EXHIBIT 10.1
SCG HOLDING CORPORATION
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
$400,000,000
12% Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
August 4, 1999
CHASE SECURITIES INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SCG Holding Corporation, a Delaware corporation (the "Company"), and
Semiconductor Components Industries, LLC, a Delaware limited liability company
and a wholly owned subsidiary of the Company ("SCI LLC," and together with the
Company, the "Issuers"), propose to issue and sell $400,000,000 aggregate
principal amount of their 12% Senior Subordinated Notes due 2009 (the
"Securities"). The Securities will be issued pursuant to an Indenture to be
dated as of the date hereof (the "Indenture") among the Issuers, the
subsidiaries of the Company listed on the signature pages hereof, as guarantors
(collectively, the "Guarantors"), and State Street Bank and Trust Company, as
trustee (the "Trustee") and will be guaranteed on an unsecured senior
subordinated basis by the Guarantors. The Issuers and the Guarantors hereby
confirm their agreement with Chase Securities Inc. ("CSI"), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation and ▇▇▇▇▇▇ Brothers Inc. (together with CSI, the
"Initial Purchasers") concerning the purchase of the Securities from the Issuers
by the several Initial Purchasers.
The Securities have been and will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon an exemption therefrom. The Issuers
have prepared a preliminary offering memorandum (the "Preliminary Offering
Memorandum") dated July 14, 1999, and an offering memorandum (the "Offering
Memorandum") dated July 28, 1999 (the "Offering Date") setting forth information
concerning the Issuers and the Securities. Copies of the Preliminary Offering
Memorandum and the Offering Memorandum have been delivered by the Issuers to the
Initial Purchasers pursuant to the terms of this Agreement. Any references
herein to the Preliminary Offering Memorandum and the Offering Memorandum shall
be deemed to include all amendments and supplements thereto, unless otherwise
noted. The Issuers hereby confirm that they have authorized the use of the
Preliminary Offering Memorandum and the Offering
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Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers and
their direct and indirect transferees) will be entitled to the benefits of an
Exchange Offer and Registration Rights Agreement dated the date hereof (the
"Registration Rights Agreement").
Pursuant to an Agreement and Plan of Recapitalization and Merger
(the "Recapitalization Agreement") dated as of May 11, 1999 among the Issuers,
Motorola, Inc. ("Motorola") and certain affiliates of Texas Pacific Group
("TPG"), as amended, which provides for the recapitalization
("Recapitalization") of the Company, (a) TPG Semiconductor Acquisition Corp.
will be merged with and into the Company, (b) Motorola will receive aggregate
cash consideration of $1,296.0 million (subject to certain adjustments and
reductions pursuant to the Recapitalization Agreement), a junior subordinated
note of SCI LLC in the amount of $91.0 million (the "Junior Subordinated Note")
and 590 shares of preferred stock (the "Preferred Stock") of the Company. Upon
consummation of the Recapitalization and certain related transactions,
affiliates of TPG will own approximately 91% and Motorola will own approximately
9% of the outstanding voting stock of the Company. The Securities are being
offered in connection with the financing of the Recapitalization.
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Issuers. The
Issuers and the Guarantors represent and warrant to, and agree with, the several
Initial Purchasers on and as of the date hereof that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and as of the date hereof
the Offering Memorandum does not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that the Issuers and the Guarantors make no representation or warranty as
to information contained in or omitted from the Preliminary Offering
Memorandum or the Offering Memorandum in reliance upon and in conformity
with written information relating to the Initial Purchasers furnished to
the Company by or on behalf of any Initial Purchaser specifically for use
therein (the "Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Securities, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 2 and their compliance with
the agreements set forth therein, it is not necessary, in connection with
the issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial
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Purchasers in the manner contemplated by this Agreement and the Offering
Memorandum, to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
(d) The Company and each of its subsidiaries have been duly formed
or incorporated and are validly existing as limited liability companies,
corporations or, in the case of foreign subsidiaries, similar entities
under local law, as the case may be, in good standing under the laws of
their respective jurisdictions of formation or incorporation, are duly
qualified to do business and are in good standing as foreign limited
liability companies, corporations or, in the case of foreign subsidiaries,
similar entities under local law in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure
to so qualify or have such power or authority would not, singularly or in
the aggregate, reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(e) On a pro forma basis as of July 3, 1999, the Company would have
had an authorized capitalization as set forth in the Offering Memorandum
under the heading "Capitalization"; all of the outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and the capital stock of the
Company conforms in all material respects to the description thereof
contained in the Offering Memorandum. All of the outstanding membership
interests, shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and
issued; are, in the case of capital stock or membership interests of
subsidiaries organized under the laws of the United States, fully paid and
non-assessable or, in the case of the membership interests of SCI LLC or
any other subsidiary of the Company that is a Delaware limited liability
company, are not subject to assessment by SCI LLC or such other subsidiary
of the Company for additional capital contributions; and are owned
directly or indirectly by the Company (other than (i) those shares of
capital stock of Leshan-Phoenix Semiconductor Co., Ltd. ("Leshan") that
are owned by Leshan Radio Company Ltd. and Motorola (China) Investment
Ltd., (ii) shares of capital stock of Tesla Sezam, a.s. ("Tesla") that are
owned by ▇▇▇▇▇▇▇ a.s. ("Terosil") and others, (iii) shares of capital
stock of Terosil that are owned by Tesla and others), (iv) in the case of
Motorola Philippines Inc. ("MPI"), all of the shares thereof the record
holder of which is, and will be for an agreed period of time following the
consummation of the Transactions, Motorola International Development Corp.
("MIDC"), as provided for in the Interim Agreement to be entered into
among Motorola, Inc., MIDC, MPI and the Issuers, (v) 60% of the shares of
capital stock of Amicus Realty Corporation and (vi) in the case of foreign
subsidiaries, directors' qualifying shares or shares required by
applicable law to be held by a person other than the Issuers or a
subsidiary thereof), free and clear of any lien, charge, encumbrance,
security interest, restriction upon voting or transfer or any other claim
of any third party (other than those (i) imposed pursuant to the Loan
Documents (as defined in the Credit Agreement dated as of the date hereof
among SCI LLC, as borrower, the Company, as parent, the lenders
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named therein, The Chase Manhattan Bank ("Chase"), as administrative
agent, collateral agent and syndication agent, DLJ Capital Funding, Inc.,
▇▇▇▇▇▇ Commercial Paper Inc. and Credit Lyonnais New York Branch, as
co-documentation agents, and CSI, as arranger, as amended (the "Credit
Agreement")), (ii) in the case of Surface Mount Products Malaysia Sdn.
