[EXECUTION VERSION]
AGREEMENT
This Agreement dated April 7, 2008, is by and among the persons and
entities listed on Schedule A (collectively, the "Icahn Group", and individually
a "member" of the Icahn Group) and Motorola, Inc. (the "Company"). In
consideration of and reliance upon the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Board Nomination. The Company agrees to:
(a) add Xxxxx X. Xxxxxxx (the "Designee"), to the Board of Directors of
Motorola (the "Board") simultaneously with the execution of this Agreement;
(b) include the Designee and Xxxxxxx X. Xxxxxxxxx (such individual together
with the Designee, the "Icahn Designees") in its slate of nominees for election
as directors of the Company at the Company's 2008 annual meeting of stockholders
(the "2008 Annual Meeting"); and
(c) use its reasonable best efforts to cause the election of the Icahn
Designees to the Company's board of directors (the "Board") at the 2008 Annual
Meeting (including without limitation recommending that the Company's
stockholders vote in favor of the election of the Icahn Designees and otherwise
supporting him for election in a manner no less rigorous and favorable than the
manner in which the Company supports its other nominees in the aggregate).
2. Role in the Separation.
(a) So long as any of the Icahn Designees is a member of the Board, the
Company will:
(i) appoint the Icahn Designees to any committee of the Board designated
to oversee the Company's announced plan to separate the Company's
mobile devices business and the Company's broadband and mobility
solutions business (the "Separation"), and use its reasonable best
efforts to include the Designee in any material deliberations of any
other committee of the Board with respect to the Separation; and
(ii) seek the input of the Icahn Designees and Xxxx Xxxxx regarding all
significant matters (and all matters that Mr. Icahn reasonably
believes are significant matters and indicates such to the Board) in
connection with the Separation, including without limitation (A) with
respect to the search for and selection of a new Chief Executive
Officer of the new company that includes or will include the Company's
mobile devices business following the Separation ("Newco") by
permitting the Designee and Xxxx Xxxxx to interact directly with the
search firm retained by the Company and otherwise provide input in the
selection process, and (B) the establishment of the Board of Directors
of Newco (the "Newco Board") and the governance of Newco by
considering suggestions as to nominees for, and the composition of,
the Newco Board and other governance matters.
(b) If immediately prior to the time of the Separation, the Icahn Group
beneficially owns at least 90% of the shares of Motorola common stock that it
beneficially owns today, the Company will cause Newco to (and will cause Newco
to enter into a written contract with the Icahn Group (as part of and at the
time of the Separation in form and substance acceptable to the Icahn Group)
under which Newco agrees to): (w) elect out of Section 203 of the Delaware
General Corporation Law in its articles of incorporation or other formation
documents of Newco; (x) provide in its articles of incorporation or other
formation documents, that it will not have a staggered board or a shareholder
rights plan (also known as a poison pill), in each case unless approved in
advance of its adoption by the holders of a majority of the outstanding shares
of Newco following the Separation (except that Newco may adopt a shareholder
rights plan without advance shareholder approval if an Acquisition Proposal (as
defined below) has been made, but only if such shareholder rights plan will
expire and terminate by its express terms within 135 days after its adoption
unless it is approved prior to the end of the 135th day following its adoption
by the holders of a majority of the outstanding shares of Newco following the
Separation); (y) not include in its bylaws, articles of incorporation or other
formation documents of Newco, any restriction (including any percentage,
numerical or other limitation) on the ability of any person to purchase shares
of Newco or to fully vote such shares; and (z) be a corporation organized in the
State of Delaware. In addition, the Company represents and warrants that it is
the current intention of the Company that, subject to the Board's exercise of
its fiduciary duties, at the time of the Separation: (i) Newco would not have
any takeover-related provisions in a form not supported by recognized proxy
advisory firms (it being understood and agreed that in no event will Newco have
any of the takeover-related provisions set forth in (w), (x) or (y) above, all
of which are strictly prohibited, except, in the case of clause (x), as
expressly permitted therein), and (ii) Newco would be independent of the
Company, with independent directors and no direct or indirect ownership by the
Company of the debt or equity interests in Newco. For the purposes of this
Agreement, an "Acquisition Proposal" shall mean (i) the commencement of a tender
offer to acquire common stock of Newco, or (ii) the delivery of a "bear hug"
letter to Newco.
