Exhibit 10.81
TRANSACTION AGREEMENT
This Transaction Agreement, dated as of March 31, 2003 (this "Agreement"),
is entered into by and among UnitedGlobalCom, Inc., a Delaware corporation
("Parent"), UGC/SPCo., Inc., a Delaware corporation ("MergerSub") and a
wholly-owned subsidiary of Parent, Motorola, Inc., a Delaware corporation
("Motorola") and Motorola UPC Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of Motorola ("SPC").
RECITALS
WHEREAS, United Pan-Europe Communications N.V., incorporated and existing
under the laws of the Netherlands ("UPC") filed a voluntary case under Chapter
11 of title 11 of the United States Code, 11 U.S.C. Sections 101-1330, as
amended, in the United States Bankruptcy Court for the Southern District of New
York (the "US Bankruptcy Court") and has proposed its Second Amended Plan of
Reorganization (the "US Plan");
WHEREAS, the US Bankruptcy Court has approved UPC's Second Amended
Disclosure Statement, dated January 7, 2003, with respect to the US Plan (the
"Disclosure Statement");
WHEREAS, Parent is the majority shareholder of UPC;
WHEREAS, Motorola is the owner of 100% of the capital stock of SPC;
WHEREAS, SPC holds 3,500 Preference Shares A of UPC, nominal value E1.00
per share (the "Preference Shares") and a warrant to purchase 1,669,457 ordinary
shares A of UPC, nominal value E1.00 per share (the "Ordinary Shares"), at an
exercise price of E42.546 per Ordinary Share (the "Warrants," and together with
the Preference Shares, the "UPC Securities");
WHEREAS, Parent and Motorola have determined that it is advisable that
Parent acquire SPC on the terms set forth in this Agreement;
WHEREAS, the acquisition of SPC shall be effected through a merger (the
"Merger") of MergerSub with and into SPC in accordance with the terms of this
Agreement and the General Corporation Law of the State of Delaware;
WHEREAS, concurrently with this Agreement, the MergerSub and SPC have
entered into a Merger Agreement (the "Merger Agreement" and together with this
Agreement, the "Transaction Agreements") attached hereto as Exhibit A;
WHEREAS, as a result of the Merger all of the shares of capital stock of
SPC will be cancelled and converted into 879,041 shares of Parent's Class A
Common Stock, par value $0.01 per share (the "UGC Shares");
WHEREAS, as a result of the Merger, the shares of MergerSub will become the
shares of SPC, as the surviving corporation in the Merger, and SPC will become a
wholly-owned subsidiary of Parent; and
WHEREAS, for United States federal income tax purposes, the parties intend
that the Merger qualify as a "reorganization" under the provisions of section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code") and the
rules and regulations promulgated thereunder, and the parties intend, by
executing this Agreement, to adopt a plan of reorganization for United States
federal income tax purposes.
NOW, THEREFORE, in consideration of their mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound, hereby
agree as follows:
SECTION 1. CLOSING. The consummation of the transactions contemplated
hereunder (the "Closing") shall take place at the offices of Parent on a date
mutually agreed upon between the parties, but in any event within three (3)
business days after the satisfaction or waiver of the conditions set forth
herein (such date being referred to herein as the "Closing Date"). At the
Closing:
(a) The Merger shall be consummated and the Certificate of Merger
shall be filed with the Secretary of State of the State of Delaware.
(b) Parent shall deliver to Motorola certificates for the UGC Shares,
in such denominations and registered as Motorola shall advise Parent at least
two days prior to the Closing Date.
(i) Each certificate representing the UGC Shares will contain a
legend substantially to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND ARE "RESTRICTED
SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SHARES
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A TRANSACTION
AGREEMENT, DATED AS OF MARCH 31, 2003, COPIES OF WHICH ARE AVAILABLE FROM
UNITEDGLOBALCOM, INC. UPON REQUEST, AND ANY SALE, PLEDGE, HYPOTHECATION,
TRANSFER, ASSIGNMENT OR OTHER DISPOSITION OF SUCH SECURITIES IS SUBJECT TO
SUCH TRANSACTION AGREEMENT.
Motorola hereby authorizes Parent to cause the transfer agent to decline to
transfer and/or to note stop transfer restrictions on the transfer books and
records of Parent with respect to any UGC Shares.
The first legend described above and any stop transfer instructions with respect
to such legended UGC Shares shall be removed, and Parent shall issue a
certificate without such legend to the holder of such UGC Shares, if (i) such
UGC Shares are registered under the Securities Act, (ii) Motorola delivers to
Parent an opinion by counsel, reasonably satisfactory to Parent, that a
registration statement under the Securities Act, is at that time in effect with
respect to the legended security or that such security can be freely transferred
in a public sale without such a registration statement being in effect, or (iii)
if Motorola satisfies the requirements of Rule 144(k) of the Securities Act.
The second legend described above and any stop transfer instructions with
respect to such legended UGC Shares shall be removed, and Parent shall issue a
certificate without such legend to the holder of such UGC Shares upon the
earlier of (i) a transfer made in accordance with Section 2 hereof and (ii) the
termination of the First Refusal Right in accordance with Section 2(a)(vi).
