-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Qes/0dDh6GYqv0p9HAgCULKcETUdyYUIaCeaBrwxJ+ulgEQFGtRDN9FwxIQhAst8 uYRhAi/qHjFqDN4/KoDbbQ== 0001047469-03-007831.txt : 20030306 0001047469-03-007831.hdr.sgml : 20030306 20030305204013 ACCESSION NUMBER: 0001047469-03-007831 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030306 GROUP MEMBERS: MOTOROLA CANADA LIMITED GROUP MEMBERS: MOTOROLA SMR, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NEXTEL COMMUNICATIONS INC CENTRAL INDEX KEY: 0000824169 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 363939651 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-42186 FILM NUMBER: 03593825 BUSINESS ADDRESS: STREET 1: 2001 EDMUND HALLEY DRIVE CITY: RESTON STATE: VA ZIP: 20191 BUSINESS PHONE: 7034334000 MAIL ADDRESS: STREET 1: 2001 EDMUND HALLEY DRIVE CITY: RESTON STATE: VA ZIP: 20191 FORMER COMPANY: FORMER CONFORMED NAME: FLEET CALL INC DATE OF NAME CHANGE: 19930719 FORMER COMPANY: FORMER CONFORMED NAME: NEXTEL DATE OF NAME CHANGE: 19930723 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MOTOROLA INC CENTRAL INDEX KEY: 0000068505 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 361115800 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1303 E ALGONQUIN RD CITY: SCHAUMBURG STATE: IL ZIP: 60196 BUSINESS PHONE: 8475765000 MAIL ADDRESS: STREET 1: 1303 EAST ALGONQUIN ROAD CITY: SCHAUMBURG STATE: IL ZIP: 60196 FORMER COMPANY: FORMER CONFORMED NAME: MOTOROLA DELAWARE INC DATE OF NAME CHANGE: 19760414 SC 13D/A 1 a2105025zsc13da.htm SCHEDULE 13D/A
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 4)*

NEXTEL COMMUNICATIONS, INC.
(Name of Issuer)

Class A Common Stock, par value $0.001 per share
(Title of Class of Securities)

65332V103
(CUSIP Number)

Carol Forsyte
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, IL 60196
(847) 576-7646
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)

March 3, 2003
(Date of Event which Requires Filing of this Statement)

        If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. o

        * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

        The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.

CUSIP No.    65332V103   13D   Page 2 of 14 Pages

(1)   NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Motorola, Inc.
(2)   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*   (a)  o
                (b)  o
(3)   SEC USE ONLY

 		           
(4)   SOURCE OF FUNDS*
Not applicable
(5)   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
                o
(6)   CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH REPORTING
PERSON WITH		   (7)   SOLE VOTING POWER
76,167,768 (Includes 35,053,780 shares of Class B Non-Voting Common Stock which in certain circumstances are convertible into Class A Common Stock—See Item 5; and up to 25,000,000 shares which are subject to forward sale and pledge agreements—See Item 6)		    
   
    (8)   SHARED VOTING POWER
7,023,000 (Includes 606,220 shares of Class B Non-Voting Common Stock which in certain circumstances are convertible into Class A Common Stock—See Item 5)		    
   
        (9)   SOLE DISPOSITIVE POWER
76,167,768 (Includes 35,053,780 shares of Class B Non-Voting Common Stock which in certain circumstances are convertible into Class A Common Stock—See Item 5; and up to 25,000,000 shares which are subject to forward sale and pledge agreements—See Item 6)
 		   
       
        (10)   SHARED DISPOSITIVE POWER
7,023,000 (Includes 606,220 shares of Class B Non-Voting Common Stock which in certain circumstances are convertible into Class A Common Stock—See Item 5)
 		   
(11)   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
83,190,768 (Includes 35,660,000 shares of Class B Non-Voting Common Stock which in certain circumstances are convertible into Class A Common Stock—See Item 5; and up to 25,000,000 shares which are subject to forward sale and pledge agreements—See Item 6)
(12)   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES    
                o
(13)   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.6%
(14)   TYPE OF REPORTING PERSON
CO
*SEE INSTRUCTION BEFORE FILLING OUT!
CUSIP No.    65332V103   13D   Page 3 of 14 Pages

(1)   NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Motorola Canada Limited
(2)   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*   (a)  o
                (b)  o
(3)   SEC USE ONLY

 		           
(4)   SOURCE OF FUNDS*
Not applicable
(5)   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
                o
(6)   CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
NUMBER OF
SHARES		   (7)   SOLE VOTING POWER
- -0-		    
BENEFICIALLY  
REPORTING
PERSON WITH		   (8)   SHARED VOTING POWER
5,000,000 (See Item 5)		    
   
