE EXPENSES.............................................................65
ARTICLE VI CONDITIONS PRECEDENT...................................................................66
6.1 Conditions to Closing....................................................................66
ARTICLE VII TERMINATION...........................................................................66
7.1 Termination..............................................................................66
ARTICLE VIII MISCELLANEOUS......................................................................67
8.1 Further Actions..........................................................................67
8.2 Notices..................................................................................67
8.3 Entire Agreement.........................................................................67
8.4 Assignment; Binding Effect; Severability.................................................67
8.6 Governing Law............................................................................68
8.7 Execution in Counterparts................................................................68
8.8 Headings.................................................................................68
8.9 Amendment and Waiver.....................................................................68
8.10 U.S. Currency............................................................................68
-ii-
REORGANIZATION AGREEMENT
This REORGANIZATION AGREEMENT dated as of the 11th day of May, 1999
("AGREEMENT") by and among Motorola, Inc., a Delaware corporation ("MOTOROLA"),
SCG Holding Corporation, a Delaware corporation and a wholly-owned subsidiary of
Motorola (the "COMPANY"), and Semiconductor Components Industries, LLC, a
Delaware limited liability company, of which the Company is the sole member
("SCILLC").
RECITALS
A. Motorola engages through its Semiconductor Components Group ("SCG") in
the development, manufacture and sale of discrete and integrated circuit
semiconductor products and related products.
B. The Business (as defined herein) of SCG is conducted from locations in
the United States and several foreign countries.
C. Motorola believes that it is in the best interests of this Business
that the business, assets and operations of SCG be reorganized so that it is a
"stand alone" business.
D. In furtherance of such reorganization prior to the date hereof the
transfers set forth in SECTION 2.1 were consummated.
E. The purpose of this Agreement is to finalize the reorganization of the
operations of SCG as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
conditions, representations, warranties and agreements hereinafter set forth,
the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 PREVIOUSLY DEFINED TERMS. Each term defined in the first paragraph and
Recitals shall have the meaning set forth above whenever used herein, unless
otherwise expressly provided herein or unless the context hereof clearly
requires otherwise.
1.2 GENERAL DEFINITIONS. Whenever used herein, the following terms shall
have the meanings set forth below unless otherwise expressly provided or unless
the context clearly requires otherwise:
-1-
"ADDITIONAL SWITZERLAND ASSETS" has the meaning ascribed to such term
in SECTION 2.24(c).
"ADDITIONAL SWITZERLAND ASSUMED LIABILITIES" has the meaning ascribed
to such term in SECTION 2.24(c).
"ADR" has the meaning ascribed to such term in SECTION 4.3(c).
"AFFILIATE" of a Person means any Person controlling, controlled by,
or under common control with, such Person. For purposes of this definition,
"control" means the power to direct the management and policies of a Person,
whether through the ownership of voting securities, by agreement or otherwise.
"ASSUMED LIABILITIES" means, with respect to any Transferor, MSSB and
MPI, any and all liabilities of such Transferor, MSSB and MPI of any nature,
whether direct or indirect, known or unknown, or absolute or contingent, to the
extent arising out of or relating to the conduct of the Business or the
ownership and operation of the Purchased Assets, including, without limitation,
the obligations and liabilities set forth in SCHEDULE 1.2(a) (but excluding the
Retained Liabilities).
"BRAZIL SUB" has the meaning ascribed to such term in SECTION 2.3.
"BUSINESS" means the business and operations of SCG including, without
limitation, the design, development, manufacture, marketing and sale of the
semiconductor products set forth on SCHEDULE 1.2(b), it being understood,
however, that the Business shall include (1) with respect to all patents,
trademarks, know how, software, mask works, copyrights or other intellectual
property, only those rights and obligations of the Company under the
Intellectual Property Agreement; (2) the Purchased Assets, and (3) all rights
and obligations of the Company under the Collateral Agreements; PROVIDED,
HOWEVER, that the term "Business" shall not include Excluded Assets (except to
the extent such Excluded Assets may be used to provide benefits to the Company
under a Collateral Agreement).
"CANADA ASSETS" has the meaning ascribed to such term in SECTION 2.4(b).
"CANADA ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.4(b).
"CANADA NOTE" has the meaning ascribed to such term in SECTION 2.4(c).
"CANADA SUB" has the meaning ascribed to such term in SECTION 2.4(a).
"CHINA ASSETS" has the meaning ascribed to such term in SECTION 2.5(b).
"CHINA ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.5(b).
-2-
"CHINA HOLDINGS" means SCG China Holdings, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Company.
"CHINA NOTE" has the meaning ascribed to such term in SECTION 2.5(c).
"CHINA OFFICES" has the meaning ascribed to such term in SECTION 2.5(a).
"CLOSING" has the meaning ascribed to such term in SECTION 3.1.
"CODY RESTRUCTURING" means the restructuring adopted by Motorola more
particularly described in EXHIBIT A.
"COLLATERAL AGREEMENT" or "COLLATERAL AGREEMENTS" means the Company/SCI
Quit-Claim Deed, Xxxx of Sale and Severance Agreement, the Existing Ground
Lease, the Intellectual Property Agreement and the agreements set forth in
SECTION 3.2, individually or collectively, respectively.
"COMPANY" has the meaning ascribed to such term in the introductory
paragraph of this Agreement.
"COMPANY CHINA NOTE" has the meaning ascribed to such term in SECTION
2.5(d).
"COMPANY MALAYSIA NOTE" has the meaning ascribed to such term in SECTION
2.16(f).
"COMPANY NOTES" means, collectively, the Canada Note, China Note,
Company China Note, Company Malaysia Note, Czech Note, Finland Note, France
Note, Germany Note, Hong Kong Note, India Note, Israel Note, Italy Note, Japan
Note, Korea Note, MESB Note, Mexico Note, MMSB Note, Motorola Switzerland Branch
Note, Singapore Note, Spain Note, Sweden Note, Switzerland Note, Taiwan Note,
Thailand Note, UK Note and such other similar notes as may be issued in respect
of the transactions contemplated herein.
"CZECH ASSETS" has the meaning ascribed to such term in SECTION 2.6(b).
"CZECH ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.6(b).
"CZECH HOLDINGS" means SCG Czech Holdings, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Company.
"CZECH NOTE" has the meaning ascribed to such term in SECTION 2.6(c).
"CZECH SUB" has the meaning ascribed to such term in SECTION 2.6(a).
-3-
"EFFECTIVE DATE" has the meaning ascribed to such term in SECTION 3.1.
"EFFECTIVE DATE TRANSFERRED EMPLOYEE ACCRUALS" shall mean the following
amounts, determined as the agreed or accrued amount, as the case may be, as of
the Effective Date:
(1) accrued vacation, only to the extent that U.S.
Transferred Employees leave SCG within two years after Closing; payable when
invoiced, with the maximum amount of such accrued vacation to be determined as
of the Effective Date and to be reduced 1/24 per month following the Effective
Date and reduced by the amount of vacation time taken by U.S. Transferred
Employees;
(2) accrued attendance bonuses, which shall be determined as
of the Effective Date and shall be equal to the product of (x) the amount
outstanding as of 12-31-99 and (y) the quotient of (A) number of calendar months
elapsed between 1-1-99 and Closing and (B) 12, with all bonuses payable at year
end. There shall be a similar pro-ration for employees who terminate between
Closing and 12-31-99 and have accrued attendance bonus as of the date of
termination;
(3) MEIP payment liabilities accrued prior to the Effective
Date to the extent such payment liabilities relate to U.S. Transferred
Employees; and
(4) liabilities incurred for payroll and payroll taxes with
respect to periods prior to the Effective Date, other than such liabilities
incurred with respect to Motorola Philippines, MSSB, ISMF and Guadalajara.
"EMPLOYEE MATTERS AGREEMENT" has the meaning ascribed to such term in
SECTION 3.3(A)(II).
"ENVIRONMENTAL LAWS" means applicable federal, state, local or non-U.S.
laws or any statute, ordinance, regulation, binding agreement with a
Governmental Authority, Company Permit, or order, as the foregoing are enacted,
amended, issued, interpreted, or entered into and in effect on the Effective
Date, relating to pollution or protection of the environment, natural resources
or human health, including laws relating to the Releases of Hazardous
Substances.
"ENVIRONMENTAL LIABILITIES" means all obligations and liabilities,
whether direct or indirect, known or unknown, and in each case imposed by, under
or pursuant to Environmental Laws (including, but not limited to, all such
obligations and liabilities related to Remediations, and all fines, penalties,
deficiencies, interest, awards, fees, capital costs, disbursements and expenses
of counsel, experts, contractors, personnel and consultants) based on, arising
out of or otherwise in respect of: (i) the Business; (ii) conditions existing on
or under the Real Property or property or facilities formerly owned or operated
by the Business; (iii) the Release of, or exposure to, Hazardous Substances; and
(iv) compliance with any and all requirements of Environmental Laws by the
Business; PROVIDED, HOWEVER, that the term "Environmental Liabilities" as used
in this Agreement shall not include any liabilities or obligations of any Joint
Venture, whether
-4-
direct or indirect, known or unknown, imposed by, under or pursuant to any
Environmental Law (including, but not limited to, any such obligations or
liabilities related to Remediations, or any fines, penalties, deficiencies,
interest, awards, fees, capital costs, disbursements or expenses of counsel,
experts, contractors, personnel or consultants).
"EURL" has the meaning ascribed to such term in SECTION 2.8(a).
"EUROPE SUBS" has the meaning ascribed to such term in SECTION 2.18(b).
"EXCLUDED ASSETS" means all of the assets, properties and rights of any
Transferor that are not included in the Purchased Assets as well as the
following specific assets, properties and rights of any Transferor:
(i) all machinery, equipment, furniture, furnishings, automobiles,
trucks, vehicles, tools, dies, molds and parts and similar property listed as on
SCHEDULE 1.2(c) as such Schedule may be amended prior to Closing;
(ii) all machinery, equipment, furniture, furnishings, automobiles,
trucks, vehicles, tools, dies and parts and similar property (excluding
inventory--raw materials, piece parts, work-in-progress and finished goods--of
the Business on the Closing Date) located at sites where Motorola is providing
assembly, foundry or manufacturing services under a Collateral Agreement, except
as provided in SCHEDULE 1.2(d); PROVIDED FURTHER, HOWEVER, that Motorola and the
Company contemplate, as evidenced by the relevant Collateral Agreement, that
Motorola shall retain such machinery, equipment, furniture, furnishings,
automobiles, trucks, vehicles, tools, dies and parts and similar property
(excluding the SCG Inventory) to provide benefits to the Company in accordance
with such Collateral Agreement except as provided in SCHEDULE 1.2(d);
(iii) the inventory of MBG (including inventory--raw materials, piece
parts, work-in-progress and finished goods--located at sites where the Company
is providing assembly, foundry or manufacturing services under a Collateral
Agreement);
(iv) (x) all contracts, arrangements, licenses, leases and other
agreements not relating primarily or exclusively to the Business and (y) all of
the rights of any Transferee under any Shared Contract to the extent allocated
to Motorola in accordance with SECTION 4.4, including without limitation, any
right to receive payment for products sold or services rendered, and to receive
goods and services and to assert claims and take other rightful actions in
respect of breaches, defaults or other violations of such contracts,
arrangements, licenses, leases and other agreements;
(v) any claim, right or interest of any Transferor in and to any
refund for taxes for any period prior to the Effective Date;
(vi) any accounts receivable, credits, prepaid expenses, deferred
charges and taxes, advance payments, security deposits, prepaid items and other
current
-5-
assets relating to the Business, excluding the third-party accounts receivable,
credits, prepaid expenses, deferred charges and taxes, advance payments,
security deposits, prepaid items and other current assets relating to the
Business of Motorola Philippines, MMSB, ISMF and Guadalajara; notwithstanding
the foregoing, any accounts receivable constituting trade receivables of
Motorola Mexico shall be Excluded Assets;
(vii) any intellectual property rights, including any right, title or
interest to the name "Motorola" or the related trademark, except as expressly
provided in the Intellectual Property Agreement;
(viii) all of the rights, claims or causes of action of Motorola or
any Transferor to the extent they do not relate to the Business or they relate
to the Excluded Assets;
(ix) except as provided in clause (x) of the definition of "Purchased
Assets, "any rights to any insurance policies held or maintained by any
Transferor, including without limitation, any rights to any proceeds payable
pursuant to such insurance policies;
(x) any rights or benefits arising on or prior to the Closing Date
related to (i) intercompany trade payables, (ii) transactions pursuant to any
master service agreement between SCG and any Motorola entity, (iii) intercompany
trade receivables, (iv) with respect to the matters in subclauses (i), (ii) and
(iii)of this clause (x), matters settled by the London Netting System maintained
by Motorola, (v) the 1997 Partnership Agreement between Motorola, Inc., for its
Equipment Groups, and Motorola SPS, and (vi) the Mediation Agreement, dated
January 1, 1993 between Motorola and Motorola Mexico;
(xi) any Transferor's cash on hand or on deposit in banks or in
transit to banks, or any other cash equivalents; and
(xii) Non-SCG Philippine Assets.
"EXISTING MOTOROLA NON-U.S. ENTITIES" means the entities listed on SCHEDULE
1.2(E), but shall not include the Joint Ventures.
"EXISTING SCG ENTITY" means any of Motorola, the Company or any of the
Existing Motorola Non-U.S. Entities.
"EXPATRIATE EMPLOYEES" means (a) those employees hired in one country by
an Existing SCG Entity and (b) who have been designated as expatriates and
assigned or sent to work in another country on a temporary basis.
"FINLAND ASSETS" has the meaning ascribed to such term in SECTION 2.7(b).
"FINLAND ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.7(b).
6
"FINLAND BRANCH" has the meaning ascribed to such term in SECTION 2.7(a).
"FINLAND NOTE" has the meaning ascribed to such term in SECTION 2.7(c).
"FRANCE ASSETS" has the meaning ascribed to such term in SECTION 2.8(b).
"FRANCE ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.8(b).
"FRANCE NOTE" has the meaning ascribed to such term in SECTION 2.8(c).
"FRANCE SUB" has the meaning ascribed to such term in SECTION 2.8(a).
"GERMANY ASSETS" has the meaning ascribed to such term in SECTION 2.9(b).
"GERMANY ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.9(b).