Bhd., SCG (SMP Malaysia) Holding Corporation, Motorola Semiconductor Sdn.
Bhd. and SCG Malaysia Holding Sdn. Bhd., imposed by applicable law and
(iii) in the case of Amicus Realty Corporation, imposed by the By-Laws
thereof. As of the date hereof, all of the membership interests of SCI LLC
are held by the Company.
(f) The statements set forth in the Offering Memorandum under the
captions "Summary--Transactions," "Transactions," "Ownership of Capital
Stock" and "Certain Relationships and Related Transactions" insofar as
they purport to describe the documents referred to therein constitute a
fair summary thereof.
(g) Each of the Issuers and the Guarantors has or had, as
applicable, full right, power and authority to execute and deliver, as
applicable, this Agreement, the Recapitalization Agreement, as amended,
the Reorganization Agreement, the Intellectual Property Agreement, the
Transition Services Agreement, the Collateral Agreements, the Employee
Matters Agreement, the Motorola SCI LLC Retirement Plan Transfer Agreement
for the Motorola, Inc. Pension Plan dated as of May 11, 1999, the Motorola
SCI LLC Retirement Plan Transfer Agreement for the Motorola, Inc. Profit
Sharing and Investment Plan dated as of May 11, 1999, Contribution
Agreement from Motorola by and among Motorola and the Company dated as of
April 30, 1999, the Indenture, the Registration Rights Agreement, the Loan
Documents and the Securities (collectively, the "Transaction Documents"),
if it is a party hereto or thereto, and to perform its obligations
hereunder and thereunder; all requisite action required to be taken for
the due and proper authorization, execution and delivery of each of the
Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby have been duly and validly taken; and
each Transaction Document constitutes a valid and binding agreement of
each of the Issuers and the Guarantors party thereto, enforceable against
each of the Issuers and the Guarantors party thereto in accordance with
its terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding in
equity or at law).
(h) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations of
the Securities and Exchange Commission (the "Commission") applicable to an
indenture which is qualified thereunder.
(i) The Securities have been duly authorized by each of the Issuers
and the Guarantors and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein,
will be duly and validly issued and outstanding and will constitute valid
and legally binding obligations of each of the Issuers, as issuers, and
each of the Guarantors, as guarantors, entitled to the benefits of
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the Indenture and enforceable against each of the Issuers, as issuers, and
each of the Guarantors, as guarantors, in accordance with their terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity
or at law).
(j) Each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum.
(k) The execution, delivery and performance by each of the Issuers
and the Guarantors of each of the Transaction Documents to which it is a
party, the issuance, authentication, sale and delivery of the Securities
and compliance by each of the Issuers and the Guarantors with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except for such conflicts,
breaches, violations, defaults, liens, charges or encumbrances that (i) do
not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries, (ii) are imposed pursuant to
the Loan Documents or (iii) would not, singularly or in the aggregate, be
reasonably expected to have a Material Adverse Effect nor will such
actions result in any violation of the provisions of the limited liability
company agreement, charter, by-laws or similar organizational documents,
as applicable, of the Company or any of its subsidiaries or any statute or
any judgment, order, decree, rule or regulation of any court or arbitrator
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets; and no consent,
approval, authorization or order of, or filing or registration with, any
such court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation is required for the
execution, delivery and performance by each of the Issuers and the
Guarantors of each of the Transaction Documents to which it is a party,
the issuance, authentication, sale and delivery of the Securities and
compliance by each of the Issuers and the Guarantors with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents, except for such consents, approvals,
authorizations, orders, filings or registrations as may be required to be
obtained or made under the Securities Act and applicable state securities
laws as provided in the Registration Rights Agreement and except where the
failure to obtain any such consents, approvals, authorizations, orders,
filings or registrations would not, singularly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(l) (i) PriceWaterhouseCoopers LLP ("PWC") are independent certified
public accountants with respect to the Company and its subsidiaries and
(ii) KPMG LLP ("KPMG") are independent certified public accountants with
respect to Motorola and its
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subsidiaries, in each case, within the meaning of Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants ("AICPA") and its interpretations and rulings thereunder.
Except as described in the Offering Memorandum, the historical financial
statements (including the related notes) contained in the Offering
Memorandum have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods covered
thereby and fairly present the financial position of the entities
purported to be covered thereby at the respective dates indicated and the
results of their operations for the respective periods indicated; and the
financial information contained in the Offering Memorandum under the
headings "Summary--Summary Pro Forma Last Twelve Months Financial Data,"
"Summary--Summary Historical and Pro Forma Financial Data,"
"Capitalization," "Selected Historical Combined Financial Data,"
"Unaudited Pro Forma Combined Financial Information," "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and "Management--Executive Compensation" are derived from the accounting
records of the Company and its subsidiaries and fairly present the
information purported to be shown thereby. The Unaudited Pro Forma
Combined Financial Statements contained in the Offering Memorandum have
been prepared on a basis consistent with the historical financial
statements contained in the Offering Memorandum (except for the pro forma
adjustments specified therein), have been properly compiled on the pro
forma basis described in the notes thereto and give effect to assumptions
made on a reasonable basis. The other historical financial and statistical
information and data included in the Offering Memorandum (subject to the
explanation of such data as set forth therein) are, in all material
respects, fairly presented.
(m) 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
or assets of the Company or any of its subsidiaries is the subject which,
(i) singularly or in the aggregate, if determined adversely to the Company
or any of its subsidiaries, would reasonably be expected to have a
Material Adverse Effect or (ii) question the validity or enforceability of
any of the Transaction Documents or any action taken or to be taken
pursuant thereto; and to the best knowledge of the Issuers, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(n) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities or suspends the sale of
the Securities in any jurisdiction; no injunction, restraining order or
order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to the Company or any of its
subsidiaries that would prevent or suspend the issuance or sale of the
Securities or the use of the Preliminary Offering Memorandum or the
Offering Memorandum in any jurisdiction; no action, suit or proceeding is
pending against or, to the best knowledge of each of the Issuers and the
Guarantors, threatened against or affecting the Company or any of its
subsidiaries before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, that would reasonably be expected
to interfere with or adversely affect the issuance of the Securities or in
any manner draw into question the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant thereto;
and the Issuers have complied with any and all requests by any
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securities authority in any jurisdiction for additional information to be
included in the Preliminary Offering Memorandum and the Offering
Memorandum.
