<PAGE>
As filed with the Securities and Exchange Commission on April 9, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
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MOTOROLA, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 36-1115800
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation)
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1303 East Algonquin Road
Schaumburg, Illinois 60196
(847) 576-5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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With a copy to:
Carl F. Koenemann Jeffrey A. Brown
Executive Vice President Senior Counsel
and Chief Financial Officer 1303 East Algonquin Road
1303 East Algonquin Road Schaumburg, Illinois 60196
Schaumburg, Illinois 60196 (847) 576-5014
(847) 576-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Approximate date of commencement of proposed sale to the public: From time
to time 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, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Amount Maximum Amount of
Title of Each Class of to be Aggregate Offering Registration
Securities to Be Registered (1) Registered (2) Price (2) Fee (3)
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<S> <C> <C> <C>
Debt Securities, Common Stock,
par value $3 per share, Debt
Securities Warrants and Common
Stock Warrants................ $1,000,000,000 $1,000,000,000 $278,000
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</TABLE>
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(1) Includes Debt Securities that may be issued upon exercise of Debt Security
Warrants and shares of Common Stock that may be issued upon exercise of
Common Stock Warrants or upon conversion of Debt Securities. Also includes
preferred stock purchase rights relating to shares of Common Stock and
securities issuable upon conversion of convertible securities for no
separate consideration. Prior to the occurrence of certain events, the
preferred stock purchase rights will not be evidenced separately from the
Common Stock.
(2) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including the Euro. If any Debt Securities or Debt Securities
Warrants are issued at an original issue discount, such greater amount as
shall result in net proceeds to the Registrant of $1,000,000,000.
(3) The registration fee has been calculated pursuant to Rule 457(o) and
reflects the offering price rather than the principal amount, of any Debt
Securities issued at a discount.
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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.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this preliminary prospectus is not complete and may be +
+changed. We cannot sell these securities until the registration statement +
+covering them has been declared effective by the SEC. This preliminary +
+prospectus is not an offer to sell these securities and we are not soliciting +
+offers to buy these securities in any state where the offer or sale is not +
+permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED APRIL 9, 1999
PROSPECTUS
$1,000,000,000
Debt Securities and Debt Securities Warrants
Common Stock and Common Stock Warrants
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We may use this prospectus to offer and sell securities from time to time.
The types of securities we may sell include:
. unsecured senior debt
securities . common stock
. unsecured subordinated . warrants to purchase common stock
debt securities
. units consisting of any combination of these
. warrants to purchase debt securities
securities
We will provide the specific terms of these securities in supplements to this
prospectus prepared in connection with each offering. These terms may include:
In the case of
any securities:
In the case of
. offering price debt securities: In the case of warrants:
. size of . interest rate . the types of securities that may be
offering acquired upon exercise
. maturity
. underwriting . expiration date
discounts . ranking
. exercise price
. denomination or . whether they
currency (other may be redeemed
than with prior to
respect to maturity
common stock)
. conditions to exercisability
. whether they
are convertible
into common
stock
The securities offered will contain other significant terms and conditions.
Please read this prospectus and the applicable prospectus supplement carefully
before you invest.
-----------
These securities have not been approved by the Securities and Exchange
Commission or any state securities commission, nor have they determined if this
prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
-----------
The date of this prospectus is , 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") using a "shelf" registration
process. Under this shelf process, we may sell:
. unsecured senior debt securities
. common stock
. unsecured subordinated debt
securities
. warrants to purchase common stock
. warrants to purchase debt securities . units consisting of any
combination of these securities
in one or more offerings up to an aggregate initial public offering price of
$1,000,000,000 or amounts equivalent to $1,000,000,000 in one or more foreign
currencies, including the Euro. This prospectus provides you with a general
description of those securities. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the terms
of the securities and the offering. The prospectus supplement may also add,
update or change information contained in this prospectus. You should read this
prospectus and the applicable prospectus supplement together with the
additional information described below under the heading "Where You Can Find
More Information."
The registration statement that contains this prospectus (including the
exhibits) contains additional important information about Motorola, Inc. and
the securities offered under this prospectus. Specifically, we have filed
certain legal documents that control the terms of the securities offered by
this prospectus as exhibits to the registration statement. We will file certain
other legal documents that control the terms of the securities offered by this
prospectus as exhibits to reports we file with the SEC. That registration
statement and the other reports can be read at the SEC web site or at the SEC
offices mentioned under the heading "Where You Can Find More Information."
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference facilities at
450 Fifth Street, N.W., Washington, D.C. 20549. You can also obtain copies of
the documents at prescribed rates by writing to the Public Reference Section
of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the operation of the public
reference facilities. Our SEC filings are also available at the office of the
New York Stock Exchange. For further information on obtaining copies of our
public filings at the New York Stock Exchange, you should call (212) 656-5060.
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus and information that we file subsequently
with the SEC will automatically update this prospectus. We incorporate by
reference the documents listed below and any filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the initial filing of the registration statement that contains this
prospectus and prior to the time that we sell all the securities offered by
this prospectus:
. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
. The description of the Common Stock included in the Registration
Statement on Form 8-B dated
July 2, 1973, including any amendments or reports filed for the purpose
of updating such description.
. The description of the Company's Preferred Stock Purchase Rights
included in the Registration Statement on Form 8-A dated November 5,
1998, as amended.
You may request a copy of these filings (other than exhibits, unless that
exhibit is specifically incorporated by reference into that filing) at no
cost, by writing to or telephoning us at the following address:
A. Peter Lawson
Secretary, Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Telephone: (847) 576-5000.
You should rely only on the information contained or incorporated by
reference in this prospectus or the applicable prospectus supplement. We have
not authorized anyone else to provide you with different information. We may
only use this prospectus to sell securities if it is accompanied by a
prospectus supplement. We are only offering these securities in states where
the offer is permitted. You should not assume that the information in this
prospectus or the applicable prospectus supplement is accurate as of any date
other than the dates on the front of those documents.
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THE COMPANY
Motorola is a global leader in providing integrated communications solutions
and embedded electronic solutions. These include:
. Software-enhanced wireless telephone, two-way radio, messaging and
satellite communications products and systems, as well as networking and
Internet-access products, for consumers, network operators, and
commercial, government and industrial customers.
. Embedded semiconductor solutions for customers in the consumer,
networking and computing, transportation, and wireless communications
markets.
. Embedded electronic systems for automotive, communications, imaging,
manufacturing systems, computer and consumer markets.
Motorola is a corporation organized under the laws of the State of Delaware
as the successor to an Illinois corporation organized in 1928. Motorola's
principal executive offices are located at 1303 East Algonquin Road,
Schaumburg, Illinois 60196 (telephone number (847) 576-5000).
USE OF PROCEEDS
Unless the applicable prospectus supplement provides otherwise, the Company
will use the net proceeds from the sale of the offered securities for general
corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The following are the unaudited consolidated ratios of earnings to fixed
charges for each of the years in the five-year period ended December 31, 1998:
<TABLE>
<CAPTION>
Year Ended December 31,
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1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.................. -- (a) 6.4 6.1 11.6 9.8
</TABLE>
- --------
(a) Earnings were inadequate to cover fixed charges by $1.4 billion.
For purposes of computing the ratios of earnings to fixed charges, we have
divided income before income tax expense plus fixed charges by fixed charges.
Fixed charges consist of interest costs and estimated interest included in
rentals (one-third of net rental expense).
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DESCRIPTION OF DEBT SECURITIES
The following is a general description of the debt securities that we may
offer from time to time. The particular terms of the debt securities offered by
any prospectus supplement and the extent, if any, to which the general
provisions described below may apply will be described in the applicable
prospectus supplement.
The debt securities will be either senior debt securities or subordinated
debt securities. The "Senior Securities" will be issued under the "Senior
Indenture" dated May 1, 1995 between the Company and Harris Trust and Savings
Bank ("Harris"), as trustee (or any successor trustee). The "Subordinated
Securities" will be issued under a "Subordinated Indenture" between the Company
and the trustee named therein (or any successor trustee). The Senior Indenture
and the Subordinated Indenture are collectively referred to in this prospectus
as the "Indentures," and each of the trustee under the Senior Indenture and the
trustee under the Subordinated Indenture are referred to in this prospectus as
a "Trustee." The Indentures are included as exhibits to the registration
statement and the following description is qualified in its entirety by
reference to the provisions of the Indentures and the applicable prospectus
supplement. You should read these documents carefully to fully understand the
terms of the debt securities.
The numerical references in parentheses below are to sections of the
Indentures. Unless otherwise indicated, capitalized terms used in the following
summary that are defined in the Indentures have the meanings used in the
Indentures. As used in this "Description of Debt Securities," the "Company"
refers to Motorola, Inc. and does not, unless the context otherwise indicates,
include its subsidiaries.
General
The Senior Securities are unsubordinated obligations of the Company. They
will be unsecured and will rank equally with each other and all of our other
senior and unsubordinated debt, unless otherwise indicated in the applicable
prospectus supplement. (Section 301 of the Senior Indenture.) Each applicable
prospectus supplement will set forth, as of the most recent practicable date,
the aggregate amount of outstanding debt that would rank junior to the Senior
Securities. The Subordinated Securities are subordinated in right of payment to
the prior payment in full of the Senior Indebtedness of the Company. See "--
Subordinated Indenture Provisions" below. The Subordinated Securities will be
unsecured and will rank equally with each other, unless otherwise indicated in
the applicable prospectus supplement. (Section 301 of the Subordinated
Indenture.) Each applicable prospectus supplement will set forth, as of the
most recent practicable date, the aggregate amount of outstanding debt that
would rank senior to the Subordinated Securities. The Indentures do not limit
the aggregate principal amount of debt securities that may be issued thereunder
and provide that debt securities may be issued thereunder from time to time in
one or more series.
Terms
We will prepare a prospectus supplement for each series of debt securities
that we issue. Each prospectus supplement will set forth the applicable terms
of the debt securities to which it relates, which may include the following:
. the title of the securities;
. any limit on the aggregate principal amount of the securities;
. the maturity;
. the interest rate and the date from which interest will accrue;
. the interest payment dates and the record dates for payment of interest,
or the discount to face value and accretion rate in the case of debt
securities issued at a substantial discount to the principal amount;
. the price and date of any optional redemption by the Company;
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. the obligation, if any, of the Company to redeem the offered securities
and any requirement to maintain a "sinking fund" to support such
obligation;
. the currency or currencies in which the Company will pay principal or
interest;
. any conversion features; and
. whether the defeasance or covenant defeasance provisions of the
applicable Indenture apply.
The Company can also establish any other terms and conditions of the debt
securities to the extent they do not conflict with the terms of the Indentures.
(Section 301 of each Indenture.) Therefore, you must read the applicable
Indenture and prospectus supplement carefully to understand the terms of any
series of debt securities.
Effective Subordination
The debt securities will be obligations exclusively of the Company. Since
the Company's operations are partially conducted through subsidiaries,
primarily overseas, the Company's cash flow and therefore its ability to
service debt, including the debt securities offered by the applicable
prospectus supplement, are partially dependent upon the earnings of its
subsidiaries and the distribution of those earnings to, or upon loans or other
payments of funds by those subsidiaries to, the Company. The subsidiaries are
separate and distinct legal entities and have no obligation to pay any amounts
due pursuant to the debt securities or to make any funds available to the
Company to repay its obligations, whether by dividends, loans or other
payments. In addition, the payment of dividends and the making of loans and
advances to the Company by its subsidiaries may be subject to statutory or
contractual restrictions, are contingent upon the earnings of those
subsidiaries and are subject to various business considerations.
Any right of the Company to receive assets of any of its subsidiaries upon
their liquidation or reorganization and therefore the right of the holders of
the debt securities to participate in those assets will be effectively
subordinated to the claims of that subsidiary's creditors, including trade
creditors.
No Limitations on Other Debt
The general provisions of the Indentures do not contain any provisions that
would limit the ability of the Company to incur indebtedness or that would
afford holders of debt securities protection in the event of a highly leveraged
or similar transaction involving the Company. However, the Indentures do
restrict the Company and its domestic subsidiaries from granting certain
security interests on certain of their property or assets unless the debt
securities are equally secured. See "--Restrictive Covenants" below.
Open-Ended Indenture
The Indentures are "open-ended," meaning the Company may issue a number of
different series of debt securities, with different terms and conditions, under
each of the Indentures. (Section 301 of each Indenture.) There is no limit on
the amount of debt securities the Company can issue under either Indenture, and
the Company has already issued a significant amount of debt securities under
the Senior Indenture.
Defeasance and Covenant Defeasance
Under the Indentures, the Company has the ability to take certain steps to
effect a "defeasance" or a "covenant defeasance." A "defeasance" allows the
Company to be discharged from any and all obligations in respect of a series of
debt securities (except for certain obligations to register the transfer or
exchange of such debt securities, to replace temporary, destroyed, stolen, lost
or mutilated debt securities, to maintain paying
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agencies and to hold monies for payment in trust). A "covenant defeasance"
allows the Company to stop complying with certain restrictive covenants
relating to:
. consolidation, merger, conveyance, transfer or lease;
. maintenance of the Company's existence and properties;
. payment of taxes and other claims; and
. restrictions on secured debt and sale and leaseback transactions.
A "covenant defeasance" also causes certain events specified in the
Indentures to no longer be deemed an Event of Default under the Indentures.
To effect a "defeasance" or a "covenant defeasance," the Company must
deposit with the applicable Trustee an amount of money or U.S. government
securities that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of (and premium, if any) and each installment
of interest, if any, on the debt securities of such series at the time such
payments are due. The Company will remain liable for any shortfall between the
amount deposited with the Trustee and the amount due holders of debt securities
upon any acceleration of payment.
The Company may only effect a "defeasance" or a "covenant defeasance" if it
has provided a legal opinion that such action will not cause holders of such
debt securities to recognize income, gain or loss for federal income tax
purposes as a result and that holders will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred. Such opinion, in the
case of a "defeasance," must refer to and be based upon a ruling of the
Internal Revenue Service or a change in applicable Federal income tax law
occurring after the date of the applicable Indenture.
The applicable prospectus supplement may further describe the provisions, if
any, regarding defeasance or covenant defeasance with respect to the debt
securities of a particular series. (Article Fifteen of each Indenture.)
Restrictive Covenants
Restrictions on Secured Debt
If the Company or any Domestic Subsidiary incurs or guarantees any Debt
secured by a Mortgage on any Principal Property or on any shares of stock or
Debt of any Domestic Subsidiary, the Company must secure the debt securities of
each series equally and ratably with (or prior to) such secured Debt, unless,
after giving effect to such transaction, the aggregate amount of all such Debt
so secured, together with all Attributable Debt in respect of sale and
leaseback transactions involving Principal Properties (see "--Restrictions on
Sales and Leasebacks" below), would not exceed 5% of the Consolidated Net
Tangible Assets of the Company and its consolidated subsidiaries.