"GERMANY NOTE" has the meaning ascribed to such term in SECTION 2.9(c).
"GERMANY SUB" has the meaning ascribed to such term in SECTION 2.9(a).
"GOVERNMENTAL AUTHORITY" means the governments of Brazil, Canada, China,
the Czech Republic, Finland, France, Germany, Hong Kong, India, Israel, Italy,
Japan, Korea, Malaysia, Mexico, the Netherlands, the Philippines, Puerto Rico,
Singapore, Slovakia, Spain, Sweden, Switzerland, Taiwan, Thailand, the United
Kingdom, the United States or any other country or any state, province,
municipality or other political subdivision thereof or therein, or any court,
tribunal, agency, department, board or commission (including regulatory and
administrative bodies) of any of the foregoing.
"GUADALAJARA" means the Business activities of Motorola Mexico at the
Guadalajara factory in Mexico.
"HAZARDOUS SUBSTANCES" means any pollutants, contaminants, hazardous or
toxic substances or wastes, friable asbestos, petroleum or any fraction or
derivative thereof, radioactive materials or any other element, compound,
mixture, solution or substance that is classified or regulated under any
Environmental Law.
"HIGH LEVEL MANAGEMENT EMPLOYEE" has the meaning ascribed to such term in
SECTION 4.3(b).
"HONG KONG ASSETS" has the meaning ascribed to such term in SECTION
2.10(b).
"HONG KONG ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.10(b).
-7-
"HONG KONG NOTE" has the meaning ascribed to such term in SECTION 2.10(c).
"HONG KONG SUB" has the meaning ascribed to such term in SECTION 2.10(a).
"INACTIVE SCG EMPLOYEES" means SCG Employees who, immediately prior to the
Closing Date, are absent from work due to an authorized leave of absence or due
to long term disability, or short term disability, including, without
limitation, those employees identified on SCHEDULE 1.2(f).
"INDIA ASSETS" has the meaning ascribed to such term in SECTION 2.11(b).
"INDIA ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.11(b).
"INDIA NOTE" has the meaning ascribed to such term in SECTION 2.11(b).
"INDIA SUB" has the meaning ascribed to such term in SECTION 2.11(a).
"INITIAL NOTICE" has the meaning ascribed to such term in SECTION 4.3(a).
"INTELLECTUAL PROPERTY AGREEMENT" means the Intellectual Property Agreement
to be entered into between Motorola and the Company.
"ISMF" means the Business activities of MESB at the facility known as ISMF
in Malaysia.
"ISRAEL ASSETS" has the meaning ascribed to such term in SECTION 2.12(b).
"ISRAEL ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.12(b).
"ISRAEL BRANCH" has the meaning ascribed to such term in SECTION 2.12(a).
"ISRAEL NOTE" has the meaning ascribed to such term in SECTION 2.12(c).
"ITALY ASSETS" has the meaning ascribed to such term in SECTION 2.13(b).
"ITALY ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.13(b).
"ITALY NOTE" has the meaning ascribed to such term in SECTION 2.13(c).
"ITALY SUB" has the meaning ascribed to such term in SECTION 2.13(a).
"JAPAN ASSETS" has the meaning ascribed to such term in SECTION 2.14(b).
-8-
"JAPAN ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.14(b).
"JAPAN NOTE" has the meaning ascribed to such term in SECTION 2.14(c).
"JAPAN SUB" has the meaning ascribed to such term in SECTION 2.14(a).
"JIT WAREHOUSE" means any site described on SCHEDULE 1.2(g).
"JOINT VENTURES" means SMPSB, the Leshan JV, SEI, Terosil and Tesla.
"KOREA ASSETS" has the meaning ascribed to such term in SECTION 2.15(b).
"KOREA ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.15(b).
"KOREA NOTE" has the meaning ascribed to such term in SECTION 2.15(c).
"KOREA SUB" has the meaning ascribed to such term in SECTION 2.15(a).
"LESHAN JV" means Leshan Phoenix Semiconductor Company Ltd., a company
organized under the laws of the People's Republic of China.
"LESHAN JV STOCK" means all of the capital stock in the Leshan JV owned by
MCIL, or such portion of the capital stock in the Leshan JV owned by MCIL as the
Company and Motorola may agree.
"LIEN" means any lien (statutory or other), mortgage, charge, hypothec,
pledge, security interest, prior assignment, option, warrant, lease, sublease,
right to possession, encumbrance, claim, right or restriction which affects, by
way of a conflicting ownership interest or otherwise, the right, title or
interest in or to any particular property.
"MBG" means all of the business and operations of Motorola which are not
part of SCG.
"MCEL" means Motorola China Electronics Limited, a company organized under
the laws of the People's Republic of China.
"MCIL" means Motorola (China) Investment (IV) Limited, a company organized
under the laws of the People's Republic of China.
"MCP" has the meaning ascribed to such term in SECTION 2.19(a).
"MEDIATOR" has the meaning ascribed to such term in SECTION 4.3(c).
-9-
"MESB" means Motorola Electronics Sdn. Bhd., a company organized under the
laws of Malaysia.
"MESB NOTE" has the meaning ascribed to such term in SECTION 2.16(d).
"MEXICO ASSETS" has the meaning ascribed to such term in SECTION 2.17(b).
"MEXICO ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.17(b).
"MEXICO NOTE" has the meaning ascribed to such term in SECTION 2.17(c).
"MEXICO SUB" has the meaning ascribed to such term in SECTION 2.17(a).
"MIDC" means Motorola International Development Corporation, a Delaware
close corporation.
"MMSB" means Motorola Malaysia Sdn. Bhd., a company organized under the
laws of Malaysia.
"MMSB NOTE" has the meaning ascribed to such term in SECTION 2.16(d).
"MOTOROLA ASSUMPTION AGREEMENT" has the meaning ascribed to such term in
SECTION 2.1(a).
"MOTOROLA CANADA" means Motorola Canada Limited, a company organized under
the laws of Canada.
"MOTOROLA CZECH REPUBLIC" means Motorola S.R.O., a company organized under
the laws of the Czech Republic.
"MOTOROLA FRANCE" means Motorola Semiconducteurs SA, a company organized
under the laws of France.
"MOTOROLA GERMANY" means Motorola GmbH, a company organized under the laws
of Germany.
"MOTOROLA HONG KONG" means Motorola Semiconductors Hong Kong Ltd., a
company organized under the laws of Hong Kong.
"MOTOROLA INDIA" means Motorola (India) Limited, a company organized under
the laws of India.
"MOTOROLA ISRAEL" means Motorola Israel Semiconductor Products (SPS) Ltd.
(Israel), a company organized under the laws of Israel.
-10-
"MOTOROLA ITALY" means Motorola Italy S.p.A., a company organized under the
laws of Italy.
"MOTOROLA JAPAN" means Motorola Japan, Limited, a company organized under
the laws of Japan.
"MOTOROLA KOREA" means Motorola Electronics and Communications
Incorporated, a company organized under the laws of the Republic of Korea.
"MOTOROLA MEXICO" means Motorola de Mexico, S.A. a company organized under
the laws of Mexico.
"MOTOROLA PHILIPPINES" means Motorola Philippines, Inc., a company
organized under the laws of the Philippines.
"MOTOROLA SINGAPORE" means Motorola Electronics Pte., Ltd., a company
organized under the laws of Singapore.
"MOTOROLA SPAIN" means Motorola Espana S.A., a company organized under the
laws of Spain.
"MOTOROLA SWEDEN" means Motorola A.B., a company organized under the laws
of Sweden.
"MOTOROLA SWITZERLAND" means Motorola (Suisse) S.A., a company organized
under the laws of Switzerland.
"MOTOROLA SWITZERLAND BRANCH NOTE" has the meaning ascribed to such term in
SECTION 2.24(d).
"MOTOROLA TAIWAN" means Motorola Electronics Taiwan, Ltd., a company
organized under the laws of Taiwan.
"MOTOROLA THAILAND" means Motorola (Thailand) Limited, a company organized
under the laws of Thailand.
"MOTOROLA UK" means Motorola Limited, a company organized under the laws of
the United Kingdom.
"MPI STOCK" means all of the capital stock of Motorola Philippines.
"MSSB" means Motorola Semiconductor Sdn. Bhd., a company organized under
the laws of Malaysia.
"NETHERLANDS HOLDINGS" has the meaning ascribed to such term in SECTION
2.18(a).
-11-
"NON-ASSIGNABLE ASSETS" has the meaning ascribed to such term in SECTION
4.2.
"NON-SCG PHILIPPINE ASSETS" means the assets, properties and rights owned
or held by Motorola Philippines that are not primarily or exclusively used for
the conduct of the Business.
"NON-SCG PHILIPPINE LIABILITIES" means the debts, obligations and
liabilities of Motorola Philippines to the extent not arising primarily or
exclusively out of the conduct of the Business.
"PERMITTED LIENS" means (i) the Liens set forth in SCHEDULE 1.2(h); and
(ii) imperfections in title not material in extent or amount and which,
individually or in the aggregate, do not materially interfere with the conduct
of the Business in general or at any Principal Location, or with the use of the
Purchased Assets at a Principal Location and do not materially affect the value
of the Business or the Purchased Assets (including the Joint Ventures).
"PERSON" means and includes any individual, corporation, limited liability
company, partnership, firm, association, joint venture, joint stock company,
trust or other entity, or any government or regulatory, administrative or
political subdivision or agency, department or instrumentality thereof.
"PHOENIX REAL PROPERTY" means the Real Property owned by Motorola and
located at 0000 Xxxx XxXxxxxx Xxxx, Xxxxxxx, Xxxxxxx.
"PHOTRONICS PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
January 1, 1998, between Motorola and Photronics, Inc.
"PRE-CLOSING ENVIRONMENTAL LIABILITIES" means all Environmental Liabilities
arising under Environmental Laws and which arise from or relate to either: (i)
the release of Hazardous Substances into the environment prior to the Effective
Date; or (ii) the conduct of any Transferor or the operation of the Business
prior to the Effective Date.
"PRINCIPAL LOCATION" means the United States, Mexico, Philippines, Malaysia
(exclusive of SMPSB), Japan and France.
"PUERTO RICO BRANCH" has the meaning ascribed to such term in SECTION 2.20.
"PURCHASED ASSETS" means all of the assets, properties and rights which are
primarily or exclusively used by any Transferor in the conduct of the Business
and all of the assets, properties and rights of MSSB and Motorola Philippines
(except in each case for Excluded Assets), whether or not such assets are real,
personal or mixed, tangible or intangible, known or unknown, contingent or fixed
and whether or not any of such assets are carried or reflected on the books of
the Business including, without limitation:
(i) all machinery, equipment, furniture, furnishings,
automobiles, trucks, vehicles, tools, dies, molds and parts and similar property
used
-12-
primarily or exclusively in the conduct of the Business, including,
without limitation, those listed on SCHEDULE 1.2(d) as such Schedule may be
amended prior to Closing;
(ii) with respect to the departments identified on SCHEDULE 1.2
(I) as being related exclusively to the Business, all machinery, equipment,
furniture, furnishings, automobiles, trucks, vehicles, tools, dies, molds and
parts and similar property owned by such department;
(iii) all inventories of the Business, including, without
limitation, inventory of the Business and located at JIT Warehouses, inventory
of the Business and located at contract manufacturers and inventory of the
Business and located at SPS Hubs or other Motorola sites at which Motorola
provides or will provide foundry or assembly services for the Company after the
Closing pursuant to a Collateral Agreement;
(iv) (x) all contracts, arrangements, licenses, leases and other
agreements relating primarily or exclusively to the Business and (y) all of the
rights of any Transferor under any Shared Contract to the extent allocated to
the Company in accordance with SECTION 4.4, including, without limitation, any
right toreceive payment for products sold or services rendered, and to receive
goods and services and to assert claims and take other rightful actions in
respect of breaches, defaults or other violations of such Shared Contracts;
(v) all third-party accounts receivable, credits, prepaid
expenses, deferred charges and taxes, advance payments, security deposits,
prepaid items and other current assets, in each case with respect to Motorola
Philippines, MSSB, ISMF and Guadalajara; notwithstanding the foregoing, any
accounts receivable constituting trade receivables of Motorola Mexico shall be
Excluded Assets; (vi) all books, records, manuals and other materials (in any
form or medium), advertising matter, catalogues, price lists, correspondence,
distribution lists, photographs, production data, sales and promotional
materials and records, purchasing materials and records, personnel records of
employees who will remain employees of the Business after the Effective Date,
manufacturing and quality control records and procedures, blueprints, research
and development files, records, data and laboratory books, media materials and
plates, accounting records, sales order files and litigation files, in each case
which are specific to the Business; PROVIDED, that the items set forth in this
subsection (vi) shall not include any information that does not relate to the
Business, and Motorola shall be entitled to remove or redact any information
that does not relate to the Business from such items; PROVIDED, FURTHER, that to
the extent that the items set forth in this subsection (vi) relate to the
Business, Motorola shall provide the Company with a photocopied complete set of
these records (with such redactions as Motorola reasonably deems necessary);
(vii) all litigation and claim files (whether on paper, computer
disk, tape or other storage media) related to claims, actions, suits,
proceedings or
-13-
investigations pending or threatened against the Business, the Company or any of
its Subsidiaries or any properties or rights of the Business, the Company or any
of its Subsidiaries, in each case which constitutes an Assumed Liability;
(viii) all permits and licenses issued by any Governmental
Authority, including all applications therefor (if such permits or licenses are
not assignable, the provisions of SECTION 4.2 shall apply);
(ix) all Real Property and, to the extent their transfer is
permitted by law, all licenses, permits, approvals and qualifications relating
to any Real Property issued to any Transferor by any Governmental Authority;
(x) any rights to proceeds payable pursuant to any property or
casualty insurance policies held or maintained by, or on behalf of, any
Transferor, MSSB or Motorola Philippines for losses related to any Purchased
Assets (excluding this clause (x)) and incurred after the date hereof and on or
prior to the Effective Date; PROVIDED, that Motorola has not (A) replaced such
Purchased Asset with an asset of equal or greater value and utility or (B)
provided the Company with an equivalent asset, including without limitation cash
proceeds; and
(xi) if consummated, the US$5,000,000 subordinated loan from the
Company to Tesla Sezam being negotiated between the Company and Tesla Sezam.