3. Proxy Contest and Other Matters. So long as any of the Icahn Designees is a
member of the Board, if the Company is not in breach of the terms of this
Agreement (except as set forth in Section 3(d) below):
(a) No member of the Icahn Group or any Affiliate or Associate (as such
terms are hereinafter defined) of any such members (such Affiliates and
Associates, collectively and individually, the "Icahn Affiliates") shall (i)
solicit proxies or engage in a proxy contest with respect to the election of
directors or any other proposal to be considered at the 2008 Annual Meeting or
present any other proposal for consideration at the 2008 Annual Meeting, or (ii)
encourage any other person to solicit proxies or engage in a proxy contest with
respect to the election of directors or any other proposal to be considered at
the 2008 Annual Meeting or present any other proposal for consideration at the
2008 Annual Meeting. In furtherance of the foregoing, Icahn Partners LP, Icahn
Partners Master Fund LP and High River Limited Partnership hereby withdraw their
letter dated January 31, 2008 providing notice to the Company of their intention
to nominate certain individuals for election as directors of the Company at the
2008 Annual Meeting (the "Stockholder Nomination") (provided that such letter
shall be deemed to be reinstated and effective as of January 31, 2008 if the
Company is in breach of the terms of this Agreement) and the Icahn Group and
Icahn Affiliates shall immediately cease all efforts, direct or indirect, in
furtherance of the Stockholder Nomination and any related solicitation, (but may
continue to support and encourage stockholders to elect the Icahn Designees,
subject to the other terms of this Agreement) and shall not vote, deliver or
otherwise use any proxies heretofore obtained in connection with the Stockholder
Nomination. For purposes of this Agreement: the terms "Affiliate" and
"Associate" shall have the respective meanings set forth in Rule 12b-2
promulgated by the Securities and Exchange Commission (the "SEC") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the terms
"person" or "persons" shall mean any individual, corporation (including
not-for-profit), general or limited partnership, limited liability or unlimited
liability company, joint venture, estate, trust, association, organization or
other entity of any kind or nature.
(b) No member of the Icahn Group nor any Icahn Affiliate shall:
(i) solicit proxies or written consents of stockholders, or conduct any
other type of referendum (binding or non-binding) with respect to, or
from the holders of, the common stock, par value $3.00 per share, of
the Company (the "Common Stock"), or make, or in any way participate
in (other than by voting its shares of Common Stock in a way that does
not violate this Agreement), any "solicitation" of any proxy, consent
or other authority to vote any shares of Common Stock with respect to
any matter, or become a participant in any contested solicitation with
respect to the Company, including without limitation relating to the
removal or the election of directors;
(ii) form or join in a partnership, limited partnership, syndicate or other
group, including without limitation a group as defined under Section
13(d) of the Exchange Act, with respect to the Common Stock, or
otherwise support or participate in any effort by a third party with
respect to the matters set forth in (i), or deposit any shares of
Common Stock in a voting trust or subject any shares of Common Stock
to any voting agreement, other than solely with other members of the
Icahn Group or other Icahn Affiliates with respect to the shares of
Common Stock now or hereafter owned by them or pursuant to this
Agreement; or
(iii) make, or cause to be made, any statement or announcement that
constitutes an ad hominem attack on the Company, its officers or its
directors: (A) in any document or report filed with or furnished to
the SEC or any other governmental agency, (B) in any press release or
other publicly available format, or (C) to any journalist or member of
the media (including without limitation, in a television, radio,
newspaper or magazine interview), it being understood that this
Section 3(b) will not restrict objective statements that reflect Mr.
