<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 8, 1994
REGISTRATION NO. 33-56343
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT NO. 33-56343
UNDER
THE SECURITIES ACT OF 1933
-------------------
MOTOROLA, INC.
(Exact name of registrant as specified in its charter)
-------------------
<TABLE>
<S> <C> <C>
DELAWARE 36-1115800
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1303 EAST ALGONQUIN ROAD
SCHAUMBURG, ILLINOIS 60196
(708) 576-5000
</TABLE>
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
-------------------
CARL F. KOENEMANN
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
1303 EAST ALGONQUIN ROAD
SCHAUMBURG, ILLINOIS 60196
(708) 576-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
<TABLE>
<S> <C>
JAMES K. MARKEY RICARDO A. MESTRES, JR.
Senior Corporate Counsel Sullivan & Cromwell
1303 East Algonquin Road 125 Broad Street
Schaumburg, Illinois 60196 New York, New York 10004
(708) 576-9564 (212) 558-4000
</TABLE>
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as possible after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. / /
-------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two forms of prospectus: one to be used
in connection with a United States public offering of shares (the "U.S.
Prospectus") and one to be used in a concurrent international offering outside
of the United States (the "International Prospectus"). The U.S. Prospectus and
the International Prospectus are identical except that (i) they each contain
different front and back cover pages and inside cover pages and different
descriptions of the plan of distribution (contained under the caption
"Underwriting" in the U.S. Prospectus and International Prospectus) and (ii) the
U.S. Prospectus does not contain an additional section under the caption
"Certain U.S. Federal Tax Consequences to Non-U.S. Shareholders". The form of
U.S. Prospectus is included herein and is followed by those pages to be used in
the International Prospectus which differ from, or are in addition to, those in
the U.S. Prospectus. Each of the alternate pages for the International
Prospectus is separately labeled.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 7, 1994
18,000,000 SHARES
[[LOGO] MOTOROLA]
COMMON STOCK
($3 PAR VALUE)
-------------------
Of the 18,000,000 shares of Common Stock offered, 14,400,000 shares are
being offered hereby in the United States and 3,600,000 shares are being offered
in a concurrent international offering outside the United States. The initial
public offering price and the aggregate underwriting discount per share will be
identical for both offerings. See "Underwriting".
Of the 18,000,000 shares of Common Stock offered, 17,100,000 shares are
being sold by the Company and 900,000 shares are being sold by the Selling
Stockholder. See "Selling Stockholder". The Company will not receive any of the
proceeds from the sale of the shares being sold by the Selling Stockholder.
The Common Stock is listed domestically on the New York Stock Exchange and
the Chicago Stock Exchange. The last reported sale price of the Common Stock on
the New York Stock Exchange -- Composite Transactions on November 4, 1994 was
$58.50 per share. See "Price Range of Common Stock and Dividends".
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO PROCEEDS TO SELLING
OFFERING PRICE DISCOUNT (1) COMPANY (2) STOCKHOLDER (2)
--------------------- --------------------- --------------------- ---------------------
<S> <C> <C> <C> <C>
Per Share................. $ $ $ $
Total (3)(4).............. $ $ $ $
<FN>
- ---------
(1) The Company and the Selling Stockholder have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933.
(2) Before deducting estimated expenses of $675,000 payable by the Company and
$35,000 payable by the Selling Stockholder.
(3) The Underwriters have agreed to purchase up to an additional 100,000 shares
at the initial public offering price per share, less the underwriting
discount, at the option of the Selling Stockholder. See "Underwriting". If
such option is exercised in full, the total initial public offering price,
underwriting discount and proceeds to Selling Stockholder will be $ ,
$ and $ , respectively.
(4) The Company has granted the U.S. Underwriters an option for 30 days to
purchase up to an additional 2,160,000 shares at the initial public
offering price per share, less the underwriting discount, solely to cover
over-allotments. Additionally, an over-allotment option on 540,000 shares
has been granted by the Company as part of the International Offering. If
such options are exercised in full, the total initial public offering
price, underwriting discount and proceeds to Company will be $ ,
$ and $ , respectively. See "Underwriting".
</TABLE>
-------------------
The shares offered hereby are offered severally by the U.S. Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject any order in whole or in part. It is expected that certificates
for the shares will be ready for delivery in New York, New York, on or about
November , 1994.
GOLDMAN, SACHS & CO. MERRILL LYNCH & CO.
------------
The date of this Prospectus is November , 1994.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT
A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, THE CHICAGO STOCK
EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
Motorola, Inc. (the "Company") is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at 13th Floor, Seven World Trade Center, New York, NY 10048 and
500 West Madison Street, Chicago, IL 60661. Copies of such material can be
obtained by mail from the Public Reference Branch of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, reports,
proxy statements and other information concerning the Company may be inspected
at the offices of the New York Stock Exchange, 20 Broad Street, New York, NY
10005 and the Chicago Stock Exchange, 440 South LaSalle Street, Chicago, IL
60605.
Additional information regarding the Company and the Common Stock is
contained in the registration statement on Form S-3 (together with all exhibits
and amendments, the "Registration Statement") filed with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
does not contain all of the information in the Registration Statement, certain
parts of which are omitted under the Commission's rules. For further information
pertaining to the Company and the offering, reference is made to the
Registration Statement which may be inspected without charge at the Commission's
office at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies thereof may
be obtained from the Commission at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-7221) are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, as amended by a Form 10-K/A dated October 21, 1994;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
April 2, 1994, July 2, 1994 and October 1, 1994;
3. The Company's Current Report on Form 8-K dated August 5, 1994;
4. The description of the Common Stock included in the Registration
Statement on Form 8-B dated July 2, 1973, including any amendment or report
filed to update such description;
5. The description of the Company's Preferred Share Purchase Rights
included in the Registration Statement on Form 8-A dated November 15, 1988,
as amended by Forms 8 dated August 9, 1990 and December 2, 1992 and by Form
8-A/A dated February 28, 1994; and
6. All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents incorporated herein by reference (other than
exhibits, unless such exhibits are specifically incorporated by reference in
such documents). Written requests for such copies should be directed to Richard
H. Weise, Secretary, Motorola, Inc., 1303 East Algonquin Road, Schaumburg, IL
60196; telephone: (708) 576-5000.
2
<PAGE>
THE COMPANY
Motorola, Inc. is a corporation organized under the laws of the State of
Delaware as the successor to an Illinois corporation organized in 1928. As used
herein, "Motorola" or the "Company" refers to Motorola, Inc. and its
subsidiaries, unless otherwise indicated by the context. Motorola's principal
executive offices are located at 1303 East Algonquin Road, Schaumburg, Illinois
60196; telephone number: (708) 576-5000.
Motorola, one of the world's leading providers of electronic equipment,
systems, components and services for worldwide markets, is engaged in the
design, manufacture and sale, principally under the Motorola brand, of a
diversified line of such products. These products include two-way land mobile
communications systems, paging and wireless data systems and other forms of
electronic communication systems; cellular mobile and portable telephones and
systems; semiconductors, including integrated circuits, discrete devices and
microprocessor units; information systems products such as modems, multiplexers
and network processors; electronic equipment for military and aerospace use;
electronic engine controls and other automotive and industrial electronic
equipment; and multifunction computer systems for distributed data processing
and office automation applications. Motorola also provides services for paging,
cellular telephone and shared mobile radio. "Motorola" is a registered trademark
of Motorola, Inc.
SEMICONDUCTOR PRODUCTS
The semiconductor products manufactured by the Semiconductor Products Sector
include integrated circuit devices (metal-oxide semiconductor and bipolar) such
as dynamic and static random access memories, microcontrollers, microprocessors,
microcomputers, gate arrays, standard cells, digital signal processors, mixed
signal arrays and other logic and analog components. In addition, the
Semiconductor Products Sector manufactures a wide variety of discrete devices
including zener and tuning diodes, radio frequency devices, power and small
signal transistors, field effect transistors, microwave devices,
optoelectronics, rectifiers and thyristors.
GENERAL SYSTEMS PRODUCTS
General systems products are designed, manufactured and sold by the General
Systems Sector which includes the Cellular Subscriber Group, the Cellular
Infrastructure Group, the Network Ventures Division, Personal Communications
Systems and the Motorola Computer Group. The Cellular Subscriber and
Infrastructure Groups manufacture, sell, install and service cellular
infrastructure and radiotelephone equipment. In addition, the Cellular
Subscriber Group resells cellular line service in the U.S., New Zealand,
Germany, France and U.K. markets. The Network Ventures Division is a joint
venture partner in cellular and telepoint operating systems in Argentina,
Uruguay, Hong Kong, Israel, Chile, Mexico, Thailand, Pakistan, Dominican
Republic, Japan, Nicaragua and other countries. The Motorola Computer Group
develops, manufactures, sells and services multifunction computer systems and
board level products, together with operating systems and system enablers.
COMMUNICATIONS PRODUCTS
As a principal supplier of mobile and portable FM two-way radio and radio
paging and wireless data systems, the Land Mobile Products Sector and the
Messaging, Information and Media Sector provide equipment and systems to meet
the communications needs of individuals and many different types of business,
institutional and governmental organizations. Products of the Land Mobile
Products Sector and certain products of the Messaging, Information and Media
Sector provide voice and data communication between vehicles, persons and base
stations. The Messaging, Information and Media Sector products provide signaling
or signaling and one-way voice communications or wireless data communications to
people away from their homes, vehicles or offices.
Information systems products are also designed, manufactured and sold by the
Messaging, Information and Media Sector. These products include high-speed
leased-line, dial and data communications modems; digital transmission devices,
DDS service units, ISDN terminal adaptors, multiplexers; network management and
control systems; X.25 networking equipment; and local area network
interconnection products.
3
<PAGE>
GOVERNMENT AND SYSTEMS TECHNOLOGY PRODUCTS
The Government and Systems Technology Group's products include aerospace
telecommunications systems, military communications equipment, radar systems,
data links, display systems, positioning and navigation systems, instrumentation
products, countermeasures systems, missile guidance equipment, electronic
ordinance devices, drone electronic systems and secure telecommunication and
commercial test equipment products. Under an agreement between Motorola, Inc.
and Iridium, Inc., the Government and Systems Technology Group is also designing
and constructing the satellite network and ground control segment of the
Iridium-R- space system.
AUTOMOTIVE, ENERGY AND CONTROLS PRODUCTS
The products manufactured by the Automotive, Energy and Controls Group
include automotive and industrial electronics, energy storage products and
systems, and ceramic and quartz electronic components, as well as electronic
ballasts for fluorescent lighting and radio frequency identification devices.
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The principal market for the Company's Common Stock is the New York Stock
Exchange. The Common Stock is also listed on the Chicago Stock Exchange, the
International (London) Stock Exchange and the Tokyo Stock Exchange. The table
below sets forth the high and low closing sale prices per share for the
Company's Common Stock as reported on the New York Stock Exchange--Composite
Transactions and the dividends paid for the periods indicated, in each case
reflecting the two 2 for 1 stock splits in the forms of 100% stock dividends
distributed in April, 1994 and January, 1993.
<TABLE>
<CAPTION>
COMMON STOCK
PRICES
----------------- DIVIDENDS
HIGH LOW PAID
------ ------ ---------
<S> <C> <C> <C>
1992:
First Quarter............................ $ 20.41 $ 16.22 $ 0.0475
Second Quarter........................... 20.66 18.55 0.0475
Third Quarter............................ 22.61 18.96 0.0475
Fourth Quarter........................... 26.36 21.29 0.0475
1993:
First Quarter............................ $ 33.56 $ 24.31 $ 0.055
Second Quarter........................... 44.31 31.63 0.055
Third Quarter............................ 52.56 41.25 0.055
Fourth Quarter........................... 53.75 42.38 0.055
1994:
First Quarter............................ $ 54.83 $ 43.25 $ 0.055
Second Quarter........................... 54.00 42.13 0.07
Third Quarter............................ 55.75 43.38 0.07
Fourth Quarter (through November 4,
1994)................................... 60.50 49.00 0.07
</TABLE>
For a recent price of the Company's Common Stock on the New York Stock
Exchange--Composite Transactions, see the cover page of this Prospectus.
The Board of Directors has declared a quarterly dividend of $.10 per share
payable on January 16, 1995 to stockholders of record on December 15, 1994. The
declaration and payment of future dividends will be subject to the Company's
capital requirements, earnings, financial condition and such other factors as
the Board of Directors may deem relevant.
- ---------
- -R- -- Registered Trademark and Servicemark of Iridium, Inc.
4
<PAGE>
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the Common
Stock sold by the Company will be used to reduce short-term indebtedness and for
general corporate purposes. See "Capitalization". On November 2, 1994, the
Company and its consolidated subsidiaries had outstanding approximately $1.7
billion of commercial paper, with an average maturity of approximately 17.5 days
and bearing an average interest rate of approximately 4.97% per annum.
The Company will not receive any proceeds from the sale of Common Stock by
the Selling Stockholder.
CAPITALIZATION
The following table sets forth the consolidated short-term debt and
capitalization of the Company as of October 1, 1994, and as adjusted to give
effect to the sale of the Common Stock offered by the Company hereunder (based
on an assumed initial public offering price of $58.50 per share, and after
deducting underwriting discounts and estimated offering expenses and assuming
that the Underwriters' over-allotment options are not exercised) and the
anticipated application of the net proceeds from such sale. From time to time,
the Company may issue additional debt or equity securities. The following
information should be read in conjunction with the Company's consolidated
financial statements, including the notes thereto, which are incorporated herein
by reference. See "Incorporation of Certain Documents by Reference".
<TABLE>
<CAPTION>
OCTOBER 1, 1994
----------------------------
ACTUAL AS ADJUSTED (1)
------- ----------------
(IN MILLIONS OF DOLLARS)
<S> <C> <C>
SHORT-TERM DEBT
Commercial paper............................. $ 1,630 $ 658
Notes payable and other short-term debt...... 197 197
Current portion of long-term debt............ 73 73
------- -------
Total short-term debt...................... $ 1,900 $ 928
------- -------
------- -------
LONG-TERM DEBT (2)
Senior notes and debentures.................. $ 800 $ 800
Other senior debt............................ 27 27
LYONs due 2009 and 2013...................... 394 394
Less current portion of long-term debt....... (73) (73)
------- -------
Total long-term debt....................... 1,148 1,148
------- -------
STOCKHOLDERS' EQUITY (3)
Common stock................................. 1,708 1,759
Preferred stock (none issued)................ -- --
Additional paid-in capital................... 411 1,332
Retained earnings............................ 5,496 5,496
------- -------
Total stockholders' equity................. 7,615 8,587
------- -------
Total capitalization................... $ 8,763 $ 9,735
------- -------
------- -------
<FN>
- ---------
(1) Does not include up to 2,700,000 shares subject to the Underwriters'
over-allotment options or the proceeds from the sale thereof. See
"Underwriting".