"REAL PROPERTY" means (i) the real properties described in SCHEDULE
1.2(J) ("OWNED REAL PROPERTY") together with all buildings, other improvements,
fixtures and appurtenances, and all other rights and privileges thereunto
belonging or appertaining; and (ii) the real property leases described in
SCHEDULE 1.2(J) ("REAL PROPERTY LEASES") and the leasehold improvements situated
on the real property which is the subject of such lease.
"REASONABLE EFFORTS" means the obligated party is required to make a
diligent, reasonable and good faith effort to accomplish the applicable
objective. Such obligation, however, does not require any expenditure of funds
or the incurrence of any liability on the part of the obligated party, nor the
incurrence of any expenditure or liability, in either case which is unreasonable
in light of the related objective, nor does it require that the obligated party
act in a manner which would otherwise be contrary to prudent business judgment
in light of the objective attempted to be achieved. The fact that the objective
is not actually accomplished is not dispositive evidence that the obligated
party did not in fact utilize its Reasonable Efforts in attempting to accomplish
the objective.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, dumping, discharge, dispersal, leaching, escaping,
emanation or migration in, into or onto the environment of any kind whatsoever,
including without limitation the movement of any Hazardous Substance through or
in the environment.
-14-
"REMEDIATION" means any investigation, assessment, testing, monitoring,
containment, removal, remediation, response, cleanup or abatement of any release
or threatened release necessary to comply with any Environmental Law.
"REMEDIATION STANDARDS" means the least stringent standards for
performing a Remediation that are required under applicable Environmental Law
(including but not limited to health and safety requirements applicable to the
Remediation at the time the Remediation was conducted) or, if more stringent
standards are actually required by the applicable Governmental Authority, such
standards.
"RETAINED LIABILITIES" means any of the following liabilities or
obligations of the Transferors or any of their respective Affiliates, whether or
not related to the Business and whether direct or indirect, known or unknown, or
absolute or contingent:
(i) any liabilities or obligations of any Transferor incurred
by any Transferor or any of its Affiliates in connection with the conduct of
their businesses other than the Business;
(ii) any liabilities or obligations to the extent specifically
related to Excluded Assets;
(iii) any accounts payable relating to the Business,
excluding third-party accounts payable relating to the Business of Motorola
Philippines, MSSB, ISMF and Guadalajara (in the event of a conflict between this
clause (iii) and Annex G to the Interim Manufacturing/Service Agreement, this
clause (iii) shall control);
(iv) Pre-Closing Environmental Liabilities;
(v) any liabilities or obligations of any "shelf"
companies acquired by any Transferor other than liabilities or obligations
arising out of or relating to the conduct of the Business or the ownership or
operation of the Purchased Assets;
(vi) obligations, as of the Effective Date, which are: (1)
obligations for borrowed money; (2) obligations evidenced by notes, bonds,
debentures or similar instruments; (3) obligations for the deferred purchase
price of goods or services (other than trade payables or similar accruals
incurred in the ordinary course of business consistent with past practice) in an
amount exceeding $1 million individually; (4) obligations under capital leases
in an amount exceeding $1 million individually; (5) obligations pursuant to a
lease-purchase or conditional sale in an amount exceeding $1 million
individually; or (6) obligations in the nature of guarantees of the obligations
described in clauses (1) through (5) of any Person, keep well agreements or
similar obligations, but in each case excluding payment obligations in
connection with self-insurance, performance bonds, surety bonds, customs bonds,
letters of credit issued in support of ongoing operating expenses or similar
obligations incurred in the ordinary course of business consistent with past
practice, except to the extent expressly assumed by the Company;
-15-
(vii) any liabilities or obligations arising under the
Photronics Purchase Agreement through the remainder of such agreement, except to
the extent expressly assumed by the Company;
(viii) certain equipment repurchase obligations and
liabilities related to an agreement between Motorola and Newport, a Motorola/SCG
sub-contractor of wafers, under which Newport agreed to expand its production
capacity to meet Motorola's projected wafer requirements; PROVIDED, that the
Company's obligations and liabilities related to this agreement shall not exceed
$700,000;
(ix) accrued cash discounts as such discounts pertain to accounts
receivable retained by Motorola for the periods prior to the Effective Date;
(x) Non-SCG Philippine Liabilities;
(xi) income tax liabilities with respect to ISMF and Guadalajara;
(xii) any liability or obligation relating to the pending or
threatened claims against Motorola enumerated below:
(a) Xxxxxxx v. Motorola;
(b) Xxxxxxxxxx (claim for damages caused by allegedly defective products
which were used in Xxxxxxxxxx'x battery chargers);
(c) S&S Technologies (claim for wrongful termination of contract);
(d) Matsushita (claim for damages caused by allegedly defective products
which were used in Matsushita's air conditioner products);
(e) Plessey v. Motorola; and
(f) Advanced Manufacturing Technologies, Inc. ("AMT") (claim for expenses
allegedly incurred in reliance on Motorola's promise to sell AMT an SCG machine
shop); PROVIDED, with respect to the Xxxxxxxxxx claim included as a Retained
Liability, the Company agrees to continue the activities which the Business has
been conducting prior to the Effective Date to support the defense and
resolution of such claim. The Company shall provide Motorola access to the three
employees (and the results of their activities) who are developing test
protocols and supporting testing done by independent laboratories, directing
such employees to support the completion of test projects, directing such
employees and other employees who have knowledge relating to the claim to
cooperate with Motorola's attorneys and advisors handling the matter, and
providing access to the
-16-
Company's employees as witnesses in the event litigation results from an
inability to resolve the matter in a non-judicial forum;
(xiii) any liabilities or obligations of any Transferor or any of
its Affiliates to the extent the amount of each liability or obligation is
covered by a policy of insurance or other indemnity agreement maintained by or
for the benefit of any Transferor or any of its Affiliates, unless the rights
under such policy of insurance or indemnity agreement have been assigned to the
Company;
(xiv) any liabilities or obligations related to indemnification or
other provision under any contract or other agreement pursuant to which any sale
or disposition was made of any business or product line formerly owned or
operated by a Transferor or predecessor but not presently so owned or operated;
(xv) any liabilities or obligations of any Transferor or any of its
Affiliates for indemnification of any present or former director or officer of
(or other person serving in a fiduciary capacity at the request of) any
Transferor or its Affiliates based on actual or alleged breach of fiduciary duty
of such person prior to Closing;
(xvi) any liabilities or obligations related to the failure of any
Transferor to comply with bulk sales laws or any similar law;
(xvii) any liabilities or obligations of Motorola or any of its
Subsidiaries to Xxxxxxx, Sachs & Company arising from any engagement letters,
indemnity agreements or any other arrangements entered into by such parties and
Xxxxxxx, Xxxxx & Company;
(xviii) Effective Date Transferred Employee Accruals;
(xix) any liabilities or obligations incurred on or prior to the
Closing Date related to (i) intercompany trade payables, (ii) transactions
pursuant to any master service agreement between SCG and any Motorola entity,
(iii) intercompany trade receivables, (iv) with respect to the matters in
subclauses (i), (ii) and (iii) of this clause (xix), matters settled by the
London Netting System maintained by Motorola, (v) the 1997 Partnership Agreement
between Motorola, Inc., for its Equipment Groups, and Motorola SPS, and (vi) the
Mediation Agreement, dated January 1, 1993 between Motorola and Motorola Mexico;
and
(xx) any liabilities or obligations relating to any failure by
Motorola Mexico to maintain any records required by the Maquila program
concerning the importation, maintenance and disposition of obsolete equipment
for the period up to and including the Effective Date.
"SCG COMPANY" or "SCG COMPANIES" means the Company or the Transferees,
individually or collectively.
-00-
"XXX XXXXXXXXX" means all employees of the Transferors who, immediately
prior to the Effective Date, work primarily in the operation of the Business,
EXCEPT, HOWEVER, Expatriate Employees.
"SCG MALAYSIA HOLDINGS" has the meaning ascribed to such term in SECTION
2.16(e).
"SCILLC" has the meaning ascribed to such term in the introductory
paragraph of this Agreement.
"SEI" means Slovakia Electronics Industries, a.s., a company organized
under the laws of Slovakia.
"SEI STOCK" means all of the capital stock of SEI owned by MIDC.
"SHARED CONTRACT" has the meaning ascribed to such term in SECTION 4.4(c).
"SIDLLC" means SCG International Development LLC, a Delaware limited
liability company and a wholly owned subsidiary at SCILLC.
"SINGAPORE ASSETS" has the meaning ascribed to such term in SECTION
2.21(b).
"SINGAPORE ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.21(b).
"SINGAPORE NOTES" has the meaning ascribed to such term in SECTION 2.21(c).
"SINGAPORE SUB" has the meaning ascribed to such term in SECTION 2.21(a).
"SMP HOLDINGS" means SMP Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company.
"SMPSB" means Semiconductor Miniature Products (M) Sendirian Berhad, a
company organized under the laws of Malaysia.
"SMPSB STOCK" means all of the capital stock in SMPSB owned by MIDC.
"SPAIN ASSETS" has the meaning ascribed to such term in SECTION 2.22(b).
"SPAIN ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.22(b).
"SPAIN BRANCH" has the meaning ascribed to such term in SECTION 2.22(a).
"SPAIN NOTE" has the meaning ascribed to such term in SECTION 2.22(c).
-18-
"SPS" means the Semiconductor Products Sector of Motorola.
"SPS HUBS" means the locations set forth on SCHEDULE 1.2(k).
"SWEDEN ASSETS" has the meaning ascribed to such term in SECTION 2.23(b).
"SWEDEN ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.23(b).
"SWEDEN NOTE" has the meaning ascribed to such term in SECTION 2.23(c).
"SWEDEN SUB" has the meaning ascribed to such term in SECTION 2.23(a).
"SWITZERLAND ASSETS" has the meaning ascribed to such term in SECTION
2.24(b).
"SWITZERLAND ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.24(b).
"SWITZERLAND BRANCH" has the meaning ascribed to such term in SECTION
2.24(a).
"SWITZERLAND NOTE" has the meaning ascribed to such term in SECTION
2.24(d).
"TAIWAN ASSETS" has the meaning ascribed to such term in SECTION 2.25(b).
"TAIWAN ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.25(b).
"TAIWAN ENTITY" has the meaning ascribed to such term in SECTION 2.25(a).
"TAIWAN NOTE" has the meaning ascribed to such term in SECTION 2.25(c).
"TEROSIL" means Terosil a.s., a company organized under the laws of the
Czech Republic.
"TEROSIL STOCK" means all of the capital stock in Terosil owned by MIDC.
"TESLA" means Tesla Sezam a.s., a company organized under the laws of the
Czech Republic.
"TESLA STOCK" means all of the capital stock in Tesla owned by MIDC.
"THAILAND ASSETS" has the meaning ascribed to such term in SECTION 2.26(b).
"THAILAND ASSUMED LIABILITIES" has the meaning ascribed to such term in
SECTION 2.26(b).
-19-
"THAILAND NOTE" has the meaning ascribed to such term in SECTION 2.26(c).
"THAILAND SUB" has the meaning ascribed to such term in SECTION 2.26(a).
"TRANSACTION COMMITTEE" has the meaning ascribed to such term in SECTION
4.3(a).
"TRANSFEREE" AND "TRANSFEREES" shall mean the Company, SCILLC, MSSB, China
Holdings, SMP Holdings, Czech Holdings, the Canada Sub, the China Offices, the
Czech Sub, the Finland Branch, the France Sub, the Germany Sub, the Hong Kong
Sub, the India Sub, the Israel Branch, the Italy Sub, the Japan Sub, the Mexico
Sub, Netherlands Holdings, the Singapore Sub, the Spain Branch, the Sweden Sub,
the Switzerland Branch, the Taiwan Entity, the UK Sub, SIDLLC, Puerto Rico
Branch, EURL and SCG Malaysia Holdings.
"TRANSFEROR" AND "TRANSFERORS" means Motorola, MIDC, MCEL, MCIL, MESB,
MMSB, Motorola Canada, Motorola Czech Republic, Motorola France, Motorola
Germany, Motorola Hong Kong, Motorola India, Motorola Israel, Motorola Italy,
Motorola Japan, Motorola Korea, Motorola Mexico, Motorola Philippines, Motorola
Singapore, Motorola Spain, Motorola Sweden, Motorola Switzerland, Motorola
Taiwan, Motorola Thailand and Motorola U.K., individually, or collectively,
respectively.
"TRANSFERRED EMPLOYEES" means Transferred SCG Employees, Transferred Shared
Services Employees, and Transferred Expatriate Employees.
"TRANSFERRED EXPATRIATE EMPLOYEES" means those Expatriate Employees
identified on SCHEDULE 1.2(l).
"TRANSFERRED SCG EMPLOYEES" means all SCG Employees including, without
limitation, those employees identified on SCHEDULE 1.2(k), EXCEPT, HOWEVER,
Inactive SCG Employees.
"TRANSFERRED SHARED SERVICES EMPLOYEES" means those employees identified on
SCHEDULE 1.2(k).
"U.K. ASSETS" has the meaning ascribed to such term in SECTION 2.27(b).
"U.K. ASSUMED LIABILITIES" has the meaning ascribed to such term in SECTION
2.27(b).
"UK NOTE" has the meaning ascribed to such term in SECTION 2.27(c).
"UK SUB" has the meaning ascribed to such term in SECTION 2.27(a).
"U.S. TRANSFER DOCUMENTS" has the meaning ascribed to such term in SECTION
2.1(b).
-20-
1.3 INTERPRETATION. Unless the context of this Agreement otherwise
requires, (a) words of any gender shall be deemed to include each other gender,
(b) words using the singular or plural number shall also include the plural or
singular number, respectively, and (c) reference to "hereof", "herein", "hereby"
and similar terms shall refer to this entire Agreement.
ARTICLE II
TRANSFERS
2.1 PRIOR TRANSFERS. Prior to the date of this Agreement or at such other
time as set forth in this SECTION 2.1, as part of the reorganization of the
operations of SCG as a stand alone business, the following transactions have
been consummated:
(a) In connection with the transactions contemplated herein, Motorola
assumed and agreed to perform, pay and discharge all liabilities and obligations
of the Company arising on or prior to April 29, 1999 and that relate to
activities the Company engaged in on or prior to April 29, 1999. Motorola and
the Company executed and delivered the Assumption Agreement (the "MOTOROLA
ASSUMPTION AGREEMENT"), a true and correct copy of which is attached hereto as
EXHIBIT B, and incorporated by reference herein.