Icahn's view, as a business matter, with respect to factual matters
concerning the Company, its officers or its directors (it being
further understood that this exception for objective statements does
not permit the actual request or receipt of a form of proxy or written
consent). For example, a statement that the Separation is not
proceeding as quickly as Mr. Icahn believes to be appropriate, and
that such failure could be harmful to the Separation process, would
not violate this Section 3(b).
(c) Icahn Partners LP, Icahn Partners Master Fund LP and High River Limited
Partnership also hereby withdraw their letter dated March 13, 2008 to the
Company requesting certain books and records of the Company and shall cease and
withdraw without prejudice all litigation in connection with such request, and
no member of the Icahn Group nor any Icahn Affiliate shall make any further such
requests or reinstitute or pursue any such litigation during any period in which
any of the Icahn Designees is a member of the Board.
(d) Each member of the Icahn Group shall cause all shares of Common Stock
beneficially owned, directly or indirectly, by it, or by any Icahn Affiliate, as
of the record date for the 2008 Annual Meeting, to be present for quorum
purposes and to be voted, at the 2008 Annual Meeting or at any adjournments or
postponements thereof, in favor of the directors nominated by the Board for
election at the 2008 Annual Meeting (including the Icahn Designees).
4. Public Announcement and SEC Filing. (a) The Company shall announce this
Agreement and the material terms hereof by means of a press release in the form
attached hereto as Exhibit A as soon as practicable on or after the date hereof.
(b) The Icahn Group shall promptly file an amendment to the Schedule 13D
regarding the Common Stock filed with the SEC on February 6, 2008, and as
amended on March 5, 2008 and March 27, 2008, reporting the entry into this
Agreement and amending applicable items to conform to its obligations hereunder.
5. Confidentiality Agreement. The Company hereby agrees that notwithstanding any
policy of the Company, the Icahn Designees are permitted to and may provide
confidential information in accordance with the terms of the confidentiality
agreement in the form attached hereto as Exhibit B (the "Confidentiality
Agreement").
6. Discussions with the Board. The Company acknowledges that Xxxx Xxxxx has had
and desires to continue to have conversations with members of the Board. The
Company and the Board will not take any actions to limit such dialogue or
restrict members of the Board from speaking to Mr. Icahn if they are willing to
do so.
7. Miscellaneous. The parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement exclusively in the Court of Chancery
or other federal or state courts of the State of Delaware, in addition to any
other remedy to which they are entitled at law or in equity. Furthermore, each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of the Court of Chancery or other federal or state courts of the State of
Delaware in the event any dispute arises out of this Agreement or the
transactions contemplated by this Agreement, (b) agrees that it shall not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees that it shall not bring any action
relating to this Agreement or the transactions contemplated by this Agreement in
any court other than the Court of Chancery or other federal or state courts of
the State of Delaware, and each of the parties irrevocably waives the right to
trial by jury, (d) agrees to waive any bonding requirement under any applicable
law, in the case any other party seeks to enforce the terms by way of equitable
relief and (e) each of the parties irrevocably consents to service of process by
a reputable overnight mail delivery service, signature requested, to the address
of such parties' principal place of business or as otherwise provided by
applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING
WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE
OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN
SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.
8. Entire Agreement. This Agreement and the Confidentiality Agreement contain
the entire understanding of the parties with respect to the subject matter
hereof and may be amended only by an agreement in writing executed by the
parties hereto.
9. Notices. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be in writing and shall be deemed validly given, made or served, if (a) given by
telecopy and email, when such telecopy and email is transmitted to the telecopy
number set forth below and sent to the email address set forth below and the
appropriate confirmation is received or (b) if given by any other means, when
actually received during normal business hours at the address specified in this
subsection:
if to the Company: Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to: Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to the Icahn Group: c/o Icahn Associates Corp.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx (xxxxxxxx@xxxxxxxx.xxx)
Xxxxx Xxxxxxxxx (xxx@xxxxx.xxx)
Facsimile: (000) 000-0000
10. Severability. If at any time subsequent to the date hereof, any provision of
this Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon the legality or enforceability of any other provision of this Agreement.
