LINEO, INC.
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (this "AGREEMENT") is made and entered into
as of _______________ 2000 by and between Lineo, Inc., a Delaware corporation
(the "COMPANY"), Caldera Systems, Inc., a Delaware corporation ("CALDERA") The
Canopy Group, a Utah corporation ("CANOPY"), Xxxxx Xxxxxx, an individual
("SPARKS"), Dry Canyon Holding Company, LLC, a Utah limited liability company
("DRY CANYON"), and Metrowerks Holdings, Inc., a Delaware corporation
("METROWERKS"). Caldera, Canopy, Sparks and Dry Canyon are sometimes
collectively referred to herein as the "STOCKHOLDERS," and each individually as
a "STOCKHOLDER."
RECITALS
A In connection with the issuance of that certain Common Stock Warrant
of even date herewith (the "Warrant") pursuant to the terms of the Warrant
Purchase Agreement of even date herewith (the "Warrant Purchase Agreement") by
and between the Company and Metrowerks, and that certain Stock Purchase
Agreement of even date herewith (the "Stock Purchase Agreement") by and among
Metrowerks, Canopy, and Caldera, the parties wish to make certain arrangements
in connection with the sale of all of the shares of common stock of the Company
currently owned by Sparks, Dry Canyon, Caldera and Canopy (collectively, the
"STOCK").
B. The Company and Metrowerks also wish to enter into an arrangement
whereby Metrowerks has the ability to negotiate with the Company with respect to
a Major Transaction, as defined below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties agree as follows:
SECTION 1
RIGHT OF FIRST OPPORTUNITY
1.1 GENERAL. Subject to the terms and conditions specified in this
Section 1, each Stockholder hereby grants to Metrowerks a right of first
opportunity with respect to future sales by any Stockholder of such
Stockholder's shares of the Stock.
1.2 STOCKHOLDER OFFERING. Each time a Stockholder proposes to offer for
sale any of the Stock, such Stockholder shall first make an offering of such
Stock to Metrowerks in accordance with the provisions of this Section 1;
thereafter Metrowerks may exercise its right of first opportunity in accordance
with the procedures set forth below.
1.3 NOTICE OF SALES BY STOCKHOLDER. If any Stockholder proposes to sell
or transfer any Stock, then such Stockholder shall promptly give written notice
(the "NOTICE") to Metrowerks. The Notice shall describe in reasonable detail the
proposed sale or transfer including, without limitation, the number of shares to
be sold or transferred, the nature of such
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sale or transfer, the consideration to be paid, and the name and address of each
prospective purchaser or transferee.
1.4 METROWERKS' RIGHT TO PURCHASE. Within forty-five (45) calendar days
after receiving the Notice, Metrowerks may elect to purchase or obtain, at the
price and on the terms specified in the Notice, all of the shares proposed to be
sold as described in the Notice; provided, however, that if any Notice is
delivered after the effective date of the Company's first firmly underwritten
public offering of its securities (the "Initial Public Offering"), and such
Notice describes a sale or transfer exclusively on the public market (a "Public
Sale"), Metrowerks must make such election within twenty-four (24) hours of
receipt of the Notice; provided, further, that any such Public Sale must (i) be
a "brokers' transaction" as defined in Rule 144(g) of the Securities Act of
1933, as amended (the "Securities Act"), and (ii) not result in the transfer of
greater than 15% of such Stockholder's Stock to any single entity or group of
affiliated entities; and copies of all filings with the Securities Exchange
Commission in connection with any Public Sale must be furnished to Metrowerks in
advance of any such sale. Notwithstanding anything herein to the contrary, in
the event of a Public Sale by any Stockholder in connection with the Company's
registration of securities pursuant to Section 5.2 of that certain Investor
Rights Agreement dated as of February 17, 2000, by and among the Company and the
parties thereto, as amended (the "Investor Rights Agreement", and such sale, the
"Piggyback Sale"), Metrowerks must make such election within 20 days after
receipt of the written notice from the Company provided for in Section
5.2(a)(ii) of the Investor Right Agreement.