(b) Motorola contributed to the Company, free and clear of any Liens
(other than Permitted Liens) such of the Purchased Assets owned by or held by
Motorola and set forth on SCHEDULE 1.2(d) and certain intellectual property
rights. In connection with the transactions referred to in this SECTION 2.1(b),
Motorola and the Company executed and delivered (i) the transfer documents, true
and correct copies of which are attached hereto as EXHIBIT C, and incorporated
by reference herein (the "U.S. TRANSFER DOCUMENTS"); and (ii) the Intellectual
Property Agreement.
(c) MIDC transferred, assigned, conveyed and delivered to Motorola the
Terosil Stock, the Tesla Stock and the SEI Stock and upon consummation of such
transfer by MIDC, Motorola contributed the Terosil Stock, the Tesla Stock and
the SEI Stock to the capital of the Company, free and clear of any Liens. Upon
the consummation of the contribution from Motorola of the Terosil Stock and the
Tesla Stock, on or prior to the Effective Date the Company shall contribute the
Terosil Stock and the Tesla Stock to Czech Holdings, free and clear of all
Liens. Upon the consummation of the contribution from Motorola of the SEI Stock,
on or prior to the Effective Date, the Company shall contribute the SEI Stock to
SCILLC free and clear of all liens. In addition, MIDC transferred, assigned,
conveyed and delivered to Motorola the MPI Stock, subject to any required
approval of any Governmental Authority and receipt of a tax-free ruling from the
Bureau of Internal Revenue of the Philippines, and upon consummation of such
transfer by MIDC, Motorola will contribute the MPI Stock to the capital of the
Company, free and clear of any Liens. In connection with the transactions
contemplated by this SECTION 2.1(c), MIDC, Motorola and the Company executed and
delivered the Distribution and Contribution Agreements, true and correct
-21-
copies of which are attached hereto as EXHIBIT D and EXHIBIT E and incorporated
by reference herein.
(d) Immediately upon the consummation of the transactions set forth in
SECTIONS 2.1(a), (b) and (c) above, and subject to any required approval of any
Governmental Authority and the receipt of a tax-free ruling from the Bureau of
Internal Revenue of the Philippines, and upon consummation of the contribution
of the MPI Stock by Motorola to the Company, the Company will contribute the MPI
Stock to SCILLC, free and clear of any Liens. In connection with the
transactions contemplated by this SECTION 2.1(d), the Company and SCILLC
executed and delivered the Distribution and Contribution Agreement, a true and
correct copy of which is attached hereto as EXHIBIT E and incorporated by
reference herein.
(e) The Company and Motorola shall execute and deliver such other
transfer documents as are necessary and appropriate to consummate the
transactions contemplated in this SECTION 2.1.
2.2 TRANSFERS OF CERTAIN OPERATIONS; CLOSING TRANSFERS. (a) Motorola and
the Company agree to use Reasonable Efforts prior to the Effective Date to
determine whether any assets, properties or rights of Motorola or its
subsidiaries in Brazil, Puerto Rico or Thailand are Purchased Assets. If such
assets, properties or rights are Purchased Assets, they shall be transferred,
assigned, conveyed and delivered to the Company and to the Brazil Sub, the
Puerto Rico Branch or the Thailand Sub and Motorola shall determine, in a manner
reasonably acceptable to the Company, (i) how such Purchased Assets are to be
characterized for tax and accounting purposes and (ii) how and when such
transfer, assignment, conveyance and delivery is to be effected. If Motorola and
the Company determine that any such assets, properties or rights are Purchased
Assets, Motorola and the Company shall use Reasonable Efforts to agree to the
assumption and agreement to pay, discharge and perform any Assumed Liabilities
or Retained Liabilities, if applicable, regarding any business or operations in
Brazil, Puerto Rico or Thailand. Motorola and the Company also agree to use the
procedures set forth in SECTION 4.3 to resolve any disputes between themselves
with regard to any Purchased Assets or Assumed Liabilities in Brazil, Puerto
Rico or Thailand.
(b) On or prior to the Effective Date, the Company shall assume and
agree to perform, pay and discharge all of the Assumed Liabilities. In
connection therewith, Motorola and the Company shall execute and deliver the
Assumption Agreement in a form to be agreed upon by the parties.
(c) All Purchased Assets, Excluded Assets, Assumed Liabilities and
Retained Liabilities identified and allocated pursuant to SECTION 4.3 shall be
conveyed, transferred and assigned to, or assumed by, the Company or Motorola,
as the case may be, and shall be contributed to SCILLC or transferred to
Motorola, as the case may be, each in a form and manner to be agreed upon by the
parties.
-22-
2.3 BRAZIL. Promptly after the execution of this Agreement, SCILLC shall
establish a private limited company in Brazil using the name "SCG Brasil Ltda."
(the "BRAZIL SUB").
2.4 CANADA.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated a federal corporation in Canada 99.9% owned by SCILLC and
0.1% owned by SIDLLC using the company name "SCG Canada Limited" (the "CANADA
SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Canada to transfer, assign, convey and deliver to the Canada Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Canada (the "CANADA ASSETS"); and (ii) SCILLC
shall cause the Canada Sub to assume, agree to perform, and in due course pay
and discharge the Assumed Liabilities of Motorola Canada (the "CANADA ASSUMED
LIABILITIES"). SCILLC shall cause the Canada Sub to not assume or pay and
Motorola shall cause Motorola Canada to continue to be responsible for any
Retained Liabilities of Motorola Canada. Such transactions shall be effected
pursuant to transfer documents in forms to be agreed upon by Motorola and the
Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Canada Assets made pursuant to SECTION 2.4(b)(i), SCILLC shall
cause the Canada Sub to issue to Motorola Canada a note in an aggregate
principal amount as set forth on EXHIBIT F and on terms and conditions to be
agreed upon by the Company and Motorola (the "CANADA NOTE").
2.5 CHINA.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
the Hong Kong Sub to establish four representative offices in the cities of
Beijing, Guangzhou, Shanghai and Tianjin, China (the "CHINA OFFICES").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
MCEL to transfer, assign, convey and deliver to the Hong Kong Sub, collectively,
free and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by MCEL (the "CHINA ASSETS"); and (ii) SCILLC shall cause
the Hong Kong Sub to assume, agree to perform, and in due course pay and
discharge the Assumed Liabilities of MCEL (the "CHINA ASSUMED LIABILITIES").
SCILLC shall cause the Hong Kong Sub to not assume or pay and Motorola shall
cause MCEL to continue to be responsible for any Retained Liabilities of MCEL.
Such transactions shall be effected pursuant to transfer documents in forms to
be agreed upon by Motorola and the Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the China Assets made pursuant to SECTION 2.5(b)(i), SCILLC shall
cause the Hong Kong Sub to issue to MCEL a note in an aggregate principal amount
as set forth on
-23-
EXHIBIT F and on terms and conditions to be agreed upon by the
Company and Motorola (the "CHINA NOTE").
(d) At the Closing on the Effective Date, Motorola shall cause MCIL to
transfer, assign, convey and deliver to China Holdings, free and clear of any
Liens (except Permitted Liens), the Leshan JV Stock, in consideration of the
issuance by the Company of a note to MCIL in an aggregate principal amount as
set forth on EXHIBIT F and on terms and conditions to be agreed upon by the
Company and Motorola (the "COMPANY CHINA Note"). The transfer of the Leshan JV
Stock shall be effected pursuant to transfer documents in a form to be agreed
upon by Motorola and the Company.
2.6 CZECH REPUBLIC.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated or shall acquire a shelf company in the form of an S.R.O. in
the Czech Republic wholly owned by SCILLC using the company name "SCG Design
Center S.R.O." (the "CZECH SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Czech Republic to transfer, assign, convey and deliver to the Czech
Sub, free and clear of any Liens (other than Permitted Liens), such of the
Purchased Assets owned or held by Motorola Czech Republic (the "CZECH ASSETS");
and (ii) SCILLC shall cause the Czech Sub to assume, agree to perform, and in
due course pay and discharge the Assumed Liabilities of Motorola Czech Republic
(the "CZECH ASSUMED LIABILITIES"). SCILLC shall cause the Czech Sub to not
assume or pay and Motorola shall cause Motorola Czech Republic to continue to be
responsible for any Retained Liabilities of Motorola Czech Republic. Such
transactions shall be effected pursuant to transfer documents substantially in
the forms attached hereto as EXHIBIT G modified as necessary to comport with
local law and custom.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Czech Assets made pursuant to SECTION 2.6(b)(i), SCILLC shall
cause the Czech Sub to issue to Motorola Czech Republic a note in an aggregate
principal amount as set forth on EXHIBIT F and on terms and conditions to be
agreed upon by the Company and Motorola (the "CZECH NOTE").
2.7 FINLAND.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
the Sweden Sub to establish a branch, or such other form of registered office as
may be negotiated with relevant authorities for tax planning purposes, in
Finland (the "FINLAND BRANCH").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Sweden through its branch in Finland (the "MOTOROLA FINLAND BRANCH") to
transfer, assign, convey and deliver to the Sweden Sub, free and clear of any
Liens (other than Permitted Liens), such of the Purchased Assets owned or held
by the Motorola Finland Branch (the "FINLAND ASSETS"); and (ii) SCILLC shall
cause the Sweden Sub to
-24-
assume, agree to perform, and in due course pay and discharge the Assumed
Liabilities of Motorola Finland (the "FINLAND ASSUMED LIABILITIES"). SCILLC
shall cause the Sweden Sub not to assume or pay and Motorola shall cause
Motorola Finland to continue to be responsible for any Retained Liabilities of
the Motorola Finland Branch. Such transactions shall be effected pursuant to
transfer documents in forms to be agreed upon by Motorola and the Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Finland Assets made pursuant to SECTION 2.7(b)(i), SCILLC shall
cause the Sweden Sub to issue to the Motorola Finland Branch a note in an
aggregate principal amount as set forth on EXHIBIT F and on terms and conditions
to be agreed upon by the Company and Motorola (the "FINLAND NOTE").
2.8 FRANCE.
(a) Promptly after the execution of this Agreement, Motorola shall
cause Motorola France to incorporate in France: (i) as a wholly-owned subsidiary
an entreprise unipersonnelle a responsibilite limitee using the name "SCG
Investissements EURL" (the "EURL"); and (ii) together with the EURL (with the
EURL to hold an equity interest of approximately 6.0%), as a majority-owned
subsidiary (with Motorola France to hold an equity interest of approximately
94.0%) a societe par actions simplifie using the company name "SCG France
S.A.S." (the "FRANCE SUB"), the respective percentage interests of SCG France
S.A.S. owned by Motorola France and the EURL being subject to adjustment to
ensure that Motorola France and the EURL qualify to be shareholders of the
France Sub under French law.
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola France to transfer, assign, convey and deliver to the France Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola France (the "FRANCE ASSETS"); and (ii) Motorola
shall cause the France Sub to assume, agree to perform, and in due course pay
and discharge the Assumed Liabilities of Motorola France (the "FRANCE ASSUMED
LIABILITIES"). Motorola shall cause the France Sub to not assume or pay and
Motorola shall cause Motorola France to continue to be responsible for any
Retained Liabilities of Motorola France. Such transactions shall be effected
pursuant to transfer documents in forms to be agreed upon by Motorola and the
Company.
(c) At the Closing on the Effective Date, Motorola shall cause
Motorola France to transfer the equity interest of the France Sub and the EURL
to SCILLC in consideration for a note in an aggregate principal amount as set
forth on EXHIBIT F and on terms and conditions to be agreed upon by the Company
and Motorola (the "FRANCE NOTE").
2.9 GERMANY.
(a) Promptly after the execution of this Agreement, SCILLC shall
acquire a shelf company in the form of a GmbH in Germany, wholly owned by
SCILLC,
-25-
changing the company name to "Semiconductor Components Industries
Germany GmbH" (the "GERMANY SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Germany to transfer, assign, convey and deliver to the Germany Sub,
free and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Germany (the "GERMANY ASSETS"); and (ii) SCILLC
shall cause the Germany Sub to assume, agree to perform, and in due course pay
and discharge the Assumed Liabilities of Motorola Germany (the "GERMANY ASSUMED
LIABILITIES"). SCILLC shall cause the Germany Sub to not assume or pay and
Motorola shall cause Motorola Germany to continue to be responsible for any
Retained Liabilities of Motorola Germany. Such transactions shall be effected
pursuant to transfer documents substantially in the forms attached hereto as
EXHIBIT G modified as necessary to comport with local law and custom.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Germany Assets made pursuant to SECTION 2.9(b)(i), SCILLC shall
cause the Germany Sub to issue to Motorola Germany a note in an aggregate
principal amount as set forth on EXHIBIT F and on terms and conditions to be
agreed upon by the Company and Motorola (the "GERMANY NOTE").
2.10 HONG KONG.
(a) Promptly after the execution of this Agreement, SCILLC shall
acquire a shelf company in the form of a private limited company in Hong Kong,
to be owned 99.9% by SCILLC and 0.1% by SIDLLC, changing the company name to
"SCG Hong Kong Limited (Hong Kong)" (the "HONG KONG SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Hong Kong to transfer, assign, convey and deliver to the Hong Kong Sub,
free and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Hong Kong (the "HONG KONG ASSETS"); and (ii)
SCILLC shall cause the Hong Kong Sub to assume, agree to perform, and in due
course pay and discharge the Assumed Liabilities of Motorola Hong Kong (the
"HONG KONG ASSUMED LIABILITIES"). SCILLC shall cause the Hong Kong Sub to not
assume or pay and Motorola shall cause Motorola Hong Kong to continue to be
responsible for any Retained Liabilities of Motorola Hong Kong. Such
transactions shall be effected pursuant to transfer documents substantially in
the form attached hereto as EXHIBIT G modified as necessary to comport with
local law and custom.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Hong Kong Assets made pursuant to SECTION 2.10(b)(i), SCILLC
shall cause the Hong Kong Sub to issue to Motorola Hong Kong a note in an
aggregate principal amount as set forth on EXHIBIT F and on terms and conditions
to be agreed upon by the Company and Motorola (the "HONG KONG NOTE").