SECTION 2. CERTAIN COVENANTS OF MOTOROLA. Motorola covenants with the
Parent and MergerSub as follows:
(a) RIGHT OF FIRST REFUSAL. Motorola hereby grants to Parent a right
of first refusal (the "First Refusal Right") to purchase any and all UGC Shares
which Motorola may propose to transfer, pursuant to a bona fide third-party
offer for such shares or enter into a hedge transaction in which the UGC Shares
may be used to satisfy such hedge transaction (a "Hedge Transaction") with
respect to such UGC Shares.
(i) In the event that Motorola proposes to undertake such a sale
or Hedge Transaction, Motorola shall notify Parent no later than 10 business
days prior to the proposed transfer of, or the entering into any Hedge
Transaction with respect to, any of the UGC Shares (such notice, the "Sale
Notice").
(ii) The Sale Notice shall specify (i) the number of UGC Shares
proposed to be transferred or with respect to which Motorola expects to enter
into a Hedge Transaction (the "Proposed Sale Shares"), (ii) the terms of the
offer or Hedge Transaction and (iii) the proposed sale price per Parent Share
(or its cash
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equivalent, if a proposed sale is other than for cash consideration) (the
"Proposed Sale Price"); provided, for (i) a sale pursuant to a broker
transaction (a "Broker Transaction") the Proposed Sale Price shall be the
Average Price (as defined below) and (ii) a Hedge Transaction, the Proposed Sale
Price shall be the Average Price.
(iii) Parent shall have 10 business days after the Sale Notice is
received to agree to purchase any of the Proposed Sale Shares (i) at a purchase
price equal to the lesser of (x) the Proposed Sale Price and (y) the average
closing price of the UGC Shares on the five (5) trading days immediately prior
to the date the Sale Notice is received by Parent (the "Average Price") and (ii)
upon the terms specified in the Sale Notice by giving written notice (an
"Exercise Notice") to Motorola and stating that Parent intents to purchase the
Proposed Sale Shares.
(iv) Delivery of the Exercise Notice by Parent shall be deemed to
be a binding obligation of Parent to purchase the Proposed Sale Shares on the
terms specified in the Sale Notice. Unless Parent and Motorola otherwise agree,
the consummation of the purchase of the Proposed Sale Shares by Parent pursuant
to this Section 2(a) (the "ROFR Closing") will occur on the fifth business day
following the delivery of the Exercise Notice, at the principal executive
offices of the Motorola at 10:00 a.m. (local time). At the ROFR Closing, Parent
shall pay the purchase price determined pursuant to Section 2(a)(iii) in cash or
by wire transfer of immediately available funds pursuant to wire instructions
provided by Motorola. At the ROFR Closing, Motorola shall deliver the Proposed
Sale Shares to Parent.
(v) In the event an Exercise Notice is not received by Motorola
prior to the expiration of the 10 business day exercise period, Motorola shall
have a period of 60 days thereafter in which to transfer, or enter into a Hedge
Transaction with respect to, the Proposed Sale Shares, upon terms (including
purchase price) no more favorable to such the third-party offeror or the
counterparty than the terms specified in the Sale Notice; PROVIDED, HOWEVER,
that (i) any such transfer or entering into such a Hedge Transaction must not be
effected in contravention of the provisions of this Agreement and (ii) the
purchase price for a transfer made pursuant to a Broker Transaction may be at
the then prevailing trading price even if such trading price would be lower than
the Average Price specified in the Sale Notice. In the event Motorola does not
effect the proposed transfer or Hedge Transaction within the specified 60 day
period, the First Refusal Right shall continue to be applicable to any
subsequent transfer or Hedge Transaction with respect to the UGC Shares.
(vi) The First Refusal Right shall expire on the earlier of: (i)
a UGC Change of Control and (ii) two years after the Closing Date. As used
herein, "UGC Change of Control" shall mean the earlier to occur of (i) the
approval of any plan of dissolution, liquidation or winding up of Parent, (ii)
the sale or other disposition of all or substantially all of the assets of the
Parent (other than pursuant to a transfer to a subsidiary of the Parent), (iii)
the merger, reorganization, consolidation or similar transaction involving
Parent, other than any such transaction in which holders voting and
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economic interest in Parent immediately prior to the transaction will
beneficially own at least 50% of the voting and economic interests of the
surviving entity immediately after such merger, consolidation or similar
transaction, and (iv) any transaction or series of related transactions, as a
result of which, Liberty and its affiliates cease to own, as a group, an amount
of stock equal to 25% of Parent's total outstanding common stock (including all
Class A, Class B, and Class C shares) except in a circumstance whereby Liberty
and its affiliates would merge all of their interests in Parent with another
media or cable TV company in exchange for equity interest in such media or cable
TV company, and, in which case, a UGC Change of Control would occur upon the
transfer by Liberty or its affiliates of 25% or more of such equity interests in
such media or cable TV company.
(vii) The right of first refusal granted to Parent as set forth
in this Section 2(a) may not be assigned or transferred by Parent except to
Liberty Media Corporation ("Liberty") and its affiliates.
(b) RESTRICTION ON TRANSFER. Each of the UGC Shares received by
Motorola in accordance with this Agreement shall not be transferred by Motorola
until the earlier of (i) six months after the Closing or (ii) a UGC Change of
Control. Nothing in this Section 2(b) will prevent Motorola from entering into a
Hedge Transaction; provided Motorola complies with its obligations under Section
2(a).