11. Counterparts. This Agreement may be executed in two or more counterparts
which together shall constitute a single agreement.
12. Cure Right. In the event of any breach by any member of the Icahn Group of
any provision of Section 3 of this Agreement, the Company, upon obtaining
knowledge thereof, shall promptly notify the Icahn Group of any such breach
providing reasonable factual detail describing such breach (the "Notice of
Breach"). If within three (3) business days following the date of receipt of any
such Notice of Breach, all of the Icahn Designees resign from the Board of the
Company or if the Company fails to provide the applicable Notice of Breach, then
Company shall not be entitled to pursue, xxx or otherwise enforce its rights
under this Agreement in connection with any such breach or alleged breach.
13. No Third Party Beneficiaries. This Agreement is solely for the benefit of
the parties hereto and the Icahn Designees and is not enforceable by any other
persons.
14. Interpretation and Construction. Each of the parties hereto acknowledges
that it has been represented by counsel of its choice throughout all
negotiations that have preceded the execution of this Agreement, and that it has
executed the same with the advice of said independent counsel. Each party and
its counsel cooperated and participated in the drafting and preparation of this
Agreement and the documents referred to herein, and any and all drafts relating
thereto exchanged among the parties shall be deemed the work product of all of
the parties and may not be construed against any party by reason of its drafting
or preparation. Accordingly, any rule of law or any legal decision that would
require interpretation of any ambiguities in this Agreement against any party
that drafted or prepared it is of no application and is hereby expressly waived
by each of the parties hereto, and any controversy over interpretations of this
Agreement shall be decided without regards to events of drafting or preparation.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or caused the same to be executed by its duly authorized representative as of
the date first above written.
MOTOROLA, INC.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------
Name: Xxxxxx X. XxXxxxxx
Title: Senior Vice President
Icahn Partners LP
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
Icahn Partners Master Fund LP
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
High River Limited Partnership
By: Xxxxxx Investments LLC, its general partner
By: Barberry Corp., its sole member
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
/s/ Xxxx X. Icahn
-----------------
Xxxx X. Icahn
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
[Signature Page to Settlement Agreement]
EXHIBIT A
---------
PRESS RELEASE Source: Motorola, Inc.
MOTOROLA AND XXXX XXXXX REACH AGREEMENT
MOTOROLA BOARD TO NOMINATE XXXXXXX XXXXXXXXX AND XXXXX XXXXXXX
SCHAUMBURG, Ill. and NEW YORK, April 7, 2008 /PRNewswire-FirstCall/ -- Motorola,
Inc. (NYSE: MOT - News) and Xxxx Xxxxx today announced that they have reached an
agreement under which Xxxxxxx X. Xxxxxxxxx, founder, chairman and chief
executive officer of XX Xxxxxxxxx + Co. and co-founder of Xxxxxxxxx & Xxxxx, and
Xxxxx Xxxxxxx, a managing director of the Icahn investment funds and principal
executive officer of Icahn Enterprises, will be nominated for election to
Motorola's Board of Directors at the 2008 Annual Meeting of Shareholders and
included in the Company's 2008 proxy statement. In addition, Xx. Xxxxxxx has
been appointed to serve on the Board, effective immediately.
In connection with the nomination of Messrs. Xxxxxxxxx and Xxxxxxx, the Icahn
Group, which beneficially owns, in the aggregate 144,562,000 shares of Motorola
common stock, representing approximately 6.4% of Motorola's outstanding shares,
has agreed not to solicit proxies in connection with the 2008 Annual Meeting and
to vote its shares in support of all of the Board's director nominees.