(2) See Notes 3 and 4 of the Notes to Consolidated Financial Statements for
December 31, 1993, incorporated herein by reference, for additional
information on long-term debt.
(3) See the Consolidated Financial Statements for December 31, 1993,
incorporated herein by reference, and Notes 5, 8 and 9 thereto and the
Company's Quarterly Report on Form 10-Q for the quarter ended October 1,
1994, for additional information on stockholders' equity.
</TABLE>
5
<PAGE>
SELECTED FINANCIAL INFORMATION
The following is a summary of certain financial information of the Company
and its consolidated subsidiaries and is qualified in its entirety by, and
should be read in conjunction with, the consolidated financial statements,
including the notes thereto, management's discussion and analysis and the
auditors' report incorporated into this Prospectus by reference to the Company's
Annual Report on Form 10-K for the year ended December 31, 1993, as amended, and
the financial statements, notes thereto and management's discussion and analysis
incorporated into this Prospectus by reference to the Company's Quarterly Report
on Form 10-Q for the quarter ended October 1, 1994. This information (except for
the the primary and fully diluted net earnings per share and the average shares
and equivalent shares outstanding--primary and fully diluted) has been derived
from consolidated financial statements of the Company which, except for the
information for the nine months ended October 1, 1994 and October 2, 1993,
respectively, have been audited and reported upon by KPMG Peat Marwick LLP,
independent certified public accountants. In the opinion of management, all
adjustments (which consist of reclassifications, restatements and normal
recurring adjustments) necessary to present fairly the information for the
interim periods have been made.
<TABLE>
<CAPTION>
YEARS ENDED
NINE MONTHS ENDED ----------------------------------------------
------------------------
OCTOBER 1, OCTOBER 2, DECEMBER 31,
1994 1993 1993 1992 1991 1990 1989
----------- ----------- ------- ------- ------- ------- ------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS
Net sales.......................................... $ 15,792 $ 11,970 $16,963 $13,303 $11,341 $10,885 $9,620
Manufacturing and other costs of sales............. 9,826 7,327 10,351 8,395 7,134 6,787 5,877
Selling, general and administrative expenses....... 3,166 2,676 3,776 2,951 2,579 2,509 2,317
Depreciation expense............................... 1,051 841 1,170 1,000 886 790 650
Interest expense, net.............................. 116 108 141 157 129 133 130
Total costs and other expenses................... 14,159 10,952 15,438 12,503 10,728 10,219 8,974
Earnings before income taxes and cumulative effect
of change in accounting principle................. 1,633 1,018 1,525 800 613 666 646
Income taxes provided on earnings.................. 588 336 503 224 159 167 148
Cumulative effect of change in accounting
principle, net of tax (1)......................... 0 0 0 123 0 0 0
Net earnings....................................... 1,045 682 1,022 453 454 499 498
PER SHARE DATA (2)
Primary net earnings, after cumulative effect of
change in accounting principle.................... $ 1.79 $ 1.20 $ 1.78 $ 0.83 $ 0.85 $ 0.93 $ 0.94
Fully diluted net earnings, after cumulative effect
of change in accounting principle................. 1.79 1.20 1.78 0.83 0.84 0.93 0.94
Dividends declared................................. 0.21 0.17 0.22 0.20 0.19 0.19 0.19
BALANCE SHEET DATA
Total assets....................................... $ 16,558 $ 12,655 $13,498 $10,629 $ 9,375 $ 8,742 $7,686
Working capital.................................... 2,169 2,342 2,324 1,883 1,424 1,404 1,261
Long-term debt..................................... 1,148 1,438 1,360 1,258 954 792 755
Total debt......................................... 3,048 2,087 1,915 1,695 1,806 1,787 1,542
Total stockholders' equity......................... 7,615 6,038 6,409 5,144 4,630 4,257 3,803
OTHER DATA (2)
Average shares and equivalent shares outstanding --
primary........................................... 589.1 577.0 582.6 565.6 555.6 555.7 533.2
Average shares and equivalent shares outstanding --
fully diluted..................................... 589.7 579.1 583.7 567.1 558.5 555.7 534.9
<FN>
- ---------
(1) Adoption of SFAS No. 106.
(2) This data reflects the two 2 for 1 stock splits in the forms of 100% stock
dividends distributed in April, 1994 and January, 1993.
</TABLE>
6
<PAGE>
SELLING STOCKHOLDER
Harris Trust and Savings Bank, as Trustee for the Robert W. Galvin 1992
Grantor Retained Annuity Trust (the "Trust"), will sell 900,000 shares in the
offering. The Trustee has determined to sell such shares for estate planning
purposes. Mr. Robert W. Galvin, the settlor of the Trust, has been the Chairman
of the Executive Committee of the Board of Directors of the Company since
January 1990. Prior to the offering, the Trust held 1,036,304 shares of Common
Stock and Mr. Galvin beneficially owned 14,990,802 shares. Mr. Galvin disclaims
beneficial ownership of approximately 7,724,452 additional shares of Common
Stock, including those held by the Trust. Immediately following the offering,
without giving effect to the sale of any of the 100,000 additional shares
described below, Mr. Galvin will continue to beneficially own 14,990,802 shares,
excluding 6,824,452 additional shares (including 136,304 shares held by the
Trust) with respect to which Mr. Galvin disclaims beneficial ownership.
In addition to the 900,000 shares being sold by the Selling Stockholder in
the offering, the Selling Stockholder may, at its option, sell up to an
additional 100,000 shares in the offering also for estate planning purposes.
DESCRIPTION OF CAPITAL STOCK
The following statements with respect to the Company's capital stock are
subject to the detailed provisions of the Company's restated certificate of
incorporation, as amended (the "Certificate of Incorporation"), and bylaws, as
amended (the "Bylaws"), and to the Rights Agreement (as defined below). These
statements do not purport to be complete and are qualified in their entirety by
reference to the terms of the Certificate of Incorporation, the Bylaws and the
Rights Agreement, which are incorporated by reference as exhibits to the
Registration Statement.
COMMON AND PREFERRED STOCK
The authorized capital stock of the Company consists of 1,400,000,000 shares
of Common Stock, par value $3 per share, and 500,000 shares of Preferred Stock,
par value $100 per share, issuable in series ("Preferred Stock"). There are no
shares of Preferred Stock presently outstanding. The Board of Directors of the
Company is authorized to create and issue one or more series of Preferred Stock
and to determine the rights and preferences of each series, to the extent
permitted by the Certificate of Incorporation. The holders of shares of Common
Stock are entitled to one vote for each share held and each share of Common
Stock is entitled to participate equally in dividends out of funds legally
available therefor, as and when declared by the Board of Directors, and in the
distribution of assets in the event of liquidation. The shares of Common Stock
have no preemptive or conversion rights, redemption provisions or sinking fund
provisions. The outstanding shares of Common Stock are duly and validly issued,
fully paid and nonassessable, and any shares of Common Stock issued hereunder
will be duly and validly issued, fully paid and nonassessable.
PREFERRED SHARE PURCHASE RIGHTS
Each outstanding share of Common Stock is accompanied by one-quarter of a
preferred stock purchase right (a "Right"). Each Right entitles the registered
holder to purchase from the Company one-thousandth of a share of Junior
Participating Preferred Stock, Series A, par value $100 per share, of the
Company (the "Preferred Shares") at a price of $150 per one-thousandth of a
Preferred Share (the "Preferred Share Purchase Price"), subject to adjustment.
The terms of the Rights are set forth in the Rights Agreement, as amended,
between the Company and Harris Trust and Savings Bank as Rights Agent (the
"Rights Agreement").
The following summary of certain provisions of the Rights and the Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all of the provisions of the Rights and the Rights
Agreement, including particular provisions or defined terms of the Rights
Agreement. A copy of the Rights Agreement has been filed with the Commission as
an exhibit to a Registration Statement on Form 8-A, which, as amended by Forms 8
and a Form 8-A/A, is incorporated herein by reference. See "Incorporation of
Certain Documents by Reference".
7
<PAGE>
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") acquired, or obtained the right to acquire, beneficial ownership of 20%
or more of the outstanding shares of Common Stock and (ii) 10 days following the
commencement or announcement of a tender offer or exchange offer for 30% or more
of such outstanding shares of Common Stock (the earlier of such dates being
called the "Distribution Date"), the Rights will be evidenced, with respect to
any of the Common Stock certificates outstanding as of November 20, 1988, by
such Common Stock certificate. The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only with the shares
of Common Stock. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Stock certificates issued after November
20, 1988, upon the transfer or new issuance of shares of Common Stock (including
the shares of Common Stock issued hereunder), will contain a notation
incorporating the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption or expiration of the Rights) the surrender for transfer of
any certificate for shares of Common Stock, outstanding as of November 20, 1988,
with or without such notation or a copy of a summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with the
shares of Common Stock represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on November 20, 1998, unless earlier redeemed by the Company as described
below.
The Preferred Share Purchase Price payable, and the number of Preferred
Shares or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for Preferred Shares or convertible
securities at less than the current market price of the Preferred Shares or
(iii) upon the distribution to holders of the Preferred Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends or dividends
payable in Preferred Shares) or of subscription rights or warrants (other than
those referred to above).
In the event that the Company were acquired in a merger or other business
combination transaction or more than 50% of its assets or earning power were
sold, proper provision shall be made so that each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction (I.E., before the
dilution that would result from exercise or adjustment of the Rights) would have
a market value of two times the exercise price of the Right. In the event that
the Company were the surviving corporation in a merger or other business
combination involving an Acquiring Person and its shares of Common Stock were
not changed or exchanged, in the event that an Acquiring Person acquires
beneficial ownership of 20% or more of the outstanding shares of Common Stock,
or in the event that an Acquiring Person engages in one of a number of
self-dealing transactions specified in the Rights Agreement, proper provision
shall be made so that each holder of a Right, other than Rights that are or were
beneficially owned by the Acquiring Person on or after the earlier of the
Distribution Date or the date the Acquiring Person acquires 20% or more of the
outstanding Common Shares (which will thereafter be void), will thereafter have
the right to receive upon exercise that number of shares of Common Stock having
at the time of such transaction (I.E., before the dilution that would result
from exercise or adjustment of the Rights) a market value of two times the
exercise price of the Right. The Company's Board of Directors, after a person
becomes an Acquiring Person by acquiring 20% or more of the outstanding shares
of Common Shares, may require all holders of Rights to exchange, without any
cash payment, all outstanding and exercisable Rights (except those held by the
Acquiring Person, which shall be void) for Common Stock (or Common Stock
equivalents) at a 1 for 1
8
<PAGE>
exchange ratio. In order for the Board to determine whether to exercise this
exchange provision, the Board can suspend the exercisability of the Rights for
up to 90 days after a person becomes an Acquiring Person by acquiring 20% or
more of the outstanding Common Shares.
At any time prior to the public announcement that a person or group of
affiliated or associated persons has acquired beneficial ownership of 20% or
more of the outstanding shares of Common Stock, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of $.05 per
Right (the "Rights Redemption Price"). Immediately upon the action of the Board
of Directors ordering redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Rights Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
At any time prior to the public announcement that a person or group of
affiliated or associated persons has acquired beneficial ownership of 20% or
more of the outstanding shares of Common Stock, the Company may amend or
supplement the Rights Agreement without the approval of the Rights Agent or any
holder of the Rights, except for an amendment or supplement which would change
the Rights Redemption Price, the final expiration date of the Rights, the
Preferred Share Purchase Price or the number of one-thousandths of a Preferred
Share for which a Right is then exercisable. Thereafter, the Company may amend
or supplement the Rights Agreement without such approval in order to increase
the benefits to holders of the Rights or to create new interests in such
holders. Immediately upon the action of the Board of Directors providing for any
amendment or supplement, such amendment or supplement will be deemed effective.
9
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
the Company and the Selling Stockholder have severally agreed to sell to each of
the U.S. Underwriters named below and each of the U.S. Underwriters, for whom
Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated are
acting as representatives, has severally agreed to purchase from the Company and
the Selling Stockholder, the respective number of shares of Common Stock set
forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
SHARES OF
UNDERWRITER COMMON STOCK
- ----------------------------------------------------------------------------- ---------------
<S> <C>
Goldman, Sachs & Co..........................................................
Merrill Lynch, Pierce, Fenner & Smith Incorporated...........................
---------------
Total.................................................................... 14,400,000
---------------
---------------
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the U.S.
Underwriters are committed to take and pay for all of the shares offered hereby,
if any are taken.
The U.S. Underwriters propose to offer the shares of Common Stock in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus, and in part to certain securities dealers at such
price less a concession of $ per share. The U.S. Underwriters may allow, and
such dealers may reallow, a concession not in excess of $ per share to
certain brokers and dealers. After the shares of Common Stock are released for
sale to the public, the offering price and other selling terms may from time to
time be varied by the representatives.
The Company and the Selling Stockholder have entered into an underwriting
agreement (the "International Underwriting Agreement") with the underwriters of
the international offering (the "International Underwriters") providing for the
concurrent offer and sale of 3,600,000 shares of Common Stock in an
international offering outside the United States. The offering price and
aggregate underwriting discounts and commissions per share for the two offerings
are identical. The closing of the offering made hereby is a condition to the
closing of the international offering, and vice versa. The representatives of
the International Underwriters are Goldman Sachs International and Merrill Lynch
International Limited.
Pursuant to an Agreement between the U.S. and International Underwriting
Syndicates (the "Agreement Between") relating to the two offerings, each of the
U.S. Underwriters named herein has agreed that, as a part of the distribution of
the shares offered hereby and subject to certain exceptions, it will offer, sell
or deliver the shares of Common Stock, directly or indirectly, only in the
United States of America (including the States and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction
(the "United States") and to U.S. persons, which term shall mean, for purposes
of this paragraph: (a) any individual who is a resident of the United States or
(b) any corporation, partnership or other entity organized in or under the laws
of the United States or any political subdivision thereof and whose office most
directly involved with the purchase is located in the United States. Each of the
International Underwriters has agreed or will agree pursuant to the Agreement
Between that, as part of the distribution of the shares offered as a part of the
international offering, and subject to certain exceptions, it will (i) not,
directly or indirectly, offer, sell or deliver shares of Common
10
<PAGE>
Stock, (a) in the United States or to any U.S. persons or (b) to any person who
it believes intends to reoffer, resell or deliver the shares in the United
States or to any U.S. persons, and (ii) cause any dealer to whom it may sell
such shares at any concession to agree to observe a similar restriction.
Pursuant to the Agreement Between, sales may be made between the U.S.
Underwriters and the International Underwriters of such number of shares of
Common Stock as may be mutually agreed. The price of any shares so sold shall be
the initial public offering price, less an amount not greater than the selling
concession.
The Company has granted the U.S. Underwriters an option exercisable for 30
days after the date of this Prospectus to purchase up to an aggregate of
2,160,000 additional shares of Common Stock solely to cover over-allotments, if
any. If the U.S. Underwriters exercise their over-allotment option, the U.S.