        (9)   SOLE DISPOSITIVE POWER
- -0-
 		   
       
        (10)   SHARED DISPOSITIVE POWER
5,000,000 (See Item 5)
 		   
(11)   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,000,000
(12)   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES    
                o
(13)   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.52%
(14)   TYPE OF REPORTING PERSON
CO
*SEE INSTRUCTION BEFORE FILLING OUT!
CUSIP No.    65332V103   13D   Page 4 of 14 Pages

(1)   NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Motorola SMR, Inc.
(2)   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*   (a)  o
                (b)  o
(3)   SEC USE ONLY

 		           
(4)   SOURCE OF FUNDS*
Not applicable.
(5)   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
                o
(6)   CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
NUMBER OF
SHARES		   (7)   SOLE VOTING POWER
- -0-		    
OWNED BY  
EACH REPORTING
PERSON WITH		   (8)   Shared Voting Power
2,023,000 (Includes 606,220 shares of Class B Non-Voting Common Stock which in certain circumstances are convertible into Class A Common Stock—See Item 5)		    
   
        (9)   SOLE DISPOSITIVE POWER
- -0-
 		   
       
        (10)   SHARED DISPOSITIVE POWER
2,023,000 (Includes 606,220 shares of Class B Non-Voting Common Stock which in certain circumstances are convertible into Class A Common Stock—See Item 5)
 		   
(11)   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,023,000 (Includes 606,220 shares of Class B Non-Voting Common Stock which in certain circumstances are convertible into Class A Common Stock—See Item 5)
(12)   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES    
                o
(13)   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.21%
(14)   TYPE OF REPORTING PERSON
CO
*SEE INSTRUCTION BEFORE FILLING OUT!
CUSIP No.    65332V103   13D   Page 5 of 14 Pages


Item 1.    Security and Issuer.

AMENDMENT NO. 4 TO SCHEDULE 13D

        This Amendment No. 4 ("Amendment") relates to the Class A Common Stock, par value $0.001 per share (the "Nextel Class A Common Stock"), of Nextel Communications, Inc., a Delaware corporation ("Nextel"). The Report on Schedule 13D filed by Motorola dated August 7, 1995, as amended by Amendment No. 1 dated May 10, 1996, Amendment No. 2 dated July 29, 1999 and Amendment No. 3 dated May 28, 2001 (hereinafter collectively referred to as "Motorola Schedule 13D"), is hereby amended and supplemented as set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motorola Schedule 13D.

        The percentage of Nextel Class A Common Stock reported in this Amendment as being beneficially owned by Motorola, Inc. ("Motorola"), Motorola SMR, Inc. ("Motorola SMR") and Motorola Canada ("Motorola Canada") is based upon the number of outstanding shares of common stock on October 31, 2002 as identified in Nextel's Quarterly Report on Form 10-Q for the quarter ended September 30, 2002.


Item 2.    Identity and Background.

        Item 2 is amended and restated to read as follows:

        (a)-(c), (f) This statement is being filed by Motorola, Inc., a Delaware corporation ("Motorola"), Motorola SMR, Inc., a New Jersey corporation and wholly-owned subsidiary of Motorola ("Motorola SMR") and Motorola Canada, a corporation organized under the laws of Canada and a wholly-owned subsidiary of Motorola ("Motorola Canada").

        Motorola's principal executive offices are located at 1303 East Algonquin Road, Schaumburg, Illinois 60196. Motorola is a global leader in providing integrated communications and embedded electronic solutions. Our Intelligence Everywhere™ solutions include: (i) software-enhanced wireless telephone and messaging, two-way radio products and systems, as well as networking and Internet-access products for consumers, network operators and commercial, government and industrial customers; (ii) end-to-end systems for the delivery of interactive digital video, voice and high-speed data solutions for broadband operators; (iii) embedded semiconductor solutions for customers in wireless communications, networking and transportation markets; and (iv) integrated electronic systems for automotive, Telematics, industrial, telecommunications, computing and portable energy systems markets.

        The names, business addresses and present principal occupations of the directors and executive officers of Motorola are set forth in the attached Appendix 1, which is incorporated herein by reference. To the best of Motorola's knowledge, all directors and executive officers of Motorola are citizens of the United States unless otherwise noted.