As part of the settlement agreement, all pending litigation between Motorola and
Xxxx Xxxxx will be dismissed. In addition, Motorola has agreed to seek input
from Mr. Icahn in connection with significant matters regarding the intended
separation of the Mobile Devices business, including the search for a new CEO to
head the Mobile Devices business. In addition Messrs. Xxxxxxxxx and Xxxxxxx may
communicate with Mr. Icahn, subject to certain confidentiality restrictions,
regarding Board activities of Motorola, including with respect to the intended
separation of the company into two independent businesses.
"We are pleased to have reached this agreement with Xxxx Xxxxx," said Xxxx
Xxxxx, president and chief executive officer. "We look forward to continuing the
process we announced on March 26 to create two independent publicly-traded
companies and we are pleased to avoid a costly and distracting proxy contest."
"This is a very positive step for Motorola in that shareholder representatives
will have strong input into board decisions affecting the future of our
company," said Xxxx Xxxxx. Mr. Icahn further noted, "In addition, the Motorola
Board has also taken an important step forward for corporate governance in that
the separated company which includes Mobile Devices will be essentially free
from poison pills and staggered boards, both of which, in my opinion, serve to
make democracy a travesty in corporate America."
Xxxxxxx X. Xxxxxxxxx, 72, has been Founder, Chairman and Chief Executive Officer
of XX Xxxxxxxxx + Co, a financial services firm, since December 1997. Xx.
Xxxxxxxxx co-founded Xxxxxxxxx & Xxxxx in 1968, from which he resigned in
December 1997 to form XX Xxxxxxxxx + Co. Xx. Xxxxxxxxx currently serves on the
Board of Trustees for The American University of Beirut and is on the Advisory
Investment Committee to the Board of Regents of the University of California. He
also serves on the Advisory Council to The J. Xxxxx Xxxxxxxxx Institutes. In
October 2006, Xx. Xxxxxxxxx was inducted to the American Academy of Arts and
Sciences. Xx. Xxxxxxxxx graduated from Princeton University.
Xxxxx Xxxxxxx, 34, since August 2003, has served as Vice Chairman of the Board
of Icahn Enterprises G.P. Inc., the general partner of Icahn Enterprises L.P.
(NYSE: IEP - News), a diversified holding company engaged in a variety of
businesses, including investment management, metals, real estate and home
fashion. From August 2003 through March 2006, Xx. Xxxxxxx also served as Chief
Executive Officer of Icahn Enterprises G.P. Inc., and since March 2006, Xx.
Xxxxxxx has served as Principal Executive Officer of Icahn Enterprises G.P. Inc.
Since November 2004, Xx. Xxxxxxx has been a Managing Director of Icahn Capital
LP, the entity through which Xxxx X. Icahn manages third party private
investment funds. Since June 2002, Xx. Xxxxxxx has served as senior investment
analyst of High River Limited Partnership, an entity primarily engaged in the
business of holding and investing in securities. Xx. Xxxxxxx also serves on the
boards of directors of the following companies: XO Holdings, Inc., WCI
Communities, Inc., and Federal-Mogul Corporation. With respect to each company
mentioned above, Mr. Icahn, directly or indirectly, either (i) controls such
company or (ii) has an interest in such company through the ownership of
securities. Xx. Xxxxxxx received an A.B. in government, cum laude, from Harvard
College in 1995.
About Motorola
Motorola is known around the world for innovation in communications. The Company
develops technologies, products and services that make mobile experiences
possible. The Company's portfolio includes communications infrastructure,
enterprise mobility solutions, digital set-tops, cable modems, mobile devices
and Bluetooth accessories. Motorola is committed to delivering next-generation
communication solutions to people, businesses and governments. A Fortune 100
company with global presence and impact, Motorola had sales of US $36.6 billion
in 2007. For more information about our company, our people and our innovations,
please visit xxxx://xxx.xxxxxxxx.xxx.