Underwriters have severally agreed, subject to certain conditions, to purchase
approximately the same percentage thereof that the number of shares to be
purchased by each of them, as shown in the foregoing table, bears to the
14,400,000 shares of Common Stock offered. The Company granted the International
Underwriters a similar option exercisable up to an aggregate of 540,000
additional shares of Common Stock.
In addition to the 900,000 shares being sold by the Selling Stockholder in
the offering for estate planning purposes, the Selling Stockholder may, at its
option, sell up to an additional 100,000 shares in the offering also for estate
planning purposes.
The Company has agreed that during the period beginning on the date of this
Prospectus and continuing to and including the date 90 days after the date of
this Prospectus, it will not offer, sell, contract to sell or otherwise dispose
of (i) any Common Stock or securities of the Company which are convertible into
or exchangeable for shares of Common Stock or (ii) any options or warrants for
Common Stock, in each case without the prior written consent of the
representatives, except for (a) shares of Common Stock issued in connection with
acquisition transactions (provided that the recipients of such Common Stock in
any such transaction agree not to offer, sell, contract to sell or otherwise
dispose of such Common Stock during the period of 90 days after the date of this
Prospectus), (b) shares of Common Stock issued upon conversion of outstanding
convertible securities or upon exercise of outstanding options or warrants, (c)
shares of Common Stock currently registered under currently effective secondary
shelf registration statements and (d) shares of Common Stock or options issued
under the Company's stock option and other incentive and benefit plans existing
on the date of this Prospectus.
The Selling Stockholder has agreed that during the period beginning on the
date of this Prospectus and continuing to and including the date 90 days after
the date of this Prospectus, it will not offer, sell, contract to sell or
otherwise dispose of (i) any Common Stock or securities of the Company which are
convertible into or exchangeable for shares of Common Stock or (ii) any options
or warrants for Common Stock, in each case without the prior written consent of
the representatives, except for the shares of Common Stock offered in connection
with the concurrent U.S. and international offerings. Mr. Robert W. Galvin, the
settlor of the Selling Stockholder and the Chairman of the Executive Committee
of the Board of Directors of the Company, has agreed that during the period
beginning on the date of this Prospectus and continuing to and including the
date 90 days after the date of this Prospectus, he will not offer, sell,
contract to sell or otherwise dispose of (i) any Common Stock or securities of
the Company which are convertible into or exchangeable for shares of Common
Stock or (ii) any options or warrants for Common Stock, in each case over which
he has dispositive authority (representing approximately 14,990,000 shares of
Common Stock), in each case without the prior written consent of the
representatives, except for (a) the shares of Common Stock offered in connection
with the concurrent U.S. and international offerings, (b) charitable donations
of up to 200,000 shares of Common Stock and (c) any estate planning or donative
tax planning dispositions (provided that the recipient of Common Stock in any
such estate planning or donative tax planning disposition agrees not to offer,
sell, contract to sell or otherwise dispose of such Common Stock during the
period of 90 days after the date of this Prospectus).
The Company and the Selling Stockholder have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933.
11
<PAGE>
VALIDITY OF SECURITIES
The validity of the shares of Common Stock offered hereby by the Company
will be passed upon for the Company by James K. Markey of the Company's Law
Department and for the Underwriters by Sullivan & Cromwell, New York, New York.
As of November 1, 1994, Mr. Markey jointly owned approximately 1,000 shares of
Common Stock and also held options to purchase 9,400 shares of Common Stock, of
which options to purchase 8,400 shares are currently exercisable.
EXPERTS
The consolidated financial statements and schedules of the Company and its
consolidated subsidiaries as of December 31, 1993 and 1992 and for each of the
years in the three-year period ended December 31, 1993 have been incorporated by
reference in this Prospectus and in the Registration Statement in reliance upon
the reports of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in auditing and accounting.
12
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT
THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information............................. 2
Incorporation of Certain Documents by Reference... 2
The Company....................................... 3
Price Range of Common Stock and Dividends......... 4
Use of Proceeds................................... 5
Capitalization.................................... 5
Selected Financial Information.................... 6
Selling Stockholder............................... 7
Description of Capital Stock...................... 7
Underwriting...................................... 10
Validity of Securities............................ 12
Experts........................................... 12
</TABLE>
18,000,000 SHARES
MOTOROLA, INC.
COMMON STOCK
($3 PAR VALUE)
------------------------
[LOGO]
------------------------
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
REPRESENTATIVES OF THE UNDERWRITERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
[ALTERNATE OUTSIDE FRONT COVER PAGE FOR INTERNATIONAL PROSPECTUS]
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
[ALTERNATE OUTSIDE FRONT COVER PAGE FOR INTERNATIONAL PROSPECTUS]
SUBJECT TO COMPLETION, DATED NOVEMBER 7, 1994
18,000,000 SHARES
[LOGO MOTOROLA]
COMMON STOCK
($3 PAR VALUE)
-------------------
Of the 18,000,000 shares of Common Stock offered, 3,600,000 shares are being
offered hereby in an international offering outside the United States and an
aggregate of 14,400,000 shares is being offered in a concurrent offering in the
United States. The initial public offering price and the aggregate underwriting
discount per share will be identical for both offerings. See "Underwriting".
Of the 18,000,000 shares of Common Stock offered, 17,100,000 shares are
being sold by the Company and 900,000 shares are being sold by the Selling
Stockholder. See "Selling Stockholder". The Company will not receive any of the
proceeds from the sale of the shares being sold by the Selling Stockholder.
The Common Stock is listed on the New York Stock Exchange and the Chicago
Stock Exchange, among other exchanges. The last reported sale price of the
Common Stock on the New York Stock Exchange -- Composite Transactions on
November 4, 1994 was $58.50 per share. See "Price Range of Common Stock and
Dividends".
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO PROCEEDS TO SELLING
OFFERING PRICE DISCOUNT (1) COMPANY (2) STOCKHOLDER (2)
--------------------- --------------------- --------------------- ---------------------
<S> <C> <C> <C> <C>
Per Share................. $ $ $ $
Total (3)(4).............. $ $ $ $
<FN>
- ---------
(1) The Company and the Selling Stockholder have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933.
(2) Before deducting estimated expenses of $675,000 payable by the Company and
$35,000 payable by the Selling Stockholder.
(3) The Underwriters have agreed to purchase up to an additional 100,000 shares
at the initial public offering price per share, less the underwriting
discount, at the option of the Selling Stockholder. See "Underwriting". If
such option is exercised in full, the total initial public offering price,
underwriting discount and proceeds to Selling Stockholder will be $ ,
$ and $ , respectively.
(4) The Company has granted the International Underwriters an option for 30
days to purchase up to an additional 540,000 shares at the initial public
offering price per share, less the underwriting discount, solely to cover
over-allotments. Additionally, an over-allotment option on 2,160,000 shares
has been granted by the Company as part of the United States Offering. If
such options are exercised in full, the total initial public offering
price, underwriting discount and proceeds to Company will be $ , $
and $ , respectively. See "Underwriting".
</TABLE>
-------------------
The shares offered hereby are offered severally by the International
Underwriters, as specified herein, subject to receipt and acceptance by them and
subject to their right to reject any order in whole or in part. It is expected
that certificates for the shares will be ready for delivery in New York, New
York, on or about November , 1994.
GOLDMAN SACHS INTERNATIONAL MERRILL LYNCH INTERNATIONAL LIMITED
--------------
The date of this Prospectus is November , 1994.
<PAGE>
[ALTERNATE PAGES FOR INTERNATIONAL PROSPECTUS]
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT
A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, THE CHICAGO STOCK
EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
Motorola, Inc. (the "Company") is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at 13th Floor, Seven World Trade Center, New York, NY 10048 and
500 West Madison Street, Chicago, IL 60661. Copies of such material can be
obtained by mail from the Public Reference Branch of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, reports,
proxy statements and other information concerning the Company may be inspected
at the offices of the New York Stock Exchange, 20 Broad Street, New York, NY
10005 and the Chicago Stock Exchange, 440 South LaSalle Street, Chicago, IL
60605.
Additional information regarding the Company and the Common Stock is
contained in the registration statement on Form S-3 (together with all exhibits
and amendments, the "Registration Statement") filed with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
does not contain all of the information in the Registration Statement, certain
parts of which are omitted under the Commission's rules. For further information
pertaining to the Company and the offering, reference is made to the
Registration Statement which may be inspected without charge at the Commission's
office at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies thereof may
be obtained from the Commission at prescribed rates.
2
<PAGE>
[ALTERNATE PAGES FOR INTERNATIONAL PROSPECTUS]
Unless otherwise indicated, currency amounts in this Prospectus are stated
in United States dollars ("$," "dollars," "U.S. dollars," or "U.S. $").
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-7221) are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, as amended by a Form 10-K/A dated October 21, 1994;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
April 2, 1994, July 2, 1994 and October 1, 1994;
3. The Company's Current Report on Form 8-K dated August 5, 1994;
4. The description of the Common Stock included in the Registration
Statement on Form 8-B dated July 2, 1973 including any amendment or report
filed to update such description;
5. The description of the Company's Preferred Share Purchase Rights
included in the Registration Statement on Form 8-A dated November 15, 1988,
as amended by Forms 8 dated August 9, 1990 and December 2, 1992 and by Form
8-A/A dated February 28, 1994; and
6. All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents incorporated herein by reference (other than
exhibits, unless such exhibits are specifically incorporated by reference in
such documents). Written requests for such copies should be directed to Richard
H. Weise, Secretary, Motorola, Inc., 1303 East Algonquin Road, Schaumburg, IL
60196; telephone: (708) 576-5000.
This Prospectus does not constitute an offer to sell or the solicitation of
an offer to buy the shares of Common Stock in any jurisdiction in which such
offer or solicitation is unlawful. There are restrictions on the offer and sale
of the shares of Common Stock in the United Kingdom. All applicable provisions
of the Financial Services Act 1986 and the Companies Act 1985 with respect to
anything done by any person in relation to the shares of Common Stock, in, from
or otherwise involving the United Kingdom must be complied with. See
"Underwriting".
3
<PAGE>
THE COMPANY
Motorola, Inc. is a corporation organized under the laws of the State of
Delaware as the successor to an Illinois corporation organized in 1928. As used
herein, "Motorola" or the "Company" refers to Motorola, Inc. and its
subsidiaries, unless otherwise indicated by the context. Motorola's principal
executive offices are located at 1303 East Algonquin Road, Schaumburg, Illinois
60196; telephone number: (708) 576-5000.
Motorola, one of the world's leading providers of electronic equipment,
systems, components and services for worldwide markets, is engaged in the
design, manufacture and sale, principally under the Motorola brand, of a
diversified line of such products. These products include two-way land mobile
communications systems, paging and wireless data systems and other forms of
electronic communication systems; cellular mobile and portable telephones and
systems; semiconductors, including integrated circuits, discrete devices and
microprocessor units; information systems products such as modems, multiplexers
and network processors; electronic equipment for military and aerospace use;
electronic engine controls and other automotive and industrial electronic
equipment; and multifunction computer systems for distributed data processing
and office automation applications. Motorola also provides services for paging,
cellular telephone and shared mobile radio. "Motorola" is a registered trademark
of Motorola, Inc.
SEMICONDUCTOR PRODUCTS
The semiconductor products manufactured by the Semiconductor Products Sector
include integrated circuit devices (metal-oxide semiconductor and bipolar) such
as dynamic and static random access memories, microcontrollers, microprocessors,
microcomputers, gate arrays, standard cells, digital signal processors, mixed
signal arrays and other logic and analog components. In addition, the
Semiconductor Products Sector manufactures a wide variety of discrete devices
including zener and tuning diodes, radio frequency devices, power and small
signal transistors, field effect transistors, microwave devices,
optoelectronics, rectifiers and thyristors.
GENERAL SYSTEMS PRODUCTS
General systems products are designed, manufactured and sold by the General
Systems Sector which includes the Cellular Subscriber Group, the Cellular
Infrastructure Group, the Network Ventures Division, Personal Communications
Systems and the Motorola Computer Group. The Cellular Subscriber and
Infrastructure Groups manufacture, sell, install and service cellular
infrastructure and radiotelephone equipment. In addition, the Cellular
Subscriber Group resells cellular line service in the U.S., New Zealand,
Germany, France and U.K. markets. The Network Ventures Division is a joint
venture partner in cellular and telepoint operating systems in Argentina,
Uruguay, Hong Kong, Israel, Chile, Mexico, Thailand, Pakistan, Dominican
Republic, Japan, Nicaragua and other countries. The Motorola Computer Group
develops, manufactures, sells and services multifunction computer systems and
board level products, together with operating systems and system enablers.
COMMUNICATIONS PRODUCTS
As a principal supplier of mobile and portable FM two-way radio and radio
paging and wireless data systems, the Land Mobile Products Sector and the
Messaging, Information and Media Sector provide equipment and systems to meet
the communications needs of individuals and many different types of business,
institutional and governmental organizations. Products of the Land Mobile
Products Sector and certain products of the Messaging, Information and Media
Sector provide voice and data communication between vehicles, persons and base
stations. The Messaging, Information and Media Sector products provide signaling
or signaling and one-way voice communications or wireless data communications to
people away from their homes, vehicles or offices.
Information systems products are also designed, manufactured and sold by the
Messaging, Information and Media Sector. These products include high-speed
leased-line, dial and data communications modems; digital transmission devices,
DDS service units, ISDN terminal adaptors, multiplexers; network management and
control systems; X.25 networking equipment; and local area network
interconnection products.
4
<PAGE>
GOVERNMENT AND SYSTEMS TECHNOLOGY PRODUCTS
The Government and Systems Technology Group's products include aerospace
telecommunications systems, military communications equipment, radar systems,
data links, display systems, positioning and navigation systems, instrumentation
products, countermeasures systems, missile guidance equipment, electronic
ordinance devices, drone electronic systems and secure telecommunication and
commercial test equipment products. Under an agreement between Motorola, Inc.
and Iridium, Inc., the Government and Systems Technology Group is also designing
and constructing the satellite network and ground control segment of the
Iridium-R- space system.
AUTOMOTIVE, ENERGY AND CONTROLS PRODUCTS
The products manufactured by the Automotive, Energy and Controls Group
include automotive and industrial electronics, energy storage products and
systems, and ceramic and quartz electronic components, as well as electronic
ballasts for fluorescent lighting and radio frequency identification devices.
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The principal market for the Company's Common Stock is the New York Stock
Exchange. The Common Stock is also listed on the Chicago Stock Exchange, the
International (London) Stock Exchange and the Tokyo Stock Exchange. The table
below sets forth the high and low closing sale prices per share for the
Company's Common Stock as reported on the New York Stock Exchange--Composite
Transactions and the dividends paid for the periods indicated, in each case
reflecting the two 2 for 1 stock splits in the forms of 100% stock dividends
distributed in April, 1994 and January, 1993.