1.5 UNPURCHASED SHARES. If all of the shares of Stock referred to in
the Notice are not elected to be purchased as provided in Section 1.4, the
Stockholder may, in the case of a sale other than a Public Sale or a Piggyback
Sale, during the 60-day period following the expiration of the period provided
in Section 1.4 offer such unpurchased Stock to any person or persons at a price
not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If either (i) in the case of a sale other than a Public
Sale or a Piggyback Sale, the Stockholder does not enter into an agreement for
the sale of the Stock within such period, or if such agreement is not
consummated within 30 days of the execution thereof, (ii) in the case of a
Public Sale, if the sale is not consummated within the 7-day period following
the expiration of the period provided in Section 1.4, or (iii) in the case of a
Piggyback Sale, if the sale is not consummated within the 7-day period following
the effective date of the registration statement filed by the Company pursuant
to Section 5.2 of the Investor Rights Agreement, the right provided hereunder
shall be deemed to be revived and such Stock shall not be offered unless first
reoffered to Metrowerks in accordance herewith. Notwithstanding anything herein
to the contrary, the amount of time in which such Stockholder must consummate a
sale of Stock before Metrowerks' rights hereunder are revived will be tolled to
allow such Stockholder to comply with any federal or state securities,
antitrust, or other similar laws, rules or regulations; provided, however, that
no such tolling will apply to the extent that any delay is the result of or is
caused by the actions of the Stockholder or the third party to whom such
Stockholder intends to sell the Stock.
1.6 VOID TRANSFERS. Notwithstanding the foregoing, any attempt by a
Stockholder to transfer Stock in violation of Section 1 hereof, shall be void
and the Company agrees it will not effect such a void transfer nor will it treat
any alleged transferee as the holder of such shares without the written consent
of Metrowerks.
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SECTION 2
CHANGE IN CONTROL TRANSACTION
2.1 The Company shall not enter into an agreement with any third party
providing for (i) any transaction, including, without limitation, a merger,
consolidation, or sale of securities (whether outstanding prior to the
transaction or issued in such transaction), pursuant to which the stockholders
of the Company immediately prior to the effective date of such transaction(s)
would have beneficial ownership of less than fifty percent (50%) of the total
combined voting power for the election of directors of the surviving corporation
immediately following such transaction, or (ii) the sale of all or substantially
all of the assets of the Company ((i) and (ii), each a "Major Transaction"),
other than as expressly provided in this Section 2.
2.2 In the event that the Board of Directors of the Company desires to
make or accept a bona fide offer to be acquired (a "Proposal") by a third party
(the "Acquiror") by means of a Major Transaction, the Company shall provide a
written offer to Metrowerks (the "Major Transaction Notice"), either (i) in the
event that the Board of Directors receives a Proposal (a "Third Party
Proposal"), within two (2) business days of the decision by the Board of
Directors to either (A) accept, subject to the Company's obligations to
Metrowerks as set forth in Section 2.4 below, such Third Party Proposal, or (B)
begin an auction process (a "Company Auction") for the sale of the Company, or
(ii) where the Board of Directors has decided to initiate a Proposal (a "Company
Proposal"), subject to the provisions of Section 2.3 below, at any time prior to
such delivery to any third party, whereby, (A) in the case of a Company
Proposal, subject to the provisions of Section 2.3 below, Metrowerks may acquire
the same interest in the Company or its assets, as the case may be, on terms and
conditions, including price, not less favorable to Metrowerks than those
contained in the Company Proposal, or (B) in the case of a Third Party Proposal
or a Company Auction, Metrowerks shall have the right to submit an offer to the
Company, as set forth in Section 2.4 below. The Major Transaction Notice shall
include the following information: (i) the identity of the Acquiror (if known)
and (ii) the specific terms of the Third Party Proposal, the Company Proposal,
or the Company Auction, as the case may be. Further, the Company shall provide a
true and complete copy of the Third Party Proposal or the Company Proposal, as
the case may be, if in writing, or a written summary of the material terms
thereof if such Third Party Proposal or Company Proposal, as the case may be, is
not in writing, as well as access to (and copies of, if requested) all documents
containing nonpublic information of the Company that are or have been supplied
to the Acquiror.
2.3 In the case of a Company Proposal, Metrowerks shall have twenty
(20) business days (which time period may be extended by mutual written
agreement) following its receipt of the Major Transaction Notice in which to
provide written notice to the Company of its willingness to enter into a Major
Transaction on such terms and conditions, including price, as set forth in the
Major Transaction Notice (the "Acceptance"); provided, however, that at any time
prior to the submission of the Company Proposal to Metrowerks and/or acceptance
by Metrowerks of such Company Proposal, the Board of Directors of the Company
may, in its sole discretion, determine that it is in the best interest of the
Company and the Company's stockholders to initiate a Company Auction for the
purchase and sale of the Company, and that failure to do so would constitute a
breach of the fiduciary duties of the Board of Directors, in which case, the
Company shall have the right to submit such Company Proposal to, and/or solicit
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Third Party Proposals from, third parties in addition to Metrowerks.