(c) PERMITTED TRANSFER. Motorola shall not be required to comply with
the obligations First Refusal Right or the transfer restrictions set forth in
Section 2(b) with respect to any transfer by Motorola to an affiliate of
Motorola; provided, any such affiliate agrees in writing to be bound by such
provisions to the same extent as Motorola.
SECTION 3. REGISTRATION.
(a) On or prior to 30 days after the date Motorola provides written
notice (a "Registration Notice") to Parent requesting that Parent register the
UGC Shares held by Motorola for re-sale, Parent shall file with the Commission a
shelf registration statement pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Act"), or amend an existing registration statement (the
"Shelf Registration Statement"), providing for the registration of all of the
UGC Shares, and shall use its reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 120 days after the
date Parent receives the Registration Notice.
(b) Parent agrees to use reasonable best efforts to ensure the Shelf
Registration Statement remains effective until Motorola has sold all of the UGC
Shares.
(c) Motorola and Parent agree to the Registration Statement
Agreements set forth on Exhibit C hereof.
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(d) Motorola may not include any of its UGC Shares in any Shelf
Registration Statement pursuant to this Agreement unless and until Motorola (i)
agrees to be named as a selling stockholder in the related prospectus and to
deliver a prospectus to purchasers and (ii) furnishes to the Parent in writing
certain representations and information with respect to itself and the proposed
distribution by it to the extent necessary in order to assure compliance with
Federal and applicable state securities laws in connection with the Shelf
Registration Statement in order to have its UGC Shares included in the Shelf
Registration Statement. Motorola agrees to promptly furnish additional
information to the extent necessary in order to make the information previously
furnished to Parent by Motorola not materially misleading. Parent may exclude
from such registration the UGC Shares for so long as Motorola fails to furnish
such information.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGERSUB. Each of
Parent and MergerSub represents and warrants to Motorola and SPC as follows:
(a) ORGANIZATION; POWERS. Parent and MergerSub are each (i) duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite corporate power and
authority to own its property and assets and (iii) has the corporate power and
authority to execute, deliver and perform its obligations under the Transaction
Agreements.
(b) AUTHORIZATION. The execution, delivery and performance by each of
Parent and MergerSub of the Transaction Agreements and the transactions
contemplated by the Transaction Agreements, including the Merger (a) have been
duly authorized by all requisite corporate action on the part of each of Parent
and MergerSub and (b) do not and will not (i) violate any laws or regulations
applicable to either Parent or MergerSub, the certificate or bylaws of Parent or
MergerSub or any order, judgment or decree of any court or other agency of
government binding on either Parent or MergerSub, (ii) conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a default
or event of default under any contract, lease, instrument, indenture, note or
other agreement of or binding upon Parent or MergerSub, (iii) result in or
require the creation or imposition of any lien upon any of the properties or
assets of either Parent or MergerSub, or (iv) require any approval of
stockholders or any approval or consent of any person or entity under any
contract, lease, instrument, indenture, note or other agreement of or binding
upon either Parent or MergerSub, except for such approvals or consents which
have been obtained on or before the date hereof or approvals or consents of such
persons or entities in which the failure to obtain such consent or approval
would not have a material adverse effect on (1) the business, financial
condition or results of operations of Parent or MergerSub or (2) the ability or
either Parent or MergerSub to promptly perform its obligations under the
Transaction Agreements pr the transactions contemplated by the Transaction
Agreements, including the Merger (a "Material Adverse Effect").
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(c) ENFORCEABILITY. Each of the Transaction Agreements has been duly
executed and delivered by Parent and MergerSub and each constitutes a legal,
valid and binding obligation of Parent and MergerSub enforceable against each of
Parent and MergerSub in accordance with their terms except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
(d) UGC SHARES. The UGC Shares to be issued pursuant to the
Transaction Agreements are duly authorized and, when delivered by Parent
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable. No resolutions to make any distributions out of the equity
(vermogen) of Parent have been adopted, which have not been carried out.
(e) SEC DOCUMENTS. When filed with the Securities and Exchange
Commission, Parent's Annual Report on form 10-K for the year ended December 31,
2001 and each subsequent quarterly report on form 10-Q, report on form 8-K and
proxy statement (including all notes and schedules thereto and documents
incorporated by reference therein (the "Commission Filings") (i) complied in all
material respects with the requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and (ii) did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
Except as disclosed in the Commission Filings made prior to the date of this
Agreement, since December 31, 2001, there has not been any event, occurrence or
development of a state of circumstances or facts that has had, or reasonably
could be expected to have, a Material Adverse Effect. There has not been any
material change to the capitalization of Parent or its outstanding capital stock
(including securities which are convertible, exercisable or exchangeable into
Parent's capital stock) other than as set forth in the Commission Filings made
prior to the date of this Agreement.
(f) LITIGATION. Except as is disclosed in the Commission Filings,
there is no private or governmental suit, action, proceeding, claim, arbitration
or investigation pending before any agency, court or tribunal, foreign or
domestic, or, to the knowledge of Parent, threatened, against Parent, any of its
subsidiaries, or any of their respective officers or directors (in their
capacities as such), properties or assets, that, if determined adversely to
Parent or such subsidiary, would, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect. Except as is disclosed in
the Commission Filings, there is no judgment, decree or order against Parent,
any of its subsidiaries or, to the knowledge of Parent, relating to the business
of Parent or any of its subsidiaries, the existence of which would, individually
or in the aggregate, have a Material Adverse Effect.