This restriction does not apply to, and there will be excluded from secured
Debt in any computation under such restriction, Debt secured by:
(a) Mortgages on property of, or on any shares of stock of or Debt of,
any corporation existing at the time such corporation becomes a Domestic
Subsidiary or at the time it is merged into or consolidated with the
Company or a Domestic Subsidiary;
(b) Mortgages in favor of the Company or a Domestic Subsidiary;
(c) Mortgages in favor of governmental bodies to secure progress or
advance payments;
(d) Mortgages on property, shares of stock or Debt existing at the time
of acquisition thereof (including acquisition through merger or
consolidation);
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(e) purchase money Mortgages and Mortgages to secure the construction
cost of property; and
(f) any extension, renewal or refunding of any Mortgage referred to in
clauses (a) through (e), above.
Restrictions on Sales and Leasebacks
Neither the Company nor any Domestic Subsidiary may enter into any sale and
leaseback transaction involving any Principal Property, completion of
construction and commencement of full operation of which has occurred more
than 180 days prior thereto, unless (a) the Company or such Domestic
Subsidiary could mortgage such property as provided for above under "--
Restrictive Covenants--Restrictions on Secured Debt" in an amount equal to the
Attributable Debt with respect to the sale and leaseback transaction without
equally and ratably securing the debt securities of each series or (b) the
Company, within 120 days, applies to the retirement of its Funded Debt an
amount not less than the greater of (i) the net proceeds of the sale of the
Principal Property leased pursuant to such arrangement or (ii) the fair market
value of the Principal Property so leased (subject to credits for certain
voluntary retirements of Funded Debt). This restriction will not apply to any
sale and leaseback transaction (a) between the Company and a Domestic
Subsidiary or between Domestic Subsidiaries or (b) involving the taking back
of a lease for a period, including renewals, of three years or less. (Section
1011 of each Indenture.)
Certain Definitions
The following are certain key definitions used in the descriptions above of
restrictions on secured debt and sales and leasebacks contained in the
Indentures. These and other definitions are contained in the Indentures. You
should read the applicable Indenture to understand these restrictions fully.
"Attributable Debt" means the total net amount of rent required to be paid
during the remaining term of any lease, discounted at the rate per annum borne
by the Senior Securities of each series, compounded annually.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any constituting Funded Debt
by reason of their being renewable or extendable) and (b) goodwill and other
intangibles. (Section 1010 of each Indenture.)
"Domestic Subsidiary" means a Subsidiary of the Company except a Subsidiary
of the Company which neither transacts any substantial portion of its business
nor regularly maintains any substantial portion of its fixed assets within the
United States, or which is engaged primarily in financing the operations of
the Company or its Subsidiaries, or both, outside the United States.
"Principal Property" includes any single parcel of real estate, any
manufacturing plant or warehouse owned or leased by the Company or any
Domestic Subsidiary which is located within the United States and the gross
book value (without deduction of any depreciation reserves) of which on the
date as of which the determination is being made exceeds 1% of Consolidated
Net Tangible Assets, other than any manufacturing plant or warehouse or a
portion thereof (a) which is a pollution control or other facility financed by
obligations issued by a state or local government unit or (b) which, in the
opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its subsidiaries
as an entirety.
"Subsidiary of the Company" means a corporation, a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company and/or one or more Subsidiaries of the Company.
Events of Default
The following are Events of Default under the Indentures with respect to
any debt securities:
. failure to pay principal of (or premium, if any) on any debt security of
that series when due;
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. failure to pay any installment of interest on any debt security of that
series when due, continued for 30 days;
. failure to deposit any sinking fund payment, when due, in respect of any
debt security of that series;
. failure to perform any other covenant of the Company in the applicable
Indenture (other than a covenant included in the applicable Indenture
solely for the benefit of any series of debt securities other than that
series), continued for 60 days after written notice as provided in the
applicable Indenture;
. certain events in bankruptcy, insolvency or reorganization; and
. any other Event of Default provided with respect to debt securities of
that series. (Section 501 of each Indenture.)
If an Event of Default with respect to the outstanding debt securities of
any series occurs and continues either the Trustee or the holders of at least
25% in principal amount of the outstanding debt securities of that series may
declare the principal amount of all debt securities of that series to be due
and payable immediately; provided that in the case of certain events of
bankruptcy, insolvency or reorganization, such principal amount (or portion
thereof) will automatically become due and payable. However, at any time after
an acceleration with respect to debt securities of any series has occurred, but
before a judgment or decree based on such acceleration has been obtained, the
holders of a majority in principal amount of the outstanding debt securities of
that series may, under certain circumstances, rescind and annul such
acceleration. (Section 502 of each Indenture.) For information as to waiver of
defaults, see "--Modification and Waiver." You must read the applicable
prospectus supplement for a description of the acceleration provisions of any
debt securities issued as original issue discount or indexed securities.
Subject to the duty of the Trustee during default to act with the required
standard of care, the Trustee will be under no obligation to exercise any of
its rights or powers under the applicable Indenture at the request or direction
of any of the holders, unless such holders have offered the Trustee reasonable
security or indemnity. (Section 603 of each Indenture.) Subject to such
indemnification and certain other limitations, the holders of a majority in
principal amount of the outstanding debt securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the debt securities of that series. (Section 512
of the Senior Indenture and Section 505 of the Subordinated Indenture.)
The Company will be required to furnish to the Trustee an annual statement
as to the performance by the Company of certain of its obligations under the
applicable Indenture and as to any default in such performance. (Section 1006
of each Indenture.)
Modification and Waiver
Modifications and amendments of each Indenture may be made by the Company
and the Trustee with the consent of the holders of 66 2/3% in principal amount
of the outstanding debt securities of each series affected thereby; provided,
however, that no such modification or amendment may, without the consent of the
holder of each outstanding debt security affected thereby:
. change the stated maturity date of the principal of, or any installment
of principal of or interest on, any debt security;
. reduce the principal amount of (or premium, if any) or interest, if any,
on, any debt security;
. reduce the amount of principal of any original issue discount debt
security payable upon acceleration of the maturity thereof;
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. change the place or currency of payment of principal of (or premium, if
any) or interest, if any, on, any debt security;
. impair the right to institute suit for the enforcement of any payment on
or with respect to any debt security; or
. reduce the percentage in principal amount of outstanding debt securities
of any series, the consent of the holders of which is required for
modification or amendment of the Indenture or for waiver of compliance
with certain provisions of the applicable Indenture or for waiver of
certain defaults. (Section 902 of each Indenture.)
The holders of a majority of the outstanding debt securities of any series
may on behalf of the holders of all debt securities of that series waive,
insofar as that series is concerned, compliance by the Company with certain
restrictive provisions of the applicable Indenture. (Section 1012 of each
Indenture.) The holders of a majority of the outstanding debt securities of any
series may on behalf of the holders of all debt securities of that series waive
any past default under the applicable Indenture with respect to debt securities
of that series, except a default in the payment of the principal of (or
premium, if any) or interest, if any, on any debt security of that series or in
respect of any provision which under the applicable Indenture cannot be
modified or amended without the consent of the holder of each outstanding debt
security of that series affected. (Section 513 of the Senior Indenture and
Section 504 of the Subordinated Indenture.)
In addition, under the Subordinated Indenture, no modification or amendment
thereof may, without the consent of the holders of each outstanding
subordinated debt security affected thereby, modify any of the provisions of
such Indenture relating to the subordination of the subordinated debt
securities in a manner adverse to the holders thereof without the consent of
all the holders thereof and no such modification or amendment may adversely
affect the rights of the holders of Senior Indebtedness then outstanding under
Article Sixteen of such Indenture (described under the caption "-- Subordinated
Indenture Provisions") without the consent of the requisite holders of Senior
Indebtedness (as required pursuant to the terms of such Senior Indebtedness).
(Section 902 of the Subordinated Indenture.)
Each Indenture contains provisions for convening meetings of the holders of
debt securities of a series issued thereunder if debt securities of that series
are issuable in whole or in part as bearer securities. (Section 1401 of each
Indenture.) A meeting may be called at any time by the Trustee for such debt
securities, or upon the request of the Company or the holders of at least 10%
in principal amount of the outstanding debt securities of such series, in any
such case upon notice given in accordance with the applicable Indenture.
(Section 1402 of each Indenture.) Except for any consent that must be given by
each holder of a debt security affected, any resolution presented at a meeting
or adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the holders of a majority in principal amount of the
outstanding debt securities of that series; provided, however, that, except for
any consent that must be given by each holder of a debt security affected, any
resolution with respect to any consent which may be given by the holders of not
less than 66 2/3% in principal amount of the outstanding debt securities of a
series issued under an Indenture may be adopted at a meeting or an adjourned
meeting at which a quorum is present only by the affirmative vote of the
holders of 66 2/3% in principal amount of such outstanding debt securities of
that series; and provided, further, that, except for any consent that must be
given by each holder of a debt security affected, any resolution with respect
to any demand, consent, waiver or other action which may be made, given or
taken by the holders of a specified percentage, which is less than a majority,
in principal amount of the outstanding debt securities of a series issued under
one of the Indentures may be adopted at a meeting or adjourned meeting at which
a quorum is present by the affirmative vote of the holders of such specified
percentage in principal amount of the outstanding debt securities of that
series. (Section 1404 of each Indenture.)
Any resolution passed or decision taken at any meeting of holders of debt
securities of any series duly held in accordance with the applicable Indenture
with respect thereto will be binding on all holders of debt securities of that
series and the related coupons issued under that Indenture. The quorum at any
meeting of
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holders of a series of debt securities called to adopt a resolution, and at any
reconvened meeting, will be persons holding or representing a majority in
principal amount of the outstanding debt securities of such series; provided,
however, that if any action is to be taken at such meeting with respect to a
consent which may be given by the holders of not less than 66 2/3% in principal
amount of the outstanding debt securities of a series, the persons holding or
representing 66 2/3% in principal amount of the outstanding debt securities of
such series issued under that Indenture will constitute a quorum. (Section 1404
of each Indenture.)
Consolidation, Merger, Conveyance, Transfer or Lease
The Company, without the consent of any holders of outstanding debt
securities, may consolidate or merge with or into, or transfer or lease its
assets substantially as an entirety to, any entity, and any other entity may
consolidate or merge with or into, or transfer or lease its assets
substantially as an entirety to, the Company, provided that, (i) the entity (if
other than the Company) formed by such consolidation or into which the Company
is merged or which acquires or leases such assets of the Company is organized
and existing under the laws of any United States jurisdiction and assumes the
Company's obligations on the debt securities and under the applicable
Indenture, (ii) after giving effect to such transaction no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, has happened and is continuing (provided that a transaction
will only be deemed to be in violation of this condition (ii) as to any series
of debt securities as to which such Event of Default or such event has happened
and is continuing) and (iii) certain other conditions are met. (Article Eight
of each Indenture.)
Form, Denominations, Exchange, Registration and Transfer
Debt securities may be issued as registered securities or bearer securities,
and may be issued in global form. Global securities are described below under
"--Global Securities." Unless otherwise provided in the applicable prospectus
supplement, registered securities will be issued in denominations of $1,000 and
integral multiples thereof and bearer securities will be issued in
denominations of $5,000 and integral multiples thereof. Unless otherwise
indicated in the applicable prospectus supplement, bearer securities will have
interest coupons attached. (Section 201 of each Indenture.)
Registered securities will be exchangeable for other registered securities
of the same series. In addition, if a series of debt securities has been issued
as both registered securities and bearer securities, subject to certain
conditions, holders may exchange bearer securities for registered securities.
Registered securities generally may not be exchanged for bearer securities
unless the applicable prospectus supplement provides for such an exchange
(Section 305 of each Indenture.)
We will not mail bearer securities in connection with their original
issuance to any location in the United States. In addition, the United States
Internal Revenue Code of 1986, as amended (the "Code"), requires us to obtain
written certification from the initial purchaser of a bearer security to the
effect that: (i) such bearer security is not being acquired by or on behalf of
a United States person (as defined under the Code) or (ii) if a beneficial
interest in such bearer security is being acquired by or on behalf of a United
States person, that such United States person is a foreign branch of a United
States financial institution (as defined under the Code) that is purchasing for
its own account or for resale or such person is acquiring the bearer security
through the foreign branch of a United States financial institution and the
financial institution agrees, in either case, to comply with certain
requirements of the Code or (iii) such bearer security is being acquired by a
United States or foreign financial institution for resale during the restricted
period (as defined in the Code) and has not been acquired for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions. (Section 303 of each Indenture.)
You may present registered securities for registration of transfer at the
office of the Trustee, or at the office of any transfer agent designated by the
Company without service charge and upon payment of any taxes and other
governmental charges. (Section 305 of each Indenture.) The Company may change
transfer agents or
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designate additional transfer agents at any time, except that, if the Company
has issued a series of debt securities solely as registered securities, it must
maintain a transfer agent in each place of payment for such series and, if the
Company has issued a series of debt securities as bearer securities, it must
maintain a transfer agent in a place of payment for such series located outside
the United States. (Section 1002 of each Indenture.)
If the Company elects or is required to redeem or exchange particular debt
securities, it will not be required to (i) issue, register the transfer of or
exchange such debt securities for a period of 15 days before the first
publication or mailing of the notice of redemption or exchange, (ii) register
the transfer of or exchange any registered security selected for redemption or
(iii) exchange any bearer security selected for redemption except that a bearer
security selected for redemption may be exchanged for a registered security
that will be surrendered for redemption. (Section 305 of each Indenture.)
Global Securities
The following will apply to debt securities of any series, unless the
prospectus supplement relating to that series provides otherwise.
Upon issuance, the debt securities of each series will be represented by one
or more "global securities" which will be deposited with, or on behalf of, the
depositary and will be registered in the name of the depositary or a nominee of
the depositary. Unless otherwise indicated in the prospectus supplement
relating to a series of debt securities, The Depositary Trust Company ("DTC")
will act as the depositary and the global securities will be deposited with, or
on behalf of, DTC or its nominee, and registered securities will be registered
in the name of a nominee of DTC. Except under limited circumstances described
below, global securities will not be exchangeable for definitive certificated
debt securities.
Upon the issuance of a global security, DTC will credit on its book-entry
registration and transfer system the principal amounts of the individual debt
securities represented by such global security to the accounts of persons that
have accounts with DTC ("Participants"). Ownership of beneficial interests in a
global security will be limited to Participants or persons that may hold
interests through Participants. Ownership of beneficial interests in such
global security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC (with respect to interests of
Participants) and records of Participants (with respect to interests of persons
who hold through Participants). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
pledge or transfer beneficial interest in a global security.