Business Risks
This press release contains "forward-looking statements" as that term is defined
in the Private Securities Litigation Reform Act of 1995. Such forward-looking
statements include, but are not limited to statements about: the separation of
the Company into two independent publicly-traded companies, the nature and
impact of such a separation and other possible actions related to the Company's
businesses. Motorola cautions the reader that the risk factors below, as well as
those on pages 18 through 27 in Item 1A of Motorola's 2007 Annual Report on Form
10-K and in its other filings with the Securities and Exchange Commission (SEC),
could cause Motorola's actual results to differ materially from those estimated
or predicted in the forward-looking statements. Factors that may impact
forward-looking statements include, but are not limited to: market conditions in
general and those applicable to possible alternatives for the businesses, and
tax and regulatory matters. Motorola undertakes no obligation to publicly update
any forward-looking statement or risk factor, whether as a result of new
information, future events or otherwise.
Additional Information and Where to Find It
In connection with the solicitation of proxies, Motorola has filed with the SEC
a preliminary proxy statement and will file a definitive proxy statement and
other relevant documents concerning the proposals to be presented at the 2008
Annual Meeting of Stockholders. THE PROXY STATEMENT CONTAINS IMPORTANT
INFORMATION ABOUT MOTOROLA AND THE 2008 ANNUAL MEETING OF STOCKHOLDERS. When
filed, the definitive proxy statement will be available free of charge at the
SEC's web site at xxxx://xxx.xxx.xxx or from Motorola at
xxxx://xxx.xxxxxxxx.xxx. The contents of the websites referenced herein are not
deemed to be incorporated by reference into the proxy statement.
Motorola and its directors and executive officers may be deemed to be
participants in the solicitation of proxies in connection with the 2008 Annual
Meeting of Stockholders. Information regarding Motorola directors and executive
officers will be included in the proxy statement.
EXHIBIT B
---------
MOTOROLA, INC.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
April 7, 2008
To: Each of the Persons Listed on Schedule A Hereto (the "Icahn Group")
Ladies and Gentlemen:
This letter agreement shall become effective upon the appointment or
election of Xxxxx X. Xxxxxxx (the "Designee") to the Board of Directors (the
"Board") of Motorola, Inc. (the "Company"). The Company understands and agrees
that, subject to the terms of, and in accordance with, this letter agreement,
each of the Icahn Designees (as defined in the Agreement dated the date hereof
between the Company, Xxxx Xxxxx, Icahn Partners LP, Icahn Partners Master Fund
LP and High River Limited Partnership) may, if and to the extent he desires to
do so, disclose information he obtains while a member of the Board to the
Representatives (as hereinafter defined) and may discuss such information with
any and all such persons. As a result, you may receive certain non-public
information regarding the Company. You acknowledge that this information is
proprietary to the Company and may include trade secrets or other business
information the disclosure of which could harm the Company. In consideration
for, and as a condition of, non-public information being furnished to you (and,
subject to the restrictions in paragraph 2, your agents, representatives,
attorneys, advisors, directors, officers and employees, collectively,
"Representatives"), you agree to treat any and all information concerning the
Company that is furnished to you or your Representatives (regardless of the
manner in which it is furnished, including without limitation in written or
electronic format or orally, gathered by visual inspection or otherwise) by any
Icahn Designee, or by or on behalf of the Company, together with any notes,
analyses, compilations, studies, interpretations, documents or records
containing, referring, relating to, based upon or derived from such information,
in whole or in part (collectively, "Evaluation Material"), in accordance with
the provisions of this letter agreement, and to take or abstain from taking the
other actions hereinafter set forth.
1. The term "Evaluation Material" does not include information that (i) is
or has become generally available to the public other than as a result of a
direct or indirect disclosure by you or your Representatives in violation of
this letter agreement, (ii) was within your or any of your Representatives'
possession prior to its being furnished to you by an Icahn Designee, or by or on
behalf of the Company or (iii) is received from a source other than an Icahn
Designee, the Company or any of its representatives; provided, that in the case
of each of (ii) and (iii) above, the source of such information was not believed
by you, after inquiring of the disclosing person, to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company with respect to such information at
the time the same was disclosed.