(o) Neither the Company nor any of its subsidiaries is (i) in
violation of its limited liability company agreement, charter, by-laws or
similar organizational documents, as applicable, (ii) in default in any
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it is bound or to which any of its
property or assets is subject or (iii) in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject, except in the
case of clauses (ii) and (iii) for such defaults or violations that,
singularly or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
(p) The Company and each of its subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have
made all declarations and filings with, the appropriate federal, state or
foreign regulatory agencies or bodies which declarations and filings are
necessary or desirable for the ownership of their respective properties or
the conduct of their respective businesses as described in the Offering
Memorandum, except where the failure to possess or make the same would
not, singularly or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received notification of any revocation or modification
of any such license, certificate, authorization or permit or has any
reason to believe that any such license, certificate, authorization or
permit will not be renewed in the ordinary course.
(q) The Company and each of its subsidiaries have filed, or Motorola
has filed on their behalf, all federal, state, local and foreign income
and franchise tax returns required to be filed through the date hereof or
have timely filed requests for extensions and such extensions have been
granted and have not expired and have paid all taxes shown as due thereon
(or have made adequate provision for such taxes on their respective
balance sheets), and no tax deficiency has been determined adversely to
the Company or any of its subsidiaries, which deficiency has had (nor does
the Company or any of its subsidiaries have any knowledge of any tax
deficiency that, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have) a Material Adverse
Effect.
(r) Neither the Company nor any of its subsidiaries is (i) an
"investment company" or a company "controlled by" an investment company
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the Commission
thereunder or (ii) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(s) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance,
in all material respects,
8
that transactions are executed in accordance with management's general or
specific authorizations and are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability.
(t) The Company and each of its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, which
insurance is in amounts and insures against such losses and risks as are
adequate in all material respects to protect the Company and its
subsidiaries and their respective businesses. Neither the Company nor any
of its subsidiaries has received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance.
(u) Except as set forth in the Offering Memorandum, the Company and
each of its subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses; and
the conduct of their respective businesses will not conflict in any
respect with, and the Company and its subsidiaries have not received any
notice of any claim of conflict with, any such rights of others, except
such conflicts or claims as are disclosed in the Offering Memorandum or
that, singularly or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect.
(v) The Company and each of its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real and personal property that are material
to the business of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances, claims and defects and imperfections of
title except such as (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries,
(ii) are imposed pursuant to the Loan Documents or (iii) would not
reasonably be expected to have a Material Adverse Effect.
(w) No material labor disturbance by or similar material dispute
with the employees of the Company or any of its subsidiaries exists or, to
the best knowledge of the Company, is contemplated or threatened.
(x) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of the Company or any of its subsidiaries that
would reasonably be expected to have a Material Adverse Effect; each such
employee benefit plan is in
9
compliance with applicable law, including ERISA and the Code, except for
any failure to comply that would not reasonably be expected to have a
Material Adverse Effect; the Company and each of its subsidiaries have not
incurred and do not expect to incur liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any pension plan for
which the Company or any of its subsidiaries would have any liability that
would reasonably be expected to have a Material Adverse Effect; and with
respect to each such pension plan that is intended to be qualified under
Section 401(a) of the Code is, the Company shall submit an application to
the Internal Revenue Service for its determination as to the qualification
of each such plan within the remedial amendment period of Section 401(b).
(y) Except as described in the Offering Memorandum there has been no
storage, generation, transportation, handling, treatment, disposal,
arrangement for disposal, discharge, emission or other release of any kind
of toxic or other wastes or other hazardous substances by, due to or
caused by the Company or any of its subsidiaries (or, to the best
knowledge of the Company, any other entity (including any predecessor) for
whose acts or omissions the Company or any of its subsidiaries is or would
reasonably be expected to be liable) upon any of the property now or
previously owned or leased by the Company or any of its subsidiaries, or
upon any other property, in violation of any statute or any ordinance,
rule, regulation, order, judgment, decree or permit or which would, under
any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any liability,
except for any violation or liability that would not reasonably be
expected to have, singularly or in the aggregate with all such violations
and liabilities, a Material Adverse Effect; and there has been no
disposal, discharge, emission or other release of any kind onto such
property or, to the knowledge of any of the Issuers or any of the
Guarantors, into the environment surrounding such property, of any toxic
or other wastes or other hazardous substances, except for any such
disposal, discharge, emission or other release of any kind which would not
reasonably be expected to have, singularly or in the aggregate with all
such discharges and other releases, a Material Adverse Effect.
(z) Neither the Issuers nor, to the best knowledge of each of the
Issuers and the Guarantors, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or any of
its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aa) On and immediately after the date hereof, each of the Issuers
(after giving effect to the issuance and sale of the Securities and to the
other transactions related thereto as described in the Offering
Memorandum) will be Solvent. As used in this paragraph, the term "Solvent"
means, with respect to a particular date, that on such date (i) the
present fair market value (or present fair saleable value) of the assets
of each of the Issuers is not less than the total amount required to pay
the probable liabilities of each of the Issuers on its total existing
debts and liabilities (including contingent liabilities) as
10
they become absolute and matured, (ii) each of the Issuers is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and commitments as they mature and become due in
the normal course of business, (iii) assuming the sale of the Securities
as contemplated by this Agreement and the Offering Memorandum, neither of
the Issuers is incurring debts or liabilities beyond its ability to pay as
such debts and liabilities mature and (iv) neither Issuer is engaged in
any business or transaction, or is about to engage in any business or
transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which such Issuer is engaged. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(bb) Except as described in the Offering Memorandum, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity or other ownership interest in the
Company or any of its subsidiaries.
(cc) Neither the Company nor any of its subsidiaries owns any
"margin securities" as that term is defined in Regulation U of the Board
of Governors of the Federal Reserve System (the "Federal Reserve Board"),
and none of the proceeds of the sale of the Securities will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness
that was originally incurred to purchase or carry any margin security or
for any other purpose that might cause any of the Securities to be
considered a "purpose credit" within the meanings of Regulation T, U or X
of the Federal Reserve Board.