<TABLE>
<CAPTION>
COMMON STOCK
PRICES
----------------- DIVIDENDS
HIGH LOW PAID
------ ------ ---------
<S> <C> <C> <C>
1992:
First Quarter............................ $ 20.41 $ 16.22 $ 0.0475
Second Quarter........................... 20.66 18.55 0.0475
Third Quarter............................ 22.61 18.96 0.0475
Fourth Quarter........................... 26.36 21.29 0.0475
1993:
First Quarter............................ $ 33.56 $ 24.31 $ 0.055
Second Quarter........................... 44.31 31.63 0.055
Third Quarter............................ 52.56 41.25 0.055
Fourth Quarter........................... 53.75 42.38 0.055
1994:
First Quarter............................ $ 54.83 $ 43.25 $ 0.055
Second Quarter........................... 54.00 42.13 0.07
Third Quarter............................ 55.75 43.38 0.07
Fourth Quarter (through November 4,
1994)................................... 60.50 49.00 0.07
</TABLE>
For a recent price of the Company's Common Stock on the New York Stock
Exchange--Composite Transactions, see the cover page of this Prospectus.
The Board of Directors has declared a quarterly dividend of $.10 per share
payable on January 16, 1995 to stockholders of record on December 15, 1994. The
declaration and payment of future dividends will be subject to the Company's
capital requirements, earnings, financial condition and such other factors as
the Board of Directors may deem relevant.
- ---------
- -R- -- Registered Trademark and Servicemark of Iridium, Inc.
5
<PAGE>
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the Common
Stock sold by the Company will be used to reduce short-term indebtedness and for
general corporate purposes. See "Capitalization". On November 2, 1994, the
Company and its consolidated subsidiaries had outstanding approximately $1.7
billion of commercial paper, with an average maturity of approximately 17.5 days
and bearing an average interest rate of approximately 4.97% per annum.
The Company will not receive any proceeds from the sale of Common Stock by
the Selling Stockholder.
CAPITALIZATION
The following table sets forth the consolidated short-term debt and
capitalization of the Company as of October 1, 1994, and as adjusted to give
effect to the sale of the Common Stock offered by the Company hereunder (based
on an assumed initial public offering price of $58.50 per share, and after
deducting underwriting discounts and estimated offering expenses and assuming
that the Underwriters' over-allotment options are not exercised) and the
anticipated application of the net proceeds from such sale. From time to time,
the Company may issue additional debt or equity securities. The following
information should be read in conjunction with the Company's consolidated
financial statements, including the notes thereto, which are incorporated herein
by reference. See "Incorporation of Certain Documents by Reference".
<TABLE>
<CAPTION>
OCTOBER 1, 1994
----------------------------
ACTUAL AS ADJUSTED (1)
------- ----------------
(IN MILLIONS OF DOLLARS)
<S> <C> <C>
SHORT-TERM DEBT
Commercial paper............................. $ 1,630 $ 658
Notes payable and other short-term debt...... 197 197
Current portion of long-term debt............ 73 73
------- -------
Total short-term debt...................... $ 1,900 $ 928
------- -------
------- -------
LONG-TERM DEBT (2)
Senior notes and debentures.................. $ 800 $ 800
Other senior debt............................ 27 27
LYONs due 2009 and 2013...................... 394 394
Less current portion of long-term debt....... (73) (73)
------- -------
Total long-term debt....................... 1,148 1,148
------- -------
STOCKHOLDERS' EQUITY (3)
Common stock................................. 1,708 1,759
Preferred stock (none issued)................ -- --
Additional paid-in capital................... 411 1,332
Retained earnings............................ 5,496 5,496
------- -------
Total stockholders' equity................. 7,615 8,587
------- -------
Total capitalization................... $ 8,763 $ 9,735
------- -------
------- -------
<FN>
- ---------
(1) Does not include up to 2,700,000 shares subject to the Underwriters'
over-allotment options or the proceeds from the sale thereof. See
"Underwriting".
(2) See Notes 3 and 4 of the Notes to Consolidated Financial Statements for
December 31, 1993, incorporated herein by reference, for additional
information on long-term debt.
(3) See the Consolidated Financial Statements for December 31, 1993,
incorporated herein by reference, and Notes 5, 8 and 9 thereto and the
Company's Quarterly Report on Form 10-Q for the quarter ended October 1,
1994, for additional information on stockholders' equity.
</TABLE>
6
<PAGE>
SELECTED FINANCIAL INFORMATION
The following is a summary of certain financial information of the Company
and its consolidated subsidiaries and is qualified in its entirety by, and
should be read in conjunction with, the consolidated financial statements,
including the notes thereto, management's discussion and analysis and the
auditors' report incorporated into this Prospectus by reference to the Company's
Annual Report on Form 10-K for the year ended December 31, 1993, as amended, and
the financial statements, notes thereto and management's discussion and analysis
incorporated into this Prospectus by reference to the Company's Quarterly Report
on Form 10-Q for the quarter ended October 1, 1994. This information (except for
the the primary and fully diluted net earnings per share and the average shares
and equivalent shares outstanding--primary and fully diluted) has been derived
from consolidated financial statements of the Company which, except for the
information for the nine months ended October 1, 1994 and October 2, 1993,
respectively, have been audited and reported upon by KPMG Peat Marwick LLP,
independent certified public accountants. In the opinion of management, all
adjustments (which consist of reclassifications, restatements and normal
recurring adjustments) necessary to present fairly the information for the
interim periods have been made.
<TABLE>
<CAPTION>
YEARS ENDED
NINE MONTHS ENDED ----------------------------------------------
------------------------
OCTOBER 1, OCTOBER 2, DECEMBER 31,
1994 1993 1993 1992 1991 1990 1989
----------- ----------- ------- ------- ------- ------- ------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS
Net sales.......................................... $ 15,792 $ 11,970 $16,963 $13,303 $11,341 $10,885 $9,620
Manufacturing and other costs of sales............. 9,826 7,327 10,351 8,395 7,134 6,787 5,877
Selling, general and administrative expenses....... 3,166 2,676 3,776 2,951 2,579 2,509 2,317
Depreciation expense............................... 1,051 841 1,170 1,000 886 790 650
Interest expense, net.............................. 116 108 141 157 129 133 130
Total costs and other expenses................... 14,159 10,952 15,438 12,503 10,728 10,219 8,974
Earnings before income taxes and cumulative effect
of change in accounting principle................. 1,633 1,018 1,525 800 613 666 646
Income taxes provided on earnings.................. 588 336 503 224 159 167 148
Cumulative effect of change in accounting
principle, net of tax (1)......................... 0 0 0 123 0 0 0
Net earnings....................................... 1,045 682 1,022 453 454 499 498
PER SHARE DATA (2)
Primary net earnings, after cumulative effect of
change in accounting principle.................... $ 1.79 $ 1.20 $ 1.78 $ 0.83 $ 0.85 $ 0.93 $ 0.94
Fully diluted net earnings, after cumulative effect
of change in accounting principle................. 1.79 1.20 1.78 0.83 0.84 0.93 0.94
Dividends declared................................. 0.21 0.17 0.22 0.20 0.19 0.19 0.19
BALANCE SHEET DATA
Total assets....................................... $ 16,558 $ 12,655 $13,498 $10,629 $ 9,375 $ 8,742 $7,686
Working capital.................................... 2,169 2,342 2,324 1,883 1,424 1,404 1,261
Long-term debt..................................... 1,148 1,438 1,360 1,258 954 792 755
Total debt......................................... 3,048 2,087 1,915 1,695 1,806 1,787 1,542
Total stockholders' equity......................... 7,615 6,038 6,409 5,144 4,630 4,257 3,803
OTHER DATA (2)
Average shares and equivalent shares outstanding --
primary........................................... 589.1 577.0 582.6 565.6 555.6 555.7 533.2
Average shares and equivalent shares outstanding --
fully diluted..................................... 589.7 579.1 583.7 567.1 558.5 555.7 534.9
<FN>
- ---------
(1) Adoption of SFAS No. 106.
(2) This data reflects the two 2 for 1 stock splits in the forms of 100% stock
dividends distributed in April, 1994 and January, 1993.
</TABLE>
7
<PAGE>
SELLING STOCKHOLDER
Harris Trust and Savings Bank, as Trustee for the Robert W. Galvin 1992
Grantor Retained Annuity Trust (the "Trust"), will sell 900,000 shares in the
offering. The Trustee has determined to sell such shares for estate planning
purposes. Mr. Robert W. Galvin, the settlor of the Trust, has been the Chairman
of the Executive Committee of the Board of Directors of the Company since
January 1990. Prior to the offering, the Trust held 1,036,304 shares of Common
Stock and Mr. Galvin beneficially owned 14,990,802 shares. Mr. Galvin disclaims
beneficial ownership of approximately 7,724,452 additional shares of Common
Stock, including those held by the Trust. Immediately following the offering,
without giving effect to the sale of any of the 100,000 additional shares
described below, Mr. Galvin will continue to beneficially own 14,990,802 shares,
excluding 6,824,452 additional shares (including 136,304 shares held by the
Trust) with respect to which Mr. Galvin disclaims beneficial ownership.
In addition to the 900,000 shares being sold by the Selling Stockholder in
the offering, the Selling Stockholder may, at its option, sell up to an
additional 100,000 shares in the offering also for estate planning purposes.
DESCRIPTION OF CAPITAL STOCK
The following statements with respect to the Company's capital stock are
subject to the detailed provisions of the Company's restated certificate of
incorporation, as amended (the "Certificate of Incorporation"), and bylaws, as
amended (the "Bylaws"), and to the Rights Agreement (as defined below). These
statements do not purport to be complete and are qualified in their entirety by
reference to the terms of the Certificate of Incorporation, the Bylaws and the
Rights Agreement, which are incorporated by reference as exhibits to the
Registration Statement.
COMMON AND PREFERRED STOCK
The authorized capital stock of the Company consists of 1,400,000,000 shares
of Common Stock, par value $3 per share, and 500,000 shares of Preferred Stock,
par value $100 per share, issuable in series ("Preferred Stock"). There are no
shares of Preferred Stock presently outstanding. The Board of Directors of the
Company is authorized to create and issue one or more series of Preferred Stock
and to determine the rights and preferences of each series, to the extent
permitted by the Certificate of Incorporation. The holders of shares of Common
Stock are entitled to one vote for each share held and each share of Common
Stock is entitled to participate equally in dividends out of funds legally
available therefor, as and when declared by the Board of Directors, and in the
distribution of assets in the event of liquidation. The shares of Common Stock
have no preemptive or conversion rights, redemption provisions or sinking fund
provisions. The outstanding shares of Common Stock are duly and validly issued,
fully paid and nonassessable, and any shares of Common Stock issued hereunder
will be duly and validly issued, fully paid and nonassessable.
PREFERRED SHARE PURCHASE RIGHTS
Each outstanding share of Common Stock is accompanied by one-quarter of a
preferred stock purchase right (a "Right"). Each Right entitles the registered
holder to purchase from the Company one-thousandth of a share of Junior
Participating Preferred Stock, Series A, par value $100 per share, of the
Company (the "Preferred Shares") at a price of $150 per one-thousandth of a
Preferred Share (the "Preferred Share Purchase Price"), subject to adjustment.
The terms of the Rights are set forth in the Rights Agreement, as amended,
between the Company and Harris Trust and Savings Bank as Rights Agent (the
"Rights Agreement").
The following summary of certain provisions of the Rights and the Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all of the provisions of the Rights and the Rights
Agreement, including particular provisions or defined terms of the Rights
Agreement. A copy of the Rights Agreement has been filed with the Commission as
an exhibit to a Registration Statement on Form 8-A, which, as amended by Forms 8
and a Form 8-A/A, is incorporated herein by reference. See "Incorporation of
Certain Documents by Reference".
8
<PAGE>
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") acquired, or obtained the right to acquire, beneficial ownership of 20%
or more of the outstanding shares of Common Stock and (ii) 10 days following the
commencement or announcement of a tender offer or exchange offer for 30% or more
of such outstanding shares of Common Stock (the earlier of such dates being
called the "Distribution Date"), the Rights will be evidenced, with respect to
any of the Common Stock certificates outstanding as of November 20, 1988, by
such Common Stock certificate. The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only with the shares
of Common Stock. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Stock certificates issued after November
20, 1988, upon the transfer or new issuance of shares of Common Stock (including
the shares of Common Stock issued hereunder), will contain a notation
incorporating the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption or expiration of the Rights) the surrender for transfer of
any certificate for shares of Common Stock, outstanding as of November 20, 1988,
with or without such notation or a copy of a summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with the
shares of Common Stock represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on November 20, 1998, unless earlier redeemed by the Company as described
below.
The Preferred Share Purchase Price payable, and the number of Preferred
Shares or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for Preferred Shares or convertible
securities at less than the current market price of the Preferred Shares or
(iii) upon the distribution to holders of the Preferred Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends or dividends
payable in Preferred Shares) or of subscription rights or warrants (other than
those referred to above).
In the event that the Company were acquired in a merger or other business
combination transaction or more than 50% of its assets or earning power were
sold, proper provision shall be made so that each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction (I.E., before the
dilution that would result from exercise or adjustment of the Rights) would have
a market value of two times the exercise price of the Right. In the event that
the Company were the surviving corporation in a merger or other business
combination involving an Acquiring Person and its shares of Common Stock were
not changed or exchanged, in the event that an Acquiring Person acquires
beneficial ownership of 20% or more of the outstanding shares of Common Stock,
or in the event that an Acquiring Person engages in one of a number of
self-dealing transactions specified in the Rights Agreement, proper provision
shall be made so that each holder of a Right, other than Rights that are or were
beneficially owned by the Acquiring Person on or after the earlier of the
Distribution Date or the date the Acquiring Person acquires 20% or more of the
outstanding Common Shares (which will thereafter be void), will thereafter have
the right to receive upon exercise that number of shares of Common Stock having
at the time of such transaction (I.E., before the dilution that would result
from exercise or adjustment of the Rights) a market value of two times the
exercise price of the Right. The Company's Board of Directors, after a person
becomes an Acquiring Person by acquiring 20% or more of the outstanding shares
of Common Shares, may require all holders of Rights to exchange, without any
cash payment, all outstanding and exercisable Rights (except those held by the
Acquiring Person, which shall be void) for Common Stock (or Common Stock
equivalents) at a 1 for 1
9
<PAGE>
exchange ratio. In order for the Board to determine whether to exercise this
exchange provision, the Board can suspend the exercisability of the Rights for
up to 90 days after a person becomes an Acquiring Person by acquiring 20% or
more of the outstanding Common Shares.