-26-
2.11 INDIA.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated a private limited company in India wholly owned by SCILLC,
using the company name "SCG India Limited" (the "INDIA SUB"); PROVIDED, HOWEVER,
that the formation of the India Sub shall be subject to any required approval of
any Governmental Authority, including but not limited to the approval of the
Foreign Investment Promotion Board of the government of India.
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola India to transfer, assign, convey and deliver to the India Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola India (the "INDIA ASSETS"); and (ii) SCILLC
shall cause the India Sub to assume, agree to perform, and in due course pay and
discharge the Assumed Liabilities of Motorola India (the "INDIA ASSUMED
LIABILITIES"). SCILLC shall cause the India Sub not to assume or pay, and
Motorola shall cause Motorola India to continue to be responsible for any
Retained Liabilities of Motorola India. Such transactions shall be effected
pursuant to transfer documents in forms to be agreed upon by Motorola and the
Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the India Assets made pursuant to SECTION 2.11(b)(i), SCILLC shall
cause the India Sub to issue to Motorola India a note in an aggregate principal
amount as set forth on EXHIBIT F and on terms and conditions to be agreed upon
by the Company and Motorola (the "INDIA NOTE").
2.12 ISRAEL.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
the France Sub to establish a branch in Israel (the "ISRAEL BRANCH").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Israel to transfer, assign, convey and deliver to the France Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Israel (the "ISRAEL ASSETS"); and (ii) SCILLC
shall cause the France Sub to assume, agree to perform, and in due course pay
and discharge the Assumed Liabilities of Motorola Israel (the "ISRAEL ASSUMED
LIABILITIES"). SCILLC shall cause the France Sub not to assume or pay and
Motorola shall cause Motorola Israel to continue to be responsible for any
Retained Liabilities of Motorola Israel. Such transactions shall be effected
pursuant to transfer documents in forms to be agreed upon by Motorola and the
Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Israel Assets made pursuant to SECTION 2.12(b)(i), SCILLC shall
cause the France Sub to issue to Motorola Israel a note in an aggregate
principal amount as set forth on EXHIBIT F and on terms and conditions to be
agreed upon by the Company and Motorola (the "ISRAEL NOTE").
-27-
2.13 ITALY.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated a societa a responsabilita limitata in Italy 99.9%
owned by SCILLC and 0.1% owned by SIDLLC using the company name "SCG Italy
S.r.l. " (the "ITALY SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Italy to transfer, assign, convey and deliver to the Italy Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Italy (the "ITALY ASSETS"); and (ii) SCILLC
shall cause the Italy Sub to assume, agree to perform, and in due course pay and
discharge the Assumed Liabilities of Motorola Italy (the "ITALY ASSUMED
LIABILITIES"). SCILLC shall cause the Italy Sub not to assume or pay and
Motorola shall cause Motorola Italy to continue to be responsible for any
Retained Liabilities of Motorola Italy. Such transactions shall be effected
pursuant to transfer documents in forms to be agreed upon by Motorola and the
Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Italy Assets made pursuant to SECTION 2.13(b)(i), SCILLC shall
cause the Italy Sub to issue to Motorola Italy a note in an aggregate principal
amount as set forth on EXHIBIT F and on terms and conditions to be agreed upon
by the Company and Motorola (the "ITALY NOTE").
2.14 JAPAN.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated a Kabushiki Kaisha in Japan wholly owned by SCILLC using the
company name "SCG Japan KK" (the "JAPAN SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Japan to transfer, assign, convey and deliver to the Japan Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Japan (the "JAPAN ASSETS"); and (ii) SCILLC
shall cause the Japan Sub to assume, agree to perform, and in due course pay and
discharge the Assumed Liabilities of Motorola Japan (the "JAPAN ASSUMED
LIABILITIES"). SCILLC shall cause the Japan Sub not to assume or pay and
Motorola shall cause Motorola Japan to continue to be responsible for any
Retained Liabilities of Motorola Japan. Such transactions shall be effected
pursuant to transfer documents substantially in the forms attached hereto as
EXHIBIT G modified as necessary to comport with local law and custom.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Japan Assets made pursuant to SECTION 2.14(b)(i), SCILLC shall
cause the Japan Sub to issue to Motorola Japan a note, or other instrument
evidencing indebtedness, in an aggregate principal amount as set forth on
EXHIBIT F and on terms and conditions to be agreed upon by the Company and
Motorola (the "JAPAN NOTE").
-28-
2.15 KOREA.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated a Chusik Hoesa in Korea 99.9% owned by SCILLC and 0.1% owned
by SIDLLC, using the company name "SCG Korea Limited" (the "KOREA SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Korea shall transfer, assign, convey and deliver to the Korea Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Korea (the "KOREA ASSETS"); and (ii) SCILLC
shall cause the Korea Sub to assume, agree to perform, and in due course pay and
discharge the Korea Assumed Liabilities of Motorola Korea (the "KOREA ASSUMED
LIABILITIES"). SCILLC shall cause the Korea Sub not to assume or pay and
Motorola shall cause Motorola Korea to continue to be responsible for any
Retained Liabilities of Motorola Korea. Such transactions shall be effected
pursuant to transfer documents in forms to be agreed upon by Motorola and the
Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Korea Assets made pursuant to SECTION 2.15(b)(i), SCILLC shall
cause the Korea Sub to issue to Motorola Korea a note in an aggregate principal
amount as set forth on EXHIBIT F and on terms and conditions to be agreed upon
by the Company and Motorola (the "KOREA NOTE").
2.16 MALAYSIA.
(a) As soon after the date hereof as MIDC, Motorola and the Company
have obtained all required consents and approvals of the applicable Governmental
Authorities, (i) Motorola shall cause MIDC to transfer, assign, convey and
deliver to Motorola the SMPSB Stock; and (ii) promptly after such transfer
Motorola shall contribute the SMPSB Stock to the capital of the Company, free
and clear of any Liens (except Permitted Liens). Such transactions shall be
effected pursuant to the form of Distribution and Contribution Agreement and
other transfer documents substantially in the form attached hereto as EXHIBIT H
modified as necessary to comport with local law and custom. Upon the
consummation of the contribution to the Company of the SMPSB Stock, the Company
shall contribute the SMPSB Stock to SMP Holdings, free and clear of all Liens
(except Permitted Liens).
(b) On or prior to the Effective Date, (i) Motorola shall cause MESB
to transfer, assign, convey and deliver to MSSB, free and clear of any Liens
(other than Permitted Liens), such of the Purchased Assets owned or held by
MESB; and (ii) Motorola shall cause MSSB to assume, agree to perform, and in due
course pay and discharge the Assumed Liabilities of MESB. Motorola shall cause
MSSB not to assume or pay and Motorola shall cause MESB to continue to be
responsible for any Retained Liabilities of MESB. Such transactions shall be
effected pursuant to a business transfer agreement substantially in the form
attached hereto as EXHIBIT G modified as necessary to comport with local law and
custom.
-29-
(c) On or prior to the Effective Date, (i) Motorola shall cause MMSB
to transfer, assign, convey and deliver to MSSB, free and clear of any Liens
(other than Permitted Liens), such of the Purchased Assets owned or held by
MMSB; and (ii) Motorola shall cause MSSB to assume, agree to perform, and in due
course pay and discharge the Assumed Liabilities of MMSB. Motorola shall cause
MSSB to not assume or pay and Motorola shall cause MMSB to continue to be
responsible for any Retained Liabilities of MMSB. Such transactions shall be
effected pursuant to a business transfer agreement substantially in the form
attached hereto as EXHIBIT G modified as necessary to comport with local law and
custom.
(d) In consideration of the transfers of the Purchased Assets made
pursuant to SECTIONS 2.16(b)(i) and 2.16(c)(i), Motorola shall cause MSSB to
execute and deliver (i) to MESB, a note in an aggregate principal amount as set
forth on EXHIBIT F and on terms and conditions to be agreed upon by the Company
and Motorola (the "MESB NOTE") and (ii) to MMSB, a note in an aggregate
principal amount as set forth on EXHIBIT F and on terms and conditions to be
agreed upon by the Company and Motorola (the "MMSB NOTE").
(e) Promptly after the execution of this Agreement, the Company shall
cause to be incorporated in Malaysia a private limited company using the company
name "SCG Malaysia Holdings Sendirian Berhad" ("SCG MALAYSIA HOLDINGS") to be
owned by SCILLC and SIDLLC in percentages to be agreed upon by SCILLC and
SIDLLC.
(f) At the Closing on the Effective Date immediately after the
transfer contemplated by SECTION 2.16(b) is consummated, Motorola shall cause
MMSB to transfer, assign, convey and deliver to SCG Malaysia Holdings, free and
clear of any Liens, the MSSB Stock, in consideration of the issuance by SCG
Malaysia Holdings of a note to MMSB in an aggregate principal amount as set
forth on EXHIBIT F (the "COMPANY MALAYSIA NOTE"). The transfer of the MSSB Stock
shall be effected pursuant to the transfer documents substantially in the form
attached hereto as EXHIBIT H modified as necessary to comport with local law and
custom.
(g) The obligations of the parties under SECTION 2.16(a) are
conditioned upon (i) obtaining the written consent of Xxxxxxxx (National Trust
Company) to the transfer of the SMPSB Stock, (ii) the prior approval of the
transfer of SMPSB Stock by the Ministry of International Trade and Industry and
(iii) the prior approval of the transfer of SMPSB Stock by the Securities
Commission pursuant to the Malaysian Code on Take-Overs and Mergers 1998. The
transactions contemplated (i) shall not be effective until such approvals are
obtained and (ii) shall be subject to (x) the receipt of any title documents
required to consummate the transactions contemplated and (y) the fulfillment of
the requirements of any applicable local corporate or securities laws, rules or
regulations.
2.17 MEXICO.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated a sociedad anonima in Mexico, 99.9% owned by SCILLC and
-30-
0.1% by SIDLLC, using the company name "SCG (Mexico) S.A." (the "MEXICO SUB")
and shall obtain all permits, licenses, consents and approvals of all applicable
Governmental Authorities necessary (x) for the Mexico Sub to conduct the
Business and (y) for the consummation of the transactions described in SECTION
2.17(b).
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Mexico to transfer, assign, convey and deliver to the Mexico Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Mexico (the "MEXICO ASSETS"); and (ii) SCILLC
shall cause the Mexico Sub to assume, agree to perform, and in due course pay
and discharge the Assumed Liabilities of Motorola Mexico (the "MEXICO ASSUMED
LIABILITIES"). SCILLC shall cause the Mexico Sub not to assume or pay and
Motorola shall cause Motorola Mexico to continue to be responsible for any
Retained Liabilities of Motorola Mexico. Such transactions shall be effected
pursuant to transfer documents substantially in the forms attached hereto as
EXHIBIT G modified as necessary to comport with local law and custom.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Purchased Assets made pursuant to SECTION 2.17(b)(i), SCILLC
shall cause the Mexico Sub to issue to Motorola Mexico a note in an aggregate
principal amount as set forth on EXHIBIT F and on terms and conditions to be
agreed upon by the Company and Motorola (the "MEXICO NOTE").
2.18 THE NETHERLANDS.
(a) Promptly after the execution of this Agreement, SCILLC shall
establish a B.V. in the Netherlands, wholly owned by SCILLC, using the name "SCG
Holdings (Netherlands), B.V." ("NETHERLANDS HOLDINGS").
(b) At the Closing on the Effective Date, SCILLC shall transfer,
assign, convey and deliver to Netherlands Holdings, free and clear of any Liens,
all of its right, title and interest in the stock of the France Sub, the EURL,
the Germany Sub, the Italy Sub, the Sweden Sub and the U.K. Sub (the "EUROPE
SUBS") in consideration for newly issued shares of Netherlands Holdings. The
transfer of the stock of the Europe Subs shall be effected pursuant to the
transfer documents in forms to be agreed upon by Motorola and the Company.
2.19 THE PHILIPPINES.
(a) Promptly after the execution of this Agreement, Motorola shall
cause to be formed and incorporated a corporation in the Philippines using the
name "Motorola Communications (Philippines) Inc." ("MCP").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Philippines to transfer, assign, convey and deliver to MCP, free and
clear of any Liens (other than Permitted Liens), such of the Non-SCG Philippine
Assets owned or held by Motorola Philippines; and (ii) Motorola shall cause MCP
to assume, agree to perform, and in due course pay and discharge the Non-SCG
Philippine Liabilities.
-31-
Motorola shall cause MCP not to assume or pay and Motorola shall cause Motorola
Philippines to continue to be responsible for any Retained Liabilities of
Motorola Philippines. Such transactions shall be effected pursuant to transfer
documents substantially in the forms attached hereto as EXHIBIT G and
incorporated herein by reference.
(c) As soon after the date hereof as MIDC and Motorola have obtained
all required consents and approvals of the applicable Governmental Authorities
and the receipt of a tax-free ruling from the Bureau of Internal Revenue of the
Philippines, (i) Motorola shall cause MIDC to transfer, assign, convey and
deliver to Motorola all of the MPI Stock; (ii) promptly after such transfer
Motorola shall contribute the MPI Stock to the capital of the Company; and (iii)
promptly after such transfer, the Company shall contribute the MPI Stock to
SCILLC, in each case free and clear of any Liens. Such transactions shall be
effected pursuant to the form of Distribution and Contribution Agreement, an
assumption agreement and other transfer documents attached hereto as EXHIBIT E,
and incorporated by reference herein.
2.20 PUERTO RICO. Promptly after the execution of this Agreement, SCILLC
shall establish a branch in Puerto Rico (the "PUERTO RICO BRANCH").