(g) TAXES.
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(i) To Parent's knowledge, neither Parent nor any affiliates of
Parent has taken, agreed to take, or has any intention to take any action that
would prevent the Merger from qualifying as a reorganization within the meaning
of Code Section 368(a).
(ii) Immediately following the Merger, SPC will hold at least 90
percent of the fair market value of MergerSub's net assets and at least 70
percent of the fair market value of MergerSub's gross assets held immediately
prior to the Merger.
(iii) Parent is not an "investment company" as defined in Code
section 368(a)(2)(F)(iii) and (iv).
(iv) Merger Sub was formed solely for purposes of effectuating
the Merger. Merger Sub has never had any material assets (other than assets
necessary to consummate the Merger) and has never engaged in any material
business activities. Merger Sub has no liabilities and will not transfer to SPC
any assets subject to liabilities in the Merger.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE MOTOROLA AND SPC. Motorola
and SPC represents and warrants to each of Parent and MergerSub as follows:
(a) ORGANIZATION; POWERS. Motorola and SPC are each (i) duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, and (ii) has the corporate power and authority
to execute, deliver and perform its obligations under the Transaction
Agreements.
(b) AUTHORIZATION. The execution, delivery and performance by each of
Motorola and SPC of the Transaction Agreements to which it is a party, and the
transactions contemplated by the Transaction Agreements, including the Merger
(a) have been duly authorized by all requisite corporate action on the part of
Motorola and SPC and (b) do not and will not violate any laws or regulations
applicable to either Motorola or SPC, the certificate or bylaws of such party or
any order, judgment or decree of any court or other agency of government binding
on either Motorola or SPC.
(c) ENFORCEABILITY. Each of the Transaction Agreements, to which they
are a party, have been duly executed and delivered by Motorola and SPC and each
such Transaction Agreement to which it is a party constitutes a legal, valid and
binding obligation of Motorola and SPC enforceable against Motorola and SPC in
accordance with their terms except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
(d) SPC SHARES. Motorola owns, beneficially and of record all of the
outstanding capital stock of SPC. Motorola did not grant rights to acquire SPC
or SPC Shares but to MergerSub. SPC Shares are duly authorized, have been
validly issued
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and are fully paid and nonassessable. SPC Shares have not been encumbered with
an attachment, usufruct and pledge nor have depositary receipts for SPC Shares
been issued with Parent's concurrence.
(e) SPC. SPC owns no material assets other than the UPC Securities
and has no liabilities or obligations except for liabilities and obligations
pursuant to the transaction documents related to the acquisition of the UPC
Securities. SPC has conducted no material operations other than its ownership of
the UPC Securities.
(f) ACCREDITED INVESTOR. Motorola is aware that the UGC Shares have
not been registered under the Securities Act or any applicable state securities
laws. Motorola understands that the UGC Shares are being offered and exchanged
in reliance upon an exemption from registration under the Securities Act
provided by Section 4(2) of the Securities Act. Motorola is an "Accredited
Investor" as that term is defined in Rule 501(a) of the Securities Act. The UGC
Shares are being acquired solely for Motorola's own account, for investment
purposes only, and not for any distribution, subdivision or fractionalization
thereof; and Motorola has no agreement or other arrangement, formal or informal,
with any person or entity to sell, transfer or pledge any part of the UGC
Shares. Motorola further understands that it must bear the economic risk of this
investment for an indefinite period of time because Motorola cannot resell or
otherwise transfer any part of the UGC Shares unless (i) the UGC Shares are
first registered under the Securities Act and such resale or other transfer
complies with all applicable state securities laws or (ii) exemptions from the
requirements of the Securities Act and all applicable state securities laws are
available.
(g) ACCESS TO INFORMATION. Each of Motorola and SPC has adequate
information concerning the businesses, finances and operations, condition
(financial and otherwise), results of operations, properties, plans and
prospects of Parent and MergerSub to make an informed decision regarding the
merger and has independently and without reliance upon Parent or MergerSub made
its own analysis and decision to merge. Each of Motorola and SPC has been
afforded the opportunity to ask questions of both Parent and MergerSub and has
received satisfactory answers to any such inquiries. The representations and
warranties set forth in this Section 5(g) shall not in any way modify, lessen or
obviate the representations and warranties of Parent set forth in this
Agreement.
(h) NEGOTIATED AGREEMENT. The terms of this Agreement were the result
of negotiations among Parent, MergerSub, Motorola and SPC, and each of Motorola
and SPC was given the opportunity to review and comment upon the proposed terms
of this Agreement.
(i) DISCLOSURE STATEMENT. Each of Motorola and SPC has received a
copy of the Disclosure Statement.
(j) TAXES.
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(i) To Motorola's knowledge, neither Motorola, SPC nor any
affiliates of Motorola and SPC has taken, agreed to take, or has any intention
to take any action that would prevent the Merger from qualifying as a
reorganization within the meaning of Code Section 368(a).
(ii) Immediately following the Merger, SPC will hold at least 90
percent of the fair market value of its net assets and at least 70 percent of
the fair market value of its gross assets held immediately prior to the Merger.
For purposes of this representation, amounts used to pay SPC transaction
expenses, and all redemptions and distributions (except for regular, normal
dividends made by SPC immediately preceding the transfer, will be included as
assets of SPC held immediately prior to the Merger.