At any time prior to the public announcement that a person or group of
affiliated or associated persons has acquired beneficial ownership of 20% or
more of the outstanding shares of Common Stock, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of $.05 per
Right (the "Rights Redemption Price"). Immediately upon the action of the Board
of Directors ordering redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Rights Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
At any time prior to the public announcement that a person or group of
affiliated or associated persons has acquired beneficial ownership of 20% or
more of the outstanding shares of Common Stock, the Company may amend or
supplement the Rights Agreement without the approval of the Rights Agent or any
holder of the Rights, except for an amendment or supplement which would change
the Rights Redemption Price, the final expiration date of the Rights, the
Preferred Share Purchase Price or the number of one-thousandths of a Preferred
Share for which a Right is then exercisable. Thereafter, the Company may amend
or supplement the Rights Agreement without such approval in order to increase
the benefits to holders of the Rights or to create new interests in such
holders. Immediately upon the action of the Board of Directors providing for any
amendment or supplement, such amendment or supplement will be deemed effective.
10
<PAGE>
[ALTERNATE PAGES FOR INTERNATIONAL PROSPECTUS]
CERTAIN U.S. FEDERAL TAX CONSEQUENCES
TO NON-U.S. SHAREHOLDERS
The following is a general discussion of certain U.S. federal tax
consequences of the ownership and disposition of a share of Common Stock by a
non-U.S. holder. For purposes of this discussion, a "non-U.S. holder" is any
corporation, individual, partnership, estate or trust that is, as to the United
States, a foreign corporation, a non-resident alien individual, a foreign
partnership or a foreign estate or trust (I.E., a trust or estate not subject to
United States federal income tax on income from sources without the United
States that is not effectively connected with the conduct of a trade or business
within the United States). This discussion does not consider any specific facts
or circumstances that may apply to a particular non-U.S. holder. Furthermore,
this discussion does not address state, local or foreign tax consequences. The
following discussion is based on current provisions of the Internal Revenue Code
of 1986, as amended (the "Code"), the regulations promulgated thereunder and
administrative and judicial interpretations as of the date hereof, all of which
are subject to change, possibly with retroactive effect. Each prospective
investor is urged to consult its own tax adviser with respect to the U.S.
federal, state and local tax consequences of owning and disposing of a share of
Common Stock, as well as any tax consequences arising under the laws of any
other taxing jurisdiction.
U.S. FEDERAL INCOME AND ESTATE TAX CONSEQUENCES
Generally, any dividend paid to a non-U.S. holder of a share of Common Stock
will be subject to United States withholding tax at a rate of 30% of the amount
of the dividend, or at a lesser applicable treaty rate, unless the dividend is
effectively connected with a United States trade or business of a non-U.S.
holder, in which case the dividend will be subject to the regular United States
federal income tax, which generally is not collected by withholding. A non-U.S.
holder may claim an exemption from withholding by filing Form 4224 (Exemption
from Withholding of Tax on Income Effectively Connected With the Conduct of a
Trade or Business in the United States) with the Company or its dividend-paying
agent. Such effectively connected dividends received by a foreign corporation
may also, under certain circumstances, be subject to an additional branch
profits tax of 30% (or lower applicable treaty rate).
Under current Treasury regulations, dividends paid to an address in a
foreign country are presumed to be paid to a resident of such country for
purposes of determining the applicability of a treaty rate. In the absence of
definite knowledge of the status of a shareholder, the Company or its
dividend-paying agent may generally rely on the non-U.S. holder's foreign
address of record as the basis for allowing the benefit of an exemption or
reduced treaty rate with respect to the dividends being paid.
Under proposed Treasury regulations that are not currently in effect,
however, a non-U.S. holder of a share of Common Stock who wishes to claim the
benefit of an applicable treaty rate would be required to file Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) and a Certificate of
Residence Form 8306 with the Company or its dividend-paying agent.
A non-U.S. holder generally will not be subject to U.S. federal income tax
on any gain realized on a disposition of a share of Common Stock unless (i) the
Company is or has been a "U.S. real property holding corporation" for U.S.
federal income tax purposes (which the Company does not believe that it has been
or is currently and does not anticipate becoming) and the non-U.S. holder
disposing of the share owned, directly or constructively, at any time during the
five-year period preceding the disposition, more than 5% of the Common Stock,
(ii) the gain is effectively connected with the conduct of a trade or business
within the United States of the non-U.S. holder, (iii) the non-U.S. holder is an
individual who holds the share as a capital asset, is present in the United
States for 183 days or more in the taxable year of the disposition, and certain
other conditions are met or (iv) the non-U.S. holder is subject to tax pursuant
to the Code provisions applicable to certain U.S. expatriates.
Shares of Common Stock owned or treated as owned by an individual non-U.S.
holder at the time of his death will be includible in his estate for United
States federal estate tax purposes unless an applicable estate tax treaty
provides otherwise.
11
<PAGE>
[ALTERNATE PAGES FOR INTERNATIONAL PROSPECTUS]
BACKUP WITHHOLDING AND INFORMATION REPORTING
DIVIDENDS
In general, dividends paid on shares of Common Stock to holders that are not
"exempt recipients" are subject to information reporting and, if the holder
fails to provide in the manner required certain identifying information (such as
the holder's name, address and taxpayer identification number), backup
withholding of U.S. federal income tax at a rate of 31%. Generally, individuals
are not exempt recipients, whereas corporations and certain other entities
generally are exempt recipients. However, dividends paid to non-U.S. holders
outside the United States that are subject to U.S. withholding tax at the 30%
statutory rate or at a reduced treaty rate are exempt from backup withholding
and information reporting. In addition, the payor of dividends may rely on the
payee's foreign address in determining that backup withholding and information
reporting do not apply, unless the payor has definite knowledge that the payee
is a U.S. person.
BROKER SALES
If a non-U.S. holder sells shares of Common Stock through a U.S. office of a
broker, the broker is required to file an information return and is required to
withhold 31% of the sale proceeds unless the non-U.S. holder is an exempt
recipient or has provided the broker with the information and statements, under
penalties of perjury, necessary to establish an exemption from backup
withholding. If payment of the proceeds of the sale of a share is made to or
through the foreign office of a broker, that broker will not be required to
backup withhold or, except as provided in the next sentence, to file information
returns. If, however, the broker is a U.S. person, is a controlled foreign
corporation for U.S. tax purposes, or is a foreign person 50% or more of whose
gross income for the three-year period ending with the close of the taxable year
preceding the year of payment (or for the part of that period that the broker
has been in existence) is effectively connected with the conduct of a trade or
business within the United States, information reporting is required unless the
broker has documentary evidence in its files that the payee is not a U.S. person
and certain other conditions are met, or the payee otherwise establishes an
exemption.
REFUNDS
Any amounts withheld under the backup withholding rules from a payment to a
non-U.S. holder may be refunded or credited against the holder's U.S. federal
income tax liability, provided that the required information is furnished to the
Internal Revenue Service.
12
<PAGE>
[ALTERNATE PAGES FOR INTERNATIONAL PROSPECTUS]
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
Company and the Selling Stockholder have severally agreed to sell to each of the
International Underwriters named below and each of the International
Underwriters, for whom Goldman Sachs International and Merrill Lynch
International Limited are acting as representatives, has severally agreed to
purchase from the Company and the Selling Stockholder, the respective number of
shares of Common Stock set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
SHARES OF
UNDERWRITER COMMON STOCK
- ----------------------------------------------------------------------------- ---------------
<S> <C>
Goldman Sachs International..................................................
Merrill Lynch International Limited..........................................
---------------
Total.................................................................... 3,600,000
---------------
---------------
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
International Underwriters are committed to take and pay for all of the shares
of Common Stock offered hereby, if any are taken.
The International Underwriters propose to offer the shares of Common Stock
in part directly to the public at the initial public offering price set forth on
the cover page of this Prospectus, and in part to certain securities dealers at
such price less a concession of $ per share. The International Underwriters
may allow, and such dealers may reallow, a concession not in excess of $ per
share to certain brokers and dealers. After the shares of Common Stock are
released for sale to the public, the offering prices and other selling terms may
from time to time be varied by the representatives.
The Company and the Selling Stockholder have entered into an underwriting
agreement (the "U.S. Underwriting Agreement") with the underwriters of the U.S.
Offering (the "U.S. Underwriters") providing for the concurrent offer and sale
of 14,400,000 shares of Common Stock in the United States. The offering price
and aggregate underwriting discounts and commissions per share for the two
offerings are identical. The closing of the offering made hereby is a condition
to the closing of the U.S. Offering, and vice versa. The representatives of the
U.S. Underwriters are Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
Pursuant to an Agreement between the U.S. and International Underwriting
Syndicates (the "Agreement Between") relating to the two offerings, each of the
U.S. Underwriters has agreed that, as a part of the distribution of the shares
offered hereby and subject to certain exceptions, it will offer, sell or deliver
the shares of Common Stock, directly or indirectly, only in the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction (the "United
States") and to U.S. persons, which term shall mean, for purposes of this
paragraph: (a) any individual who is a resident of the United States or (b) any
corporation, partnership or other entity organized in or under the laws of the
United States or any political subdivision thereof and whose office most
directly involved with the purchase is located in the United States. Each of the
International Underwriters named herein has agreed pursuant to the Agreement
Between that, as part of the distribution of the shares offered as a part of the
international offering, and subject to certain
13
<PAGE>
[ALTERNATE PAGES FOR INTERNATIONAL PROSPECTUS]
exceptions, it will (i) not, directly or indirectly, offer, sell or deliver
shares of Common Stock (a) in the United States or to any U.S. persons or (b) to
any person who it believes intends to reoffer, resell or deliver the shares in
the United States or to any U.S. persons, and (ii) cause any dealer to whom it
may sell such shares at any concession to agree to observe a similar
restriction.
Pursuant to the Agreement Between, sales may be made between the U.S.
Underwriters and the International Underwriters of such number of shares of
Common Stock as may be mutually agreed. The price of any shares so sold shall be
the initial public offering price, less an amount not greater than the selling
concession.
The Company has granted the International Underwriters an option exercisable
for 30 days after the date of this Prospectus to purchase up to an aggregate of
540,000 additional shares of Common Stock solely to cover over-allotments, if
any. If the International Underwriters exercise their over-allotment option, the
International Underwriters have severally agreed, subject to certain conditions,
to purchase approximately the same percentage thereof that the number of shares
to be purchased by each of them, as shown in the foregoing table, bears to the
3,600,000 shares of Common Stock offered. The Company has granted the U.S.
Underwriters a similar option is to purchase up to an aggregate of 2,160,000
additional shares of Common Stock.
In addition to the 900,000 shares being sold by the Selling Stockholder in
the offering for estate planning purposes, the Selling Stockholder may, at its
option, sell up to an additional 100,000 shares in the offering also for estate
planning purposes.
The Company has agreed that during the period beginning on the date of this
Prospectus and continuing to and including the date 90 days after the date of
this Prospectus, it will not offer, sell, contract to sell or otherwise dispose
of (i) any Common Stock or securities of the Company which are convertible into
or exchangeable for shares of Common Stock or (ii) any options or warrants for
Common Stock, in each case without the prior written consent of the
representatives, except for (a) shares of Common Stock issued in connection with
acquisition transactions (provided that the recipients of such Common Stock in
any such transaction agree not to offer, sell, contract to sell or otherwise
dispose of such Common Stock during the period of 90 days after the date of this
Prospectus), (b) shares of Common Stock issued upon conversion of outstanding
convertible securities or upon exercise of outstanding options or warrants, (c)
shares of Common Stock currently registered under currently effective secondary
shelf registration statements and (d) shares of Common Stock or options issued
under the Company's stock option and other incentive and benefit plans existing
on the date of this Prospectus.
The Selling Stockholder has agreed that during the period beginning on the
date of this Prospectus and continuing to and including the date 90 days after
the date of this Prospectus, it will not offer, sell, contract to sell or
otherwise dispose of (i) any Common Stock or securities of the Company which are
convertible into or exchangeable for shares of Common Stock or (ii) any options
or warrants for Common Stock, in each case without the prior written consent of
the representatives, except for the shares of Common Stock offered in connection
with the concurrent U.S. and international offerings. Mr. Robert W. Galvin, the
settlor of the Selling Stockholder and the Chairman of the Executive Committee
of the Board of Directors of the Company, has agreed that during the period
beginning on the date of this Prospectus and continuing to and including the
date 90 days after the date of this Prospectus, he will not offer, sell,
contract to sell or otherwise dispose of (i) any Common Stock or securities of
the Company which are convertible into or exchangeable for shares of Common
Stock or (ii) any options or warrants for Common Stock, in each case over which
he has dispositive authority (representing approximately 14,990,000 shares of
Common Stock), in each case without the prior written consent of the
representatives, except for (a) the shares of Common Stock offered in connection
with the concurrent U.S. and international offerings, (b) charitable donations
of up to 200,000 shares of Common Stock and (c) any estate planning or donative
tax planning dispositions (provided that the recipient of Common Stock in any
such estate planning or donative tax planning disposition agrees not to offer,
sell, contract to sell or otherwise dispose of such Common Stock during the
period of 90 days after the date of this Prospectus).
14
<PAGE>
[ALTERNATE PAGES FOR INTERNATIONAL PROSPECTUS]
Each International Underwriter has also agreed that (a) it has not offered
or sold, and will not offer or sell, in the United Kingdom, by means of any
document, any shares of Common Stock other than to persons whose ordinary
business it is to buy or sell shares or debentures, whether as principal or
agent, or in circumstances which do not constitute an offer to the public within
the meaning of the Companies Act 1985 of Great Britain, (b) it has complied, and
will comply with, all applicable provisions of the Financial Services Act 1986
of Great Britain with respect to anything done by it in relation to the shares
at Common Stock in, from or otherwise involving the United Kingdom, and (c) it
has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issuance of the
shares of Common Stock to a person who is of a kind described in Article 9(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order
1988 (as amended) of Great Britain or is a person to whom the document may
otherwise lawfully be issued or passed on.
Buyers of shares of Common Stock offered hereby may be required to pay stamp
taxes and other charges in accordance with the laws and practices of the country
of purchase in addition to the initial public offering price.
The Company and the Selling Stockholder have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933.
15
<PAGE>
[ALTERNATE PAGES FOR INTERNATIONAL PROSPECTUS]
VALIDITY OF SECURITIES
The validity of the shares of Common Stock offered hereby by the Company
will be passed upon for the Company by James K. Markey of the Company's Law
Department and for the Underwriters by Sullivan & Cromwell, New York, New York.
As of November 1, 1994, Mr. Markey jointly owned approximately 1,000 shares of
Common Stock and also held options to purchase 9,400 shares of Common Stock, of
which options to purchase 8,400 shares are currently exercisable.
EXPERTS
The consolidated financial statements and schedules of the Company and its
consolidated subsidiaries as of December 31, 1993 and 1992 and for each of the
years in the three-year period ended December 31, 1993 have been incorporated by
reference in this Prospectus and in the Registration Statement in reliance upon
the reports of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in auditing and accounting.