Notwithstanding anything to the contrary in this Section 2.3, in no event shall
any third party receive a Company Proposal or be solicited for a Third Party
Proposal at any time prior to Metrowerks' receipt of the Major Transaction
Notice pursuant to Section 2.2 above. Metrowerks shall continue to have the
right to receive notice of any Third Party Proposals received as a result of a
Company Auction, and to participate in the Company Auction, as set forth in
Section 2.4 below.
2.4 In the case of a Third Party Proposal or a Company Auction,
Metrowerks shall have twenty (20) business days (which time period may be
extended by mutual written agreement) following its receipt of the Major
Transaction Notice in which to provide written notice to the Company (the
"Metrowerks Offer") of the price, terms and conditions upon which Metrowerks
would be willing to acquire the Company by means of a Major Transaction. The
Company shall then have five (5) business days (which time period may be
extended by mutual written agreement) following its receipt of the Metrowerks
Offer in which to provide either (i) written notice to Metrowerks of its
acceptance (the "Notice of Acceptance") or rejection (the "Notice of Rejection")
of the Metrowerks Offer, or (ii) a true and complete copy of any amended Third
Party Proposal (the "Acquiror Counter-Offer"). Metrowerks shall have five (5)
business days following its receipt of any Acquiror Counter-Offer or the Notice
of Rejection in which to deliver to the Company a written amendment to the
Metrowerks Offer (such amendment shall be considered a Metrowerks Offer for all
purposes under this Section 2). Notwithstanding anything herein to the contrary,
the Company shall not be obligated to accept any Metrowerks Offer; provided,
however, that the Company cannot enter into any Major Transaction pursuant to a
Third Party Proposal or an Acquiror Counter-Offer on economic terms, including
price, that are less favorable to the Company, when taken as a whole, than the
terms set forth in any Metrowerks Offer.
2.5 In the event that:
(a) Metrowerks does not deliver the Acceptance or the
Metrowerks Offer, as the case may be, to the Company within twenty (20) business
days (or other mutually agreed upon time period, as set forth above), after its
receipt of the Major Transaction Notice;
(b) Metrowerks does not deliver a Metrowerks Offer to the
Company within five (5) business days (or other mutually agreed upon time
period, as set forth above), after its receipt of any Acquiror Counter-Offer; or
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(c) Within sixty (60) days (or other mutually agreed upon time
period) following the date of Metrowerks' delivery of the Acceptance or the
Company's delivery of the Notice of Acceptance, Metrowerks and the Company have
not signed a definitive agreement to complete the Major Transaction described in
the Major Transaction Notice or the Metrowerks Offer, as the case may be
(provided that each of the parties thereto acted in good faith in negotiating
such agreement),
then, (i) in the case of a Company Proposal, within 90 days of the date of
delivery of such Company Proposal, or (ii) in the case of a Third Party
Proposal, the greater of (A) 90 days after the Company's receipt of the Third
Party Proposal, and (B) 30 days after the date of delivery of the last
Metrowerks Offer, the Company may consummate a Major Transaction with the
Acquiror, on economic terms, including price, that are no less favorable to the
Company, when taken as a whole, than the most favorable terms set forth in any
Metrowerks Offer, or if more favorable to the Company, the Major Transaction
Notice. In the event that the Company and the Acquiror do not consummate such
Major Transaction within such 90 or 30 day period, as the case may be, then the
Proposal shall be deemed to lapse and any agreement to consummate a Major
Transaction shall be deemed to be in violation of this Section 2 unless
Metrowerks is once again afforded the right of first refusal provided for in
this Section 2 with respect to such Company Proposal or Third Party Proposal, as
the case may be.
2.6 The Company agrees to act in good faith in all respects concerning
the carrying out of the intent of this Section 2 and shall use its best efforts
to ensure that its employees, stockholders, directors and other agents abide by
the intent of this Section 2 and do not take any action inconsistent with this
Section 2.
2.7 FIDUCIARY OBLIGATIONS. Fiduciary Obligations. Notwithstanding any
of the foregoing provisions, nothing contained in this Agreement shall prevent
the Company from taking any action with respect to a potential Major Transaction
which, after consultation with outside counsel, the Board of Directors of the
Company determines is necessary to prevent a breach of its fiduciary duties or
other legal obligations.