2. You hereby agree that you and your Representatives will (a) keep the
Evaluation Material strictly confidential and (b) not disclose any of the
Evaluation Material in any manner whatsoever without the prior written consent
of the Company; provided, however, that you may disclose any of such information
to your Representatives (i) who need to know such information for the sole
purpose of advising you and (ii) who are informed by you of the confidential
nature of such information; provided, further, that you will be responsible for
any violation of this letter agreement by your Representatives as if they were
parties hereto except that you will not be so responsible with respect to any
such Representative who has executed a copy of this letter agreement as an
Additional Signatory and delivered such signed copy to the Company. It is
understood and agreed that the Icahn Designees shall not disclose to you or your
Representatives any Legal Advice (as defined below) that may be included in the
Evaluation Material with respect to which such disclosure would constitute
waiver of the Company's attorney client privilege; provided, however, that the
Icahn Designees may provide such disclosure if reputable outside legal counsel
provides the Company with a written opinion that such disclosure will not waive
the Company's attorney client privilege with respect to such Legal Advice.
"Legal Advice" as used herein shall be solely and exclusively limited to the
advice provided by legal counsel stating legal rights, duties, liabilities and
defenses and shall not include factual information or the formulation or
analysis of business strategy.
3. In the event that you or any of your Representatives are required by
applicable subpoena, legal process or other legal requirement to disclose any of
the Evaluation Material, you will promptly notify (except where such notice
would be legally prohibited) the Company in writing by facsimile and certified
mail so that the Company may seek a protective order or other appropriate
remedy. Nothing herein shall be deemed to prevent you or your Representatives,
as the case may be, from honoring a subpoena, legal process or other legal
requirement that seek or require discovery, disclosure or production of the
Evaluation Material if (a) you produce or disclose only that portion of the
Evaluation Material which your outside legal counsel advises you is legally
required to be so produced or disclosed; or (b) the Company consents in writing
to having the Evaluation Material produced or disclosed pursuant to the
subpoena, legal process or other legal requirement. In no event will you or any
of your Representatives oppose action by the Company to obtain a protective
order or other relief to prevent the disclosure of the Evaluation Material or to
obtain reliable assurance that confidential treatment will be afforded the
Evaluation Material. It is understood that there shall be no "legal requirement"
requiring you to disclose any Evaluation Material solely by virtue of the fact
that, absent such disclosure, you would be prohibited from purchasing, selling,
or engaging in derivative transactions with respect to, the Common Stock of the
Company or otherwise proposing or making an offer to do any of the foregoing.
Before filing any document with the SEC or other governmental or regulatory body
in which you intend to include Evaluation Material that you believe is legally
required to be included in such a filing, you will submit such filing to the
Company for review and will not include such Evaluation Material in such filing
if the Company provides you (not more than one business day following your
delivery of such filing to the Company), with a written opinion addressed to you
of reputable outside legal counsel experienced in the area, stating that the
Evaluation Material is not legally required to be included in such filing and
stating that you may rely upon such opinion.
4. You acknowledge that (a) none of the Company or any of its
representatives makes any representation or warranty, express or implied, as to
the accuracy or completeness of the Evaluation Material, and (b) none of the
Company or any of its representatives shall have any liability to you or to any
of your Representatives relating to or resulting from the use of the Evaluation
Material or any errors therein or omissions therefrom. You and your
Representatives shall not directly or indirectly initiate contact or
communication with any executive or employee of the Company other than Xxxxxxx
Xxxxx or Xxxxxx XxXxxxxx concerning Evaluation Material, or to seek any
information in connection therewith from any such person other than Xxxxxxx
Xxxxx or Xxxxxx XxXxxxxx, without the prior consent of the Company.
5. All Evaluation Material shall remain the property of the Company.
Neither you nor any of your Representatives shall by virtue of our disclosure of
and/or your use of any Evaluation Material acquire any rights with respect
thereto, all of which rights (including all intellectual property rights) shall
remain exclusively with the Company.