(dd) Neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person that would give
rise to a valid claim against the Initial Purchasers for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Securities.
(ee) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(ff) None of the Issuers, their respective affiliates and any person
acting on their behalf has engaged or will engage in any directed selling
efforts (as such term is defined in Regulation S under the Securities Act
("Regulation S")), and all such persons have complied and will comply with
the offering restrictions requirement of Regulation S to the extent
applicable.
(gg) None of the Issuers and their respective affiliates has,
directly or through any agent, sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as such term is
defined in the Securities Act), that is or will be integrated with the
offering of the Securities in a manner that would require registration of
the offering of the Securities under the Securities Act.
11
(hh) None of the Issuers, their respective affiliates and any other
persons acting on their behalf has engaged, in connection with the
offering of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(ii) There are no securities of either of the Issuers registered
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or listed on a national securities exchange or quoted in a U.S.
automated inter-dealer quotation system.
(jj) None of the Issuers and the Guarantors has taken or will take,
directly or indirectly, any action prohibited by Regulation M under the
Exchange Act in connection with the offering of the Securities.
(kk) The Company and its subsidiaries are implementing a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to recognize and
properly execute date-sensitive functions involving certain dates prior to
and any dates after December 31, 1999 (the "Year 2000 Problem"), and have
determined that such risk will be remedied in all material respects on a
timely basis without material expense and will not have a material adverse
effect upon the financial condition and results of operations of the
Company and its subsidiaries taken as a whole; and the Company believes,
after due inquiry, that each supplier, vendor, customer or financial
service organization used or serviced by the Company and its subsidiaries
has remedied or will remedy on a timely basis the Year 2000 Problem,
except to the extent that a failure to remedy by any such supplier,
vendor, customer or financial service organization would not have a
Material Adverse Effect.
(ll) Since the date as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (i) there has been no
material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs, management or business prospects of the
Company and its Subsidiaries taken as a whole, whether or not arising in
the ordinary course of business, (ii) none of the Issuers and the
Guarantors has incurred any liability or obligation that is material to
the Company and its Subsidiaries taken as a whole, direct or contingent,
other than in the ordinary course of business, (iii) none of the Issuers
and the Guarantors has entered into any transaction that is material to
the Company and its Subsidiaries taken as a whole other than in the
ordinary course of business and (iv) except as a result of the
consummation of the Transactions there has not been any change in the
membership interests, capital stock or long-term debt of any of the
Issuers or the Guarantors, or any dividend or distribution of any kind
declared, paid or made by the Issuers or any of the Guarantors on any
class of their respective membership interests or capital stock.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Issuers severally and jointly agree
to issue and sell to each of the Initial Purchasers, severally and not jointly,
and each of the Initial Purchasers, severally and not jointly, agrees to
purchase from the Issuers, the principal amount of Securities set forth opposite
12
the name of such Initial Purchaser on Schedule 1 hereto at a purchase price
equal to 97.00% of the principal amount thereof. The Issuers shall not be
obligated to deliver any of the Securities except upon payment for all of the
Securities to be purchased as provided herein.
(b) The Initial Purchasers have advised the Issuers that they
propose to offer the Securities for resale upon the terms and subject to the
conditions set forth herein and in the Offering Memorandum. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with the Issuers, that (i) it is purchasing the Securities pursuant to a private
sale exempt from registration under the Securities Act, (ii) it has not
solicited offers for, or offered or sold, and will not solicit offers for, or
offer or sell, the Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D under the
Securities Act ("Regulation D") or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act and (iii) it has
solicited and will solicit offers for the Securities only from, and has offered
or sold and will offer, sell or deliver the Securities, as part of their initial
offering, only (A) within the United States to persons whom it reasonably
believes to be qualified institutional buyers ("Qualified Institutional
Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), or if
any such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
it that each such account is a Qualified Institutional Buyer to whom notice has
been given that such sale or delivery is being made in reliance on Rule 144A and
in each case, in transactions in accordance with Rule 144A and (B) outside the
United States to persons other than U.S. persons in reliance on Regulation S
under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance
on Regulation S, each Initial Purchaser, severally and not jointly, represents
and warrants to, and agrees with the Issuers as set forth below.
(i) The Securities have not been registered under the Securities Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except pursuant to an exemption from,
or in transactions not subject to, the registration requirements of the
Securities Act.
(ii) Such Initial Purchaser has offered and sold the Securities, and
will offer and sell the Securities, (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the date hereof, only
in accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act.
(iii) Such Initial Purchaser agrees that during such 40-day
compliance distribution period and prior to the completion of the resale
of the Securities, it will not cause any advertisement with respect to the
Securities (including any "tombstone" advertisement) to be published in
any newspaper or periodical or posted in any public place and will not
issue any circular relating to the Securities, except such advertisements
as are permitted by and include statements required by Regulation S.
13
(iv) Such Initial Purchaser agrees that it will not offer, sell or
deliver any of the Securities in any jurisdiction outside the United
States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the Securities in
such jurisdiction except for such costs that the Company has agreed to pay
pursuant to this Agreement.
(v) Such Initial Purchaser acknowledges that the Securities offered
and sold in reliance on Regulation S will be represented upon issuance by
a global security that may not be exchanged for physical definitive
securities until the expiration of the 40-day compliance distribution
period referred to in Rule 903(c)(3) of the Securities Act and only upon
certification of beneficial ownership of such Securities by a non-U.S.
person or U.S. persons who purchased such Securities in transactions that
were exempt from the registration requirements of the Securities Act.
(vi) None of such Initial Purchaser, its affiliates and any other
persons acting on its or their behalf has engaged or will engage in any
directed selling efforts with respect to the Securities, and all such
persons have complied and will comply with the offering restriction
requirements of Regulation S.
(vii) At or prior to the confirmation of sale of any Securities sold
in reliance on Regulation S, it will have sent to each distributor, dealer
or other person receiving a selling concession, fee or other remuneration
that purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and
may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering of the Securities and the
date of original issuance of the Securities, except in accordance
with Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
(viii) It has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of the
Securities, except with its affiliates or with the prior written consent
of the Company.
Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents
and warrants to, and agrees with the Issuers that (i) it has not offered or sold
and prior to the date six months after the date hereof will not offer or sell
any Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances that have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has
14
complied and will comply with all applicable provisions of the Financial
Services Act 1986 and the Public Offers of Securities Regulations 1995 with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
(e) Each Initial Purchaser, severally and not jointly, agrees that,
prior to or simultaneously with the confirmation of sale by such Initial
Purchaser to any purchaser of any of the Securities purchased by such Initial
Purchaser from the Issuers pursuant hereto, such Initial Purchaser shall furnish
to that purchaser a copy of the Offering Memorandum (and any amendment or
supplement thereto that the Issuers shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale). In addition to the
foregoing, each Initial Purchaser acknowledges and agrees that the Issuers and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Sections 5(e) and (f), counsel for the Issuers and for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers and their compliance with their agreements
contained in this Section 2, and each Initial Purchaser hereby consents to such
reliance.
(f) Each of the Issuers and the Guarantors acknowledges and agrees
that the Initial Purchasers may sell Securities to any affiliate of an Initial
Purchaser and that any such affiliate may sell Securities purchased by it to an
Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Cleary, Gottlieb,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, New York, New York, or at such other place as shall be agreed
upon by the Initial Purchasers and the Issuers prior to the date hereof, at
10:00 A.M., New York City time, on the date hereof or at such other time or date
not later than seven full business days after the date hereof, as shall be
agreed upon by the Initial Purchasers and the Issuers (such payment and delivery
being referred to herein as the "Closing").
(b) On the date hereof, payment of the purchase price for the
Securities shall be made to the Issuers by wire or book-entry transfer of
same-day funds to such account or accounts as the Issuers shall specify prior to
the date hereof or by such other means as the parties hereto shall agree prior
to the date hereof against delivery to the Initial Purchasers of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Initial Purchasers hereunder. Upon delivery,
the Securities shall be in global form, registered in such names and in such
denominations as CSI on behalf of the Initial Purchasers shall have requested in
writing not less than two full business days prior to the date hereof.
4. Further Agreements of the Issuers and the Guarantors. Each of the
Issuers and the Guarantors agrees with each of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening prior to completion of
the resale of the Securities by
15
the Initial Purchasers of any event that makes any statement of a material
fact made in the Offering Memorandum untrue or that requires the making of
any additions to or changes in the Offering Memorandum (as amended or
supplemented from time to time) in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; to advise the Initial Purchasers promptly of any order
preventing or suspending the use of the Preliminary Offering Memorandum or
the Offering Memorandum, of any suspension of the qualification of the
Securities for offering or sale in any jurisdiction and of the initiation
or threatening of any proceeding for any such purpose; and to use its best
efforts to prevent the issuance of any such order preventing or suspending
the use of the Preliminary Offering Memorandum or the Offering Memorandum
or suspending any such qualification and, if any such suspension is
issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of the
Offering Memorandum (and any amendments or supplements thereto) as may be
reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum prior to completion of the resale of the Securities by the
Initial Purchasers, to furnish a copy thereof to each of the Initial
Purchasers and counsel for the Initial Purchasers and not to effect any
such amendment or supplement to which the Initial Purchasers shall
reasonably object by notice to the Issuers after a reasonable period to
review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Initial Purchasers or counsel for the Issuers, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum 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 the light of
the circumstances existing at the time it is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with applicable law, to prepare promptly such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request of
such holders or such prospective purchasers, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless
the Issuers are then subject to and in compliance with Section 13 or 15(d)
of the Exchange Act (the foregoing agreement being for the benefit of the
holders from time to time of the Securities and prospective purchasers of
the Securities designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the
Initial Purchasers copies of any annual reports, quarterly reports and
current reports filed by
16
each of the Issuers with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the Commission, and such
other documents, reports and information as shall be furnished by the
Issuers to the Trustee or to the holders of the Securities pursuant to the
Indenture or the Exchange Act or any rule or regulation of the Commission
thereunder;
(g) to take promptly from time to time such actions as the Initial
Purchasers may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as
the Initial Purchasers may designate and to continue such qualifications
in effect for so long as required for the resale of the Securities; and to
arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial Purchasers
may reasonably request; provided that the Company and its subsidiaries
shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through The
Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act), which sale, offer,
solicitation or other negotiation could be integrated with the offering of
the Securities in a manner which would require registration of the
offering of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement (each as
defined in the Registration Rights Agreement), as the case may be, not to,
and to cause its affiliates not to, and not to authorize or knowingly
permit any person acting on their behalf to, solicit any offer to buy or
offer to sell the Securities by means of any form of general solicitation
or general advertising within the meaning of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act; and not to offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, contract or disposition would cause the exemption
afforded by Section 4(2) of the Securities Act to cease to be applicable
to the offering and sale of the Securities as contemplated by this
Agreement and the Offering Memorandum;
(k) for a period of 180 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement for,
or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than the Securities, the Exchange Securities (as
defined in the
17
Registration Rights Agreement) and the Junior Subordinated Note) without
the prior written consent of the Initial Purchasers;
(l) during the period from the date hereof until two years after the
date hereof, without the prior written consent of the Initial Purchasers,
not to, and not permit any of its affiliates (as defined in Rule 144 under
the Securities Act) to, resell any of the Securities that have been
reacquired by them, except for Securities purchased by the Issuers or any
of their respective affiliates and resold in a transaction registered
under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or
become, or be or become owned by, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act, and to not
be or become, or be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on
behalf of the Initial Purchasers shall have notified the Issuers of the
completion of the resale of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange Act)
not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers
has a beneficial interest, any Securities, or attempt to induce any person
to purchase any Securities; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent, active trading in or of raising the price of the
Securities;
(o) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
(p) to furnish to each of the Initial Purchasers on the date hereof
a copy of the independent accountants' report included in the Offering
Memorandum signed by the accountants rendering such report;
(q) to do and perform all things required to be done and performed
by it under this Agreement that are within its control prior to or after
the date hereof, and to use its best efforts to satisfy all conditions
precedent on its part to the delivery of the Securities; and
(r) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Sources and Uses of
Proceeds."