2.21 SINGAPORE.
(a) Promptly after the execution of this Agreement, SCILLC shall
acquire a shelf company in the form of a private limited company in Singapore,
99.9% owned by SCILLC and 0.1% owned by SIDLLC, changing the company name to
"SCG Singapore Pte. Ltd." (the "SINGAPORE SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Singapore to transfer, assign, convey and deliver to the Singapore Sub
and/or MSSB (if such assets include sales assets related to sales or marketing
activities in Malaysia), as agreed by the parties, free and clear of any Liens
(other than Permitted Liens), such of the Purchased Assets owned or held by
Motorola Singapore (the "SINGAPORE ASSETS"); and (ii) SCILLC shall cause the
Singapore Sub and/or MSSB, as agreed by the parties, to assume, agree to
perform, and in due course pay and discharge the Assumed Liabilities of Motorola
Singapore (the "SINGAPORE ASSUMED LIABILITIES"). SCILLC shall cause the
Singapore Sub and MSSB not to assume or pay and Motorola shall cause Motorola
Singapore to continue to be responsible for any Retained Liabilities of Motorola
Singapore. Such transactions shall be effected pursuant to transfer documents
substantially in the forms attached hereto as EXHIBIT G modified as necessary to
comport with local law and custom.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Singapore Assets made pursuant to SECTION 2.21(b)(i), SCILLC
shall cause the Singapore Sub and/or MSSB, as agreed by the parties to issue to
Motorola Singapore a note in an aggregate principal amount as set forth on
EXHIBIT F and on terms and conditions to be agreed upon by the Company and
Motorola (the "SINGAPORE NOTES").
-32-
2.22 SPAIN.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
the France Sub to establish a branch in Spain (the "SPAIN BRANCH").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Spain to transfer, assign, convey and deliver to the France Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Spain (the "SPAIN ASSETS"); and (ii) SCILLC
shall cause the France Sub to assume, agree to perform, and in due course pay
and discharge the Assumed Liabilities of Motorola Spain (the "SPAIN ASSUMED
LIABILITIES"). SCILLC shall cause the France Sub not to assume or pay and
Motorola shall cause Motorola Spain to continue to be responsible for any
Retained Liabilities of Motorola Spain. Such transactions shall be effected
pursuant to transfer documents in forms to be agreed upon by Motorola and the
Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Spain Assets made pursuant to SECTION 2.22(b)(i), SCILLC shall
issue to Motorola Spain a note in an aggregate principal amount as set forth on
EXHIBIT F and on terms and conditions to be agreed upon by the Company and
Motorola (the "SPAIN NOTE").
2.23 SWEDEN.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated a privata aktiebolag in Sweden, 99.9% owned by SCILLC and
0.1% owned by SIDLLC, using the company name "SCG Sweden AB" (the "SWEDEN SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Sweden to transfer, assign, convey and deliver to the Sweden Sub, free
and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Sweden (the "SWEDEN ASSETS"); and (ii) SCILLC
shall cause the Sweden Sub to assume, agree to perform, and in due course pay
and discharge the Assumed Liabilities of Motorola Sweden (the "SWEDEN ASSUMED
LIABILITIES"). SCILLC shall cause the Sweden Sub not to assume or pay and
Motorola shall cause Motorola Sweden to continue to be responsible for Retained
Liabilities of Motorola Sweden. Such transactions shall be effected pursuant to
transfer documents in forms to be agreed upon by Motorola and the Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Sweden Assets made pursuant to SECTION 2.23(b)(i), SCILLC shall
cause the Sweden Sub to issue to Motorola Sweden a note in an aggregate
principal amount as set forth on EXHIBIT F and on terms and conditions to be
agreed upon by the Company and Motorola (the "SWEDEN NOTE").
-33-
2.24 SWITZERLAND.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
the France Sub to establish a branch in Switzerland (the "SWITZERLAND BRANCH").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Switzerland to transfer, assign, convey and deliver to the France Sub,
free and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Switzerland (the "SWITZERLAND ASSETS"); and
(ii) SCILLC shall cause the France Sub to assume, agree to perform, and in due
course pay and discharge the Assumed Liabilities of Motorola Switzerland (the
"SWITZERLAND ASSUMED LIABILITIES"). SCILLC shall cause the France Sub not to
assume or pay and Motorola shall cause Motorola Switzerland to continue to be
responsible for any Retained Liabilities of Motorola Switzerland. Such
transactions shall be effected pursuant to transfer documents substantially in
the forms attached hereto as EXHIBIT G modified as necessary to comport with
local law and custom.
(c) At the Closing on the Effective Date, (i) Motorola shall transfer,
assign convey and deliver to the France Sub, free and clear of any Liens (other
than Permitted Liens), such of the Purchased Assets owned or held by Motorola
through its branch in Switzerland (the "ADDITIONAL SWITZERLAND ASSETS"); and
(ii) SCILLC shall cause the France Sub to assume, agree to perform, and in due
course pay and discharge the Assumed Liabilities of Motorola related to the
Additional Switzerland Assets (the "ADDITIONAL SWITZERLAND ASSUMED
LIABILITIES"). SCILLC shall cause the France Sub not to assume or pay and
Motorola shall continue to be responsible for any Retained Liabilities of
Motorola through its branch in Switzerland. Such transaction shall be effected
pursuant to transfer documents in forms to be agreed upon by Motorola and the
Company.
(d) At the Closing on the Effective Date, in consideration of the
transfers of the Switzerland Assets and the Additional Switzerland Assets made
pursuant to SECTIONS 2.24(b)(i) and 2.24(c)(i), SCILLC shall cause the France
Sub to issue to Motorola Switzerland a note in an aggregate principal amount as
set forth on EXHIBIT F and on terms and conditions to be agreed upon by the
Company and Motorola (the "SWITZERLAND NOTE") and to issue to Motorola a note in
an aggregate principal amount as set forth on EXHIBIT F and on terms and
conditions to be agreed upon by the Company and Motorola (the "MOTOROLA
SWITZERLAND BRANCH NOTE").
2.25 TAIWAN.
(a) Promptly after the execution of this Agreement, SCILLC shall
either (i) cause the Hong Kong Sub to establish a branch in Taiwan, or (ii)
cause to be incorporated a company, 99.9% owned by SCILLC and 0.1% owned by
SIDLLC, using the company name "SCG Taiwan Limited" (the "TAIWAN ENTITY"), as
mutually agreed by the parties.
-34-
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Taiwan to transfer, assign, convey and deliver to the Hong Kong Sub or
the Taiwan Entity, as the case may be, free and clear of any Liens (other than
Permitted Liens), such of the Purchased Assets owned or held by Motorola Taiwan
(the "TAIWAN Assets"); and (ii) SCILLC shall cause the Hong Kong Sub or the
Taiwan Entity, as the case may be, to assume, agree to perform, and in due
course pay and discharge the Assumed Liabilities of Motorola Taiwan (the "TAIWAN
ASSUMED LIABILITIES"). SCILLC shall cause the Hong Kong Sub or the Taiwan
Entity, as the case may be, not to assume or pay and Motorola shall cause
Motorola Taiwan to continue to be responsible for any Retained Liabilities of
Motorola Taiwan. Such transactions shall be effected pursuant to transfer
documents in forms to be agreed upon by Motorola and the Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Taiwan Assets made pursuant to SECTION 2.25(b)(i), SCILLC shall
cause the Taiwan Branch to issue to Motorola Taiwan a note in an aggregate
principal amount as set forth on EXHIBIT F and on terms and conditions to be
agreed upon by the Company and Motorola (the "TAIWAN NOTE").
2.26 THAILAND.
(a) Promptly after the execution of this Agreement, SCILLC shall cause
to be incorporated a private limited company in Thailand, using the company name
"SCG Thailand Limited" (the "THAILAND SUB").
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola Thailand to transfer, assign, convey and deliver to the Thailand Sub,
free and clear of any Liens (other than Permitted Liens), such of the Purchased
Assets owned or held by Motorola Thailand (the "THAILAND ASSETS"); and (ii)
SCILLC shall cause the Thailand Sub to assume, agree to perform, and in due
course pay and discharge the Assumed Liabilities of Motorola Thailand (the
"THAILAND ASSUMED LIABILITIES"). SCILLC shall cause the Thailand Sub not to
assume or pay and Motorola shall cause Motorola Thailand to continue to be
responsible for any Retained Liabilities of Motorola Thailand. Such transactions
shall be effected pursuant to transfer documents in forms to be agreed upon by
Motorola and the Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the Thailand Assets made pursuant to SECTION 2.26(b)(i), SCILLC
shall cause the Thailand Sub to issue to Motorola Thailand a note in an
aggregate principal amount as set forth on EXHIBIT F and on terms and conditions
to be agreed upon by the Company and Motorola (the "THAILAND NOTE").
2.27 UNITED KINGDOM.
(a) Promptly after the execution of this Agreement, SCILLC shall
acquire, and be the sole shareholder of, a shelf company in the form of a
private limited company in the United Kingdom, changing the company name to "SCG
UK Limited" (the "UK SUB").
-35-
(b) At the Closing on the Effective Date, (i) Motorola shall cause
Motorola UK to transfer, assign, convey and deliver to the UK Sub, free and
clear of any Liens (other than Permitted Liens), such of the Purchased Assets
owned or held by Motorola UK (the "UK ASSETS"); and (ii) SCILLC shall cause the
UK Sub to assume, agree to perform, and in due course pay and discharge the
Assumed Liabilities of Motorola UK (the "UK ASSUMED LIABILITIES"). SCILLC shall
cause the UK Sub not to assume or pay and Motorola shall cause Motorola UK to
continue to be responsible for any Retained Liabilities of Motorola UK. Such
transactions shall be effected pursuant to transfer documents in forms to be
agreed upon by Motorola and the Company.
(c) At the Closing on the Effective Date, in consideration of the
transfers of the UK Assets made pursuant to SECTION 2.27(b)(i), SCILLC shall
cause the UK Sub to issue to Motorola UK a note in an aggregate principal amount
as set forth on EXHIBIT F and on terms and conditions to be agreed upon by the
Company and Motorola (the "UK NOTE").
ARTICLE III
CLOSINGS AND CLOSING DELIVERIES
3.1 EFFECTIVE DATE. The term "CLOSING" as used herein shall refer to the
actual transfers, assignments, conveyances and deliveries contemplated by
SECTIONS 2.3 through SECTION 2.27 as taking place at the Closing. The Closing
shall take place as soon as reasonably practical following the date upon which
the conditions precedent set forth in SECTION 6.1 are satisfied or such other
effective time as the parties may agree (the "EFFECTIVE DATE").
3.2 DELIVERIES FOR CLOSING.
(a) CANADA. With respect to the transactions contemplated by SECTION
2.4:
(i) Motorola shall cause Motorola Canada to deliver to the Canada
Sub the following:
(A) the transfer documents and all such deeds, bills of sale,
lease assignments and other contract assignments and other
documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate to
implement the intended transfers contemplated by SECTION 2.4(b);
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of Motorola Canada authorizing and approving the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby; and
-36-
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Canada Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the parties,
pursuant to which the Canada Sub covenants and agrees to assume
the Canada Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of the Canada Sub, authorizing and approving the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby;
(C) transfer documents and such other documents and instruments
as may be reasonably necessary to implement the transfers and
assumption of the Canada Assumed Liabilities; and
(D) the Canada Note pursuant to SECTION 2.4(c);
(ii) The consents and approvals of the Governmental Authorities
and other Persons listed on SCHEDULE 3.2(a)(iii) shall be obtained, subject to
any changes in applicable law after the date hereof.
(b) China. With respect to the transactions contemplated by SECTION
2.5:
(i) Motorola shall cause MCEL to deliver to the Hong Kong Sub the
following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and other
documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate to
implement the intended transfers contemplated by SECTION 2.5(b);
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of MCEL authorizing and approving the execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
-37-
(ii) SCILLC shall cause the Hong Kong Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the parties,
pursuant to which the Hong Kong Sub covenants and agrees to
assume the China Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of the Hong Kong Sub, authorizing and approving
the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby;
(C) transfer documents and such other documents and instruments
as may be reasonably necessary to implement the transfers and
assumption of the China Assumed Liabilities; and
(D) the China Note pursuant to SECTION 2.5(c);
(iii) The consents and approvals of the Governmental Authorities
and other Persons listed on SCHEDULE 3.2(b)(iii) shall be obtained, subject to
any changes in applicable law after the date hereof.
(c) CZECH REPUBLIC. With respect to the transactions contemplated by
SECTION 2.6:
(i) Motorola shall cause Motorola Czech Republic to deliver to
the Czech Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and other
documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate to
implement the intended transfers contemplated by SECTION 2.6(b);
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of Motorola Czech Republic authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Czech Sub to execute and deliver:
-38-
(A) an Assumption Agreement in the form agreed to by the parties,
pursuant to which the Czech Sub covenants and agrees to assume
the Czech Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of the Czech Sub, authorizing and approving the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby;
(C) transfer documents and such other documents and instruments
as may be reasonably necessary to implement the transfers and
assumption of the Czech Assumed Liabilities; and
(D) the Czech Note pursuant to SECTION 2.6(c);
(iii) The consents and approvals of the Governmental Authorities
and other Persons listed on SCHEDULE 3.2(c)(iii) shall be obtained, subject to
any changes in applicable law after the date hereof.
(d) FINLAND. With respect to the transactions contemplated by SECTION
2.7:
(i) Motorola shall cause Motorola Sweden to deliver to the Sweden
Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and other
documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate to
implement the intended transfers contemplated by SECTION 2.7(b);
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of Motorola Sweden authorizing and approving the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Sweden Sub to execute and deliver:
-39-
(A) an Assumption Agreement in the form agreed to by the parties,
pursuant to which the Sweden Sub covenants and agrees to assume
the Finland Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of the Sweden Sub, authorizing and approving the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby;
(C) transfer documents and such other documents and instruments
as may be reasonably necessary to implement the transfers and
assumption of the Finland Assumed Liabilities; and
(D) the Finland Note pursuant to SECTION 2.7(c);
(iii) The consents and approvals of the Governmental Authorities
and other Persons listed on SCHEDULE 3.2(d)(iii) shall be obtained, subject to
any changes in applicable law after the date hereof.
(e) FRANCE. With respect to the transactions contemplated pursuant to
SECTION 2.8:
(i) Motorola shall cause Motorola France to deliver to the France
Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and other
documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate to
implement the intended transfers contemplated by SECTION 2.8(b);
(B) authorizing corporate resolutions, appropriately certified,
of the Board of Directors (or comparable body) and, if required,
the stockholders of Motorola France authorizing and approving the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the France Sub to execute and deliver:
-40-
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the France Sub covenants and agrees
to assume the France Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the France Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the France Assumed Liabilities;
and
(D) the France Note pursuant to SECTION 2.8(c);
(ii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(e)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(iii) Motorola shall cause Motorola France to deliver, with
regard to the transfer of the equity interests of the France Sub and the EURL to
SCILLC, transfer documents in a form to be agreed upon by Motorola and the
Company.