SECTION 3
EXEMPT TRANSFERS
3.1 STOCKHOLDERS' RIGHTS. Notwithstanding the foregoing, the rights of
Metrowerks under Section 1 shall not apply to (i) any pledge of Stock made
pursuant to a BONA FIDE loan transaction that creates a mere security interest,
(ii) any transfer to the ancestors, descendants or spouse of Stockholder or to
trusts for the benefit of such persons pursuant to legitimate estate planning
practices; or (iii) any other BONA FIDE gift or donation to a charitable or
religious organization that is an "exempt organization" within the meaning of
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (a
"Charitable Organization"); provided that (A) Stockholder shall inform
Metrowerks of such pledge, transfer, gift or donation prior to effecting it and
(B) the pledgee, transferee or donee shall furnish Metrowerks with a written
agreement to be bound by and comply with all provisions of this Agreement. Such
transferred Stock shall remain "STOCK" hereunder, and such pledgee, transferee
or donee shall be treated as a "STOCKHOLDER" for purposes of this Agreement.
Notwithstanding anything herein to the contrary,
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the rights of Metrowerks under Section 1 shall not apply to any transfer or
series of transfers of up to an aggregate of 750,000 shares of Stock by Sparks
in one or more transactions to any one or more Charitable Organizations.
SECTION 4
LEGEND
4.1 LEGEND. Each certificate representing shares of Stock now or
hereafter owned by the Stockholders or issued to any person in connection with a
transfer pursuant to Section 3.1 hereof shall be endorsed with the following
legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN STOCKHOLDER AGREEMENT BY AND BETWEEN
THE STOCKHOLDER, THE CORPORATION AND CERTAIN HOLDERS OF STOCK
OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION."
4.2 REMOVAL. Each Stockholder agrees that the Company may instruct its
transfer agent to impose transfer restrictions on the shares represented by
certificates bearing the legend referred to in Section 4.1 above to enforce the
provisions of this Agreement and the Company agrees to promptly do so. The
legend shall be removed upon termination of this Agreement.
SECTION 5
MISCELLANEOUS
5.1 GOVERNING LAW. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware, without regard to conflicts of laws
principles.
5.2 AMENDMENT. Any provision may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only by the written consent of each of the
parties to this Agreement, or their lawful assigns, if applicable; provided,
however, that any amendment which does not adversely effect the rights of a
Stockholder may be approved by the Company, Metrowerks, and the Stockholders who
hold, in the aggregate, a majority of the Stock.
5.3 ASSIGNMENT OF RIGHTS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto;
PROVIDED, HOWEVER, that the rights of Metrowerks hereunder are only assignable
with the written consent of the Company and the Stockholder.
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5.4 TERM. Except for Section 1, the provisions of this Agreement shall
terminate upon the closing of a Change in Control Transaction.
5.5 OWNERSHIP. Each Stockholder represents and warrants that it is the
sole legal and beneficial owner of the shares of Stock subject to this Agreement
and that no other person has any interest (other than a community property
interest) in such shares.
5.6 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given (i) upon personal delivery to the
party to be notified, (ii) five days after deposit in the United States mail, by
registered or certified mail, postage prepaid and properly addressed to the
party to be notified as set forth on the signature page hereof or at such other
address as such party may designate, or (iii) when transmitted if transmitted by
telecopy (to be followed by U.S. mail), electronic or digital transmission
method. In each case notice shall be sent to the addresses set forth on the
signature page.
5.7 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
5.8 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.9 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
5.10 DISPUTE RESOLUTION. In the event that after the date hereof, there
is any dispute between any of the Company, Metrowerks and any Stockholder, then
the following procedure shall be followed:
(a) Upon the occurrence of such a dispute either the Company,
such Stockholder(s) or Metrowerks may by written notice (the "Initial Notice")
to the other parties call for the consideration of such dispute by the Company
and such Stockholder(s), on the one hand, and the general manager of the
Metrowerks Division of Motorola's Semiconductor Products Sector ("SPS"), or such
person's successor (such persons, the "Transaction Committee"). The Transaction
Committee shall meet to discuss, review and attempt to resolve the dispute. The
Transaction Committee may be assisted by other advisors, including accountants,
attorneys, and employees, in its discussions and review.