So long as the depository is the registered owner of a global security, the
depository will be considered the sole owner or holder of the debt securities
represented by such global security for all purposes under the applicable
Indenture. Except as provided below, owners of beneficial interests in a global
security will not be entitled to have any of the individual debt securities
registered in their names, will not receive or be entitled to receive physical
delivery of any such debt securities in definitive form and will not be
considered the owners or holders thereof under the applicable Indenture.
Payments of principal of and any interest (and premium, if any) on
individual debt securities represented by a global security will be made to DTC
or its nominee, as the case may be, as the sole registered owner of such global
security and the sole holder of the debt securities represented by the global
security for all purposes under the applicable Indenture. Neither the Company
nor the Trustee, nor any agent of the Company or the Trustee, will have any
responsibility or liability for any aspect of DTC's records relating to or
payments made on account of beneficial ownership interests in the global
securities representing any debt securities or for maintaining, supervising or
reviewing any of DTC's records relating to those beneficial ownership
interests.
The Company has been advised by DTC that, upon receipt of any payment in
respect of a global security, DTC will immediately credit Participants'
accounts for their pro rata share of such payments. The Company also expects
that payments by Participants to owners of beneficial interests in global
securities held through
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such Participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." These payments will be
the sole responsibility of the Participants.
Global securities may not be transferred except as a whole by DTC to a
nominee of DTC. Global securities representing debt securities are exchangeable
for certificated debt securities only if:
. DTC or its nominee notifies the Company that it is unwilling or unable
to continue as depositary for these global securities;
. DTC ceases to be qualified as required by the applicable Indenture;
. the Company instructs the Trustee in accordance with the applicable
Indenture that those global securities will be so exchangeable; or
. there shall have occurred and be continuing an Event of Default or an
event which after notice or lapse of time would be an Event of Default
with respect to the debt securities represented by such global security.
Any global securities that are exchangeable as described above shall be
exchangeable for certificated debt securities issuable in denominations of
$1,000 (or $5,000 in the case of bearer debt securities) and integral multiples
of $1,000 (or $5,000 in the case of bearer debt securities) in excess thereof
and registered in such names as DTC shall direct. Subject to the foregoing,
global securities are not exchangeable, except for global securities of like
denomination to be registered in the name of DTC or its nominee. If debt
securities are subsequently issued in registered form, they would thereafter be
transferred or exchanged without any service charge at the corporate trust
office of the Trustee or at any other office or agency maintained by the
Company for such purpose.
So long as DTC or its nominee is the registered holder and owner of global
securities, DTC or its nominee, as the case may be, will be considered the sole
owner or holder of the debt securities represented by the global securities for
the purposes of receiving payment on the debt securities, receiving notices and
for all other purposes under the applicable Indenture and the debt securities.
Except as provided above, owners of beneficial interests in global securities
will not be entitled to receive physical delivery of debt securities in
definitive form and will not be considered the holders thereof for any purpose
under the applicable Indenture. Accordingly, each person owning a beneficial
interest in the global securities must rely on the procedures of DTC and, if
such person is not a Participant, on the procedures of the Participant through
which such person owns its interest, to exercise any rights of a holder under
the applicable Indenture. The Indentures provide that DTC may grant proxies and
otherwise authorize Participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a
holder is entitled to give or take under the applicable Indenture. The Company
understands that under existing industry practices in the event that the
Company requests any action of holders or that an owner of a beneficial
interest in global securities desires to give or take any action which a holder
is entitled to give or take under the applicable Indenture. DTC would authorize
the Participants holding the relevant beneficial interests to give or take such
action, and such Participants would authorize beneficial owners owning through
such Participants to give or take such action or would otherwise act upon the
instructions of beneficial owners through them.
DTC has advised the Company as follows: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934, as amended. DTC holds
securities that its Participants deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
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brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc. and the National Association of Securities Dealers, Inc.
Access to DTC's system is also available to others, such as securities brokers
and dealers, banks and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or
indirectly. The rules applicable to DTC and its Participants are on file with
the SEC.
DTC has further advised the Company that management of DTC is aware that
some computer applications, systems and the like for processing data
("Systems") that are dependent upon calendar dates, including dates before, on
and after January 1, 2000, may encounter "Year 2000 Problems." DTC has informed
its Participants and other members of the financial community (the "Industry")
that it has developed and is implementing a program so that its Systems, as the
same related to the timely payment of distributions (including principal and
income payments) to securityholders, book-entry deliveries and settlement of
trades within DTC ("Depositary Services"), continue to function appropriately.
This program includes a technical assessment and a remediation plan, each of
which is complete. Additionally, DTC's plan includes a testing phase, which is
expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its service is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as DTC's Direct Participants and indirect Participants and third party
vendors from whom DTC licenses software and hardware, and third party vendors
on whom DTC relies for information or the provision of services, including
telecommunication and electrical utility services providers, among others. DTC
has informed the Industry that it is contacting (and will continue to contact )
third party vendors from whom DTC acquires services to: (i) impress upon them
the importance of such services being Year 2000 compliant; and (ii) determine
the extent of their efforts for Year 2000 remediation (and, as appropriate,
testing) of their services. In addition, DTC is in the process of developing
such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty or contract modification of any kind.
Payment and Paying Agents
Unless the applicable prospectus supplement provides otherwise, the place of
payment for all registered securities will be Chicago, Illinois, U.S.A., and
the Company will initially designate the corporate trust office of the
applicable Trustee for this purpose. At the option of the Company, interest, if
any, also may be paid on registered securities (i) by check mailed to the
address of the person entitled thereto as such person's address appears in the
security register or (ii) by wire transfer to an account located in the United
States maintained by the person entitled thereto as specified in the security
register. (Sections 307, 1001 and 1002 of each Indenture.) Unless the
applicable prospectus supplement provides otherwise, payment of any installment
of interest on registered securities will be made to the person in whose name
such registered security is registered at the close of business on the record
date for such interest. (Section 307 of each Indenture.)
If the Company issues bearer securities, it must maintain an office or
agency outside the United States at which the principal of (and premium, if
any) and interest, if any, on the bearer securities will be paid. (Section 1002
of each Indenture.) The initial locations of such offices and agencies will be
specified in the applicable prospectus supplement. Unless the applicable
prospectus supplement provides otherwise, payments made with respect to bearer
securities will be made, at the holder's option, by (i) check in the currency
designated in the bearer security presented or mailed to an address outside the
United States or (ii) paid by wire transfer to an account in such currency
maintained at a bank located outside the United States. Payments will not be
made in the United States. (Sections 307 and 1002 of each Indenture.)
Nevertheless, payments made with respect to bearer securities payable in U.S.
dollars will be made at the office of the Company's paying agent in Chicago,
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Illinois if (but only if) payment outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions and
the Trustee has received an opinion of counsel that such payment within the
United States is legal. (Sections 307 and 1002 of each Indenture.) Unless the
applicable prospectus supplement provides otherwise, payment of installments of
interest on any bearer securities on or before maturity will be made only
against surrender of coupons for such interest installments as they mature.
(Section 1001 of each Indenture.)
Unless the applicable prospectus supplement provides otherwise, the Company
will make all payments of principal of (and premium, if any) and interest, if
any, on any debt security that is payable in a currency other than U.S. dollars
in U.S. dollars if such currency (i) ceases to be used both by the government
of the country that issued the currency and by a central bank or other public
institution of or within the international banking community for the settlement
of transactions, (ii) is the Euro and ceases to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) is any currency
unit (or composite currency) other than the Euro and ceases to be used for the
purposes for which it was established. (Section 312 of each Indenture.)
The Company may designate additional offices or agencies for payment with
respect to any debt securities, approve a change in the location of any such
office or agency and, except as provided above, rescind the designation of any
such office or agency.
All moneys deposited with a paying agent or held for the payment of
principal of (or premium, if any) or interest, if any, on any debt security
that remains unclaimed at the end of two years after such payment has become
due will, at request of the Company, be repaid to the Company, or discharged
from trust, and the holder of such debt security may thereafter look only to
the Company for payment thereof. (Section 1003 of each Indenture.)
Subordinated Indenture Provisions
Subordinated Securities are subordinate and junior in right of payment, to
the extent set forth in the Subordinated Indenture, to the prior payment in
full of all existing and future Senior Debt of the Company. (Section 1601 of
the Subordinated Indenture.)
Senior Debt is defined in the Subordinated Indenture as the principal of
(and premium, if any) and interest on (including interest accruing after the
filing of a petition initiating any proceeding pursuant to any bankruptcy law)
and other amounts due on or in connection with any Debt incurred, assumed or
guaranteed by the Company, whether outstanding on the date of the Subordinated
Indenture or thereafter incurred, assumed or guaranteed, and all renewals,
extensions and refundings of any such Debt. Excluded from the definition of
Senior Debt are the following:
. any debt which expressly provides (i) that such debt is not senior in
right of payment to the Subordinated Securities, or (ii) that such debt
is subordinated to any other debt of the Company, unless such debt
expressly provides that such Debt is senior in right of payment to the
Subordinated Securities;
. debt of the Company in respect of the Subordinated Securities;
. debt of the Company in respect of its outstanding Liquid Yield
Option(TM) Notes due 2009 (the "2009 LYONs"(TM)) and its outstanding
Liquid Yield Option(TM) Notes due 2013 (the "2013 LYONs"(TM)), which
2009 LYONs and 2013 LYONs rank on a parity with the Subordinated
Securities;
. debt of the Company in respect of the extension notes which may be
issued in the future, at specified dates, in respect of the 2009 LYONs
and in payment of the purchase price thereof (which extension notes
would rank on a parity with the Subordinated Securities and any 2009
LYONs and 2013 LYONs remaining outstanding). (Section 101 of the
Subordinated Indenture.); and
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(TM)Trademark of Merrill Lynch & Co.
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. debt of the Company in respect of the 6.68% Deferrable Interest Junior
Subordinated Debentures due March 31, 2039 representing a long-term loan
made to the Company by Motorola Capital Trust I, a Delaware statutory
business trust and wholly-owned subsidiary of the Company (the "Trust"),
and obligations of the Company related to its guarantee of certain
obligations of the Trust under its 6.68% Trust Originated Preferred
SecuritiesSM.
There are no restrictions in the Subordinated Indenture on the creation of
additional Senior Debt (or any other indebtedness). (Section 101 of the
Subordinated Indenture.) The prospectus supplement with respect to any
Subordinated Securities will set forth (a) as of the most recent practicable
date (i) the aggregate amount of consolidated indebtedness outstanding that
would constitute either Senior Debt or indebtedness of subsidiaries of the
Company and (ii) the aggregate amount of outstanding indebtedness that would
rank on a parity with the Subordinated Securities and (b) any then-existing
limitation on the issuance of additional Senior Debt.
By reason of such subordination, in the event of dissolution, insolvency,
bankruptcy or other similar proceedings, upon any distribution of assets, (i)
the holders of all Senior Debt will first be entitled to receive payment in
full of all amounts due or to become due thereon, or payment of such amounts
shall have been provided for, before the holders of Subordinated Securities
would be entitled to receive any payment or distribution with respect to such
securities, (ii) the holders of Subordinated Securities will be required to pay
over their share of such distribution to the holders of Senior Debt until such
Senior Debt is paid in full and (iii) creditors of the Company who are not
holders of Subordinated Securities or holders of Senior Debt may recover less,
ratably, than holders of Senior Debt and may recover more, ratably, than the
holders of Subordinated Securities. (Section 16.02 of the Subordinated
Indenture.)
Unless the applicable prospectus supplement provides otherwise, in the event
that the Subordinated Securities are declared due and payable prior to their
Stated Maturity by reason of the occurrence of an Event of Default, then the
Company would be obligated to promptly notify holders of Senior Debt of such
acceleration. Unless the applicable prospectus supplement provides otherwise,
the Company may not pay the Subordinated Securities until 120 days have passed
after such acceleration occurs and may thereafter pay the Subordinated
Securities if the terms of the Subordinated Indenture otherwise permit payment
at that time. (Section 16.03 of the Subordinated Indenture.)
Unless the applicable prospectus supplement provides otherwise, no payment
of the principal (and premium, if any) or interest, if any, with respect to any
of the Subordinated Securities may be made, except the Subordinated Securities
may be acquired for Common Stock or other Capital Stock or as otherwise set
forth in the Subordinated Indenture, if any default with respect to Senior Debt
occurs and is continuing that permits the acceleration of the maturity thereof
and such default is either the subject of judicial proceedings or the Company
receives notice of the default, unless (a) 120 days pass after notice of the
default is given and such default is not then the subject of judicial
proceedings or the default with respect to the Senior Debt is cured or waived
and (b) the terms of the Subordinated Indenture otherwise permit the payment or
acquisition of the Subordinated Securities at that time. (Section 16.04 of the
Subordinated Indenture.)
Harris Trust and Savings Bank, as Trustee
Harris is trustee under (i) an indenture with the Company dated as of March
15, 1985 relating to the Company's 8.40% Debentures due August 15, 2031, (ii)
an indenture with the Company dated as of October 1, 1991 relating to the
Company's 7.60% Notes due January 1, 2007 and the Company's 6 1/2% Notes due
March 1, 2008, (iii) the Senior Indenture relating to the Company's 5.80% Notes
due October 15, 2008, the Company's 7 1/2% Debentures due May 15, 2025, the
Company's 6 1/2% Debentures due September 1, 2025, the Company's 6 1/2%
Debentures due November 15, 2028 and the Company's 5.22% Debentures due October
1, 2097 and (iv) a subordinated indenture, preferred securities guarantee and
declaration of trust with the Company and/or the Trust, all of which are dated
as of February 3, 1999, relating to the Company's 6.68% Deferrable Interest
Junior Subordinated Debentures due March 31, 2039 and the Trust's 6.68% Trust
Originated Preferred SecuritiesSM. Harris has also extended credit facilities
to the Company and a subsidiary of the Company and conducts business with the
Company and certain of its affiliates, including cash management and stock
transfer services. Harris also serves as the Rights Agent under the Rights
Agreement. See "Description of Capital Stock--Preferred Stock Purchase Rights."
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SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co., Inc.
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DESCRIPTION OF CAPITAL STOCK
The following description of the Company's capital stock is 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). This description
does not purport to be complete and is qualified in its entirety by reference
to the terms of the Certificate of Incorporation, the Bylaws and the Rights
Agreement, which are filed as exhibits to the registration statement. See
"Where You Can Find More Information."