SECTION 6. CONDITIONS TO CLOSING.
(a) CONDITIONS TO THE OBLIGATIONS OF PARENT AND MERGERSUB. The
obligations of each of Parent and MergerSub to Motorola and SPC under this
Agreement are subject to the fulfillment on or before the Closing of each of the
following conditions:
(i) Each of the representations and warranties of Motorola and
SPC contained in Section 5 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the Closing.
(ii) Each of Motorola and SPC shall have performed and complied
with all agreements, obligations and conditions contained in the Transaction
Agreements that are required to be performed or complied with by it on or before
the Closing.
(b) CONDITIONS TO THE OBLIGATIONS OF MOTOROLA AND SPC. The
obligations of each of Motorola and SPC to each of Parent and MergerSub under
this Agreement are subject to the fulfillment on or before the Closing of each
of the following conditions:
(i) The representations and warranties of each of Parent and
MergerSub contained in Section 4 shall be true on and as of the Closing with the
same effect as though such representations and warranties had been made on and
as of the Closing.
(ii) Each of Parent and MergerSub shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
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SECTION 7. TAX CONSEQUENCES. It is intended by the parties that the Merger
shall constitute a "reorganization" within the meaning of section 368(a) of the
Code. Unless otherwise required by applicable law, Parent, Motorola, and SPC
shall not, and each shall not permit any of their respective affiliates to,
intentionally take or cause to be taken any action which would disqualify the
Merger as a "reorganization" within the meaning of Code section 368(a). The
parties hereto adopt this Agreement together with the Agreement and Plan of
Merger as a "plan of reorganization" for United States federal income tax
purposes. The parties hereto acknowledge that they have consulted with their
legal counsel or tax advisors regarding the potential tax consequences resulting
from the Merger; provided, the foregoing will not in any way modify, lessen or
obviate the representations and warranties of Parent or Motorola set forth in
this Agreement.
SECTION 8. CONFIDENTIALITY. Except as required by applicable law (including
the Parent's disclosure obligations under Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder and any disclosures required by applicable law to be made in
connection with the restructuring of UPC), the Parent and Motorola, on behalf of
themselves and their representatives, agree to keep strictly confidential all
terms of this Agreement and the transactions contemplated hereby.
Notwithstanding anything to the contrary set forth herein or in any other
document related to the Merger and the transactions contemplated herein
(collectively, the "Transactions"), the parties hereby acknowledge and agree
that disclosure of the "tax treatment" or "tax structure" (as such terms are
used in sections 6011, 6111 and 6112 of the Code and the Treasury regulations
promulgated thereunder) of the Transactions by the parties hereto (and their
respective affiliates, employees, officers, directors, agents and advisors) to
any and all persons, shall be permitted to the extent necessary to prevent any
of the Transactions from constituting a "confidential transaction" (as such term
is used in sections 6011, 6111 and 6112 of the Code and the Treasury regulations
promulgated thereunder); PROVIDED, HOWEVER, no party hereto shall be permitted
to disclose the tax structure and tax treatment of the Transactions to the
extent that such disclosure would constitute a violation of Federal or state
securities laws. In the event that a party is required by applicable law or
otherwise to disclose the terms of this Agreement and the transactions
contemplated hereby, the disclosing party will give the other party prompt
written notice of such requirement.
SECTION 9. SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges
and agrees that the other parties hereto may be irreparably damaged in the event
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. Accordingly, each of the
parties hereto agrees that each of the other parties hereto shall be entitled to
seek an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having subject matter jurisdiction, in
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addition to any other remedy to which any party hereto may be entitled, at law
or in equity.
SECTION 10. SEVERABILITY. If any provision of this Agreement shall have
been determined to be unenforceable by a court of competent jurisdiction or as a
result of binding arbitration, such provision shall, as to such jurisdiction, be
ineffective to the extent of such unenforceability, without invalidating the
remaining provisions hereof, the other provisions of this Agreement shall
nonetheless remain in full force and effect, and such unenforceability in any
jurisdiction shall not render unenforceable such provision in any other
jurisdiction.
SECTION 11. TIMING. Each of the parties hereto agrees that time shall be of
the essence for all purposes of this Agreement.
SECTION 12. EXPENSES. All fees, costs and expenses (including attorneys'
fees and expenses) incurred by either party hereto in connection with the
preparation, negotiation and execution of this Agreement, and the consummation
of the transactions contemplated hereby and thereby, shall be the sole and
exclusive responsibility of such party.
SECTION 13. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
SECTION 14. DAMAGES. In no event shall any party be liable to the other for
any incidental, consequential or punitive damages, loss or expenses arising
pursuant to this Agreement or the transactions contemplated hereby.
Additionally, except for the express representations, warranties and covenants
set forth herein, no party shall be liable to any other party for any damages,
losses or expenses resulting from the transactions contemplated hereby failing
to qualify as a "reorganization" within the meaning of Code section 368(a).
SECTION 15. JURISDICTION. Each party hereto irrevocably submits to the
non-exclusive jurisdiction of any New York State or Federal court sitting in the
city of New York over any suit, action or proceeding arising out of or relating
to this Agreement or any other documents, agreements or instruments contemplated
by or referred to herein or the transactions contemplated hereby or the
enforcement of any of the terms hereof of any such other documents, agreements
or instruments. To the fullest extent it may effectively do so under applicable
law, each party hereto irrevocably waives and agrees not to assert, by way of
motion, as a defense or otherwise, any claim that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
12
SECTION 16. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
UNDER OR OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING HERETO OR
THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of the transactions
contemplated hereby, including, and without limitation, contract claims, tort
claims, breach of duty claims, and other common law and statutory claims.