(iv) All proceedings which may be required by local laws with
regard to the information and consultation of employees' representatives will be
carried out before the Effective Date.
(f) GERMANY. With respect to the transactions contemplated by SECTION
2.9:
(i) Motorola shall cause Motorola Germany to deliver to the
Germany Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.9(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Germany authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
-41-
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Germany Sub to execute and
deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Germany Sub covenants and
agrees to assume the Germany Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Germany Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Germany Assumed Liabilities;
and
(D) the Germany Note pursuant to SECTION 2.9(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(f)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(g) HONG KONG. With respect to the transactions contemplated by SECTION
2.10:
(i) Motorola shall cause Motorola Hong Kong to deliver to the
Hong Kong Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.10(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Hong Kong
authorizing and approving
-42-
the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Hong Kong Sub to execute and
deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Hong Kong Sub covenants and
agrees to assume the appropriate Hong Kong Assumed
Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Hong Kong Sub,
authorizing and approving the execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Hong Kong Assumed Liabilities;
and
(D) the Hong Kong Note pursuant to SECTION 2.10(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(g)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(h) INDIA. With respect to the transactions contemplated by SECTION
2.11:
(i) Motorola shall cause Motorola India to deliver to the
India Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
-43-
to implement the intended transfers contemplated by SECTION
2.11(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola India authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the India Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Hong Kong Sub covenants and
agrees to assume the India Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Hong Kong Sub,
authorizing and approving the execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the India Assumed Liabilities; and
(D) the India Note pursuant to SECTION 2.11(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(h)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(i) ISRAEL. With respect to the transactions contemplated by SECTION
2.12:
(i) Motorola shall cause Motorola Israel to deliver to the
Israel Branch the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
-44-
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.12(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Israel authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the France Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the France Sub covenants and agrees
to assume the Israel Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the France Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Israel Assumed Liabilities;
and
(D) the Israel Note pursuant to SECTION 2.12(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(i)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(j) ITALY. With respect to the transactions contemplated by SECTION
2.13:
(i) Motorola shall cause Motorola Italy to deliver to the
Italy Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other
-45-
documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.13(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Italy authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Italy Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Italy Sub covenants and agrees
to assume the Italy Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Italy Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Italy Assumed Liabilities;
and
(D) the Italy Note pursuant to SECTION 2.13(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(j)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(k) JAPAN. With respect to the transactions contemplated by SECTION
2.14:
(i) Motorola shall cause Motorola Japan to deliver to the
Japan Sub the following:
-46-
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.14(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Japan authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Japan Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Japan Sub covenants and agrees
to assume the Japan Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Japan Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Japan Assumed Liabilities; and
(D) the Japan Note pursuant to SECTION 2.14(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(k)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(l) KOREA. With respect to the transactions contemplated by SECTION
2.15:
-47-
(i) Motorola shall cause Motorola Korea to deliver to the
Korea Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.15(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Korea authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Korea Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Korea Sub covenants and agrees
to assume the Korea Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Korea Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Korea Assumed Liabilities; and
(D) the Korea Note pursuant to SECTION 2.15(c); and
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(l)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
-48-
(m) MALAYSIA. With respect to the transactions contemplated by SECTION
2.16:
(i) Motorola shall cause MESB to deliver to MSSB the
following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfer contemplated by SECTION
2.16(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of MESB authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) Motorola shall cause MMSB to deliver to MSSB the
following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfer contemplated by SECTION
2.16(c);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of MMSB authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
-49-
(iii) Motorola shall cause MSSB to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which MSSB covenants and agrees to assume
the appropriate Assumed Liabilities related to the Purchased
Assets transferred to MSSB;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholder of MSSB, authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Assumed Liabilities
contemplated hereby; and
(D) the MESB Note and the MMSB Note pursuant to SECTION
2.16(d).
(iv) Motorola shall cause MMSB to deliver to SCG Malaysia
Holdings the following:
(A) stock powers or other appropriate transfer and assignment
documents to effect the intended stock transfer and assignment
of the MSSB Stock;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of MMSB, authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(v) SCG Malaysia Holdings shall execute and deliver to MMSB
the Company Malaysia Note contemplated by SECTION 2.16(f).
(vi) Motorola shall cause MMSB to, and SCILLC shall, execute
and deliver such other documents and instruments as may be reasonably necessary
to implement the stock transfers contemplated pursuant to SECTION 2.16(a).
Without limiting the foregoing, Motorola shall cause MMSB to, and SCILLC shall,
if required by or appropriate in any foreign jurisdiction, execute and deliver
stock transfer forms.
-50-
(vii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(m)(vii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(n) MEXICO. With respect to the transactions contemplated pursuant to
SECTION 2.17:
(i) Motorola shall cause Motorola Mexico to deliver to the
Mexico Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.17(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Mexico authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Mexico Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Mexico Sub covenants and agrees
to assume the appropriate Assumed Liabilities related to the
Purchased Assets transferred to the Mexico Sub;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Mexico Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
-51-
transfers and assumption of the Assumed Liabilities
contemplated hereby; and (D) the Mexico Note pursuant to
SECTION 2.17(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(n)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(o) THE NETHERLANDS. With respect to the transactions contemplated by
SECTION 2.18:
(i) SCILLC shall deliver to Netherlands Holdings the
following:
(A) stock powers or appropriate transfer and assignment
documents to effect the intended stock transfer and assignment
of the stock of the France Sub, the EURL, the Germany Sub, the
Italy Sub, the Sweden Sub and the UK Sub; and
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of SCILLC, authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(ii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(o)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(p) PHILIPPINES. With respect to the transactions contemplated by
SECTION 2.19:
(i) Motorola shall cause Motorola Philippines to deliver to
MCP the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.19(b).
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the
-52-
stockholders of Motorola Philippines authorizing and approving
the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) Motorola shall cause MCP to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which MCP covenants and agrees to assume
the appropriate Non-SCG Philippine Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of MCP, authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Assumed Liabilities
contemplated hereby.
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(p)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(q) SINGAPORE. With respect to the transactions contemplated by SECTION
2.21:
(i) Motorola shall cause Motorola Singapore to deliver to the
Singapore Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.21(b);
-53-
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Singapore
authorizing and approving the execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Singapore Sub and/or MMSB to
execute and deliver:
(A) Assumption Agreements in the form agreed to by the
parties, pursuant to which the Singapore Sub and/or MMSB
covenants and agrees to assume the Singapore Assumed
Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Singapore Sub and/or
MMSB, authorizing and approving the execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Singapore Assumed Liabilities;
and
(D) the Singapore Notes pursuant to SECTION 2.21(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(q)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(r) SPAIN. With respect to the transactions contemplated by SECTION
2.22:
(i) Motorola shall cause Motorola Spain to deliver to the
France Sub the following:
-54-
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.22(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Spain authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the France Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the France Sub covenants and agrees
to assume the Spain Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the France Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Spain Assumed Liabilities; and
(D) the Spain Note pursuant to SECTION 2.22(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(r)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(s) SWEDEN. With respect to the transactions contemplated by SECTION
2.23:
-55-
(i) Motorola shall cause Motorola Sweden to deliver to the
Sweden Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.23(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Sweden authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Sweden Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Sweden Sub covenants and agrees
to assume the Sweden Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Sweden Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Sweden Assumed Liabilities;
and
(D) the Sweden Note pursuant to SECTION 2.23(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(s)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
-56-
(t) SWITZERLAND. With respect to the transactions contemplated by
SECTION 2.24:
(i) Motorola shall, and shall cause Motorola Switzerland to,
deliver to the France Sub the following:
(A) the transfer documents and all such other deeds, bills
of sale, lease assignments and other contract assignments
and other documents and instruments of sale, transfer,
assignment, conveyance and deliverance as may be necessary
and appropriate to implement the intended transfers
contemplated by SECTIONS 2.24(b) and 2.24(c);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body)
and, if required, the stockholders of Motorola Switzerland
authorizing and approving the execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby; and
(C) such other documents and instruments as may be
reasonably necessary to implement the transfers
contemplated hereby.
(ii) SCILLC shall cause the France Sub to execute and
deliver:
(A) two Assumption Agreements in the form agreed to by the
parties, pursuant to which the France Sub covenants and agrees
to assume the Switzerland Assumed Liabilities and the
Additional Switzerland Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the France Sub, authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Switzerland Assumed
Liabilities and the Additional Switzerland Assumed
Liabilities; and
(D) the Switzerland Note and the Motorola Switzerland Branch
Note pursuant to SECTION 2.24(d);
-57-
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(t)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(u) TAIWAN. With respect to the transactions contemplated by SECTION
2.25:
(i) Motorola shall cause Motorola Taiwan to deliver to the
Taiwan Entity the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.25(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Taiwan authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the Taiwan Entity transfers
contemplated hereby.
(ii) SCILLC shall cause the Taiwan Entity to execute and
deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Taiwan Entity covenants and
agrees to assume the Taiwan Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Taiwan Entity,
authorizing and approving the execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby;
-58-
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Taiwan Assumed Liabilities;
and
(D) the Taiwan Note pursuant to SECTION 2.25(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(u)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(v) THAILAND. With respect to the transactions contemplated by SECTION
2.26:
(i) Motorola shall cause Motorola Thailand to deliver to the
Thailand Sub the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.26(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola Thailand authorizing
and approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the Thailand Sub to execute and
deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which the Thailand Sub covenants and
agrees to assume the Thailand Assumed Liabilities;
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the Thailand Sub, authorizing
and approving the
-59-
execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the Thailand Assumed Liabilities;
and
(D) the Thailand Note pursuant to SECTION 2.26(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(v)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
(w) UNITED KINGDOM. With respect to the transactions contemplated by
SECTION 2.27:
(i) Motorola shall cause Motorola UK to deliver to the UK Sub
the following:
(A) the transfer documents and all such other deeds, bills of
sale, lease assignments and other contract assignments and
other documents and instruments of sale, transfer, assignment,
conveyance and deliverance as may be necessary and appropriate
to implement the intended transfers contemplated by SECTION
2.27(b);
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of Motorola UK authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(C) such other documents and instruments as may be reasonably
necessary to implement the transfers contemplated hereby.
(ii) SCILLC shall cause the UK Sub to execute and deliver:
(A) an Assumption Agreement in the form agreed to by the
parties, pursuant to which UK Sub covenants and agrees to
assume the UK Assumed Liabilities;
-60-
(B) authorizing corporate resolutions, appropriately
certified, of the Board of Directors (or comparable body) and,
if required, the stockholders of the UK Sub, authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby;
(C) transfer documents and such other documents and
instruments as may be reasonably necessary to implement the
transfers and assumption of the UK Assumed Liabilities; and
(D) the UK Note pursuant to SECTION 2.27(c);
(iii) The consents and approvals of the Governmental
Authorities and other Persons listed on SCHEDULE 3.2(w)(iii) shall be obtained,
subject to any changes in applicable law after the date hereof.
3.3 COLLATERAL AGREEMENTS.
(a) At the Closing, Motorola shall, and shall cause the other
Transferors or any other parties to, and SCILLC shall, and shall cause the other
Transferees and any other parties to, as appropriate, enter into and execute and
deliver the following additional documents:
(i) a Transition Services Agreement;
(ii) an Employee Matters Agreement;
(iii) an Equipment Pass Down Agreement;
(iv) an SCG Foundry Agreement;
(v) an SCG Assembly Agreement;
(vi) a Motorola Foundry Agreement;
(vii) a Motorola Assembly Agreement;
(viii) an SCG Master Lease Agreement between Motorola as
lessor and SCILLC as lessee;
(ix) a Motorola Facilities Lease Agreement between SCILLC as
lessor and Motorola as lessee;
(x) an Equipment Lease and Repurchase Agreement;
(xi) an Information Technology Services Agreement;
(xii) a Human Resources Agreement;
-61-
(xiii) a Supply Management Agreement;
(xiv) a Logistics Agreement; and
(xv) a Finance Services Agreement.
3.4 COOPERATION. Motorola shall, and shall cause the other Transferors or
any other parties to, and SCILLC shall, and shall cause the other Transferees
and any other parties to, as appropriate, on request, on or after the Closing,
cooperate with one another by furnishing any additional information, executing
and delivering any additional documents and/or instruments and doing any and all
such other things as may be reasonably required to consummate or otherwise
implement the transactions contemplated by this Agreement.
ARTICLE IV
PRE-CLOSING FILINGS, CONSENTS AND OTHER MATTERS
4.1 GOVERNMENTAL FILINGS. The parties hereto covenant and agree with each
other to (a) promptly file, or cause to be promptly filed, with any Governmental
Authority all such notices, applications (including applications for permits,
licenses and other similar instruments), forms or other documents as may be
necessary to consummate the transactions contemplated hereby and to permit each
Transferee to operate that portion of the Business transferred to it), including
without limitation the consents, approvals of the Governmental Authorities and
applications for permits and licenses set forth on SCHEDULES 3.2(m)(vii),
3.2(a)-(l)(iii), and 3.2 (n)-(w)(iii) and (b) thereafter diligently pursue all
such consents, approvals and applications.
4.2 CONSENT OF THIRD PARTIES. Nothing in this Agreement shall be construed
as an attempt or agreement to assign any asset, contract, lease, permit, license
or other right which would otherwise be included in the Purchased Assets but
which is by its terms or by law non-assignable without the consent of the other
party or parties thereto or any Governmental Authority unless such consent shall
have been given, or as to which all the remedies for the enforcement thereof
enjoyed by any Transferor or the Business would not, as a matter of law, pass to
any Transferee as an incident of the assignments provided for by this Agreement
(the "NON-ASSIGNABLE ASSETS"). Each Transferor agrees to use Reasonable Efforts
to obtain such consent or consents promptly. At such time as any Non-Assignable
Asset is properly assigned to the appropriate Transferee, such Non-Assignable
Asset shall become a Purchased Asset. Following the Closing and until such time
as such Non-Assignable Assets may be properly assigned to the appropriate
Transferee, such Non-Assignable Assets shall be held in trust for the
appropriate Transferee and the covenants and obligations thereunder shall be
performed by the appropriate Transferee in the name of the Transferor, and all
benefits and obligations existing thereunder shall be for the account of the
appropriate Transferee. During such period, the Transferor shall take or cause
to be taken such action in its name or otherwise as the appropriate Transferee
may reasonably request, at the appropriate Transferee's
-62-
expense, so as to provide the appropriate Transferee with the benefits of the
Non-Assignable Assets and to effect collection of money or other consideration
to become due and payable under the Non-Assignable Assets, and the Transferor
shall promptly pay over to the appropriate Transferee all money or other
consideration received by it (or its Affiliates) in respect of all
Non-Assignable Assets. Following the Closing, the Transferor authorizes the
appropriate Transferee, to the extent permitted by applicable law and the terms
of the Non-Assignable Assets, at the appropriate Transferee's expense, to
perform all of the obligations and receive all of the benefits under the
Non-Assignable Assets and appoints the appropriate Transferee its
attorney-in-fact to act in its name on its behalf (and on behalf of its
Affiliates) with respect thereto.