6. You acknowledge that the Evaluation Material may constitute material
non-public information under applicable federal and state securities laws, and
that you shall not trade or engage in any derivative transaction, on the basis
of such information in violation of such laws.
7. You hereby represent and warrant to the Company that this letter
agreement has been duly authorized, executed and delivered by you, and is a
valid and binding obligation, enforceable against you in accordance with its
terms.
8. It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder.
9. You acknowledge that the value of the Evaluation Material to the Company
is unique and substantial, but may be impractical or difficult to assess in
monetary terms. In the event of an actual or threatened violation of this letter
agreement, in addition to any and all other remedies which may be available to
the Company, you expressly consent to the Company's seeking the enforcement of
this letter agreement by injunctive relief or specific performance, without
proof of actual damages.
10. Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of the Court of Chancery or other federal or state courts
of the State of Delaware in the event any dispute arises out of this letter
agreement or the transactions contemplated by this letter agreement, (b) agrees
that it shall not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (c) agrees that it shall not
bring any action relating to this letter agreement or the transactions
contemplated by this letter agreement in any court other than the Court of
Chancery or other federal or state courts of the State of Delaware, and each of
the parties irrevocably waives the right to trial by jury, and (d) each of the
parties irrevocably consents to service of process by a reputable overnight
delivery service, signature requested, to the address of such parties' principal
place of business or as otherwise provided by applicable law. THIS LETTER
AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION
AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS
EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.
11. This letter agreement contain the entire understanding of the parties
with respect to the subject matter hereof and thereof and may be amended only by
an agreement in writing executed by the parties hereto.
12. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be in writing and shall be deemed validly given, made or served, if (a) given by
telecopy and email, when such telecopy is transmitted to the telecopy number set
forth below and sent to the email address set forth below and the appropriate
confirmation is received or (b) if given by any other means, when actually
received during normal business hours at the address specified in this
subsection:
if to the Company: MOTOROLA, INC.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to: Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to the Icahn Group: c/o Icahn Associates Corp.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Yevegeny Fundler (xxxxxxxx@xxxxx.xxx)
Xxxxx Xxxxxxxxx (xxx@xxxxx.xxx)
Facsimile: (000) 000-0000
13. If at any time subsequent to the date hereof, any provision of this
letter agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon the legality or enforceability of any other provision of this letter
agreement.
14. This letter agreement may be executed in two or more counterparts which
together shall constitute a single agreement.
15. This letter agreement and the rights and obligations herein may not be
assigned or otherwise transferred, in whole or in part, by you without the
express written consent of the Company.
16. This letter agreement shall expire two years from the date on which the
Designee ceases to be a director of the Company.
Please confirm your agreement with the foregoing by signing and returning one
copy of this letter to the undersigned, whereupon this letter agreement shall
become a binding agreement between you and the Company.
Very truly yours,
MOTOROLA, INC.
By: ______________________
Name:
Title:
[Signature Page to the Confidentiality Agreement between
Motorola and Icahn Group]
Accepted and agreed as of the date first written above:
Icahn Partners LP
By: _____________________
Name:
Title:
Icahn Partners Master Fund LP
By: _____________________
Name:
Title:
High River Limited Partnership
By: Xxxxxx Investments LLC, its general partner
By: Barberry Corp., its sole member
By: _____________________
Name:
Title:
----------------------
Xxxx X. Icahn
----------------------
Xxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxxxx
----------------------
Additional Signatory
[Signature Page to the Confidentiality Agreement between
Motorola and Icahn Group]
SCHEDULE A
----------
Icahn Partners LP
Icahn Partners Master Fund LP
High River Limited Partnership
Xxxx X. Icahn
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxxx
Exhibit B-1
SCHEDULE A
----------
Icahn Partners LP
Icahn Partners Master Fund LP
High River Limited Partnership
Xxxx X. Icahn
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxxx
Schedule A-1