SECTION 17. EFFECTIVENESS; COUNTERPARTS. This Agreement shall become
effective upon execution and delivery of a counterpart hereto by each of the
parties hereto. This Agreement shall be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same agreement. Delivery of a
counterpart hereof by facsimile shall be effective as delivery of a manually
signed counterpart hereof.
SECTION 18. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by first-class United
States mail, delivered in person, via express courier or otherwise delivered by
commercial messenger service, or by facsimile (with confirmation of receipt),
addressed:
NOTICES FOR MOTOROLA. TO:
Motorola, Inc.
Broadband Communications Sector
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with copy (which shall not constitute notice) to:
Motorola, Inc.
Broadband Communications Sector
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
NOTICES FOR PARENT TO:
13
UnitedGlobalCom, Inc.
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
14
IN WITNESS WHEREOF, the parties to this Agreement have executed or caused
this Agreement to be executed by their duly authorized officers as of the day
and year first written above.
UNITEDGLOBALCOM, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx III
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx III
Title: Chief Financial Officer
UGC/SPCo., INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx III
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx III
Title: Vice President
MOTOROLA UPC HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President & Treasurer
MOTOROLA, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President &
Treasurer
EXHIBIT A
FORM OF AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
March 31, 2003 by and among UnitedGlobalCom, Inc., a Delaware corporation
("Parent"), UPC/SPCo., Inc., a Delaware corporation ("MergerSub") and Motorola
UPC Holdings, Inc., a Delaware corporation ("SPC").
RECITALS
WHEREAS, the board of directors of Parent deems it advisable and in the
best interests of Parent and its stockholders that Parent acquire SPC;
WHEREAS, the acquisition of SPC shall be effected through a merger (the
"Merger") of MergerSub with and into SPC in accordance with the terms of this
Agreement and the General Corporation Law of the State of Delaware (the "DGCL"),
as a result of which SPC shall become a wholly-owned subsidiary of Parent;
WHEREAS, pursuant to the Merger, each of the 1,000 issued and outstanding
shares of SPC's common stock, par value $0.01 per share, of SPC (the "SPC Common
Stock") will be converted into 879.041 shares of Class A Common Stock, par value
$.01 per share of Parent (the "Parent Common Stock");
WHEREAS, the respective boards of directors of SPC and MergerSub have
determined that the Merger is in the best interest of their respective
stockholders and have approved this Agreement and the Merger;
WHEREAS, concurrently with the execution and delivery of this Agreement,
Motorola, Inc. ("Motorola") the owner of 100% of the capital stock of SPC
entered into a Transaction Agreement (the "Transaction Agreement") with Parent
and MergerSub, providing for, among other things, certain representations made
by Motorola to Parent and MergerSub and certain registration rights relating to
the UGC Shares (as defined below) to be received by Motorola in the Merger; and
WHEREAS, for United States federal income tax purposes, the parties intend
that the Merger qualify as a "reorganization" under the provisions of section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code")and the
rules and regulations promulgated thereunder, and the parties, by executing this
Agreement and the Transaction Agreement, have hereby adopted a plan of
reorganization for United States federal income tax purposes.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants, agreements and provisions set forth herein, the parties hereto agree
as follows:
FIRST: Subject to the provisions of this Agreement, prior to the Closing,
Parent shall prepare, and on the Closing Date Parent shall cause to be filed
with the Secretary of State of the State of Delaware, a certificate of merger
(the "Certificate of Merger") in such form as is required by, and executed by
the Surviving Corporation (as defined below) in accordance with, the relevant
provisions of the DGCL and shall make all other filings or recordings required
under the DGCL. The Merger shall be consummated and shall become effective upon
the filing of the Certificate of Merger with the Secretary of State of the State
of Delaware or at such later time as is established by Parent and SPC and set
forth in the Certificate of Merger (the "Effective Time").
SECOND: At the Effective Time (i) MergerSub shall be merged with and into
SPC in accordance with the DGCL, with SPC as the surviving entity (the
"Surviving Corporation") and the separate corporate existence of MergerSub shall
cease, (ii) the Merger shall have the effects set forth in the DGCL, (iii) the
Certificate of Incorporation of the Surviving Corporation shall be amended to be
the same as the Certificate of Incorporation of the MergerSub as in effect
immediately prior to the Effective Time, until such time as it may be altered,
amended, restated or repealed in accordance with its terms and the terms of
applicable law, and (iv) the By-laws of MergerSub as in effect immediately prior
to the Effective Time shall be the By-laws of the Surviving Corporation, until
such time as it may be altered, amended, restated or repealed in accordance with
its terms, the terms of the Certificate of Incorporation of Surviving
Corporation and the terms of applicable law.
THIRD: From and after the Effective Time, the directors and officers of
MergerSub immediately prior to the Effective Time shall be the initial directors
and officers of the Surviving Corporation, each to hold office in accordance
with the Certificate of Incorporation and By-laws of the Surviving Corporation.