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof, of the representations and warranties of
each of the Issuers and the Guarantors contained herein, to the accuracy of the
statements of each of the Issuers and the Guarantors and their respective
officers made in any certificates delivered pursuant hereto, to the performance
by each of the Issuers and the Guarantors of their respective obligations
hereunder, and to each of the following additional terms and conditions:
18
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers; and no stop order suspending the sale of the Securities in any
jurisdiction shall have been issued and no proceeding for that purpose
shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have discovered and
disclosed to the Issuers on or prior to the date hereof that the Offering
Memorandum or any amendment or supplement thereto contains an untrue
statement of a fact that, in the opinion of counsel for the Initial
Purchasers, is material or omits to state any fact that, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction Documents
and the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby, shall be
reasonably satisfactory in all material respects to the Initial
Purchasers, and the Issuers shall have furnished to the Initial Purchasers
all documents and information that they or their counsel may reasonably
request to enable them to pass upon such matters.
(d) The Initial Purchasers shall have received true and correct
copies of all of the Transaction Documents (other than the real estate
sub-lease agreements), as amended through the date hereof.
(e) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the
Issuers and the Guarantors, shall have furnished to the Initial Purchasers
their written opinion along with a letter, each addressed to the Initial
Purchasers and dated the date hereof, substantially in the respective
forms set forth in Annex A hereto. ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the
Issuers and the Guarantors, shall have furnished to the Initial Purchasers
their written opinion, and Winston & ▇▇▇▇▇▇, special counsel to Motorola,
shall have furnished to the Initial Purchasers their reliance letter
relating to their opinion addressed to TPG, each in form and substance
reasonably satisfactory to the Initial Purchasers.
(f) Local counsel to the foreign subsidiary or subsidiaries of the
Company organized in the jurisdictions listed on Schedule 2 hereto shall
have furnished to the Initial Purchasers their written opinions addressed
to the Initial Purchasers and dated the date hereof, in form and substance
reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received from Cravath, Swaine
& ▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions,
dated the date hereof, with respect to such matters as the Initial
Purchasers may reasonably require, and the Company shall have furnished to
such counsel such documents and information as they request for the
purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Initial Purchasers (i) a
letter of PWC (the "PWC Initial Letter") and (ii) a letter of KPMG (the
"KPMG Initial Letter"
19
and together with the PWC Initial Letter, the "Initial Letters"), in each
case addressed to the Initial Purchasers and dated the Offering Date, in
form and substance satisfactory to the Initial Purchasers, together
substantially to the effect set forth in Annex C hereto.
(i) The Company shall have furnished to the Initial Purchasers (i) a
letter (the "PWC Bring-Down Letter") of PWC and (ii) a letter of KPMG (the
"KPMG Bring-Down Letter" and together with the PWC Bring-Down Letter, the
"Bring-Down Letters"), in each case addressed to the Initial Purchasers
and dated the date hereof (A) confirming that (x) in the case of PWC, they
are independent public accountants with respect to the Company and its
subsidiaries and (y) in the case of KPMG, they are independent public
accountants with respect to Motorola and its subsidiaries, in each case
within the meaning of Rule 101 of the Code of Professional Conduct of the
AICPA and its interpretations and rulings thereunder, (B) stating, as of
the date of the Bring-Down Letters (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Offering Memorandum, as of a date
not more than three business days prior to the date of the Bring-Down
Letters), that the conclusions and findings of such accountants with
respect to the financial information and other matters covered by the PWC
Initial Letter or the KPMG Initial Letter, as the case may be, are
accurate and (C) confirming in all material respects the conclusions and
findings set forth in such Initial Letter.
(j) Each of the Issuers and the Guarantors shall have furnished to
the Initial Purchasers a certificate, dated the date hereof, of their
respective chief executive officers and their respective chief financial
officers, stating that (i) such officers have carefully examined the
Offering Memorandum, (ii) in their opinion, the Offering Memorandum, as of
its date, did not include any untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and since the
date of the Offering Memorandum, no event has occurred that should have
been set forth in a supplement or amendment to the Offering Memorandum so
that the Offering Memorandum (as so amended or supplemented) would not
include any untrue statement of a material fact and would not omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (iii) as of the date hereof, the
representations and warranties of each of the Issuers or the particular
Guarantor, as applicable, in this Agreement are true and correct in all
material respects, each of the Issuers or the particular Guarantor, as
applicable, has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder on or prior to the date
hereof and (iv) with respect to the officers of the Issuers only,
subsequent to the date of the most recent financial statements contained
in the Offering Memorandum, there has been no material adverse change in
the financial position or results of operation of the Company or any of
its subsidiaries, or any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company
and its subsidiaries taken as a whole.
20
(k) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of each of the Issuers and the Guarantors.
(l) The Indenture shall have been duly executed and delivered by
each of the Issuers, the Guarantors and the Trustee, and the Securities
shall have been duly executed and delivered by the Issuers and duly
authenticated by the Trustee.
(m) The Securities shall have been approved by the NASD for trading
in the PORTAL Market.
(n) If any event shall have occurred that requires the Issuers under
Section 4(d) to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchasers shall have been given a reasonable opportunity to
comment thereon, and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the date hereof.
(o) There shall not have occurred any invalidation of Rule 144A
under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the
Exchange Act by the Commission or any amendment or proposed amendment
thereof by the Commission that, in the reasonable judgment of the Initial
Purchasers, would materially impair the ability of the Initial Purchasers
to purchase, hold or effect resales of the Securities as contemplated
hereby.
(p) Subsequent to the Offering Date or, if earlier, the dates as of
which information is given in the Offering Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been any change in
the membership interests, capital stock or long-term debt or any change,
or any development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (other than
any such change resulting from the consummation of the Transactions (as
defined in the Offering Memorandum)), the effect of which, in any such
case described above, is, in the reasonable judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the
terms and in the manner contemplated by this Agreement and the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(q) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body that would, as of the date hereof, prevent the issuance or
sale of the Securities; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction
shall have been issued prior to or as of the date hereof that would
prevent the issuance or sale of the Securities.
(r) Subsequent to the Offering Date, (i) no downgrading shall have
occurred in the rating accorded the Securities or any of the Issuers'
other debt securities or preferred stock by any "nationally recognized
statistical rating organization," as such term is
21
defined by the Commission for purposes of Rule 436(g)(2) of the rules and
regulations of the Commission under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance
or review (other than an announcement with positive implications of a
possible upgrading), its rating of the Securities or any of the Issuers'
other debt securities or preferred stock.