4.3 ASSET OR LIABILITY DISPUTE RESOLUTION. In the event that after the date
hereof, any Transferor or Transferee has a dispute as to whether any assets,
properties, rights or interests are intended to be transferred to SCILLC and its
subsidiaries or whether any debt, liability or obligation is intended to be
assumed by SCILLC and its subsidiaries, in each case consistent with the terms
hereof, then the following procedure shall be followed:
(a) Upon the occurrence of such a dispute either SCILLC or Motorola may
by written notice to the other party and the Transaction Committee (the "Initial
Notice") call for the consideration of such dispute by the Transaction Committee
(as hereinafter defined). The Transaction Committee shall meet to discuss,
review and attempt to resolve the dispute. The Transaction Committee may be
assisted by other advisors, including accountants, attorneys, and employees, in
its discussions and review. The "TRANSACTION COMMITTEE" shall be determined on
or within three (3) days following the Effective Date by Motorola and the
Company each selecting two individuals who are familiar with the Business to
serve on such committee.
(b) If the Transaction Committee is unable to reach an agreement under
clause (a) above within thirty (30) days of the Initial Notice, then each of
Motorola and SCILLC shall call for a higher level resolution discussion,
pursuant to which each of SCILLC and Motorola shall designate in writing by
notice to the other party within ten (10) days after the expiration of such
thirty (30) day period a higher level management employee which shall be the
President of SPS or President of SCILLC, or an equivalent position, as the case
may be, (a "HIGH LEVEL MANAGEMENT EMPLOYEE") to discuss and attempt to resolve
the dispute. Such High Level Management Employee may be assisted by other
advisors, including accountants, attorneys, and employees, in his or her
discussions and negotiations with the other party. SCILLC and Motorola agree to
negotiate in good faith with one another for an additional period ending sixty
(60) days after the date of Initial Notice.
(c) In the event the dispute remains unresolved after the passage of
sixty (60) days after the date of the Initial Notice, then both parties may
attempt to settle any claim or controversy arising out of it through
consultation and negotiation in good faith and a spirit of mutual cooperation.
If those attempts fail, then the dispute will be mediated by a
mutually-acceptable mediator to be chosen by Motorola and SCILLC (the
"MEDIATOR"). Neither Motorola nor SCILLC may unreasonably withhold consent to
the
-63-
selection of a mediator, and Motorola and SCILLC will share the costs of the
mediation equally. The parties may also agree to replace mediation with some
other form of alternative dispute resolution ("ADR"), such as neutral
fact-finding or a minitrial. In any event the mediation shall follow the
following procedures:
(i) meeting dates shall be set for two (2) days of meetings
within forty-five (45) days after the respondent's answer is filed with the
Mediator (the Mediator shall be advised of the schedule, and the availability of
the Mediator shall be a pre-requisite to serving as the Mediator).
(ii) each meeting date shall be as follows: 9:00 a.m. through
12:00 p.m. and 1:00 p.m. through 5:00 p.m. and the time allocated to each party
shall be equal;
(iii) no discovery shall be taken unless agreed to by the
parties hereto and the Mediator; and
(iv) the Mediator shall ask the parties thereto to reach a
decision within fifteen (15) days of the last meeting date.
(d) Any dispute which Motorola and SCILLC cannot resolve through
negotiation, mediation or other form of ADR within six (6) months of the date of
the initial demand for it by either Motorola or SCILLC may then be submitted to
the courts within the State of New York for resolution. The use of any ADR
procedures will not be construed under the doctrines of laches, waiver or
estoppel to affect adversely the rights of either party, and nothing in this
paragraph will prevent either SCILLC or Motorola from resorting to judicial
proceedings if (a) good faith efforts to resolve the dispute under these
procedures have been unsuccessful or (b) interim relief from a court is
necessary to prevent serous and irreparable injury to one party or to others.
(e) Notwithstanding the foregoing, on or after the second (2nd)
anniversary of the Effective Date, the procedures of this SECTION 4.3 shall not
be available for any disputes, except for those disputes for which an Initial
Notice has been received by the appropriate party prior to such second
anniversary.
4.4 SHARED CONTRACTS.
(a) At the request of any SCG Company, each Transferor shall, and shall
cause its Affiliates to, to the maximum extent permitted by applicable law,
statute, ordinance, regulation or permit and Shared Contracts, make available to
such SCG Company (or its designated Affiliates) the benefits and rights under
the Shared Contracts (except where the benefits or rights under such Shared
Contracts are specifically provided pursuant to a Collateral Agreement) which
are substantially equivalent to the benefits and rights enjoyed by such
Transferor under each contract for which such request is made by an SCG Company,
to the extent such benefits relate to the Business; PROVIDED, HOWEVER, that the
relevant SCG Companies shall assume and discharge (or reimburse the
-64-
Transferor for) the obligations and liabilities under the relevant Shared
Contracts associated with the benefits and rights so made available to such
Transferee.
(b) At the request of any Transferor, each Transferee shall, and shall
cause its Affiliates to, to the maximum extent permitted by applicable law,
statute, ordinance, regulation or permit and Shared Contracts, make available to
such Transferor (or its designated Affiliates) the benefits and rights under the
Shared Contracts (except where the benefits or rights under such Shared
Contracts are specifically provided pursuant to a Collateral Agreement) which
are substantially equivalent to the benefits and rights enjoyed by such
Transferee under each contract for which such request is made by a Transferor,
to the extent such benefits relate to the business of Motorola other than the
Business; PROVIDED, HOWEVER, that the relevant Transferor shall assume and
discharge (or reimburse the Transferee for) the obligations and liabilities
under the relevant Shared Contracts associated with the benefits and rights so
made available to such Transferor.
(c) "SHARED CONTRACT" shall mean (x) for the purposes of SECTION
4.4(a), all arrangements, contracts, leases and other agreements relating in
part to the Business but not primarily or exclusively to the Business and (y)
for the purposes of SECTION 4.4(b), all arrangements, contracts, leases and
other agreements included in the Purchased Assets relating in part to any other
businesses of Motorola.
4.5 ENTITY CLASSIFICATION. If an election pursuant to Treasury Regulation
section 1.7701-3 is required for an entity listed on EXHIBIT I to be classified
for U.S. federal income tax purposes in the manner set forth on EXHIBIT I,
Motorola shall cause such entity to make such an election as promptly as
possible and where possible in such a manner that the election is effective on
the date of the formation of such entity. For such time as any such entity is an
Affiliate of Motorola, Motorola shall not permit any such entity to make an
election pursuant to Treasury Regulation section 1.7701-3 that would cause such
entity to be classified other than in the manner set forth on Exhibit I.
4.6 SEI TAX RETURN FILINGS. Prior to the Closing, Motorola shall cause SEI
to timely file SEI's annual income tax returns.
ARTICLE V
FOREIGN REAL PROPERTY MATTERS
5.1 FOREIGN REAL PROPERTY. With respect to any Real Property located
outside the United States which is owned by a Transferor or a transferring SCG
Company and which is intended to be owned by SCILLC and its subsidiaries after
the Effective Date, Motorola agrees to cause the appropriate Transferor to
obtain and deliver at the Effective Date to the Transferee such assurances of
title to such Real Property as is customary for a seller to deliver to a buyer
in such jurisdiction in an arms' length transaction between unrelated parties.
5.2 REAL PROPERTY TITLE EXPENSES. The costs and expenses for any title
assurances to be delivered pursuant to SECTION 5.1 shall be paid by Motorola.
-65-
ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS TO CLOSING.
The obligations of the parties hereto to close the transactions
hereunder are subject to the following conditions precedent:
(a) No investigation, action, suit or proceeding by any Governmental
Authority, and no action, suit or proceeding by any other Person, shall be
pending on the Effective Date which challenges, or might reasonably result in a
challenge to, this Agreement or any of the transactions contemplated hereby, or
which claims, or might reasonably give rise to a claim for, damages in a
material amount as a result of the consummation of this Agreement.
(b) All documents and instruments to be executed and delivered pursuant
to this Agreement, including without limitation, the documents and instruments
to be delivered pursuant to Article III, shall be satisfactory to the parties
hereto to whom such documents are to be delivered.
(c) Motorola and SCILLC shall have agreed to the form of the Collateral
Agreements.
(d) All required consents and approvals of any Governmental Authority
and the consents and approvals of any other Persons and all permits, licenses
and similar instruments set forth on SCHEDULES 3.2(m)(vii), 3.2(a)-(l)(iii) and
3.2(n)-(w)(iii) shall have been obtained and in full force and effect as of the
Effective Date and such consents, approvals, permits, licenses and other
instruments shall not impose any restrictions, limitations or conditions which
would have a material adverse effect on the financial condition, results of
operations or operations of the Business.
ARTICLE VII
TERMINATION
7.1 TERMINATION. This Agreement shall be terminated upon the occurrence of
either of the following:
(a) if the Closing shall not have occurred on or before November 1,
1999, unless Motorola elects to extend such date; or
(b) upon mutual agreement of Motorola and the Company.
-66-
ARTICLE VIII
MISCELLANEOUS
8.1 FURTHER ACTIONS.
(a) The parties hereto agree to use all reasonable good faith efforts
to take all actions and to do all things necessary, proper or advisable to
consummate the transactions contemplated hereby by the applicable closing dates.
(b) Motorola shall, and shall cause its Affiliates to, use its
reasonable good faith efforts to enter into such agreements and other
arrangements (including sublicenses and subleases) with the appropriate parties
as are necessary to ensure that SCILLC and its subsidiaries after the Closing
own or hold the assets, properties and rights (together with the benefits
provided under the Collateral Agreements) of SCG sufficient to operate the
Business as operated on the date hereof.
8.2 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) three Business Days
after mailing if mailed by certified or registered mail, return receipt
requested, (ii) one Business Day after delivery to Federal Express or other
nationally recognized overnight express carrier, if sent for overnight delivery
with fee prepaid, (iii) upon receipt if sent via facsimile with receipt
confirmed, or (iv) upon receipt if delivered personally, addressed to the
address set forth in SCHEDULE 8.2 or to such other address or addresses of which
the respective party shall have notified the other.
8.3 ENTIRE AGREEMENT. The agreement of the parties, which is comprised of
this Agreement, the Exhibits and the Schedules hereto and the documents referred
to herein, sets forth the entire agreement and understanding between the parties
and supersedes any prior agreement or understanding, written or oral, relating
to the subject matter of this Agreement.
8.4 ASSIGNMENT; BINDING EFFECT; SEVERABILITY. This Agreement may not be
assigned by any party hereto without the written consent of the other parties
hereto, except that the Company may assign this Agreement and its rights and
obligations hereunder to or for the account of lenders providing financing to
the Company solely and specifically for the purpose of securing such financing.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the successors, legal representatives and permitted assigns of
each party hereto. The provisions of this Agreement are severable, and in the
event that any one or more provisions are deemed illegal or unenforceable the
remaining provisions shall remain in full force and effect unless the deletion
of such provision shall cause this Agreement to become materially adverse to any
party, in which event the parties shall use reasonable good faith efforts to
arrive at an accommodation which best preserves for the parties the benefits and
obligations of the offending provision.
-67-
8.5 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws (as opposed to the conflicts of
laws provisions) of the State of New York.
8.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts with the same effect as if the signatures thereto were upon one
instrument.
8.7 HEADINGS. The headings preceding the text of the sections and
subsections hereof are inserted solely for convenience of reference, and shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction or effect.
8.8 AMENDMENT AND WAIVER. The parties may by mutual agreement amend this
Agreement in any respect, and any party, as to such party, may (a) extend the
time for the performance of any of the obligations of any other party, (b) waive
any inaccuracies in representations by any other party, (c) waive compliance by
any other party with any of the agreements contained herein and performance of
any obligations by such other party, and (d) waive the fulfillment of any
condition that is precedent to the performance by such party of any of its
obligations under this Agreement. To be effective, any such amendment or waiver
must be in writing and be signed by the party against whom enforcement of the
same is sought.
8.9 U.S. CURRENCY. Unless otherwise stated, all dollars specified in this
Agreement, and the Exhibits and Schedules attached or referred to herein, shall
be in U.S. dollars.
[signature page follows]
-68-
IN WITNESS WHEREOF, each of Motorola, the Company and SCILLC has caused
this Reorganization Agreement to be duly executed on its behalf by its duly
authorized officer as of the day and year first written above.
MOTOROLA, INC.
/s/ XXXXX X. XXXX
------------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: Executive Vice President
------------------------------------
SCG HOLDING CORPORATION
/s/ XXXXXXXX X. XXXXXXXXX
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Attorney In Fact
------------------------------------
SEMICONDUCTOR COMPONENTS
INDUSTRIES, LLC
By: SCG Holding Corporation, its sole member
/s/ XXXXXXXX X. XXXXXXXXX
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Attorney In Fact
------------------------------------
-69-
EXHIBITS
-------------------------------------------------------------------
EXHIBIT DESCRIPTION
-------------------------------------------------------------------
A Cody Restructuring
-------------------------------------------------------------------
B Motorola Assumption Agreement
-------------------------------------------------------------------
C Asset Contribution Agreement
-------------------------------------------------------------------
D Czech/Slovak Distribution and Contribution Agreement
-------------------------------------------------------------------
E Philippine Distribution and Contribution Agreement
-------------------------------------------------------------------
F Notes Allocation Schedule
-------------------------------------------------------------------
G Form of Business Transfer Agreement
-------------------------------------------------------------------
H Malaysian Distribution and Contribution Agreement
-------------------------------------------------------------------
I Entity Classification
-------------------------------------------------------------------