FOURTH: At the Effective Time, pursuant to this Agreement and by virtue of
the Merger and without any action on the part of MergerSub, SPC or the holders
of any of the following securities:
(a) Each share of the common stock of MergerSub issued and outstanding
immediately prior to the Effective Time shall be converted into and become one
fully paid and nonassessable share of common stock, $.01 par value per share, of
the Surviving Corporation.
(b) All shares of SPC Common Stock that are held in the treasury of SPC
shall be canceled and no capital stock of Parent or other consideration shall be
delivered in respect thereof.
(b) Each share of SPC Common Stock issued and outstanding immediately
prior to the Effective Time shall be converted into 879.041 shares of validly
issued, fully paid and
nonassessable shares of Parent Common Stock. All such shares of SPC Common
Stock, when so converted, shall no longer be outstanding and shall automatically
be canceled and retired and each holder of a certificate formerly representing
any such shares shall cease to have any rights with respect thereto, and each
such certificate shall, from and after the Effective Time until surrendered in
exchange for replacement certificates, for all purposes be deemed to represent
the shares of Parent Common Stock into which such SPC Common Stock was converted
in the Merger.
FIFTH: From and after the Effective Time, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations and other
assets of every kind and description of MergerSub shall be transferred to,
vested in and devolve upon the Surviving Corporation without further act or deed
and all property, rights, and every other interest of the Surviving Corporation
and MergerSub shall be the property of the Surviving Corporation to the same
extent as they were of the Surviving Corporation and MergerSub, respectively,
prior to the Merger. MergerSub and the sole stockholder of MergerSub hereby
agree from time to time, as and when requested by the Surviving Corporation or
by its successors or assigns, to execute and deliver or cause to be executed and
delivered all such deeds, stock powers, assignments and other instruments and to
take or cause to be taken such further or other actions as the Surviving
Corporation may deem to be necessary or desirable in order to vest in and
confirm to the Surviving Corporation title to and possession of any property or
assets of MergerSub acquired by reason of or as a result of the Merger and
otherwise to carry out the intent and purposes hereof, and the proper officers
and directors of MergerSub and the proper officers and directors of the
Surviving Corporation are fully authorized, in the name of MergerSub or
otherwise, to take any and all such action.
SIXTH: Prior to filing the Certificate of Merger, this Agreement shall be
approved and adopted by the sole stockholder of MergerSub and the sole
stockholder of SPC.
SEVENTH: To Parent's knowledge, neither Parent nor any of its affiliates
has taken, agreed to take, or any intention to take any action that would
prevent the Merger from qualifying as a reorganization within the meaning of
Code section 368(a). To SPC's knowledge, neither SPC, Motorola nor any of their
affiliates has taken, agreed to take, or any intention to take any action that
would prevent the Merger from qualifying as a reorganization within the meaning
of Code section 368(a). Unless otherwise required by applicable law, Parent and
SPC shall not, and each of Parent and SPC shall not permit any of their
respective affiliates to, intentionally take or cause to be taken any action
which would disqualify the Merger as a "reorganization" within the meaning of
Code section 368(a). The parties hereto hereby adopt this Agreement as a plan of
reorganization.
EIGHTH: Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated and abandoned by the Board of Directors of the
parties hereto at any time prior to the Effective Time. This Agreement may be
amended by the Board of Directors of the parties hereto at any time prior to the
Effective Time, provided that an amendment made subsequent to the adoption of
this Agreement by the sole stockholder of either MergerSub or SPC shall not (1)
alter or change the amount or kind of shares to be received in exchange for the
shares of SPC or (2) alter or change any of the
terms and conditions of the Agreement if such alteration or change would
adversely affect the holders of any of the shares of any class or series of any
of the parties hereto.
NINTH: Miscellaneous:
(a) COUNTERPARTS. This Agreement shall become effective upon execution and
delivery of a counterpart hereto by each of the parties hereto. This Agreement
shall be executed in any number of counterparts and by the different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same agreement. Delivery of a counterpart hereof by facsimile
shall be effective as delivery of a manually signed counterpart hereof.
(b) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
[signature page follows]
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the day and the year first written above.
UNITEDGLOBALCOM, INC.,
a Delaware corporation
By: /s/ Xxxxxxxxx X. Xxxxxxxxx III
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx III
Title: Chief Financial Officer
UGC/SPCo., INC.,
a Delaware corporation
By: /s/ Xxxxxxxxx X. Xxxxxxxxx III
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx III
Title: Vice President
MOTOROLA UPC HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President & Treasurer
CERTIFICATE OF MERGER
OF
UGC/SPCO., INC.
INTO
MOTOROLA UPC HOLDING, INC.
Pursuant to Section 251 of the General
Corporation Law of the State of Delaware
Motorola UPC Holding Inc., a Delaware corporation, does hereby certify:
FIRST: The names and states of incorporation of the constituent
corporations to this merger are as follows:
Motorola UPC Holding, Inc. - Delaware
UGC/SPCo., Inc. - Delaware
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: The name of the corporation surviving the merger is Motorola UPC
Holding, Inc., which name shall herewith be changed to UGC/SPCo., Inc.
FOURTH: The Restated Certificate of Incorporation of the surviving
corporation, as amended pursuant to the merger, shall be as set forth in Exhibit
A attached hereto.
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is c/o UnitedGlobalCom,
Inc., 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000. A copy of
the Agreement and Plan of Merger will be provided, upon request and without
cost, to any stockholder of either constituent corporation.