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 the
Company's Common Stock are entitled to one vote for each share held and each
share of the Company's 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 the Company's Common Stock have no preemptive or
conversion rights, redemption provisions or sinking fund provisions. The
outstanding shares of the Company's Common Stock are duly and validly issued,
fully paid and nonassessable, and any shares of Common Stock issued in an
offering pursuant to this prospectus and any shares of Common Stock issuable
upon the (i) exercise of Common Stock Warrants or (ii) conversion or exchange
of debt securities which are convertible into or exchangeable for Common Stock,
will be duly and validly issued, fully paid and nonassessable.
Preferred Stock Purchase Rights
On November 5, 1998, Motorola authorized a new rights agreement between the
Company and Harris, as Rights Agent (the "Rights Agreement") to replace the
existing rights agreement dated as of November 9, 1988, as amended, and the
associated rights, which expired as of the close of business on November 20,
1998. The following summary of certain provisions of the Rights Agreement does
not purport to be complete and is qualified in its entirety by reference to all
of the provisions of the Rights Agreement, including particular provisions or
defined terms of the Rights Agreement. See "Where You Can Find More
Information."
Under the Rights Agreement, each outstanding share of Common Stock of the
Company is accompanied by a preferred stock purchase right (a "Right"). Each
Right entitles the registered holder to purchase from the Company one ten-
thousandth of a share of Junior Participating Preferred Stock, Series B, $100
par value per share, of the Company (the "Preferred Shares") at a price of $200
per one ten-thousandth of a Preferred Share (the "Preferred Share Purchase
Price"), subject to adjustment. The Rights attach to shares of Common Stock
outstanding as of the close of business on November 20, 1998 and to shares of
Common Stock which become outstanding thereafter prior to the earliest of the
Distribution Date (as defined below), the redemption of the Rights, the
exchange of the Rights and the expiration of the Rights (and, in certain cases,
following the Distribution Date).
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired. The Rights should
not interfere with any merger or other business combination approved by the
Board of Directors because of the ability of the Board of Directors to redeem
the Rights.
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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
10% or more of the outstanding shares of Common Stock (a "Triggering Event")
and (ii) 10 days following the commencement or announcement of a tender offer
or exchange offer for 10% 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, 1998, 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, 1998, upon the transfer or
new issuance of shares of Common Stock (including, unless the applicable
prospectus supplement provides otherwise, the shares of Common Stock issued (i)
in an offering pursuant to this prospectus, (ii) upon exercise of any Common
Stock Warrants or (iii) upon conversion or exchange of debt securities which
are convertible into or exchangeable for Common Stock) 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,
1998, 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, 2008, unless earlier redeemed by the Company as
described below.
The Preferred Share Purchase Price payable, and the number of Preferred
Shares or other securities, cash or other 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 Common Stock, (ii) upon the grant to holders of the
Common Stock of certain rights or warrants to subscribe for Common Stock or
convertible securities at less than the current market price of the Common
Stock, (iii) upon the distribution to holders of the Common Stock of evidences
of indebtedness or assets (excluding regular periodic cash dividends) and (iv)
in connection with any recapitalization of the Company.
In the event that a person becomes an Acquiring Person, each Right (other
than Rights that are or were beneficially owned by the Acquiring Person and
certain related persons and transferees, which will thereafter be void) shall
thereafter be exercisable not for Preferred Shares, but for a number of shares
of Common Stock (or, in certain cases, fractional Preferred Shares, other
Common Stock equivalents or cash) having a market value of two times the
exercise price of the Right. In the event that, at the time or after a person
becomes an Acquiring Person, the Company is involved in a merger or other
business combination in which (i) the Company is not the surviving corporation,
(ii) Common Stock is changed or exchanged or (iii) 50% or more of the Company's
consolidated assets or earning power are sold, then each Right (other than
Rights that are or were owned by the Acquiring Person and certain related
persons and transferees, which will thereafter be void) shall thereafter be
exercisable for a number of shares of common stock of the acquiring company
having a market value of two times the exercise price of the Right.
In addition, at any time after a Triggering Event and before a person has
acquired beneficial ownership of 50% or more of the outstanding Common Stock,
the Company may elect to exchange all or part of the Rights (excluding void
Rights held by an Acquiring Person and certain related persons and transferees)
at an exchange ratio of one share of Common Stock, or one ten-thousandth of a
Preferred Share (or other Common Stock equivalent), per Right (subject to
adjustment).
At any time prior to a Triggering Event, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of $.01 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.
17
<PAGE>
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 a Triggering Event, the Company may amend or supplement
the Rights Agreement without the approval of the Rights Agent or any holder of
the Rights. Thereafter, no amendment may adversely affect the interests of the
Rights holders (other than an Acquiring Person).
The Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment equal to the greater of $250 per share and 10,000
times the dividend declared per share of Common Stock. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment equal to the greater of $1,000 per share and
10,000 times the payment made per share of Common Stock. Each Preferred Share
will have 10,000 votes per share, voting together with the Common Stock. In the
event of any merger, consolidation or other transaction in which Common Stock
is exchanged, each Preferred Share will be entitled to receive 10,000 times the
amount received per share of Common Stock.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of the one ten-thousandth interest in a Preferred
Share that may be purchased upon exercise of each Right should approximate the
value of one share of Common Stock.
No fractional shares of Common Stock or Preferred Shares will be required to
be issued upon the exercise of a Right (other than fractions of Preferred
Shares that are integral multiples of one ten-thousandth of a Preferred Share,
which may, at the election of the Company, be evidenced by depositary receipts)
and in lieu thereof, an adjustment in cash will be made based on the market
price of the Common Stock or Preferred Shares on the last trading day prior to
the date of exercise.
18
<PAGE>
DESCRIPTION OF SECURITIES WARRANTS
We may issue warrants for the purchase of debt securities or common stock,
either independently or together with debt securities. Each series of warrants
will be issued under a separate warrant agreement between the Company and a
bank or trust company, as agent. The warrant agent will act solely as an agent
of the Company and will not assume any obligation for any warrant holders.
Copies of the forms of warrant agreements and the forms of warrant certificates
are filed as exhibits to the registration statement. The following description
of certain provisions of the forms of warrant agreements and warrant
certificates does not purport to be complete and is qualified in its entirety
by reference to all the provisions of the warrant agreements and the warrant
certificates.
General
If we offer warrants for the purchase of debt securities, the applicable
prospectus supplement will describe their terms, which may include the
following:
. the title and aggregate number of such warrants;
. the title, rank, aggregate principal amount, denomination, and terms of
the underlying debt securities;
. the currency of the underlying debt securities or of payment of the
exercise price;
. whether the warrants are issued as a unit with a debt security, and if
so, the number of warrants attached to each such debt security;
. the date, if any, on and after which such warrants and any related
securities will be transferable separately;
. the principal amount of the debt securities purchasable upon exercise of
each warrant and the price, or the manner of determining the price, at
which such debt securities may be purchased upon exercise;
. when such warrants may be exercised and the expiration date;
. whether the warrant certificates will be issued in registered or bearer
form;
. United States federal income tax consequences;
. the terms of any right of the Company to redeem or accelerate the
exercisability of such warrants;
. whether such warrants are to be issued with any other securities;
. the offering price; and
. any other terms of such warrants.
If we offer warrants for the purchase of Common Stock, the applicable
prospectus supplement will describe their terms, which may include the
following:
. the title and aggregate number of such warrants and whether such
warrants will be sold with other securities;
. the number of shares of Common Stock that may be purchased on exercise
of each warrant;
. the price or manner of determining the price, the manner in which the
exercise price may be paid and any minimum number of warrants
exercisable at one time;
. the terms of any right of the Company to redeem such warrants;
. the date, if any, on and after which such warrants and any related
series of debt securities will be transferable separately;
19
<PAGE>
. when such warrants may be exercisable and the expiration date;
. the terms of any right of the Company to accelerate the exercisability
of the warrants;
. United States federal income tax consequences; and
. any other terms of such warrants.
Warrants for the purchase of Common Stock will be offered and exercisable
for U.S. dollars only.
Warrants may be exchanged for new warrants of different denominations, may
(if in registered form) be presented for registration of transfer and may be
exercised at the corporate trust office of the warrant agent or any other
office indicated in the applicable prospectus supplement. No service charge
will be made for any permitted transfer or exchange of warrant certificates,
but holders must pay any tax or other applicable governmental charge. Prior to
the exercise of any warrant to purchase underlying debt securities, holders of
such warrants will not have any of the rights of holders of the debt securities
purchasable upon such exercise, including the right to receive payments of
principal of (or premium, if any) or interest, if any, on the debt securities
purchasable upon such exercise or to enforce covenants in the applicable
indenture. Prior to the exercise of any warrants to purchase Common Stock,
holders of such warrants will not have any rights of holders of the Common
Stock purchasable upon such exercise, including the right to receive payments
of dividends, if any, on the Common Stock purchasable upon such exercise or to
exercise any applicable right to vote.
Exercise of Warrants
Each warrant will entitle the holder to purchase underlying debt securities
or Common Stock, as the case may be, at the exercise price described in, or
calculable from, the applicable prospectus supplement. Unexercised warrants
will become void after the close of business on the expiration date.
Holders can exercise warrants by delivering the exercise price and certain
required information to the warrant agent. Warrants will be deemed to have been
exercised upon receipt of payment of the exercise price, subject to the
receipt, within five business days, of the warrant certificate. Upon receipt of
such payment and such warrant certificate properly completed and duly executed
at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement, the Company will, as soon as
practicable, issue and deliver the underlying debt securities or Common Stock,
as the case may be, purchasable upon such exercise. If fewer than all of the
warrants represented by a warrant certificate are exercised, the Company will
issue a new warrant certificate for the remaining warrants. The holder of a
warrant must pay any tax or other governmental charge imposed in connection
with the issuance of underlying debt securities or Common Stock purchased upon
exercise of a warrant.
Modifications
The warrant agreements and the terms of the warrants may be modified or
amended by the Company and the warrant agent, without the consent of any
holder, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained therein, or in
any other manner that the Company deems necessary or desirable and that will
not materially adversely affect the interests of the holders of the warrants.
The Company and the warrant agent may also modify or amend the warrant
agreement and the terms of the warrants with the consent of a majority of the
holders of the then outstanding unexercised warrants affected thereby; provided
that no such modification or amendment that accelerates the expiration date,
increases the exercise price, reduces the number of outstanding warrants
required for consent of any such modification or amendment, or otherwise
materially adversely affects the rights of the holders of the warrants, may be
made without the consent of each holder affected thereby.
20
<PAGE>
Common Stock Warrant Adjustments
The terms and conditions on which the exercise price of and/or the number of
shares of Common Stock covered by a warrant are subject to adjustment will be
set forth in the warrant certificate and the applicable prospectus supplement.
Such terms will include provisions for adjusting the exercise price and/or the
number of shares of Common Stock covered by such warrant; the events requiring
such adjustment; the events upon which the Company may, in lieu of making such
adjustment, make proper provisions so that the holder of such warrant, upon
exercise thereof, would be treated as if such holder had exercised such warrant
prior to the occurrence of such events; and provisions affecting exercise in
the event of certain events affecting the Common Stock.
21
<PAGE>
PLAN OF DISTRIBUTION
We may sell the securities offered pursuant to this prospectus through
agents, through underwriters or dealers or directly to one or more purchasers.
Underwriters, dealers and agents that participate in the distribution of the
securities offered pursuant to this prospectus may be underwriters as defined
in the Securities Act of 1933 and any discounts or commissions received by them
from us and any profit on the resale of the offered securities by them may be
treated as underwriting discounts and commissions under the Securities Act. Any
underwriters or agents will be identified and their compensation (including
underwriting discount) will be described in the applicable prospectus
supplement. The prospectus supplement will also describe other terms of the
offering, including any discounts or concessions allowed or reallowed or paid
to dealers and any securities exchanges on which the offered securities may be
listed.
The distribution of the securities offered under this prospectus may occur
from time to time in one or more transactions at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
If the applicable prospectus supplement indicates, we will authorize dealers
or our agents to solicit offers by certain institutions to purchase offered
securities from us pursuant to contracts that provide for payment and delivery
on a future date. We must approve all institutions, but they may include, among
others:
. commercial and savings banks;
. insurance companies;
. pension funds;
. investment companies; and
. educational and charitable institutions.
The institutional purchaser's obligations under the contract are only
subject to the condition that the purchase of the offered securities at the
time of delivery is allowed by the laws that govern the purchaser. The dealers
and our agents will not be responsible for the validity or performance of the
contracts.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make as a result of those
certain civil liabilities.
When we issue the securities offered by this prospectus (except for shares
of Common Stock), they may be new securities without an established trading
market. If we sell a security offered by this prospectus to an underwriter for
public offering and sale, the underwriter may make a market for that security,
but the underwriter will not be obligated to do so and could discontinue any
market making without notice at any time. Therefore, we cannot give any
assurances to you concerning the liquidity of any security offered by this
prospectus.
Underwriters and agents and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiaries in the
ordinary course of their and/or our businesses.
22
<PAGE>
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Carol H.
Forsyte of the Company's Law Department and Kirkland & Ellis (a partnership
including professional corporations), Chicago, Illinois. As of April 1, 1999,
Ms. Forsyte owned approximately 185 shares of Common Stock and held options to
purchase 10,600 shares of Common Stock, of which options to purchase 3,000
shares were currently exercisable.
EXPERTS
The consolidated financial statements and schedules of the Company and its
consolidated subsidiaries as of December 31, 1998 and 1997 and for each of the
years in the three-year period ended December 31, 1998 have been incorporated
by reference in this prospectus and in the registration statement in reliance
upon the reports of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in auditing and accounting.
23
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate pursuant to instruction to Item 511 of
Regulation S-K, subject to future contingencies, of the expenses to be incurred
by the Registrant in connection with the issuance and distribution of the
securities being registered:
<TABLE>
<S> <C>
Registration Fee................................................ $278,000
Legal Fees and Expenses......................................... 120,000
Trustee Fees and Expenses....................................... 60,000
Accounting Fees and Expenses.................................... 30,000
Blue Sky and Legal Investment Fees and Expenses................. 60,000
Printing and Engraving Fees..................................... 100,000
Rating Agency Fees.............................................. 100,000
Listing Fees.................................................... 60,000
Miscellaneous................................................... 30,000
--------
Total....................................................... $838,000
========
</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 6 of the Form of Underwriting Agreements filed
as Exhibit 1(a) and to Section 8 of the Form of Distribution Agreement filed as
Exhibit 1(b) for a description of the contemplated indemnification
arrangements.
Item 16. Exhibits
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
1.2 Form of Distribution Agreement (incorporated by reference to
Exhibit 1(b) of the Registrant's Registration Statement on Form S-
3 dated October 17, 1994 (File No.
33-56055)).