16
<PAGE>
[ALTERNATE OUTSIDE BACK COVER PAGE FOR INTERNATIONAL PROSPECTUS]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THAT DATE HEREOF OR THAT
THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Available Information............................. 2
Incorporation of Certain Documents by Reference... 3
The Company....................................... 4
Price Range of Common Stock and Dividends......... 5
Use of Proceeds................................... 6
Capitalization.................................... 6
Selected Financial Information.................... 7
Selling Stockholder............................... 8
Description of Capital Stock...................... 8
Certain U.S. Federal Tax Consequences to Non-U.S.
Shareholders..................................... 11
Underwriting...................................... 13
Validity of Securities............................ 16
Experts........................................... 16
</TABLE>
18,000,000 SHARES
MOTOROLA, INC.
COMMON STOCK
($3 PAR VALUE)
------------------------
[LOGO]
------------------------
GOLDMAN SACHS INTERNATIONAL
MERRILL LYNCH INTERNATIONAL LIMITED
REPRESENTATIVES OF THE UNDERWRITERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrant in connection with the issuance and
distribution of the Common Stock hereunder:
<TABLE>
<S> <C>
Registration Fee................................................ $ 425,414
*Legal Fees and Expenses......................................... 70,000
*Accounting Fees and Expenses.................................... 25,000
*Blue Sky and Legal Investment Fees and Expenses................. 10,000
*Printing and Engraving Fees..................................... 100,000
*Listing Fees.................................................... 50,000
*Miscellaneous................................................... 29,586
---------
Total...................................................... $ 710,000
---------
---------
<FN>
- ---------
* Estimated pursuant to instruction to Item 511 of Regulation S-K.
Approximately $35,000 of the aggregate of these expenses are expected to
be borne by the Selling Stockholder.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in connection
with litigation.
The Registrant's Restated Certificate of Incorporation and its directors'
and officers' liability insurance policy provide for indemnification of its
directors and officers against certain liabilities.
Reference is made to Section 8 of each of the Forms of Underwriting
Agreements filed as Exhibit 1(a) and Exhibit 1(b) for terms of the contemplated
indemnification arrangements.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<S> <C>
1(a) Form of Underwriting Agreement for U.S. Offering.
1(b) Form of Underwriting Agreement for International Offering.
4(a) Restated Certificate of Incorporation, as amended, including
Certificate of Designation, Preferences and Rights of Junior
Participating Preferred Stock, Series A (incorporated by
reference to Exhibit 3(i)(b) to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended April 2, 1994 (File
No. 1-7221)).
4(b) Bylaws, as amended (incorporated by reference to Exhibit 3(ii)
to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended April 2, 1994 (File No. 1-7221)).
4(c) Rights Agreement, dated November 9, 1988 (incorporated by
reference to Exhibit 4.1 to Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1988) (File No.
1-7221), Amendment to Rights Agreement dated August 7, 1990
(incorporated by reference to Exhibit 2 to Registrant's Form 8
dated August 9, 1990 amending Registrant's Registration
Statement on Form 8-A dated November 15, 1988) (File No.
1-7221), Amendment No. 2 on Form 8 dated December 2, 1992
amending Registrant's Registration Statement on Form 8-A dated
November 15, 1988 (incorporated by reference to Registrant's
Form 8 dated December 2, 1992) (File No. 1-7221) and Amendment
No. 3 on Form 8-A/A dated February 28, 1994 amending
Registrant's Registration Statement on Form 8-A dated November
15, 1988 (incorporated by reference to Registrant's Amendment
No. 3 on Form 8-A/A dated February 28, 1994) (File No. 1-7221).
4(d) Form of Common Stock Certificate (incorporated by reference to
Exhibit 4(k) to the Registrant's Registration Statement on Form
S-3 (File No. 33-56055)).
</TABLE>
II-1
<PAGE>
<TABLE>
<S> <C>
5 Opinion and consent of James K. Markey, Esq.*
23(a) Consent of James K. Markey (included as part of Exhibit 5).*
23(b) Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney.*
27 Financial Data Schedule.*
<FN>
- ---------
* Previously filed.
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted against
the Registrant by such director, officer, or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
(c) The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial BONA FIDE offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement, or amendment thereto, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Village of Schaumburg and the State of
Illinois, on the 7th day of November, 1994.
MOTOROLA, INC.
By /s/ GARY L. TOOKER
--------------------------------------
Gary L. Tooker
VICE CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the date or dates indicated, by the
following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE(S)
- ------------------------------------------------------ ----------------------------- -----------------------
<C> <S> <C>
DIRECTOR, VICE CHAIRMAN AND
/s/ GARY L. TOOKER CHIEF EXECUTIVE OFFICER
------------------------------------------- (PRINCIPAL EXECUTIVE
Gary L. Tooker OFFICER) November 7, 1994
EXECUTIVE VICE PRESIDENT AND
/s/ CARL F. KOENEMANN CHIEF FINANCIAL OFFICER
------------------------------------------- (PRINCIPAL FINANCIAL
Carl F. Koenemann OFFICER) November 7, 1994
/s/ KENNETH J. JOHNSON VICE PRESIDENT AND CONTROLLER
------------------------------------------- (PRINCIPAL ACCOUNTING
Kenneth J. Johnson OFFICER) November 7, 1994
</TABLE>
ERICH BLOCH
DAVID R. CLARE
WALLACE C. DOUD
CHRISTOPHER B. GALVIN
ROBERT W. GALVIN
JOHN T. HICKEY
ANNE P. JONES
A Majority of November 7, 1994
DONALD R. JONES the Directors
WALTER E. MASSEY
JOHN F. MITCHELL
THOMAS J. MURRIN
SAMUEL C. SCOTT III
GARDINER L. TUCKER
WILLIAM J. WEISZ
B. KENNETH WEST
/s/ GARY L. TOOKER
----------------------------------------
Gary L. Tooker, ATTORNEY-IN-FACT
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT FORM OF
NUMBER DOCUMENT DESCRIPTION FILING
- ------ --------------------------------------------------------- ----------
<S> <C> <C>
1(a) Form of Underwriting Agreement for U.S. Offering.
1(b) Form of Underwriting Agreement for International
Offering.
4(a) Restated Certificate of Incorporation, as amended,
including Certificate of Designation, Preferences and
Rights of Junior Participating Preferred Stock, Series A
(incorporated by reference to Exhibit 3(i)(b) to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended April 2, 1994 (File No. 1-7221)).
4(b) Bylaws, as amended (incorporated by reference to Exhibit
3(ii) to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended April 2, 1994 (File No. 1-7221)).
4(c) Rights Agreement, dated as of November 9, 1988
(incorporated by reference to Exhibit 4.1 to Registrant's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1988) (File No. 1-7221), Amendment to Rights
Agreement dated August 7, 1990 (incorporated by reference
to Exhibit 2 to Registrant's Form 8 dated August 9, 1990
amending Registrant's Registration Statement on Form 8-A
dated November 15, 1988 (File No. 1-7221), Amendment No.
2 on Form 8 dated December 2, 1992 amending Registrant's
Registration Statement on Form 8-A dated November 15,
1988 (incorporated by reference to Registrant's Form 8
dated December 2, 1992) (File No. 1-7221) and Amendment
No. 3 on Form 8-A/A dated February 28, 1994 amending
Registrant's Registration Statement on Form 8-A dated
November 15, 1988 (incorporated by reference to
Registrant's Amendment No. 3 on Form 8-A/A dated February
28, 1994) (File No. 1-7221).
4(d) Form of Common Stock Certificate (incorporated by
reference to Exhibit 4(k) to the Registrant's
Registration Statement on Form S-3 (File No. 33-56055).
5 Opinion and Consent of James K. Markey, Esq.*
23(a) Consent of James K. Markey (included as part of Exhibit
5).*
23(b) Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney.*
27 Financial Data Schedule.*
<FN>
- ---------
* Previously filed.
</TABLE>
<PAGE>
Exhibit 1(a)
MOTOROLA, INC.
COMMON STOCK
($3 PAR VALUE PER SHARE)
------------------------------
UNDERWRITING AGREEMENT
(U.S. VERSION)
------------------------------
November , 1994
Goldman, Sachs & Co.,
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Motorola, Inc., a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
..... shares and, at the election of the Underwriters, up to ..... additional
shares of Common Stock ($3 par value per share) ("Stock") of the Company and
the stockholder of the Company named in Schedule II hereto (the "Selling
Stockholder") proposes, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of ..... shares. The aggregate of
..... shares to be sold by the Company and the Selling Stockholder is herein
called the "Firm Shares" and the aggregate of ..... additional shares to be
sold by the Company is herein called the "Optional Shares". The Firm Shares
and the Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Company and the
Selling Stockholder are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Stockholder of up to a total of ..... shares of Stock (the
"International Shares"), including the overallotment option thereunder,
through arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom Goldman Sachs International and
Merrill Lynch International Limited acting as lead managers. Anything herein or
therein to the contrary notwithstanding, the respective closings under this
Agreement and the International Underwriting Agreement are hereby expressly
made conditional on one another. The Underwriters hereunder and the
International Underwriters are simultaneously entering into an Agreement
between U.S. and International Underwriting Syndicates (the "Agreement
between Syndicates") which provides, among other things, for the transfer of
shares of Stock between the two syndicates. Two forms of prospectus are to be
used in connection with the offering and sale of shares of Stock contemplated by
the foregoing, one relating to the Shares hereunder and the other relating to
the International Shares. The latter form of prospectus will be identical to the
former except for certain substitute pages as included in the registration
statement and amendments thereto as mentioned below. Except as used in
Sections 2, 3, 4, 9 and 11 herein, and except as the context may otherwise
require, references hereinafter to the Shares shall include all the shares of
Stock which may be sold
1
<PAGE>
pursuant to either this Agreement or the International Underwriting Agreement,
and references herein to any prospectus whether in preliminary or final form,
and whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 33-56343) in
respect of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to you for
each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Securities Act of 1933,
as amended (the "Act"), is hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including all exhibits
thereto and including (i) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof and deemed by virtue of Rule
430A under the Act to be part of the registration statement at the time
it was declared effective and (iii) the documents incorporated by
reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective, each
as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant
to Rule 424(b) under the Act, is hereinafter called the "Prospectus"; and
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of
the date of such Preliminary Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did 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, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein or by the Selling
Stockholder expressly for use in the preparation of the answers therein
to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, or if such documents have been amended prior to the date hereof,
when such amendments were filed, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state
a material fact required to be
2
<PAGE>
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will
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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman,
Sachs & Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman,
Sachs & Co. expressly for use therein or by the Selling Stockholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3;
(v) The Company and its subsidiaries considered as a whole have
not sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise then as set
forth, incorporated by reference, or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
in the capital stock of the Company (other than upon exercise of
outstanding stock options or pursuant to the Company's employee stock
ownership plan or employee stock purchase plans or the Company's employee
savings and profit sharing plan or upon conversion of convertible
securities outstanding on the date of the most recent balance sheet of
the Company included in or incorporated by reference in the Prospectus) or
any significant increase in the long-term debt of the Company and its
subsidiaries taken as a whole, or any material adverse change, or any
development which the Company has reasonable cause to believe will
involve a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as
a whole, otherwise than as set forth, incorporated by reference, or
contemplated in the Prospectus;
(vi) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus with only such
exceptions as are not material to the business of the Company and its
subsidiaries considered as a whole:
(vii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, and are fully
paid and non-assessable and conform to the description of the Stock
contained in the Prospectus;
(viii) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder and under the International Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
3
<PAGE>
(ix) The issue and sale of the Shares to be sold by the Company
hereunder and under the International Underwriting Agreement and the
compliance by the Company with all of the provisions of this Agreement
and the International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material contract, indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement and the International Underwriting Agreement, except the
registration under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the International
Underwriters;
(x) Other than as set forth, incorporated by reference or
contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which the Company has reasonable cause to
believe would individually or in the aggregate have a material adverse
effect on the consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
whole; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others;
(xi) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes; and
(xii) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(b) The Selling Stockholder represents and warrants to, and agrees with,
each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by the Selling Stockholder of this Agreement
and the International Underwriting Agreement hereinafter referred to,
and for the sale and delivery of the Shares to be sold by the Selling
Stockholder hereunder and under the International Underwriting Agreement,
have been obtained; and the Selling Stockholder has full right, power
and authority to enter into this Agreement and the International
Underwriting Agreement, and to sell, assign, transfer and deliver the
Shares to be sold by the Selling Stockholder hereunder and under the
International Underwriting Agreement;
(ii) The sale of the Shares to be sold by the Selling Stockholder
hereunder and under the International Underwriting Agreement and the
compliance by the Selling Stockholder with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any statute, indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Selling Stockholder is a party or by which the Selling
Stockholder is bound, or to which any of the property or assets of the
Selling Stockholder
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is subject, nor will such action result in any violation of the provisions
of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling
Stockholder or the property of the Selling Stockholder;
(iii) The Selling Stockholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) the Selling Stockholder
will have, good and valid title to the Shares to be sold by the Selling
Stockholder hereunder and under the International Underwriting Agreement,
free and clear of all liens, encumbrances, equities or claims; and, upon
delivery of such Shares and payment therefor pursuant hereto and thereto,
good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several Underwriters or
the International Underwriters, as the case may be;
(iv) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, the
Selling Stockholder will not offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder or under the International
Underwriting Agreement, any Stock or securities of the Company which are
convertible into or exchangeable for shares of Stock or options or
warrants for Stock, without your prior written consent; during the period
beginning from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, Robert W. Galvin, the settlor
of the Selling Stockholder, will not offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder or under the
International Underwriting Agreement, any Stock or securities of the
Company which are convertible into or exchangeable for shares of Stock
or options or warrants for Stock, over which he has dispositive authority,
except for charitable donations of up to a maximum of 200,000 shares of
Stock and except for any estate planning or donative tax planning
dispositions (provided that the recipient of Stock pursuant to any such
estate planning or donative tax planning dispositions agrees not to
offer, sell, contract to sell, or otherwise dispose of such Stock during
the period of 90 days after the date of the Prospectus), without your
prior written consent;
(v) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by the
Selling Stockholder expressly for use therein, such Preliminary Prospectus
and the Registration Statement did, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof);
(viii) The trustee of the Selling Stockholder has authority
to execute and deliver this Agreement and the International Underwriting
Agreement on behalf of the Selling Stockholder, to determine the
purchase price to be paid by the Underwriters and the International
Underwriters to the Selling Stockholder as provided in Section 2
hereof, to authorize the delivery of the Shares to be sold by the
Selling Stockholder hereunder and otherwise to act on behalf of the
Selling Stockholder in connection with the transactions contemplated
by this Agreement and the International Underwriting Agreement; and
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<PAGE>
(ix) The Shares represented by the certificates held by the Selling
Stockholder for sale hereunder and under the International Underwriting
Agreement are subject to the interests of the Underwriters hereunder and
the International Underwriters under the International Underwriting
Agreement; the obligations of the Selling Stockholder hereunder shall not
be terminated by operation of law, whether by the death or incapacity of
the Selling Stockholder or, in the case of an estate or trust, by the death
or incapacity of any executor or trustee or the termination of such estate
or trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the occurrence of
any other event; and if the Selling Stockholder or any such executor or
trustee should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership or corporation, or by the
occurrence of any other event; and if the Selling Stockholder or any such
executor or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should
occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the
Selling Stockholder in accordance with the terms and conditions of
this Agreement and of the International Underwriting Agreement.