(s) Subsequent to the Offering Date, there shall not have occurred
any of the following: (i) trading in securities generally on the New York
Stock Exchange or the over-the-counter market shall have been suspended or
materially limited, or minimum prices shall have been established on any
such exchange or market by the Commission, by any such exchange or by any
other regulatory body or governmental authority having jurisdiction, or
trading in any securities of the Issuers on any exchange or in the
over-the-counter market shall have been suspended or (ii) any general
moratorium on commercial banking activities shall have been declared by
federal or New York state authorities or (iii) an outbreak or escalation
of hostilities or a declaration by the United States of a national
emergency or war or (iv) a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such),
the effect of which, in the case of this clause (iv), is, in the
reasonable judgment of the Initial Purchasers, so material and adverse as
to make it impracticable or inadvisable to proceed with the sale or the
delivery of the Securities on the terms and in the manner contemplated by
this Agreement and in the Offering Memorandum (exclusive of any amendment
or supplement thereto).
(t) All conditions to the consummation of the Recapitalization
(including without limitation, the substantial completion of the
Reorganization and the execution of the Intellectual Property Agreement,
the Transition Services Agreement, the Collateral Agreements and the Loan
Documents), other than the offering of the Securities, shall have been
satisfied. The Recapitalization, the Reorganization, the other
Transactions and the initial funding under the Credit Agreement shall be
consummated substantially concurrently with the sale of the Securities
hereunder on the terms described in the Offering Memorandum.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Issuers prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Section
5(o), (p), (q), (r) or (s) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the date hereof, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase on the terms contained herein of the Securities which such defaulting
Initial Purchaser agreed but failed to purchase by other persons satisfactory to
the Company and the non-defaulting Initial Purchasers, but if no such
arrangements are made within 36 hours after such default, the Issuers shall be
entitled to a
22
further period of thirty-six hours within which to procure another party or
other parties reasonably satisfactory to the other Initial Purchasers to
purchase such Securities on such terms. In the event that, within the respective
prescribed periods, the Initial Purchasers notify the Issuers that they have so
arranged for the purchase of such Securities, or the Issuers notify the Initial
Purchasers that they have so arranged for the purchase of such Securities, the
Initial Purchasers or the Issuers shall have the right to postpone the Closing
for a period of not more than seven days in order to effect any changes to the
Offering Memorandum and any other documents in connection with the purchase that
may thereby be made necessary. In the event that a substitute purchase is not so
arranged, this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchasers or the Issuers, except that the Issuers and
the Guarantors will continue to be liable for the payment of expenses to the
extent set forth in Sections 8 and 12 and except that the provisions of Sections
9 and 10 shall not terminate and shall remain in effect. As used in this
Agreement, the term "Initial Purchasers" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in
Schedule 1 hereto that, pursuant to this Section 7, purchases Securities which a
defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Issuers or any non-defaulting
Initial Purchaser for damages caused by its default. If other persons are
obligated or agree to purchase the Securities of a defaulting Initial Purchaser,
either the non-defaulting Initial Purchasers or the Issuers may postpone the
Closing for up to seven full business days in order to effect any changes that
in the opinion of counsel for the Issuers or counsel for the Initial Purchasers
may be necessary in the Offering Memorandum or in any other document or
arrangement, and the Issuers agree to promptly prepare any amendment or
supplement to the Offering Memorandum that effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6 or 7, (b) the Issuers
shall fail to tender the Securities for delivery to the Initial Purchasers for
any reason permitted under this Agreement or (c) the Initial Purchasers shall
decline to purchase the Securities for any reason permitted under this
Agreement, the Issuers and the Guarantors shall reimburse the Initial Purchasers
for such out-of-pocket expenses (including reasonable documented fees and
disbursements of a single counsel) as shall have been reasonably incurred by the
Initial Purchasers in connection with this Agreement and the proposed purchase
and resale of the Securities. If this Agreement is terminated pursuant to
Section 7 by reason of the default of one or more of the Initial Purchasers, the
Issuers and the Guarantors shall not be obligated to reimburse any defaulting
Initial Purchaser on account of such expenses.
9. Indemnification. (a) Each of the Issuers and the Guarantors shall
jointly and severally indemnify and hold harmless each Initial Purchaser, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 9(a) and Section 10 as an Initial Purchaser), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to which
that Initial Purchaser may become subject, whether
23
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto or in any information provided by the
Issuers pursuant to Section 4(e) or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse each Initial Purchaser
promptly upon demand for any legal or other documented out-of-pocket expenses
reasonably incurred by that Initial Purchaser in connection with investigating
or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Issuers and the
Guarantors shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with any Initial
Purchasers' Information; and provided further that, with respect to any such
untrue statement in or omission from the Preliminary Offering Memorandum, the
indemnity agreement contained in this Section 9(a) shall not inure to the
benefit of any such Initial Purchaser to the extent that the sale to the person
asserting any such loss, claim, damage, liability or action was an initial
resale by such Initial Purchaser and any such loss, claim, damage, liability or
action of or with respect to such Initial Purchaser results from the fact that
both (A) to the extent required by applicable law, a copy of the Offering
Memorandum was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person and (B) the untrue
statement in or omission from the Preliminary Offering Memorandum was corrected
in the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Issuers with Section
4(b).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Issuers, their respective affiliates, officers,
directors, employees, representatives and agents, and each person, if any, who
controls any Issuer within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9(b) and Section 10 as an
Issuer), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which that Issuer may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any Initial
Purchasers' Information, and shall reimburse that Issuer for any legal or other
documented out-of-pocket expenses reasonably incurred by that Issuer in
connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred.
24
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided
however that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable documented out-of-pocket costs of investigation;
provided, however, that an indemnified party shall have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of such
counsel for the indemnified party will be at the expense of such indemnified
party unless (i) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (ii) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (iii) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (iv)
the indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable documented out-of-pocket fees, disbursements
and other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such (i) does not include an
admission of
25
fault or wrongdoing and (ii) settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
The obligations of the Issuers, the Guarantors and the Initial
Purchasers in this Section 9 and in Section 10 are in addition to any other
liability that the Issuers, the Guarantors or the Initial Purchasers, as the
case may be, may otherwise have, including in respect of any breaches of
representations, warranties and agreements made herein by any such party.