IN WITNESS WHEREOF, Motorola UPC Holding Inc. has caused this Certificate
of Merger to be executed in its corporate name this __ day of April, 2003.
Motorola UPC Holding Inc.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President & Treasurer
Exhibit C
Registration Statement Agreements
Parent agrees:
(i) to use its reasonable best efforts to cause: (1) the Shelf
Registration Statement and any amendment thereto and any prospectus forming part
thereof and any amendment or supplement thereto (and each report or other
document incorporated therein by reference) to comply in all material respects
with the Securities Act and the Exchange Act and the respective rules and
regulations thereunder, and (2) the Shelf Registration not to contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(ii) if requested by Motorola, to confirm in writing that (1) the Shelf
Registration had been made effective, (2) the Shelf Registration Statement and
any amendment thereto and any prospectus forming part thereof and any amendment
or supplement thereto (and each report or other document incorporated therein by
reference) complies in all material respects with the Securities Act and the
Exchange Act and the respective rules and regulations thereunder, and (3) the
Shelf Registration does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading;
(iii) to furnish to Motorola such number of copies of a prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of the UGC
Shares;
(iv) to use its reasonable best efforts to register and qualify the
securities covered by the Shelf Registration Statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by Motorola, provided that Parent shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions;
(v) to notify Motorola at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in the Shelf Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing;
(vi) to advise Motorola and, if requested by Motorola, confirm such advice
in writing, (1) of any request by the SEC for amendments or supplements to the
registration statement or the prospectus included therein or for additional
information, (2) the issuance by the SEC of any stop order suspending
effectiveness of the registration statement or the initiation of any proceedings
for that purpose and (3) the receipt by Parent of any notification with respect
to
the suspension of the qualification of the securities included therein for sale
in any jurisdiction or the initiation or threat of initiation of any proceeding
for such purpose; and
(vii) to indemnify and hold Motorola and its respective agents, directors
and officers and each other person, if any, who controls any of the foregoing
harmless against any and all losses, claims, damages or liabilities to which
they or any of them may become subject under the Securities Act or any other
statute or common law or otherwise, and to reimburse them, from time to time
upon request, for any legal or other expenses reasonably incurred by them in
connection with investigating any claims and defending any actions, insofar as
any such losses, claims, damages, liabilities or actions shall arise out of or
shall be based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or any amendment thereto)
relating to the sale of such shares of UGC Shares, including all documents
incorporated therein by reference, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus (as
amended or supplemented if Parent shall have filed with the SEC any amendment
thereof or supplement thereto), if used prior to the effective date of such
registration statement or contained in the prospectus (as amended or
supplemented if Parent shall have filed with the SEC any amendment thereof or
supplement thereto), if used within the period during which Parent shall be
required to keep the registration statement to which such prospectus relates
current pursuant to the terms of this Agreement, or the omission or alleged
omission to state therein (if so used) a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that the indemnification agreement
contained in this Section 6(a) shall not apply to such losses, claims, damages,
liabilities or actions which shall arise out of or shall be based upon any such
untrue statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission shall have been (x) made in reliance
upon and in conformity with information furnished in writing to Parent by
Motorola specifically for use in connection with the preparation of the
registration statement or any preliminary prospectus or prospectus contained in
the registration statement or any such amendment thereof or supplement thereto,
or (y) made in any preliminary prospectus, and the prospectus shall have
corrected such statement or omission and a copy of such prospectus shall have
been delivered to Motorola prior to the time such prospectus is required to be
delivered by Motorola or the underwriter under applicable law; PROVIDED, FURTHER
that such indemnification agreement shall not apply to amounts paid in
settlement of any such losses, claims, damages, liabilities or actions if such
settlement is effected without the consent of Parent.
Motorola agrees indemnify and hold Parent and its respective agents,
directors and officers and each other person, if any, who controls any of the
foregoing harmless against any and all losses, claims, damages or liabilities to
which they or any of them may become subject under the Securities Act or any
other statute or common law or otherwise, and to reimburse them, from time to
time upon request, for any legal or other expenses reasonably incurred by them
in connection with investigating any claims and defending any actions, insofar
as any such losses, claims, damages, liabilities or actions shall arise out of
or shall be based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or any amendment thereto)
relating to the sale of such shares of UGC Shares, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus (as amended or supplemented if Parent
shall have filed with the SEC any amendment thereof or supplement thereto), if
used prior to the effective date of such registration statement or contained in
the prospectus (as amended or supplemented if Parent shall have filed with the
SEC any amendment thereof or supplement thereto), if used within the period
during which Parent shall be required to keep the registration statement to
which such prospectus relates current pursuant to the terms of this Agreement,
or the omission or alleged omission to state therein (if so used) a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that the indemnification agreement contained in this section shall apply only to
the extent that such untrue statement, alleged untrue statement, omission or
alleged omission occurs in reliance upon and in conformity with written
information furnished by Motorola expressly for use in connection with such
Shelf Registration Statement; PROVIDED, FURTHER that such indemnification
agreement shall not apply to amounts paid in settlement of any such losses,
claims, damages, liabilities or actions if such settlement is effected without
the consent of Motorola. Notwithstanding anything to the contrary contained
herein, in no event shall the liability of Motorola under this paragraph exceed
the net proceeds received by Motorola from the sale of the UGC Shares pursuant
to the Shelf Registration Statement.