4.1 Restated Certificate of Incorporation, as amended (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)).
4.2 Certificate of Designations, Preferences and Rights of Junior
Participating Preferred Stock, Series B (incorporated by reference
to Exhibit 3.3 to Motorola's Registration Statement on Form S-3
dated January 20, 1999 (Registration No. 333-70827)).
4.3 By-Laws, as amended through February 17, 1999 (incorporated by
reference to Exhibit 3.3 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1998 (File No. 1-
7221)).
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
4.4 Rights Agreement, dated as of November 5, 1998 between Motorola,
Inc. and Harris Trust and Savings Bank, as Rights Agent
(incorporated by reference to Exhibit 1.1 to Registrant's
Registration Statement on Form 8-A/A dated March 16, 1999 (File
No.
1-7221)).
4.5 Senior Indenture, dated as of May 1, 1995, between Harris Trust
and Savings Bank and Motorola, Inc. (incorporated by reference to
Exhibit 4(d) of the Registrant's Registration Statement on Form
S-3 dated September 25, 1995 (File No. 33-62911)).
4.6 Form of Subordinated Indenture (incorporated by reference to
Exhibit 4(e) of the Registrant's Registration Statement on Form
S-3 dated October 17, 1994 (File No.
33-56055)).
4.7 Form of Senior Security (incorporated by reference to Exhibit
4(g) of the Registrant's Registration Statement on Form S-3 dated
October 17, 1994 (File No. 33-56055)).
4.8 Form of Subordinated Security (incorporated by reference to
Exhibit 4(h) of the Registrant's Registration Statement on Form
S-3 dated October 17, 1994 (File No.
33-56055)).
4.9 Form of Debt Warrant Agreement (incorporated by reference to
Exhibit 4(i) of the Registrant's Registration Statement on Form
S-3 dated October 17, 1994 (File No.
33-56055)).
4.10 Form of Common Stock Warrant Agreement (incorporated by reference
to Exhibit 4(j) of the Registrant's Registration Statement on
Form S-3 dated October 17, 1994 (File No.
33-56055)).
4.11 Form of Common Stock Certificate (incorporated by reference to
Exhibit 4(k) of the Registrant's Registration Statement on Form
S-3 dated October 17, 1994 (File No.
33-56055)).
4.12 Form of Warrant Certificate for Common Stock (incorporated by
reference to Exhibit 4(l) of the Registrant's Registration
Statement on Form S-3 dated October 17, 1994 (File No. 33-
56055)).
4.13 Form of Warrant Certificate for debt securities (incorporated by
reference to Exhibit 4(m) of the Registrant's Registration
Statement on Form S-3 dated October 17, 1994 (File No. 33-
56055)).
5 Opinion and Consent of Carol H. Forsyte, Esq.
8 Form of Opinion re Certain Tax Matters (incorporated by reference
to Exhibit 8 of the Registrant's Registration Statement on Form
S-3 dated October 17, 1994 (File No.
33-56055)).
12 Statement re: computation of ratio of earnings to fixed charges
(incorporated by reference to Exhibit 12 of the Registrant's
Registration Statement on Form S-3 dated January 20, 1999 (File
No. 333-70827)).
23.1 Consent of Carol H. Forsyte (included as part of Exhibit 5).
23.2 Consent of KPMG LLP.
24 Powers of Attorney (included on signature page).
25.1 Statement of Eligibility of Harris Trust and Savings Bank, as
Trustee, on Form T-1 (incorporated by reference to Exhibit 25(a)
of the Registrant's Registration Statement on Form S-3 dated
October 17, 1994 (File No. 33-56055)).
</TABLE>
II-2
<PAGE>
Item 17. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933,
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement, notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement, and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement; provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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.
(c) The Registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Act.
(d) 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
Securities Act of 1933 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 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.
II-3
<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 9th day of March, 1999.
MOTOROLA, INC.
/s/ Christopher B. Galvin
By: _________________________________
Christopher B. Galvin
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Carl F. Koenemann and Anthony Knapp and each of
them, as true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution for him and in his name, place and stead, in
any and all capacities to sign any and all amendments (including pre-effective
and post-effective amendments) to this Registration Statement and any related
Registration Statement filed pursuant to Rule 462(b) or any successor
regulation, and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
* * * *
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and as of the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Christopher B. Galvin Chief Executive Officer and March 4, 1999
____________________________________ Director
Christopher B. Galvin (Principal Executive
Officer)
/s/ Carl F. Koenemann Executive Vice President and March 4, 1999
____________________________________ Chief Financial Officer
Carl F. Koenemann (Principal Financial
Officer)
/s/ Anthony Knapp Corporate Vice President and March 9, 1999
____________________________________ Controller
Anthony Knapp (Principal Accounting
Officer)
/s/ Ronnie C. Chan Director March 9, 1999
____________________________________
Ronnie C. Chan
/s/ H. Laurance Fuller Director March 4, 1999
____________________________________
H. Laurance Fuller
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert W. Galvin Director March 3, 1999
____________________________________
Robert W. Galvin
/s/ Robert L. Growney Director March 4, 1999
____________________________________
Robert L. Growney
/s/ Anne P. Jones Director March 9, 1999
____________________________________
Anne P. Jones
/s/ Donald R. Jones Director March 4, 1999
____________________________________
Donald R. Jones
/s/ Judy C. Lewent Director March 3, 1999
____________________________________
Judy C. Lewent
/s/ Walter E. Massey Director March 3, 1999
____________________________________
Dr. Walter E. Massey
/s/ Thomas J. Murrin Director March 6, 1999
____________________________________
Thomas J. Murrin
/s/ Nicholas Negroponte Director March 4, 1999
____________________________________
Nicholas Negroponte
/s/ John E. Pepper, Jr. Director March 3, 1999
____________________________________
John E. Pepper, Jr.
/s/ Samuel C. Scott III Director March 3, 1999
____________________________________
Samuel C. Scott III
/s/ Gary L. Tooker Director March 2, 1999
____________________________________
Gary L. Tooker
/s/ B. Kenneth West Director March 3, 1999
____________________________________
B. Kenneth West
/s/ John A. White Director March 2, 1999
____________________________________
Dr. John A. White
</TABLE>
II-5
<PAGE>
FORM OF
MOTOROLA, INC.
(a Delaware corporation)
Debt Securities
Debt Warrants
Common Stock
Common Stock Warrants
Units
UNDERWRITING AGREEMENT
----------------------
___________, _____
To the Representatives of the
several Underwriters named in
the respective Terms Agreements
hereinafter described
Dear Sirs:
Motorola, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell, at up to an aggregate initial public offering price of $1,000,000,000,
or the equivalent thereof in one or more foreign currencies or composite
securities, including the euro, in one or more series, its (i) unsecured debt
securities (the "Debt Securities") which may be senior (the "Senior Securities")
or subordinated (the "Subordinated Securities"), (ii) warrants to purchase the
Debt Securities (the "Debt Warrants"), (iii) shares of its common stock, $3 par
value per share (the "Common Stock"), and (iv) warrants to purchase Common Stock
(the "Common Stock Warrants") in one or more offerings on terms determined at
the time of sale. The Debt Securities, Debt Warrants, Common Stock and Common
Stock Warrants may be offered separately or as a part of units consisting of one
or more such securities (the "Units"; and together with the Debt Securities,
Debt Warrants, Common Stock and Common Stock Warrants, the "Offered
Securities"). The Debt Securities and the Units containing the Debt Securities
(collectively, the "Offered Debt Securities") will be issued under one of
several indentures depending upon the particular issuance. The Senior
Securities will be issued under an indenture dated as of May 1, 1995 between the
Company and Harris Trust and Savings Bank, as Trustee (the "Senior Indenture").
The Subordinated Securities will be issued under an indenture between the
Company and a trustee to be named in the Terms Agreement (as defined below)
relating to any Subordinated Securities (the "Subordinated
<PAGE>
Indenture"). The Senior Indenture and Subordinated Indenture are sometimes
referred to as the "Indentures." The Debt Warrants, Common Stock Warrants and
Units containing either of the foregoing (collectively, the "Warrants") will be
issued under one or more warrant agreements (the "Warrant Agreements") between
the Company and the Warrant Agent identified in such Warrant Agreement. Each
issue of the Offered Debt Securities and Warrants may vary, as applicable, as to
the aggregate principal amount, maturity date or dates, interest rate or rates
and timing of payments thereof, redemption provisions, conversion provisions,
exercise provisions and sinking fund requirements, if any, and any other
variable terms which the applicable Indenture or Warrant Agreement, as the case
may be, contemplates may be set forth in the Offered Debt Securities and
Warrants as issued from time to time.
Whenever the Company determines to make an offering of Offered Securities,
it will enter into an agreement substantially in the form of Exhibit A hereto
(the "Terms Agreement") providing for the sale of such Offered Securities to,
and the purchase and offering thereof by, the underwriter or underwriters named
therein (the "Underwriters" or "you", which terms shall include the underwriter
or underwriters named therein whether acting alone in the sale of the Offered
Securities or as members of an underwriting syndicate). The Terms Agreement
relating to each offering of the Offered Securities shall specify, where
applicable, the principal amount of the Offered Securities to be issued, the
name or names of the Underwriters participating in such offering (subject to
substitution as provided in Section 9 hereof) and the principal amount of the
Offered Securities which each severally agrees to purchase, the name or names of
the Underwriters acting as manager or co-managers in connection with such
offerings, if any (the "Representatives", which term shall include each
Underwriter in the event that there shall be no manager or co-managers), the
price at which the Offered Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the date, time and place of
delivery and payment, the number of shares to be issued in the case of the
issuance of the Common Stock, and, to the extent not otherwise specified in the
applicable Indenture or Warrant Agreement in the case of the issuance of the
Offered Debt Securities or Warrants, their terms. Each offering of the Offered
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of
such Offered Securities.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-______) relating to
(i) the Offered Securities and (ii) the Common Stock issuable upon conversion or
exercise of the Offered Securities in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "1933 Act"), and has filed such amendments thereto as
may have been required to the date hereof. Such registration statement, as
amended, has been declared effective by the Commission, and the Indentures have
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement, as amended, and the prospectus relating to
the sale of the Offered Securities by the Company constituting a part thereof,
including all documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively; provided,
however, that a supplement of the Prospectus contemplated by Section 3(a)(ix)
hereof (a "Prospectus Supplement") shall be deemed to have supplemented the
Prospectus only with respect to the offering of Offered Securities to which such
Prospectus Supplement relates. If the Company elects to rely on Rule 434 under
the rules and regulations of the 1933 Act (the "1933 Act Regulations"), all
references to the Prospectus shall be deemed to include, without limitation, the
form of prospectus and the abbreviated term sheet, taken together, provided to
the Underwriters by the Company in reliance on Rule 434 of the 1933 Act
Regulations (the "Rule 434 Prospectus"). If the Company files a registration
statement to register a portion of the Offered Securities and relies on Rule
462(b) of the 1933 Act Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to both the registration statement referred to above (No. 333-
_____) and the Rule 462 Registration Statement, as each such registration
statement may be amended pursuant to the 1933 Act.
SECTION 1. Representations and Warranties. (a) The Company represents
------------------------------
and warrants to each Underwriter as of the date hereof and as of the date of the
applicable Terms Agreement (such latter date being hereinafter referred to as
the "Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of
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the applicable Representation Date, complied in all material respects with
the 1933 Act and the 1933 Act Regulations. The Registration Statement, at
the time the Registration Statement became effective (or, if an amendment
to the Registration Statement or an annual report on Form 10-K has been
filed by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the most recent such
filing) did 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. The Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, did not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter, or on behalf of any Underwriter by the Representatives,
expressly for use in the Registration Statement or Prospectus.
(ii) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together and with the other information in
the Prospectus, at the time the Registration Statement and any amendments
thereof became or become effective under the 1933 Act and at each
Representation Date, did not 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, in light of the
circumstances under which they are made, not misleading.
(iii) The Company and its subsidiaries considered as a whole have not
sustained since the date of the latest 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 than as set forth,
incorporated by reference or contemplated
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in the Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
otherwise stated or incorporated therein, there has not been any change in
the capital stock (other than upon exercise of outstanding stock options or
upon conversion of convertible securities outstanding on the date of the
most recent balance sheet included in the Prospectus or pursuant to the
Company's employee stock ownership plan or pursuant to the Company's
employee stock purchase plans or the Company's employee savings and profit
sharing plan), 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, consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole, or, other than the Company's regular
quarterly dividend, any dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(iv) 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 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.
(v) The authorized capitalization is as set forth or incorporated by
reference in the Prospectus and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable.
(vi) The execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the applicable Indenture in the case of the
issuance of the Offered Debt Securities, and the applicable Warrant
Agreement in the case of the issuance of the Warrants, and the consummation
of the transactions contemplated herein and therein have been duly
authorized by all necessary corporate action and will not conflict with or
constitute a breach of, or a default under, any material contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company is a party or by which the Company is
bound; nor will
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<PAGE>
such action result in a violation of the provisions of the Company's
Restated Certificate of Incorporation or bylaws of the Company, as amended,
or any applicable law, rule, regulation, judgment, order or administrative
or court decree.
(vii) Other than (a) as set forth, incorporated by reference, or
contemplated in the Prospectus and (b) litigation incident to the kind of
business conducted by the Company and its subsidiaries, which in the case
of those items in (b) individually and in the aggregate is not material to
the Company and its subsidiaries considered as a whole, there are no legal
or governmental proceedings pending to which the Company and its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or its subsidiaries, 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.
(viii) No consent, approval or authorization of any court or
governmental authority or agency is necessary in connection with the sale
of the Offered Securities or the consummation of the other transactions
contemplated by this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement in the case of the issuance of the Warrants,
or the applicable Indenture in the case of the issuance of the Offered Debt
Securities, except as may be required under the 1933 Act or 1933 Act
Regulations, the 1934 Act or 1934 Act Regulations, the 1939 Act or state
securities laws.
(ix) The Company has complied and will comply with the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to
issuers doing business in Cuba.
(x) The Company has reviewed its operations and the operations of
its subsidiaries and has made inquiries of material suppliers, vendors and
customers to evaluate the extent to which the business or operations of the
Company or any of its subsidiaries may be affected by the Year 2000
Problem. As a result of such review, at the date hereof the
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<PAGE>
Company has no reason to believe, and does not believe, that the Year 2000
Problem, including costs of remediation, will 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. The Year 2000 Problem shall mean any significant risk that computer
hardware or software or embedded microchips used in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission
or other utilization of data or in the operation of mechanical or
electrical systems of any kind will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as effectively
as in the case of dates or time periods occurring prior to January 1, 2000.