2. Subject to the terms and conditions herein set forth, (a) the Company
and the Selling Stockholder agree, severally and not jointly, to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholder, at a
purchase price per share of $_____________, the number of Firm Shares (to be
adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Company and
the Selling Stockholder by a fraction, the numerator of which is the aggregate
number of Firm Shares to be purchased by such Underwriter as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the aggregate number of Firm Shares to be purchased by all of the
Underwriters from the Company and the Selling Stockholder hereunder and (b) in
the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share
set forth in clause (a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of
which is the maximum number of Optional Shares which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum number of
Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to __________ Optional Shares, at the purchase price
per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to
the Company, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the
date of such notice.
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3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The certificates in respect of the Shares to be purchased by
each Underwriter hereunder, in definitive form, and in such authorized
denominations and registered in such names as Goldman, Sachs & Co. may
request upon at least forty-eight hours' prior notice to the Company
and the Selling Stockholder shall be delivered by or on behalf of the
Company and the Selling Stockholder to Goldman, Sachs & Co., through
the facilities of The Depository Trust Company (the "DTC"), for the
account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by certified or official
bank check or checks, payable to the order of the Company and the
Selling Stockholder, as their interests may appear, in New York
Clearing House (next day) funds. The Company will cause
the certificates representing the Shares to be made available for
checking and packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of DTC
or its designated custodian Goldman, Sachs & Co., 85 Broad Street,
New York, New York 10004 (the "Designated Office"). The time and date
of such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York City time, on _____________ 1994 or such other time
and date as Goldman, Sachs & Co. and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York
City time, on the date specified by Goldman, Sachs & Co. in the
written notice given by Goldman, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date
as Goldman, Sachs & Co. and the Company may agree upon in writing.
Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called
the "Second Time of Delivery", and each such time and date for delivery
is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery
by or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross-receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 7(j)
hereof, will be delivered at the offices of Sullivan & Cromwell, 125
Broad Street, New York, New York 10004 (the "Closing Location"), and
the Shares will be delivered at the Designated Office, all at each
Time of Delivery. A meeting will be held at the Closing Location at
such time as the parties shall agree preceding each Time of Delivery,
at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday,Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to
close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, at the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you
copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the
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Shares for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to use
its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you
may reasonably request to qualify the Shares for offering and sale
under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus in such quantities as you may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Shares and
if at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act or the Exchange
Act, to notify you and upon your request to file such document and
to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of any Stock or securities of the Company which are convertible
into or exchangeable for shares of Stock or options or warrants for
Stock without your written consent (other than (i) Stock issued
in connection with acquisitions by the Company, provided that the
recipient of such Stock agrees not to offer, sell, contract to sell,
or otherwise dispose of such Stock during the period of 90 days
after the date of the Prospectus, (ii) shares of Stock issued upon
conversion of outstanding convertible securities or upon exercise of
outstanding options or warrants, (iii) shares of Stock currently
registered under currently effective secondary shelf registration
statements and (iv) shares of Stock under the Company's Stock option
and other incentive and benefit plans existing on the date of the
Prospectus);
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the
end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of
the Registration Statement), consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail;
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(g) During a period of three years from the effective
date of the Registration Statement, to furnish to you copies of all
reports or other communications (financial or other) furnished to
stockholders, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any
class of securities of the Company is listed (such financial
statements to be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission); and
(ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably
request, provided that the Company shall not be required to deliver to
you information which is confidential or non-public;
(h) To use the net proceeds received by it from the sale
of the Shares issued and sold by the Company pursuant to this
Agreement and the International Underwriting Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds"; and
(i) To use its best efforts to list, subject to notice of
issuance, the Shares being issued and sold by the Company on the New
York Stock Exchange (the "Exchange").
6. The Company and the Selling Stockholder, jointly and severally,
covenant and agree with one another and with the several Underwriters that (a)
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and, other than as
provided in (b) below, filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, the International Underwriting Agreement, the Agreement between
Syndicates, the Selling Agreements, the Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the Exchange; (v) the cost of
preparing stock certificates; (vi) the cost and charges of any transfer agent or
registrar; and (vii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section; and (b) the Selling Stockholder will pay or cause to be
paid (i) the underwriting discounts and commissions on the Shares being
sold by it, (ii) its pro rata share of the registration fee, (iii) any fees
and expenses of counsel for the Selling Stockholder, and (iv) all
out-of-pocket expenses and taxes incident to the sale and delivery of the
Shares to be sold by the Selling Stockholder to the Underwriters hereunder.
In connection with Clause (b)(iv) of the preceding sentence, Goldman,
Sachs & Co. agrees to pay New York State stock transfer tax, and the Selling
Stockholder agrees to reimburse Goldman, Sachs & Co. for associated carrying
costs if such tax payment is not rebated on the day of payment and for any
portion of such tax payment not rebated. It is understood, however, that the
Company shall bear, and the Selling Stockholder shall not be required to pay
or to reimburse the Company for, the cost of any other matters not directly
relating to the sale and purchase of the Shares to be sold by the Selling
Stockholder pursuant to this Agreement, and that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, stock transfer
taxes on resale by them of any of the Shares to be sold by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares
to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and of the Selling Stockholder herein are, at and as
of such Time of Delivery, true and correct, the condition that the Company and
the Selling Stockholder shall have performed all of its and their obligations
hereunder theretofore
9
<PAGE>
to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with
to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Time of Delivery,
with respect to the incorporation of the Company, the validity of the
Shares being issued and sold by the Company at such Time of Delivery, the
Registration Statement, the Prospectus and other related matters as you
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(c) James K. Markey, Esq., a senior corporate counsel for the
Company, shall have furnished to you his written opinion, dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the Shares being delivered at such
Time of Delivery) have been duly and validly authorized and issued
and are fully paid and non-assessable; and the Shares conform to the
description of the Stock contained in the Prospectus;
(iii) To the best of such counsel's knowledge and other than
as set forth, incorporated by reference, or contemplated in the
Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject, which such counsel has reasonable cause to believe would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole;
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(iv) This Agreement and the International Underwriting
Agreement have been duly authorized; executed and delivered by
the Company;
(v) The issue and sale of the Shares being delivered at such
Time of Delivery to be sold by the Company and the compliance by
the Company with all of the provisions of this Agreement and the
International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions, of, or constitute a default under, any material
contract, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties;
(vi) No consent, approval, authorization, order, registration
or qualification of or with any such
10
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court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement and the International
Underwriting Agreement, except the registration under the Act of
the Shares, and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters;
(vii) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and in
the Prospectus under the caption "Underwriting", insofar as they
purport to describe the provisions of the laws and documents
to which the Company is a party referred to therein, are accurate,
complete and fair;
(viii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be, or if such
documents have been amended prior to the date hereof, when such
amendments were filed, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and he has no reason to believe that any of such
documents, when such documents became effective or were so filed
or so amended, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents
which were filed under the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such documents
were so filed or so amended, not misleading; and
(ix) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules
and regulations thereunder; although he does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (vii) of this Section 7(c), he has no reason to
believe that, as of its effective date, the Registration Statement
or any further amendment thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that,
as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading or that, as of such Time of Delivery, either
the Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and he does not know of any amendment to the
Registration Statement required to be filed
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or of any contracts or any other documents of a character required
to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or
required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or
described as required.
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction outside the United States;
(d) At the First Time of Delivery, Winston & Strawn, counsel for the
Selling Stockholder, shall have furnished to you their written opinion with
respect to the Selling Stockholder, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on behalf
of the Selling Stockholder; and the sale of the Shares to be sold
by the Selling Stockholder hereunder and thereunder and the
compliance by the Selling Stockholder with all of the provisions
of this Agreement and the International Underwriting Agreement
and the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the Selling
Stockholder is a party or by which the Selling Stockholder is
bound, or to which any of the property or assets of the Selling
Stockholder is subject, nor will such action result in any
violation of any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction
over the Selling Stockholder or the property of the Selling
Stockholder;
(ii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement and
the International Underwriting Agreement in connection with the
Shares to be sold by the Selling Stockholder hereunder or
thereunder, except such as have been obtained under the Act and
such as may be required under state or foreign securities or Blue
Sky laws in connection with the purchase and distribution of such
Shares by the Underwriters or the International Underwriters;
(iii) Immediately prior to the First Time of Delivery, the Selling
Stockholder had good and valid title to the Shares to be sold at
such Time of Delivery by the Selling Stockholder under this
Agreement and the International Underwriting Agreement, free and
clear of all liens, encumbrances, equities or claims, and full
right, power and authority to sell, assign, transfer and deliver
the Shares to be sold by the Selling Stockholder hereunder and
thereunder; and
(iv) Good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, has been transferred to
each of the several Underwriters or International Underwriters,
as the case may be (assuming that the Underwriters and the
International Underwriters acquired the Shares without notice
of any adverse claims (as such term is used in Section 8-302 of the
Uniform Commercial Code as in effect in the State of New York)).
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States and in
rendering the opinion in subparagraph (iv) such counsel may rely upon a
certificate of the Selling Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or claims on the Shares sold
by the Selling Stockholder, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such certificate;
12
<PAGE>
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, KPMG Peat
Marwick LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto;
(f)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth, incorporated by reference,
or contemplated in the Prospectus, and (ii) since the respective dates as of
which information is given in the Prospectus there shall not have been any
change in the capital stock of the Company (other than upon exercise of
outstanding stock options or pursuant to the Company's employee stock
ownership plan or employee stock purchase plans or the Company's employee
savings and profit sharing plan or upon conversion of convertible securities
outstanding on the date of the most recent balance sheet of the Company
included in the Prospectus) or any significant increase in long-term debt of
the Company and its subsidiaries considered as a whole or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth,
incorporated by reference, or contemplated in the Prospectus, the effect of
which, in any such case described in Clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this Clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(i) The Shares to be sold by the Company and the Selling Stockholder
at such Time of Delivery shall have been duly listed, subject to notice of
issuance in the case of the Shares to be sold by the Company, on the Exchange;
and
(j) The Company and the Selling Stockholder shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling Stockholder, respectively, satisfactory to
you as to the accuracy of the representations and warranties of the Company
and the Selling Stockholder, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling Stockholder of
all of their respective obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as you may reasonably
request, and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (e) of this
Section, and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission
13
<PAGE>
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
Goldman, Sachs & Co. expressly for use therein; PROVIDED, FURTHER, that the
Company shall not be liable to any Underwriter under the indemnity agreement
in this subsection (a) with respect to any Preliminary Prospectus to the
extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares to a person to
whom there was not sent or given, at or prior to the written confirmation
of such sale, a copy of the Prospectus (excluding documents incorporated
by reference) as then amended or supplemented (excluding documents
incorporated by reference) if the Company has previously furnished copies
thereof to such Underwriter and the loss, claim, damage or liability of
such Underwriter results from an untrue statement or omission of a material
fact contained in the Preliminary Prospectus which was corrected in the
Prospectus (excluding documents incorporated by reference) as then amended
or supplemented (excluding documents incorporated by reference).
(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon 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, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by the Selling Stockholder
expressly for use therein; and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Selling Stockholder shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through Goldman, Sachs & Co. expressly for
use therein; PROVIDED, FURTHER, that the liability of the Selling Stockholder
pursuant to this subsection (b) shall not exceed the product of the number
of Shares sold by the Selling Stockholder and the initial public offering
price of the Shares as set forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company
and the Selling Stockholder against any losses, claims, damages or
liabilities to which the Company or the Selling Stockholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through Goldman, Sachs & Co. expressly for use therein; and will
reimburse the Company and the Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or the Selling
14
<PAGE>
Stockholder in connection with investigating or defending any such action
or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (which shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Stockholder on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (d)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Selling Stockholder on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholder on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholder bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Shares purchased under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Stockholder on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company, the Selling Stockholder and the Underwriters
agree that it would not be just and equitable if contributions pursuant to
this subsection (e) were determined by PRO RATA allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of
this subsection (e), no Underwriter shall be required to contribute
15
<PAGE>
any amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission of alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder under
this Section 8 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within
the meaning of the Act; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company or the Selling Stockholder within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six after
such default by any Underwriter you do not arrange for the purchase on such
Shares, then the Company and the Selling Stockholder shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company
and the Selling Stockholder that you have so arranged for the purchase of
such Shares, or the Company and the Selling Stockholder notify you that they
have so arranged for the purchase of such Shares, you or the Company and the
Selling Stockholder shall have the right to postpone such Time of Delivery for
a period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or
in any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term 'Underwriter' as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholder as provided in subsection (a) above, the aggregate
number of such shares which remains unpurchased does not exceed one-eleventh
of the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholder shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholder as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh
of the aggregate number of all of the Shares to be purchased at such Time of
Delivery, or if the Company and the Selling Stockholder shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional Shares)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholder, except for the expenses
to be borne by the Company and the Selling Stockholder and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter
from
16
<PAGE>
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholder and
the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or the Selling Stockholder, or any
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of
the Company and the Selling Stockholder as provided herein, the Company and
the Selling Stockholders pro rata (based on the number of Shares to be sold
by the Company and the Selling Stockholder hereunder), will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing
by you, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery of
the Shares not so delivered, but the Company and the Selling Stockholder shall
then be under no further liability to any Underwriter in respect of the Shares
not so delivered except as provided in Section 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made
or given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives; and in all dealings with the Selling Stockholder hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of the Selling Stockholder made or
given by any or all of the officers or trustees of the Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the representatives in care of Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Attention:
Registration Department; if to the Selling Stockholder shall be delivered or
sent by mail, telex or facsimile transmission to counsel for the Selling
Stockholder at its address set forth in Schedule II hereto; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Stockholder by you upon request. Any
such statements, requests, notices or agreements shall take effect upon
receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholder and, to
the extent provided in Section 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term 'business day' shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
17
<PAGE>
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the
Company and the Selling Stockholder. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company and the Selling Stockholder for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
18
<PAGE>
Very truly yours,
Motorola, Inc.
By:
----------------------------------
Name:
Title:
The Robert W. Galvin 1992 Grantor
Retained Annuity Trust
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof at ,
-------
------------------------:
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: ---------------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
-----------
<S> <C> <C>
Goldman, Sachs & Co. ...............