10. Contribution. If the indemnification provided for in Section 9
is unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Issuers and the Guarantors on the
one hand and the Initial Purchasers on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Issuers and the Guarantors on the one hand and the Initial
Purchasers on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Issuers and the Guarantors on the one hand and the Initial
Purchasers on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received
by or on behalf of the Issuers and the Guarantors, on the one hand, and the
total discounts and commissions received by the Initial Purchasers with respect
to the Securities purchased under this Agreement, on the other, bear to the
total gross proceeds from the sale of the Securities under this Agreement. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Issuers or information
supplied by the Issuers and the Guarantors on the one hand or to any Initial
Purchasers' Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Issuers, the Guarantors and the Initial
Purchasers agree that it would not be just and equitable if contributions
pursuant to this Section 10 were to be determined by pro rata allocation (even
if the Initial Purchasers were treated as one entity for such purpose) or by any
other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10 shall be deemed to include, for
purposes of this Section 10, any documented out-of-pocket legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 10, no Initial Purchaser shall be
required to contribute any amount in excess of the amount by which the total
discounts and commissions received by such Initial Purchaser with respect to the
Securities purchased by it under this Agreement exceeds the amount of any
damages which such Initial Purchaser has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not
26
guilty of such fraudulent misrepresentation. The Initial Purchasers' obligations
to contribute as provided in this Section 10 are several in proportion to their
respective purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Issuers,
the Guarantors and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Sections 9 and 10 with respect to affiliates, officers, directors,
employees, representatives, agents and controlling persons of the Issuers, the
Guarantors and the Initial Purchasers and in Section 4(e) with respect to
holders and prospective purchasers of the Securities. Nothing in this Agreement
is intended or shall be construed to give any person, other than the persons
referred to in this Section 11, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
12. Expenses. The Issuers and the Guarantors agree with the Initial
Purchasers to pay (a) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and any
amendments or supplements thereto; (c) the costs of reproducing and distributing
each of the Transaction Documents; (d) the costs incident to the preparation,
printing and delivery of the certificates evidencing the Securities, including
stamp duties and transfer taxes, if any, payable upon issuance of the
Securities; (e) the fees and expenses of the Issuers' counsel and independent
accountants; (f) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(g) and of
preparing, printing and distributing Blue Sky Memoranda (including related fees
and expenses of counsel for the Initial Purchasers); (g) any fees charged by
rating agencies for rating the Securities; (h) the fees and expenses of the
Trustee and any paying agent (including related fees and expenses of any counsel
to such parties); (i) all expenses and application fees incurred in connection
with the application for the inclusion of the Securities on the PORTAL Market
and the approval of the Securities for book-entry transfer by DTC; and (j) all
other costs and expenses incident to the performance of the obligations of the
Issuers under this Agreement which are not otherwise specifically provided for
in this Section 12; provided, however, that except as provided in this Section
12 and Section 8, the Initial Purchasers shall pay their own costs and expenses
(including the fees of their counsel).
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Issuers, the Guarantors and
the Initial Purchasers contained in this Agreement or made by or on behalf of
the Issuers, the Guarantors or the Initial Purchasers pursuant to this Agreement
or any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination or cancelation of this Agreement or any investigation made by
or on behalf of any of them or any of their respective affiliates, officers,
directors, employees, representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
27
(a) if to the Initial Purchasers, shall be delivered or sent by mail
or telecopy transmission to Chase Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (telecopier no.: (212)
270-0994); or
(b) if to the Issuers, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Offering Memorandum, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ (telecopier no.:
602-244-4830);
provided that any notice to an Initial Purchaser pursuant to Section 9(c) shall
also be delivered or sent by mail to such Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Issuers shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Initial Purchasers by CSI.
15. Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
16. Initial Purchasers' Information. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Initial Purchasers'
Information consists solely of the following information in the Preliminary
Offering Memorandum and the Offering Memorandum: (a) the last two bullet points
on the front cover page concerning the terms of the offering by the Initial
Purchasers and (b) the statements concerning the Initial Purchasers contained in
the third, ninth, tenth, eleventh, twelfth and thirteenth paragraphs under the
heading "Plan of Distribution."
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF, OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a
28
binding agreement among the Issuers, the Guarantors and the several Initial
Purchasers in accordance with its terms.
Very truly yours,
SCG HOLDING CORPORATION,
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC,
SCG (MALAYSIA SMP) HOLDING CORPORATION,
SCG (CZECH) HOLDING CORPORATION,
SCG (CHINA) HOLDING CORPORATION,
SEMICONDUCTOR COMPONENTS INDUSTRIES
PUERTO RICO, INC.,
SCG INTERNATIONAL DEVELOPMENT LLC,
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Secretary
Accepted:
CHASE SECURITIES INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
▇▇▇▇▇▇ BROTHERS INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
3 World Financial Center
New York, NY 10285
Attention: General Counsel
SCHEDULE 1
Principal
Amount
Initial Purchasers of Securities
------------------ -------------
Chase Securities Inc. $ 200,000,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 100,000,000
▇▇▇▇▇▇ Brothers 100,000,000
-----------
Total $ 400,000,000
SCHEDULE 2
Japan
The Philippines
Hong Kong
Malaysia
The Netherlands
France
The United Kingdom
Slovakia
Mexico
Exhibit A
---------
CERTAIN TRANSACTION DOCUMENTS
1. Agreement and Plan of Recapitalization and Merger by and among Motorola,
the Company, SCI LLC, TPG Semiconductor Holdings LLC and TPG
Semiconductor Acquisition Corp. dated as of May 11, 1999, as amended.
2. Reorganization Agreement by and among Motorola, the Company and SCI LLC
dated as of May 11, 1999.
3. Transition Services Agreement between Motorola and SCI LLC dated as of
July 31, 1999.
4. Equipment Lease and Repurchase Agreement between Motorola and SCI LLC
dated as of July 31, 1999.
5. Equipment Passdown Agreement between Motorola and SCI LLC dated as of
July 31, 1999.
6. SCG Assembly Agreement between Motorola and SCI LLC dated as of
July 31, 1999.
7. SCG Foundry Agreement between Motorola and SCI LLC dated as of July 31,
1999.
8. Motorola Assembly Agreement between Motorola and SCI LLC dated as of
July 31, 1999.
9. Motorola Foundry Agreement between Motorola and SCI LLC dated as of
July 31, 1999.
10. Employee Matters Agreement among Motorola, SCI LLC and the Company dated
as of May 11, 1999, as amended.
A-1
ANNEX A
Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
See attached
[no attachment]
A-2
ANNEX B
Form of Initial Comfort Letter
See attached.
[no attachment]
B-1