(b) In the event the Offered Securities are Offered Debt Securities, the
Company additionally represents and warrants to each Underwriter as of the
Representation Date that the Offered Debt Securities to be issued and sold
pursuant to this Agreement have been duly authorized, and when issued,
authenticated and delivered pursuant to this Agreement, against payment of the
consideration set forth in the Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture under which they are to be issued, which will be substantially in the
form included as an exhibit to the Registration Statement; the applicable
Indenture has been duly authorized, and when duly executed and delivered by the
Company and the applicable Trustee, will constitute a valid and legally binding
instrument enforceable against the Company in accordance with its terms subject,
as to enforcement, to bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Offered Debt Securities
denominated other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the making of payments
outside the United States; and the Offered Debt Securities and the applicable
Indenture conform in all material respects to the descriptions thereof in, or
incorporated by reference into, the Prospectus and the applicable Prospectus
Supplement.
(c) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company makes the following
7
<PAGE>
additional representations and warranties to each Underwriter as of the
Representation Date:
(i) The shares of Common Stock initially issuable upon conversion or
exercise, as the case may be, have been duly authorized and reserved for
issuance, and when issued and delivered, pursuant to the terms of the
Indenture or Warrant Agreement, as the case may be, will be validly issued,
fully paid and non-assessable.
(ii) Holders of Offered Securities receiving shares of Common Stock
issued upon the conversion or exercise of such Offered Securities, as the
case may be, will also be entitled, to the same extent as will all shares
of Common Stock issuable at such time otherwise than upon the conversion or
exercise of such Offered Securities, to one preferred share purchase right
(a "Right") in respect of each share of Common Stock so received; each such
Right has been duly authorized, and when issued and delivered in accordance
with the terms of the Rights Agreement, dated as of November 5, 1998,
between the Company and Harris Trust and Savings Bank, as amended, (the
"Rights Agreement"), will have been duly executed, issued and delivered;
the Rights Agreement has been duly authorized, executed and delivered by
the Company and Harris Trust and Savings Bank and is enforceable against
the Company in accordance with its terms, subject, as to enforcement, to
general equity principles; and the Rights and the Rights Agreement conform
in all material respects to the descriptions thereof included in or
incorporated by reference into the Prospectus and the applicable Prospectus
Supplement.
(iii) The Common Stock conforms in all material respects to the
description thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement and is not subject to
preemptive or other similar rights.
(d) In the event the Offered Securities are Warrants, the Company
additionally represents and warrants to each Underwriter as of the
Representation Date that the Warrants to be issued and sold pursuant to this
Agreement have been duly authorized, and when issued, authenticated and
delivered pursuant to this Agreement, against payment of the consideration set
forth in the Terms Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Warrant Agreement under
which they are to be issued, which will be
8
<PAGE>
substantially in the form included as an exhibit to the Registration Statement;
the applicable Warrant Agreement has been duly authorized, and when duly
executed and delivered by the Company and the applicable Warrant Agent, will
constitute a valid and legally binding instrument enforceable in accordance with
its terms subject, as to enforcement, to bankruptcy, insolvency, reorganization
or other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Warrants and the applicable
Warrant Agreement conform in all material respects to the descriptions thereof
in, or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement.
(e) In the event the Offered Securities are shares of Common Stock or Units
containing shares of Common Stock, the Company makes the following additional
representations and warranties to each Underwriter as of the Representation
Date:
(i) The Common Stock to be issued and sold pursuant to this Agreement
has been duly authorized, and when issued and delivered pursuant to this
Agreement, against payment of the consideration set forth in the applicable
Terms Agreement, will be validly issued and fully paid and non-assessable.
(ii) The Offered Securities will be entitled, to the same extent as
all other shares of Common Stock issued or to be issued by the Company, to
one Right in respect of each share of Common Stock so received; each such
Right has been duly authorized, and when issued and delivered in accordance
with the terms of the Rights Agreement will have been duly executed, issued
and delivered; the Rights Agreement has been duly authorized, executed and
delivered by the Company and Harris Trust and Savings Bank and is
enforceable against the Company in accordance with its terms, subject, as
to enforcement, to general equity principles; and the Rights and the Rights
Agreement conform to the descriptions thereof included in or incorporated
by reference into the Prospectus and the applicable Prospectus Supplement.
(iii) The Common Stock conforms in all material respects to the
description thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement and is not subject to
preemptive or other similar rights.
(f) In the event the Offered Securities are Debt Warrants or Units
containing Debt Warrants, the Company makes the following
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<PAGE>
additional representations and warranties to each Underwriter as of the
Representation Date:
(i) The debt securities initially issuable upon the exercise of such
Offered Securities, have been duly authorized, and, when issued, will be
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the indenture under which they will be issued.
(ii) The debt securities issuable upon exercise of the Debt Warrants
conform in all material respects to the description thereof included in or
incorporated by reference into the Prospectus and the applicable Prospectus
Supplement.
(g) In the event the Offered Securities are Warrants or Offered Debt
Securities convertible into Common Stock, the Company additionally represents
and warrants to each Underwriter as of the Representation Date that upon
issuance and delivery of such Warrants or Debt Securities in accordance with (i)
this Agreement and the applicable Terms Agreement, and (ii) the applicable
Warrant Agreement or Indenture, as the case may be, the Warrants shall be
exercisable at the option of the holder thereof for shares of Common Stock or
debt securities, as the case may be, in accordance with the terms of the
Warrants and the applicable Warrant Agreement, and such Debt Securities shall be
convertible at the option of the holder thereof for shares of Common Stock in
accordance with the terms of such Debt Securities and the applicable Indenture.
(h) Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with an
offering of Offered Securities shall be deemed a representation and warranty by
the Company as to the matters covered thereby, to each Underwriter.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
----------------------------------------------
(a) The several commitments of the Underwriters to purchase the Offered
Securities pursuant to any Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
10
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(b) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters shall be made at the place set
forth in the applicable Terms Agreement, or at such other place as shall be
agreed upon by the Representatives and the Company, on the third business day
(unless postponed in accordance with the provisions of Section 9) following the
date of the applicable Terms Agreement, unless the Offered Securities are priced
after 4:30 p.m. New York time in which case such payment and delivery will be
made on the fourth business day following the date of the applicable Terms
Agreement (unless postponed in accordance with the provisions of Section 9), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (each such time and date
being referred to as a "Closing Time"). Payment shall be made to the Company by
certified or official bank check or checks drawn in New York Clearing House
funds or similar next day funds payable to the order of the Company, against
delivery to the Representatives for the respective accounts of the Underwriters
of the Offered Securities to be purchased by them.
(c) Certificates for the Offered Securities shall be in such denominations
and registered in such names as the Representatives may request in writing at
least one business day before the applicable Closing Time. The certificates for
the Offered Securities, which may be in temporary form, will be made available
for examination and packaging by the Representatives in New York City not later
than 3:00 p.m. on the last business day prior to the applicable Closing Time.
SECTION 3. Covenants. (a) The Company covenants with each Underwriter as
---------
follows:
(i) From the date of the applicable Terms Agreement, and for so long
as a Prospectus is required to be delivered in connection with the sale of
the Offered Securities covered by such Terms Agreement, the Company will
notify the Representatives immediately, and confirm the notice in writing,
(A) of the effectiveness of any amendment to the Registration Statement,
(B) of the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference into the Registration
Statement or Prospectus, (C) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any Prospectus Supplement, or the documents incorporated therein, (D) of
any request by the Commission for any amendment to the Registration
Statement or
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any amendment or supplement to the Prospectus, or the documents
incorporated therein, or for additional information, (E) of the suspension
of the qualification of (i) the Offered Securities, or (ii) the shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise of the Offered Securities, in the case of the
issuance of Offered Securities convertible into or exercisable for Common
Stock, for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for any such purpose, and (F) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any order preventing or suspending the use
of the Prospectus or any preliminary prospectus supplement, or the
initiation of any proceedings for any such purpose. The Company will use
every reasonable effort to prevent the issuance of any stop order or any
order preventing or suspending the use of the Prospectus or any preliminary
prospectus supplement or suspending such qualification, and, in the event
of the issuance of a stop order or any order preventing or suspending the
use of the Prospectus or any preliminary prospectus supplement or
suspending such qualification, to obtain the lifting thereof at the
earliest possible moment.
(ii) From the date of the applicable Terms Agreement, and for so long
as a Prospectus is required to be delivered in connection with the sale of
the Offered Securities covered by such Terms Agreement, the Company will
give the Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus (including any
revised prospectus which the Company proposes for use by you in connection
with the offering of the Offered Securities which differs from the
prospectus on file with the Commission at the time the Registration
Statement became effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations,
or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933
Act Regulations) and will furnish them with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which
you or your counsel shall reasonably object.
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(iii) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
(iv) The Company will deliver to each of the Representatives two
copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and, if applicable, documents incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act) and
will also deliver to the Representatives, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, as many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) as the
Representatives may reasonably request.
(v) Prior to 1:00 p.m., New York City time, on the business day next
succeeding the date of the applicable Terms Agreement and from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, the Company will furnish to the Representatives
in New York City such number of copies of the Prospectus (as amended or
supplemented) as the Representatives may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(vi) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the Prospectus
(in form and substance satisfactory to your counsel) so that, as so amended
or supplemented, the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, and the Company will
furnish to the Representatives a reasonable number of copies of such
amendment or supplement.
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(vii) The Company will endeavor, in cooperation with you, to qualify
the Offered Securities and, in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, the shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise, as the case may be, for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representatives may designate; provided, however, that the Company shall
not be obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service of
process in any jurisdiction. In each jurisdiction in which the Offered
Securities, or in the case of the issuance of Offered Securities
convertible into or exercisable for Common Stock, such shares of Common
Stock (including the Rights associated therewith), have been so qualified,
the Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for so
long as may be required to complete such distribution of such Offered
Securities.
(viii) With respect to each sale of Offered Securities, the Company
agrees that it will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the
period covered thereby, earnings statements (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a twelve-month period
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement relating to such Offered Securities.
(ix) If the Company elects not to rely on Rule 434 under the 1933
Act Regulations, immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth,
where applicable, the principal amount or number of shares, as the case may
be, of the Offered Securities covered thereby, the name or names of the
Underwriters (subject to substitution as provided in Section 9 hereof) and
the principal amount or number of shares, as the case may be, of the
Offered Securities which each severally has agreed to purchase, the name or
names of the Representatives, the price at which the Offered Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, the other
terms of the Offered Securities
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to the extent not otherwise specified in the applicable Indenture or
Warrant Agreement, as the case may be, in the event the Offered Securities
are Offered Debt Securities or Warrants, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing pursuant
to Rule 424 of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus and such
Prospectus Supplement as the Representatives shall reasonably request. If
the Company elects to rely on Rule 434 of the 1933 Act Regulations,
immediately following the execution of each Terms Agreement, the Company
will (i) prepare an abbreviated term sheet that complies with the
requirements of Rule 434 of the 1933 Act Regulations, (ii) provide the
Underwriters with copies of the form of the Rule 434 Prospectus in such
number as the Underwriters may reasonably request and (iii) file or
transmit for filing with the Commission the form of Prospectus complying
with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule
424(b) of the 1933 Act Regulations by the close of business in New York on
the business day immediately succeeding the date of the Terms Agreement.
(b) In the event the Offered Securities are Offered Debt Securities, Debt
Warrants or Units containing Debt Warrants, the Company additionally covenants
with each Underwriter that the Company will not contract to sell or announce or
make any offering, sale or other disposition of any debt securities of the
Company having a maturity greater than one year during the period beginning from
the date of any Terms Agreement and continuing through the later of the
termination of trading restrictions with respect to the Offered Securities, as
notified to the Company by the Representatives, or the applicable Closing Time
except for (i) proposed issues of debt securities with respect to which the
Company shall have advised the Representatives in writing prior to the execution
hereof and (ii) except for such other debt securities with respect to which the
Representatives have given their prior written consent.
(c) In the event the Offered Securities are shares of Common Stock, Units
containing shares of Common Stock or are convertible into or exercisable for
Common Stock, the Company additionally covenants with each Underwriter as
follows:
(i) The Company will not contract to sell or announce or make any
offering, sale or other disposition of any shares of
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Common Stock or any securities convertible into or exchangeable for shares
of Common Stock (collectively, "Common Equity Securities"), nor will the
Company sell or grant options, rights or warrants with respect to any
Common Equity Securities (except under the Company's stock option and other
employee incentive and benefit plans existing on the date of the applicable
Terms Agreement, except for sales of Common Equity Securities under
currently effective secondary shelf registration statements, except for no
more than 2,700,000 shares of Common Stock issued as consideration for
acquisitions and except for Common Stock issued upon conversion of
outstanding convertible securities) in each case during a period of 90 days
after the commencement of the public offering of the Offered Securities
referenced in Section 3(c) hereof, except for (a) proposed issues of Common
Equity Securities with respect to which the Company shall have advised the
Representatives in writing prior to the execution hereof and (b) except for
such other Common Equity Securities with respect to which the
Representatives have given their prior written consent.
(ii) The Company will use its best efforts to effect the listing of
(A) Offered Securities that are shares of the Common Stock and (B) shares
of the Common Stock issuable upon the conversion or exercise of the Offered
Securities, as the case may be, on the New York Stock Exchange (and/or such
other exchanges or trading markets on which the Common Stock is then listed
or admitted for trading), and to cause such Offered Securities to be
registered under the 1934 Act.
(iii) In the case of the issuance of Offered Securities convertible
into or exercisable for Common Stock, the Company agrees to reserve and
keep available at all times, free of preemptive rights, shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations to
issue shares of Common Stock upon conversion or exercise of the Offered
Securities, as the case may be.
SECTION 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement and each
Terms Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the copying of
this Agreement, each Terms Agreement, the Indentures, in the case of the
issuance of the Offered Debt Securities, and the Warrant Agreements, in the case
of the issuance of the Warrants, (iii) the preparation, issuance and delivery to
the Underwriters of the certificates for the Offered
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Securities, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Offered Securities and, in the case of
the issuance of Offered Securities convertible into or exercisable for Common
Stock, the shares of Common Stock (including the Rights associated therewith)
issuable upon the conversion or exercise of the Offered Securities, as the case
may be, under securities laws in accordance with the provisions of Section
3(a)(vii), including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of any preliminary prospectuses and of the Prospectus and any
amendments or supplements (including any preliminary prospectus supplements)
thereto, including, if applicable, the abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vii) the copying and
delivery to the Underwriters of copies of the Blue Sky survey, (viii) in the
case of the issuance of Offered Debt Securities, the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indentures, (ix) in the case of the issuance of Warrants,
the fees and expenses of the Warrant Agent, including the fees and disbursements
of counsel for the Warrant Agent in connection with the Warrant Agreements, (x)
where applicable, any fees payable in connection with the rating of the Offered
Securities, (xi) where applicable, the filing fee payable to the National
Association of Securities Dealers, Inc. incident to any required review of the
terms of the sale of the Offered Securities, (xii) where applicable, the fees
and expenses incurred in connection with the listing of the Offered Securities,
and in the case of the issuance of Offered Securities convertible into or
exercisable for Common Stock, the shares of Common Stock issuable upon the
conversion or exercise of the Offered Securities, as the case may be, on the New
York Stock Exchange (and/or such other exchanges or trading markets on which the
Common Stock is then listed or admitted for trading), and (xiii) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. Except as provided in
this Section and in Sections 6 and 7, the Underwriters will pay all of their own
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes on resale of any of the Offered Securities by them, and any
advertising expenses which they may incur.