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
[NAMES OF OTHER UNDERWRITERS].......
Total
</TABLE>
20
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
<S> <C> <C>
The Company. .......................
The Selling Stockholder:
The Robert W. Galvin
1992 Grantor Retained
Annuity Trust (a)...............
Total
<FN>
(a) The Selling Stockholder is represented by Winston & Strawn, 35 West
Wacker Drive, Chicago, Illinois 60601.
</TABLE>
21
<PAGE>
ANNEX I
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Registration Statement or the Prospectus (as
such terms are defined in the Underwriting Agreement) comply as to form
in all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the related published
rules and regulations thereunder;
(iii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with
the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
(iv) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302 and 402,
respectively, of Regulation S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally
<PAGE>
accepted auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below, a reading
of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or included
or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations thereunder, or (ii) any material modifications should be
made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included in the Prospectus) or any increase in
the consolidated long-term debt of the Company and its subsidiaries,
or any decreases in consolidated net current assets or stockholders'
equity or other items specified by the representatives of the
Underwriters (the "Representatives"), or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(E) for the period from the date of the latest
financial statements included in the Prospectus to the specified
date referred to in Clause (D) there were any decreases in
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consolidated net sales or earnings before income taxes or the total
or per share amounts of consolidated net earnings or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(vi) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraph (v) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and its subsidiaries and have found them to be in agreement.
<PAGE>
EXHIBIT 1(b)
MOTOROLA, INC.
Common Stock
($3 par value per share)
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
November __, 1994
Goldman Sachs International,
Merrill Lynch International Limited
As representative of the several Underwriters
named in Schedule I hereto,
c/o Goldman Sachs International
Peterborough Court,
133 Fleet Street,
London EC4A 2BB, England.
Ladies and Gentlemen:
Motorola, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of . . . . . . . shares and, at the
election of the Underwriters, up to . . . . . . . . additional
shares of common stock, $3 par value per share ("Stock") of the
Company and the stockholder of the Company named in Schedule II
hereto (the "Selling Stockholder") proposes, subject to the terms
and conditions stated herein, to sell to the Underwriters an
aggregate of . . . . . . . . shares. The aggregate of . . . . . . . shares to
be sold by the Company and the Selling Stockholder is herein called the "Firm
Shares" and the . . . . . . . . additional shares to be sold by the Company
is herein called the "Optional Shares". The Firm Shares and the Optional
Shares which the Underwriters elect to purchase pursuant to Section 2 hereof
are herein collectively called, the "Shares".
It is understood and agreed to by all parties that the Company
and the Selling Stockholder are concurrently entering into an
agreement, a copy of which is attached hereto (the
"U.S. Underwriting Agreement"), providing for the sale by the
Company and the Selling Stockholder of up to a total of . . . . . shares
of Stock (the "U.S. Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters in the
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United States (the "U.S. Underwriters"), for whom Goldman, Sachs &
Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting as
representatives. Anything herein or therein to the contrary notwithstanding,
the respective closings under this Agreement and the U.S. Underwriting
Agreement are hereby expressly made conditional on one another. The
Underwriters hereunder and the U.S. Underwriters are simultaneously entering
into an Agreement between U.S. and International Underwriting Syndicates (the
"Agreement between Syndicates") which provides, among other things, for the
transfer of shares of Stock between the two syndicates and for consultation
by the Lead Managers hereunder with Goldman, Sachs & Co. prior to exercising
the rights of the Underwriters under Section 7 hereof. Two forms of
prospectus are to be used in connection with the offering and sale of shares
of Stock contemplated by the foregoing, one relating to the Shares hereunder
and the other relating to the U.S. Shares. The latter form of
prospectus will be identical to the former except for certain
substitute pages as included in the registration statement and
amendments thereto as mentioned below. Except as used in Sections
2, 3, 4, 9 and 11 herein, and except as context may otherwise
require, references hereinafter to the Shares shall include all of
the shares of Stock which may be sold pursuant to either this
Agreement or the U.S. Underwriting Agreement, and references herein
to any prospectus whether in preliminary or final form, and whether
as amended or supplemented, shall include both the U.S. and the
international versions thereof.
In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including the
related definitions of terms, which are also used elsewhere herein)
and, for purposes of applying the same, references (whether in
these precise words or their equivalent) in the incorporated
provisions to the "Underwriters" shall be to the Underwriters
hereunder, to the "Shares" shall be to the Shares hereunder as just
defined, to "this Agreement" (meaning therein the U.S. Underwriting
Agreement) shall be to this Agreement (except where this Agreement
is already referred to or as the context may otherwise require) and
to the representatives of the Underwriters or to Goldman, Sachs &
Co. shall be to the addressees of this Agreement and to Goldman Sachs
International ("GSI"), as the case may be, and, in general, all
such provisions and defined terms shall be applied MUTATIS MUTANDIS as if the
incorporated provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and the Selling Stockholder hereby make to the
Underwriters the same respective representations, warranties and
agreements as are set forth in Section 1 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a)
the Company and the Selling Stockholder agree, severally and not
jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
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the Company and the Selling Stockholder, at a purchase price per
shares of $. . . . . . . ., the number of Firm Shares (to be adjusted)
by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the
Company and the Selling Stockholder by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto and the denominator of which is the aggregate
number of Firm Shares to be purchased by all the Underwriters from
the Company and the Selling Stockholder hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company at the
purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a
fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that
all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase
at their election up to . . . . . . . . . . . . . . Optional Shares, at the
purchase price per share set forth in the paragraph above, for the
sole purpose of covering overallotments in the sale of the Firm
Shares. Any such election to purchase Optional Shares
may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares
to be purchased and the date on which such Optional Shares are to
be delivered, as determined by you but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or, unless
you and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares
for sale upon the terms and conditions set forth in the Prospectus
and in the forms of Agreement among Underwriters (International
Version) and Selling Agreements, which have been previously
submitted to the Company by you. Each Underwriter hereby makes to
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<PAGE>
and with the Company and the Selling Stockholder the
representations and agreements of such Underwriter as a member of
the selling group contained in Sections 3(d) and 3(e) of the form
of Selling Agreements.
4. (a) The certificates in respect of the Shares to be purchased by
each Underwriter hereunder, in definitive form, and in such authorized
denominations and registered in such names as Goldman, Sachs
& Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholder shall be
delivered by or on behalf of the Company and the Selling
Stockholder to Goldman, Sachs & Co., through the facilities of
The Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by certified or
official bank check or checks, payable to the order of the
Company and the Selling Stockholder, as their interests may appear,
in New York Clearing House (next day) funds. The Company will cause
the certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office
of DTC or its designated custodian Goldman, Sachs & Co., 85
Broad Street, New York, New York 10004 (the "Designated
Office"). The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:30 a.m., New York
City time, on .............., 1994 or such other time and date
as Goldman, Sachs & Co. and, the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date
specified by Goldman, Sachs & Co. in the written notice given
by Goldman, Sachs & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as
Goldman, Sachs & Co. and the Company may agree upon in writing.
Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of
Delivery by or on behalf of the parties hereto pursuant to
Section 7 of the U.S. Underwriting Agreement, including the
cross-receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 7(j) of the
U.S. Underwriting Agreement, and the check or checks specified
in subsection (a) above, will be delivered at the offices of
Sullivan and Cromwell, 125 Broad Street, New York, New York
10004 (the "Closing Location"), and the Shares will be
delivered at the Designated Office, all at each Time of
Delivery. A meeting will be held at the Closing Location at
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<PAGE>
such time as the parties shall agree preceding each Time of Delivery,
at which meeting the final drafts of the documents to be delivered pursuant
to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated
by law or executive order to close.
5. The Company hereby makes with the Underwriters the same
agreements as are set forth in Section 5 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
6. The Company, the Selling Stockholder, and the Underwriters
hereby agree with respect to certain expenses on the same terms as
are set forth in Section 6 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
7. Subject to the provisions of the Agreement between
Syndicates, the obligations of the Underwriters hereunder shall be
subject, in their discretion, at each Time of Delivery to the
condition that all representations and warranties and other
statements of the Company and the Selling Stockholder herein are,
at and as of such Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholder shall have performed
all of their respective obligations hereunder theretofore to be
performed, and additional conditions identical to those set forth
in Section 7 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon 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, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim
as such expenses are incurred; PROVIDED, HOWEVER, that the Company
shall not be liable in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished
to the Company by any Underwriter through GSI expressly for use
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<PAGE>
therein; PROVIDED, FURTHER, that the Company shall not be liable to
any Underwriter under the indemnity agreement in this subsection
(a) with respect to any Preliminary Prospectus to the extent that
any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares to a person
to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding
documents incorporated by reference) as then amended or
supplemented (excluding documents incorporated by reference) if the
Company has previously furnished copies thereof to such Underwriter
and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was corrected in the
Prospectus (excluding documents incorporated by reference) as then
amended or supplemented (excluding documents incorporated by
reference).
(b) The Selling Stockholder will indemnify and hold harmless
each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon
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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by the Selling
Stockholder expressly for use therein; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; PROVIDED,
HOWEVER, that the Selling Stockholder shall not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by
any Underwriter through GSI expressly for use therein; PROVIDED,
FURTHER, that the liability of the Selling Stockholder pursuant to
this subsection (b) shall not exceed the product of the number of
Shares sold by the Selling Stockholder and the initial public offering
price of the Shares as set forth in the Prospectus.
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<PAGE>
(c) Each Underwriter will indemnify and hold harmless the
Company and the Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or the Selling
Stockholder may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon 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, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by
such Underwriter through GSI expressly for use therein; and will
reimburse the Company and the Selling Stockholder for any legal or
other expenses reasonably incurred by the Company or the Selling
Stockholder in connection with investigating or defending any such
action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of
any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified
party (which shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i)
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includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a), (b) or (c) above in respect of any
losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriters on the
other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company and the Selling Stockholder on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received
by the Company and the Selling Stockholder on the one hand and the
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the
Shares purchased under this Agreement (before deducting expenses)
received by the Company and the Selling Stockholder bear to the
total underwriting discounts and commissions received by the
Underwriters with respect to the Shares purchased under this
Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or the Selling Stockholder on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Selling
Stockholder and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (e) shall be deemed
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to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder
under this Section 8 shall be in addition to any liability which
the Company and the Selling Stockholder may otherwise have and
shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act;
and the obligations of the Underwriters under this Section 8 shall
be in addition to any liability which the respective Underwriters
may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each
person, if any, who controls the Company or the Selling Stockholder
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a
Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms
contained herein. If within thirty-six hours after such default by
any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Stockholder shall be entitled to
a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such
Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company and the Selling
Stockholder that you have so arranged for the purchase of such
Shares, or the Company and the Selling Stockholder notify you that
they have so arranged for the purchase of such Shares, you or the
Company and the Selling Stockholder shall have the right to
postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect
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to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters
by you and the Company and the Selling Stockholder as provided in
subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Stockholder shall have the right
to require each non-defaulting Underwriter to purchase the number
of shares which such Underwriter agreed to purchase hereunder at
such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on
the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters
by you and the Company and the Selling Stockholder as provided in
subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of
all the Shares to be purchased at such Time of Delivery, or if the
Company and the Selling Stockholder shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase
and of the Company to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
Company or the Selling Stockholder, except for the expenses to be borne by
the Company and the Selling Stockholder and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section
8 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling
Stockholder and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company or the Selling
Stockholder, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section
9 hereof, neither the Company nor the Selling Stockholder shall
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then be under any liability to any Underwriter except as provided
in Section 6 and Section 8 hereof; but, if for any other reason,
any Shares are not delivered by or on behalf of the Company and the
Selling Stockholder as provided herein, the Company and the Selling
Stockholders pro rata (based on the number of Shares to be sold by
the Company and the Selling Stockholder hereunder) will reimburse
the Underwriters through GSI for all out-of-pocket expenses
approved in writing by GSI, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not
so delivered, but the Company and the Selling Stockholders shall
then be under no further liability to any Underwriter in respect of
the Shares not so delivered except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you jointly or by GSI on
behalf of you as the representatives; and in all dealings with the Selling
Stockholder hereunder, you and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of the Selling
Stockholder made or given by any or all of the officers or trustees of the
Selling Stockholder.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered
or sent by mail, telex or facsimile transmission to the
Underwriters in care of GSI, Peterborough Court, 133 Fleet Street,
London EC4A 2BB, England, Attention: Equity Capital Markets, Telex
No. 94012165, facsimile transmission No. (071) 774-1550; if to any
Selling Stockholder shall be delivered or sent by mail, telex or
facsimile transmission to counsel for such Selling Stockholder at
its address set forth in Schedule II hereto; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration
Statement, Attention: Secretary; PROVIDED, HOWEVER, that any notice
to an Underwriter pursuant to Section 8(d) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Stockholder
by GSI upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and the Selling
Stockholder and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person
who controls the Company, or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any of the Shares from any
11
<PAGE>
Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States of
America.
16. This Agreements may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding
agreement among each of the Underwriters, the Company and the
Selling Stockholder. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement among Underwriters
(International Version), the form of which shall be furnished to
the Company and the Selling Stockholder for examination upon
request, but without warranty on your part as to the authority of
the signers thereof.
12
<PAGE>
Very truly yours,
Motorola, Inc.
By:
----------------------------------------
Name:
Title:
The Robert W. Galvin 1992 Grantor
Retained Annuity Trust
By:
----------------------------------------
Name:
Title:
Accepted as of the date hereof at New York,
New York:
Goldman Sachs International
Merrill Lynch International Limited
By:
--------------------------------------------------------------------------
(Attorney-in-Fact)
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------
<S> <C> <C>
Goldman Sachs International.............
Merrill Lynch International Limited.....
[Names of other Managers].........
Total........................
</TABLE>
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
<S> <C> <C>
The Company..................
The Selling Stockholder:
The Robert W. Galvin 1992 Grantor
Retained Annuity Trust.....
Total...................
<FN>
(a) This Selling Stockholder is represented by Winston & Strawn, 35 West
Wacker Drive, Chicago, Illinois 60601.
</TABLE>
<PAGE>
Exhibit 23(b)
ACCOUNTANT'S CONSENT
The Board of Directors and Stockholders
of Motorola, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-3 (No. 00-00000) of Motorola, Inc. of our reports dated January 13, 1994,
relating to the consolidated balance sheets of Motorola, Inc. and consolidated
subsidiaries as of December 31, 1993 and 1992 and the related statements of
consolidated earnings, stockholders' equity and cash flows and related schedules
for each of the years in the three-year period ended December 31, 1993, which
reports appear in, or are incorporated by reference in, the 1993 annual report
on Form 10-K of Motorola, Inc. and to the references to our firm under the
headings "Selected Financial Information" and "Experts" in the prospectus.
KPMG Peat Marwick LLP
Chicago, Illinois
November 7, 1994