(b) If the Transaction Committee is unable to reach an
agreement under clause (a) above within thirty (30) days of the Initial Notice,
then each of the Company, Metrowerks and such Stockholder(s) shall call for a
higher level resolution discussion, pursuant to which Metrowerks shall designate
in writing by notice to the Company and such Stockholder(s) within ten (10) days
after the expiration of such thirty (30) day period a higher level management
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employee which shall be the President of SPS, or an equivalent position, as the
case may be, (a "High Level Management Employee") to discuss and attempt to
resolve the dispute. Such High Level Management Employee may be assisted by
other advisors, including accountants, attorneys, and employees, in his or her
discussions and negotiations with the other party. The Company, such
Stockholder(s) and Metrowerks agree to negotiate in good faith with one another
for an additional period ending sixty (60) days after the date of the Initial
Notice.
(i) In the event the dispute remains unresolved after the
passage of sixty (60) days after the date of the Initial Notice, then
such parties may attempt to settle any claim or controversy arising out
of it through consultation and negotiation in good faith and a spirit
of mutual cooperation. If those attempts fail, then the dispute will be
mediated by a mutually-acceptable mediator to be chosen by Metrowerks,
the Company and such Stockholder(s) (the "Mediator"). Neither the
Company, Metrowerks nor such Stockholder(s) may unreasonably withhold
consent to the selection of a mediator, and the Company, Metrowerks and
such Stockholder(s) will share the costs of the mediation equally.
(c) Any dispute which the Company, Metrowerks and the
Stockholder(s) cannot resolve through negotiation or mediation within ninety
(90) days of the date of the initial demand for it by any of the Company,
Metrowerks or such Stockholder(s) may then be submitted to the courts within the
State of Delaware for resolution. The use of any procedures under this Section
5.10 will not be construed under the doctrines of laches, waiver or estoppel to
affect adversely the rights of either party, and nothing in this paragraph will
prevent either the Company, the Stockholder(s) or Metrowerks from resorting to
judicial proceedings if (a) good faith efforts to resolve the dispute under
these procedures have been unsuccessful or (b) interim relief from a court is
necessary to prevent serious and irreparable injury to one party or to others.
5.11 INDEMNIFICATION. Each Stockholder and the Company agrees,
severally and not jointly, from and after the date of this Agreement until the
first anniversary hereof, to indemnify and hold harmless Metrowerks and
Metrowerks' general partners, if any (collectively, the "Indemnitees"), against
any investigations, proceedings, claims or actions and for any expenses,
damages, liabilities or losses (joint or several) arising out of such
investigations, proceedings, claims or actions that arise out of or are based
upon any breach of any representation, warranty, agreement or covenant of the
Company and the Stockholders contained herein; provided, however, that such
indemnification shall be limited to the amounts paid by Metrowerks to such
Stockholder or the Company pursuant to (i) in the case of Canopy and Caldera,
the Stock Purchase Agreement, and (ii) in the case of the Company and Sparks,
the Warrant Purchase Agreement and the Warrant (including all sums, if any, paid
upon exercise of the Warrant). Upon written request, each Stockholder and the
Company agrees to reimburse the Indemnitee for any legal or other expenses
reasonably incurred in connection with investigating or defending any such
investigations, proceedings, claims or actions, as such expenses or other costs
are incurred. The Indemnitee may select their own counsel.
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5.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including counterparts transmitted by telecopier or telefax, each
of which may be executed by less than all of the Stockholders, each of which
shall be enforceable against the parties actually executing such counterparts,
and all of which together shall constitute one and the same instrument.
(This space intentionally left blank.)
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IN WITNESS WHEREOF, the parties have executed this Stockholder
Agreement on the day and year first set forth above.
THE COMPANY:
LINEO, INC.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Address: Lineo, Inc.
000 X. 000 X.
Xxxxxx, Xxxx 00000
Attn: President
THE STOCKHOLDERS:
CALDERA SYSTEMS, INC.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Address: Caldera Systems, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Attn: President
THE CANOPY GROUP, INC.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Address: The Canopy Group, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Attn: Xxxxx Xxxxx
_____________________________________________
Xxxxx Xxxxxx
Address: ____________________________________
____________________________________
____________________________________
Attn: _____________________
DRY CANYON HOLDINGS, LLC.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Address: Dry Canyon Holdings, LLC.
000 Xxxxx 000 Xxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
METROWERKS:
METROWERKS HOLDINGS, INC.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Address: Metrowerks Holdings, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attn: President
with a copy to:
Motorola, Inc.
Law Department
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