If a Terms Agreement is terminated by the Representatives in accordance
with the provisions of Section 5, other than solely as
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the result of a material adverse change in the financial markets in the United
States as provided for in Section 5(f)(iii), the Company shall reimburse you for
all out-of-pocket expenses, including the reasonable fees and disbursements of
your counsel, reasonably incurred by you in making preparations for the
purchase, sale and delivery of the Offered Securities.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
---------------------------------------
the Underwriters to purchase the Offered Securities pursuant to any Terms
Agreement are subject, in the discretion of the Representatives, to the accuracy
of the representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) At the applicable Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission; all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction; and the Prospectus as
amended or supplemented in relation to the applicable Offered Securities shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for filing pursuant to the 1933 Act and the
1933 Act Regulations.
(b) At the applicable Closing Time, you shall have received the favorable
opinion, dated as of the applicable Closing Time, of Carol H. Forsyte, Senior
Counsel, of the Law Department of the Company, or another attorney employed by
the Company who is acceptable to the Representatives (the "Company Attorney's
Opinion") (except in the case of (A) item (1)(vii), where applicable, insofar as
it relates to "Certain Tax Aspects", which opinion shall be delivered by a
special outside tax counsel to the Company, and (B) items (2) and (6), in each
case where applicable, which opinions shall be delivered by Kirkland & Ellis,
counsel to the Company, or such other counsel who is acceptable to the
Representatives (the "New York Attorney's Opinion")), in form and substance
satisfactory to your counsel.
(1) The Company Attorney's Opinion shall be 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
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and authority to conduct its business as described in the Prospectus.
(ii) The authorized capitalization of the Company is as set
forth or incorporated by reference in the Prospectus and all of the
issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable.
(iii) This Agreement and the applicable Terms Agreement have each
been duly authorized, executed and delivered by the Company.
(iv) A member of the Commission's staff has advised such counsel
by telephone that the Commission has entered an order declaring the
Registration Statement effective under the 1933 Act and, to the best
of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the
Commission.
(v) At the time the Registration Statement became effective and
at each Representation Date, the Registration Statement and the
Prospectus (other than the financial statements and other financial
data and supporting schedules included therein and in the documents
incorporated by reference into the Prospectus, as to which no opinion
need be rendered) appeared on its face to comply as to form in all
material respects with the applicable requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and
regulations thereunder and, where applicable, the Rule 434 Prospectus
conforms to the requirements of Rule 434 of the 1933 Act Regulations
in all material respects; the documents incorporated by reference into
the Prospectus (other than the financial statements and other
financial data and supporting schedules included therein, as to which
no opinion need be rendered), when they were filed with the
Commission, complied as to form in all material respects with the
applicable requirements of the 1934 Act and the 1934 Act Regulations;
and to the best of such counsel's knowledge, there are no contracts or
other documents required to be described or referred to in the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to
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therein or filed or incorporated by reference thereto and the
descriptions thereof or references thereto are correct in all material
respects.
(vi) To the best of such counsel's knowledge, other than as set
forth or 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, other than
litigation incident to the kind of business conducted by the Company
and its subsidiaries, which litigation incident to the Company's
business individually and in the aggregate is not material to 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.
(vii) Where applicable, the discussion in the Prospectus or the
applicable Prospectus Supplement under "Certain Tax Aspects" (or a
similar heading or headings) is a fair and accurate summary of the
matters addressed therein, based upon current law and the assumptions
stated or referred to therein.
(viii) No consent, approval, authorization, order, registration
or qualification of any court or governmental authority or agency is
required in connection with the issuance and sale of the Offered
Securities or the consummation of the other transactions contemplated
by this Agreement, the applicable Terms Agreement, the applicable
Warrant Agreement in the case of the issuance of the Warrants, or the
applicable Indenture in the case of the issuance of the Offered Debt
Securities, except such as have been obtained or rendered, as the case
may be, or such consents, approvals, authorizations, registrations or
qualifications as may be required under the securities or Blue Sky
laws of any jurisdiction in connection with the purchase and
distribution of the Offered Securities by you or the issuance of
shares of Common Stock (including the Rights associated therewith),
upon conversion or exercise of the Offered Securities, in the case of
the issuance of Offered Securities convertible into or exercisable for
Common Stock.
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(ix) The execution and delivery of this Agreement, the applicable
Terms Agreement, the applicable Indenture in the case of the issuance
of the Offered Debt Securities, and the applicable Warrant Agreement
in the case of the issuance of the Warrants, the issuance of the
Offered Securities and the shares of Common Stock (including the
Rights associated therewith) issuable upon conversion or exercise of
the Offered Securities in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, the
compliance by the Company with all of the provisions of the Offered
Securities and the applicable Indenture and Warrant Agreement in the
case of the issuance of Offered Debt Securities or Warrants, this
Agreement and the applicable Terms Agreement and the consummation of
the transactions herein or therein contemplated do not and will not
conflict with or constitute a breach of, or a default under, (a) the
Company's Restated Certificate of Incorporation or bylaws of the
Company, as amended, (b) any indenture, mortgage, loan agreement or
note or any material contract, lease or other agreement or instrument,
in each case known to such counsel and to which the Company is a party
or by which the Company is bound, or (c) any applicable law, rule,
regulation, judgment, order or administrative or court decree known to
such counsel (except that such counsel need express no opinion in
response to this item as to compliance with any disclosure
requirements).
(2) In the event the Offered Securities are Offered Debt Securities,
the New York Attorney's Opinion shall be to the effect that:
(i) The applicable Indenture has been duly authorized, executed
and delivered by the Company and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms (provided, that such counsel may take customary exceptions to
such opinion to cover commonly known limitations on enforceability).
(ii) The Offered Debt Securities are in the form established
pursuant to the applicable Indenture, have been duly authorized,
executed and delivered by the Company, and when issued and delivered
by the Company against payment therefor in accordance with the terms
of such Indenture, will constitute Debt Securities under the terms of
such Indenture, will constitute the valid and
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binding obligations of the Company, and will be enforceable against
the Company in accordance with their terms, and the holders thereof
will be entitled to the benefits provided by such Indenture (provided,
that such counsel may take customary exceptions to such opinion to
cover commonly known limitations on enforceability).
(iii) The applicable Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
(iv) The Offered Debt Securities and the applicable Indenture
conform to the descriptions thereof in, or incorporated by reference
in, the Prospectus and the applicable Prospectus Supplement.
(v) The statements set forth in the Prospectus and the
applicable Prospectus Supplement under "Description of Debt
Securities" (or a similar heading or headings), insofar as they
purport to constitute summaries of certain terms of the Offered Debt
Securities and the applicable Indenture are accurate in all material
respects.
(3) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company Attorney's Opinion shall
additionally be to the effect that:
(i) Holders of Offered Securities convertible into or
exercisable for Common Stock receiving shares of Common Stock issued
upon the conversion or exercise of such Offered Securities, as the
case may be, will also be entitled, to the same extent as will all
shares of Common Stock issuable at such time otherwise than upon the
conversion or exercise of such Offered Securities, to one Right in
respect of each share of Common Stock so received; each such Right has
been duly authorized, and when issued and delivered in accordance with
the terms of the Rights Agreement, will have been duly executed,
issued and delivered; the Rights Agreement, as amended, has been duly
authorized, executed and delivered by the Company and Harris Trust and
Savings Bank and is enforceable against the Company in accordance with
its terms, subject, as to enforcement, to general equity principles;
and the Rights and the Rights Agreement conform to the descriptions
thereof included in or
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<PAGE>
incorporated by reference into the Prospectus and the applicable
Prospectus Supplement.
(ii) Upon issuance and delivery of Offered Securities
convertible into or exercisable for Common Stock in accordance with
this Agreement and the applicable Terms Agreement, and the applicable
Indenture or Warrant Agreement, as the case may be, such Offered
Securities shall be convertible or exercisable at the option of the
holder thereof for shares of Common Stock in accordance with the terms
of such Offered Securities and the applicable Indenture or Warrant
Agreement, as the case may be; and the shares of Common Stock
initially issuable upon conversion or exercise of such Offered
Securities have been duly authorized and reserved for issuance and,
when issued and delivered pursuant to the terms of the applicable
Indenture or Warrant Agreement, as the case may be, will be validly
issued, fully paid and non-assessable.
(iii) The Common Stock conforms to the description thereof in,
or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other
similar rights; and the information in the Prospectus and the
applicable Prospectus Supplement under "Description of Capital Stock"
(or a similar heading or headings) to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(iv) The shares of Common Stock issuable upon the conversion or
exercise of such Offered Securities, as the case may be, have been
approved for listing upon notice of issuance on the New York Stock
Exchange (and/or such other principal exchanges or trading markets on
which the Common Stock is then listed or admitted for trading).
(4) In the event the Offered Securities are Warrants, the Company
Attorney's Opinion shall additionally be to the effect that:
(i) The Warrants to be issued and sold by the Company pursuant
to this Agreement and the applicable Terms Agreement have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled
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<PAGE>
to the benefits provided by the applicable Warrant Agreement; the
Warrants and the applicable Warrant Agreement conform to the
descriptions thereof in, or incorporated by reference into, the
Prospectus and the applicable Prospectus Supplement; and the
information in the Prospectus and the applicable Prospectus Supplement
under "Description of Securities Warrants" (or a similar heading or
headings) to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(ii) The applicable Warrant Agreement has been duly authorized,
executed and delivered by the parties thereto and constitutes a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(5) In the event the Offered Securities are shares of Common Stock or
Units containing shares of Common Stock, the Company Attorney's Opinion
shall additionally be to the effect that:
(i) The Common Stock conforms to the description thereof in, or
incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other
similar rights; and the information in the Prospectus and the
applicable Prospectus Supplement under "Description of Capital Stock"
(or a similar heading or headings) to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(ii) The Common Stock will be entitled, to the same extent as any
other shares of Common Stock issued or to be issued by the Company, to
one Right in respect of each share of Common Stock so received; each
such Right has been duly authorized, and when issued and delivered in
accordance with the terms of the Rights Agreement will have been duly
executed, issued and delivered; the Rights Agreement has been duly
authorized, executed and delivered by the Company and Harris Trust and
Savings Bank and is enforceable against the Company in accordance with
its terms, subject, as to enforcement, to general
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equity principles; and the Rights and the Rights Agreement conform to
the descriptions thereof included in or incorporated by reference into
the Prospectus.
(iii) The Common Stock to be issued and sold pursuant to this
Agreement and the applicable Terms Agreement has been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in the Terms
Agreement, will be validly issued and fully paid and non-assessable.
(iv) The shares of Common Stock to be issued and sold pursuant
to this Agreement and the applicable Terms Agreement have been
approved for listing upon notice of issuance on the New York Stock
Exchange (and/or such other principal exchanges or trading markets on
which the Common Stock is then listed or admitted for trading).
(6) In the event the Offered Securities are Debt Warrants or Units
containing Debt Warrants, the New York Attorney's Opinion shall be to the
effect that:
(i) Upon issuance and delivery of Offered Securities
exercisable into debt securities, such Offered Securities shall be
exercisable at the option of the holder thereof for debt securities in
accordance with the terms of such Offered Securities and the
applicable Warrant Agreement; and the debt securities initially
issuable upon the exercise of such Offered Securities, have been duly
authorized, and, when issued, will constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the indenture under which they will be issued.
(ii) The statements set forth in the applicable Prospectus
Supplement describing the debt securities issuable upon exercise of
the Debt Warrants, insofar as they purport to constitute summaries of
certain terms of the debt securities, are accurate in all material
respects.
The Company Attorney's Opinion shall additionally state that nothing has
come to his or her attention that has caused him or her to believe that the
Registration Statement (other than the financial statements, financial data and
schedules included
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therein, as to which such counsel need express no belief), at the time it became
effective or at the Representation Date, 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 the
Prospectus (other than the financial statements, financial data and schedules
included therein, as to which such counsel need express no belief), at the
Representation Date (unless the term "Prospectus" refers to a prospectus which
has been provided to you by the Company for use in connection with the offering
of the Offered Securities which differs from the Prospectus on file at the
Commission at the Representation Date, in which case at the time it is provided
to you for such use) or at Closing Time, included 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, not misleading.
(c) At the applicable Closing Time, you shall have received the favorable
opinion, dated as of the applicable Closing Time, of your counsel, with respect
to the matters set forth in (b)(1)(i) (insofar as it relates to the existence
and good standing of the Company), (b)(1)(iii) - (v), inclusive (in the case of
(v), insofar as it relates to the compliance of the Registration Statement and
Prospectus as to form), (b)(2)(i), (b)(2)(ii), (b)(3)(ii), (b)(3)(iii) (insofar
as it relates to the description of the Common Stock), (b)(4)(i), (b)(4)(ii),
(b)(5)(i) (insofar as it relates to the description of the Common Stock),
(b)(5)(iii), (b)(6)(i) and (b)(6)(ii) as well as the last paragraph of
subsection (b) of this Section.
(d) (i) The Company and its subsidiaries considered as a whole shall have
not sustained since the date of the latest 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 Registration Statement and the Prospectus there
shall not have been any change in the capital stock (other than upon exercise of
outstanding stock options or upon conversion of convertible securities
outstanding at the date of the most recent balance sheet included in the
Prospectus or pursuant to the Company's employee stock ownership plan or
pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan) or any significant increase in long-
term debt of the Company
26
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and its subsidiaries considered as a whole or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries considered as a whole, otherwise than as set
forth or incorporated by reference or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is in your judgment
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
(e) On or after the date of the applicable Terms Agreement (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
1933 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.
(f) On or after the date of the applicable Terms Agreement there shall not
have occurred any of the following: (i) a suspension or material limitation in
trading in the Common Stock or securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New York
or Illinois declared by either Federal or state authorities; or (iii) any
material adverse change in the financial markets in the United States or 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 (iii) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(g) You shall have received a certificate of the Vice Chairman and Chief
Executive Officer, the President or another senior officer acceptable to you of
the Company and of the Chief Financial Officer, Controller, Treasurer or
Assistant Treasurer of the Company, dated as of the applicable Closing Time, to
the effect that (i) the Company and its subsidiaries shall not have sustained
any loss or interference with its business of the type specified in Section
5(d)(i) and there shall not have occurred any change of the type specified in
Section 5(d)(ii), (ii) there shall not have occurred any downgrading of the type
specified in Section 5(e), (iii) the applicable representations and warranties
in Section 1
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are true and correct with the same force and effect as though expressly made at
and as of such Closing Time, (iv) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to such Closing Time, and (v) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(h) At the time of the execution of each Terms Agreement, you shall have
received from KPMG LLP a letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are independent public
accountants with respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in or incorporated by
reference into the Registration Statement or the Prospectus and covered by their
opinions therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations; (iii) based upon limited procedures set
forth in detail in such letter, nothing has come to their attention which causes
them to believe that (A) the unaudited financial statements and supporting
schedules of the Company and its subsidiaries included in or incorporated by
reference into the Registration Statement or the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act
Regulations, as the case may be, or are not presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in or
incorporated by reference into the Registration Statement or the Prospectus or
(B) at a specified date not more than three days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock of
the Company (other than upon exercise of outstanding stock options or upon
conversion of convertible securities outstanding on the date of the most recent
balance sheet included in or incorporated by reference into the Prospectus or
pursuant to the Company's employee stock ownership plan or pursuant to the
Company's stock purchase plans or the Company's employee savings and profit
sharing plan) or any increase in the consolidated long term debt of the Company
and its subsidiaries or any decrease in consolidated net current assets or net
assets as compared with the amounts shown in the most recent balance sheet
included in or incorporated by reference into the Prospectus or, during the
period from the date of the most recent financial statements included in or
incorporated by reference into the Prospectus to a specified date not more than
three days prior
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to the date of such Terms Agreement, there were any decreases, as compared with
the corresponding period in the preceding year, in consolidated net sales, net
earnings or net earnings per share of the Company and its subsidiaries, except
in all instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv) in
addition to the examination referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in or
incorporated by reference into the Registration Statement and Prospectus and
which are reasonably specified by you, and have found such amounts, percentages
and financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries identified in
such letter.
(i) At each Closing Time, your counsel shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Offered Securities, as contemplated
herein, and related proceedings, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Offered Securities and debt securities or shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise of the Offered Securities, in the case of the issuance of
Offered Securities convertible into Common Stock or exercisable for Common Stock
or debt securities, as the case may be, as herein contemplated, shall be
satisfactory in form and substance to you and your counsel.
(j) In the case of the issuance of shares of Common Stock, Units
containing shares of Common Stock or Offered Securities convertible into or
exercisable for Common Stock, at each Closing Time, you shall have received the
written agreement of each of the persons specified in the applicable Terms
Agreement, if any, to the effect that each such person will not contract to sell
or announce or make any offering, sale or other disposition of any shares of
Common Stock, nor sell or grant any options, rights or warrants with respect to
any shares of Common Stock, in each case during a period of 90 days after the
commencement of the public offering of the Offered Securities, without your
prior written consent.
(k) The Company shall have complied with the provisions of Section 3(a)(v)
hereof.
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If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement and the applicable Terms
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to the applicable Closing Time, and such termination shall
be without liability of any party to any other party except as provided in
Section 4.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and hold
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harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement, including any
preliminary prospectus supplement, thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by you), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to
30
<PAGE>
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement, including any preliminary prospectus
supplement, thereto); and further provided that this indemnity agreement does
not apply to any loss, liability, claim, damage or expense arising out of any
untrue statement or omission or alleged untrue statement or omission made in a
preliminary prospectus or preliminary prospectus supplement, as the case may be,
but eliminated or remedied in the Prospectus if a copy of the Prospectus
(excluding documents incorporated therein by reference) was not delivered by you
to the person asserting the claim arising from such untrue statement or omission
or such alleged untrue statement or omission, at or prior to the time required
by the 1933 Act.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of the Company's officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement, including any preliminary prospectus
supplement, thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement,
including any preliminary prospectus supplement, thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. In
31
<PAGE>
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 (who
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. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and you shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
you, as incurred, in such proportions that you are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls you within the
meaning of Section 15 of the 1933 Act shall have the same right to contribution
as you, and each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement and
the applicable Terms Agreement, or
32
<PAGE>
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and 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, or by or on behalf of the Company,
and shall survive delivery of the Offered Securities to the Underwriters.
SECTION 9. Default. If one or more of the Underwriters shall fail at the
-------
applicable Closing Time to purchase the Offered Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, during such 24 hours the Representatives
shall not have completed such arrangements for the purchase of all of the
Defaulted Securities, then:
(a) if the aggregate initial public offering price of the Defaulted
Securities does not exceed 10% of the aggregate initial public offering
price of the Offered Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations under the applicable Terms Agreement (including
this Agreement as incorporated by reference therein) bear to the
underwriting obligations of all such non-defaulting Underwriters; or
(b) if the aggregate initial public offering price of the Defaulted
Securities exceeds 10% of the aggregate initial public offering price of
the Offered Securities to be purchased pursuant to such Terms Agreement,
such Terms Agreement (including this Agreement as incorporated by reference
therein) shall terminate, without any liability on the part of any non-
defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the applicable Terms Agreement or this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Representatives or the Company shall have the right
to postpone the applicable Closing
33
<PAGE>
Time for a period not exceeding seven days in order that any required changes in
the Registration Statement, Prospectus or applicable Prospectus Supplement, or
in any other documents or arrangements, may be effected.
SECTION 10. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you as provided in the applicable Terms
Agreement; notices to the Company shall be directed to it at 1303 East Algonquin
Road, Schaumburg, Illinois 60196; Attention: Treasurer.
SECTION 11. Parties. This Agreement and the applicable Terms Agreement
-------
shall each inure to the benefit of and be binding upon you, the Company and your
and the Company's respective successors. Nothing expressed or mentioned in this
Agreement or the applicable Terms Agreement is intended or shall be construed to
give any person, firm or corporation, other than you, the Company and your and
the Company's respective successors and the controlling persons and officers and
directors referred to in Sections 6, 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the applicable Terms Agreement or any provision
herein or therein contained. This Agreement and the applicable Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of you, the Company and your and the Company's
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of the Offered Securities from you
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. Governing Law and Time. This Agreement and each Terms
----------------------
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
34
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
MOTOROLA, INC.
By ______________________________
Title: _________________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
By:
By ______________________________
Title:
<PAGE>
Exhibit A-1
MOTOROLA, INC.
Debt Securities
TERMS AGREEMENT
---------------
_____________, ____
To: Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $___________ aggregate principal amount of its Debt
Securities. Subject to the terms and conditions set forth herein or
incorporated by reference herein, the underwriter(s) named below (the
"Underwriter(s)") hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are to
be issued under an Indenture dated as of ___________, 199_ between the Company
and ________________________________, as Trustee, shall have the following
terms:
Title:
Rank/Subordination:
Date of Maturity:
Interest Rate:
Interest Payment Dates:
Date From Which Interest Accrues:
Public Offering Price:
Purchase Price:
Redemption Provisions:
Conversion Provisions:
A-1-1
<PAGE>
Sinking Fund Provisions:
Closing Date, Time and Location:
Manager or Co-Managers:
Current Ratings: Moody's Investors Services - __;
Standard & Poor's Corporation - __.
All of the provisions contained in the Underwriting Agreement dated as of
______________, ____, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the principal amount of the Offered
Securities set forth opposite its name.
PRINCIPAL
NAME AMOUNT
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-1-2
<PAGE>
Exhibit A-2
MOTOROLA, INC.
_______ Shares
Common Stock
($3 Par Value Per Share)
TERMS AGREEMENT
---------------
_____________, 199_
To: Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell ___________ shares of its common stock, $3 par value
per share (the "Common Stock"). Subject to the terms and conditions set forth
herein or incorporated by reference herein, the underwriter(s) named below (the
"Underwriter(s)") hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s) shall have the
following terms:
1. The initial public offering price per share for the Common Stock
shall be $_____________.
2. The purchase price per share for the Common Stock to be paid by
you shall be $__________, being an amount equal to the initial public
offering price set forth above less $__________ per share.
3. Closing Date, Time and Location:
4. Manager or Co-Managers:
5. Names of Persons specified pursuant to Section 5(j):
A-2-1
<PAGE>
All of the provisions contained in the Underwriting Agreement dated as of
______________, ____, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the number of shares of Common Stock set
forth opposite its name.
NUMBER OF
NAME SHARES
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-2-2
<PAGE>
Exhibit A-3
MOTOROLA, INC.
Warrants
TERMS AGREEMENT
---------------
_____________, ____
To: Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $___________ aggregate principal amount of its
Warrants. Subject to the terms and conditions set forth herein or incorporated
by reference herein, the underwriter(s) named below (the "Underwriter(s)")
hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are to
be issued under a Warrant Agreement dated as of
_____________, ____ between the Company and _______________________ as
Warrant Agent shall have the following terms:
Title of Warrants:
Stated Value per Warrant:
Number of Warrants:
Liquidation Value:
Initial Offering Price to Public:
[$ per Warrant][Formula]
Purchase Price by Underwriters:
[$ per Warrant][Formula]
Commission Payable to Underwriters:
A-3-1
<PAGE>
[$ per Warrant]
Exercise Price:
Exercise Provisions:
[The Warrants may be exercised in whole or in part at the option of the
Holder, on or after ________________, at the following [price or formula]
for the purchase of [such principal amount] of:
[Debt Securities] [Common Stock]
[Other exercise provisions:]
[Other terms and conditions:]
Expiration Date:
Date of Board or Committee Resolution Establishing the Terms and Conditions
of the Designated Warrants:
Other Terms:
Closing Date, Time and Location:
Manager or Co-Managers:
[Names of Persons specified pursuant to Section 5(j):]
All of the provisions contained in the Underwriting Agreement dated as of
______________, ____, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the number or Warrants set forth opposite
its name.
A-3-2
<PAGE>
NUMBER OF
NAME WARRANTS
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-4-1
<PAGE>
[MOTOROLA LETTERHEAD]
April 9, 1999
Motorola, Inc.
1303 E. Algonquin Road
Schaumburg, IL 60196
Ladies and Gentlemen:
I am Senior Corporate Counsel in the Law Department of Motorola, Inc., a
Delaware corporation (the "Corporation"), and, as such, I have acted as counsel
for the Corporation in the preparation of a Registration Statement on Form S-3
(the "Registration Statement") being filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
on the date hereof in connection with the proposed offer and sale of the
following securities (collectively, the "Securities") of the Corporation having
an aggregate initial offering price of up to $1,000,000,000:
(i) senior debt securities generally in the form incorporated by
reference as Exhibit 4.7 to the Registration Statement, with
appropriate insertions (the "Senior Debt Securities");
(ii) subordinated debt securities generally in the form incorporated by
reference as Exhibit 4.8 to the Registration Statement, with
appropriate insertions (the "Subordinated Debt Securities," and
together with the Senior Debt Securities, the "Debt Securities");
(iii) common stock, par value $3 per share (the "Common Stock"), of the
Corporation; and
(iv) warrants to purchase Debt Securities or Common Stock (collectively,
the "Warrants").
The Securities may be offered separately or as part of units with other
Securities, in separate series, in amounts, at prices, and on terms to be set
forth in the prospectus and one or more supplements to the prospectus
(collectively, the "Prospectus") constituting a part of the Registration
Statement, and in the Registration Statement.
The Senior Debt Securities are to be issued under one or more indentures
generally in the form incorporated by reference as Exhibit 4.5 to the
Registration Statement, (the "Senior Indenture"). The Subordinated Debt
Securities are to be issued under one or more indentures generally in the
<PAGE>
Motorola, Inc.
April 9, 1999
Page 2
form incorporated by reference as Exhibit 4.6 to the Registration Statement
with appropriate insertions (the "Subordinated Indentures"), to be entered into
by the Corporation and a trustee or trustees to be named by the Corporation. The
Warrants are to be issued under warrant agreements generally in the forms
incorporated by reference as Exhibits 4.9 and 4.10 to the Registration
Statement, with appropriate insertions (the "Warrant Agreements"), to be entered
into by the Corporation and warrant agents to be named by the Corporation.
Certain terms of the Securities to be issued by the Corporation from time
to time will be approved by the Board of Directors of the Corporation or a
committee thereof or certain authorized officers of the Corporation as part of
the corporate action taken and to be taken (the "Corporate Proceedings") in
connection with issuance of the Securities. I have examined or am otherwise
familiar with the Restated Certificate of Incorporation, as amended, of the
Corporation, the Bylaws of the Corporation, as amended, the Registration
Statement, such of the Corporate Proceedings as have occurred as of the date
hereof, and such other documents, records and instruments as I have deemed
necessary or appropriate for the purposes of this opinion.
Based on the foregoing, I am of the opinion that:
(i) the Common Stock, when authorized and sold as contemplated in the
Registration Statement, will be validly issued by the Corporation and
will be duly authorized, fully paid and non-assessable; and
(ii) the Debt Securities and the Warrants, when authorized and sold as
contemplated in the Registration Statement, will be validly issued by
the Corporation and will constitute valid and legally binding
obligations of the Corporation, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles
of equity.
The foregoing opinions assume that (i) the consideration designated in the
applicable Corporate Proceedings for any Common Stock shall have been received
by the Corporation in accordance with applicable law; (ii) the applicable
Indenture and any Warrant Agreement shall have been duly authorized, executed
and delivered by all parties thereto other than the Corporation; (iii) the
Registration Statement shall have become effective under the Securities Act; and
(iv) the applicable Indenture shall have become duly qualified under the Trust
Indenture Act of 1939, as amended.
<PAGE>
Motorola, Inc.
April 9, 1999
Page 3
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the Prospectus included therein
under the caption "Legal Opinions" with respect to the matters stated therein.
Very truly yours,
/s/ Carol H. Forsyte
--------------------
Carol H. Forsyte
Senior Corporate Counsel
Law Department
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Motorola, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-3 of Motorola, Inc. of our reports dated January 13, 1999, except as to
Note 8, which is as of March 1, 1999, relating to the consolidated balance
sheets of Motorola, Inc. and subsidiaries as of December 31, 1998 and 1997, and
the related consolidated statements of operations, stockholders' equity, and
cash flows and the related financial statement schedule for each of the years in
the three-year period ended December 31, 1998, which reports appear in or are
incorporated by reference in the annual report on Form 10-K of Motorola, Inc.
for the year ended December 31, 1998.
Chicago, Illinois
April 8, 1999