        Motorola SMR is a wholly-owned subsidiary of Motorola which contributed its assets to Nextel in conjunction with the Merger (as defined in Item 3 of the Motorola Schedule 13D) and is now engaged in no business other than holding shares of Nextel Common Stock (as defined in Item 3 of the Motorola Schedule 13D). Motorola SMR's executive offices are located at 1303 East Algonquin Road, Schaumburg, IL 60196. The name, business address and present principal occupation of each of its executive officers and directors are set forth in Appendix 2 hereto. To the best of Motorola SMR's knowledge, all directors and executive officers of Motorola SMR are citizens of the United States, unless otherwise noted.

        Motorola Canada is a wholly-owned subsidiary of Motorola and is principally engaged in the communications and electronics businesses in Canada. Motorola Canada's executive offices are located at 8133 Warden, Markham, Ontario L6G 1B3. The name, business address, present principal occupation and citizenship of each of its executive officers and directors are set forth in Appendix 3 hereto.

CUSIP No.    65332V103   13D   Page 6 of 14 Pages

        (d)-(e) None of Motorola, Motorola SMR, Motorola Canada or, to the best of Motorola's, Motorola SMR's and Motorola Canada's knowledge, any of the directors or executive officers listed on Appendices 1 through 3 has been, during the last five years, (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.


Item 4.    Purpose of Transaction.

        Item 4 is amended to add the following paragraphs as the fourth and fifth paragraphs of Item 4:

        On March 4, 2003 Motorola sold 25,000,000 shares of Nextel Class A Common at a price of $13.42 per share in a block trade to Salomon Smith Barney Inc. for resale into the open market (the "Block Sale").

        As more fully described in Item 6 below, on March 3, 2003 and March 4, 2003 Motorola entered into variable forward share contracts with each of Goldman Sachs Capital Markets, L.P. and Citibank N.A., New York, respectively, (collectively, the "Contracts") to sell an aggregate of up to 25,000,000 shares of Nextel Class A Common Stock.

        The former fourth paragraph of Item 4 is amended and restated to read as follows:

        Except in connection with the transactions contemplated by the Contribution and Merger Agreement, the Motorola Stock Purchase Agreement, the Sale Plan, the Block Sale and the Contracts as described above and in Item 6 hereof, none of Motorola, Motorola SMR or Motorola Canada has current plans or proposals which relate to or would result in any of the events described in Items (a) through (j) of Item 4 of the Schedule 13D. Each of Motorola, Motorola SMR and Motorola Canada does, however, expect to evaluate on an ongoing basis its intentions with respect to Nextel and may determine to pursue one or more of the actions specified in Items (a) through (j).


Item 5.    Interest in Securities of the Company.

        Item 5 is amended and restated to read as follows:

        (a)-(c) Motorola is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 83,190,768 shares of Nextel Class A Common Stock(1) (constituting 8.6% of the total outstanding shares of Nextel's Class A Common Stock). As to such shares, Motorola may be deemed to exercise sole voting and sole dispositive power with respect to 76,167,768 shares and shared voting and dispositive power as to 7,023,000 shares (including 35,053,780 and 606,220 shares of Class B Non-Voting Common Stock, respectively, which are convertible in certain circumstances into Class A Common Stock).

(1)
Motorola's beneficial ownership of Nextel Class A Common Stock consists of (i) 47,530,768 shares of Nextel Class A Common Stock and (ii) 35,660,000 shares of Nextel Class A Common Stock deemed to be outstanding under Rule 13D-3(d).

        Motorola SMR is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of 2,023,000 shares of Nextel Class A Common Stock (constituting 0.21% of the total outstanding shares of Nextel's Class A Common Stock). As to such shares (which includes 606,220 shares of Class B Non-Voting Common Stock which are convertible in certain circumstances into Class A Common Stock), Motorola SMR may be deemed to exercise shared voting and dispositive power.

        Motorola Canada is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of 5,000,000 shares of Nextel Class A Common Stock (constituting 0.52% of the total outstanding shares of Nextel's Class A Common Stock). As to such shares, Motorola Canada may be deemed to exercise shared voting and dispositive power.

CUSIP No.    65332V103   13D   Page 7 of 14 Pages

        None of Motorola, Motorola SMR, Motorola Canada, or any of the individuals in Appendices 1 through 3 has had any transactions in Nextel Class A Common Stock during the past 60 days except that (i) on March 4, 2003 Motorola sold 25,000,000 shares of Nextel Class A Common Stock pursuant to the Block Sale described in Item 4 hereof and (ii) on March 3, 2003 and March 4, 2003 Motorola entered into the transactions contemplated by the Contracts described in Item 6 hereof.

        (d)  Not applicable.

        (e)  Not applicable.


Item 6.    Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

        The ninth paragraph of Item 6 is amended and restated to read as follows:

        In addition, as long as Motorola owns 5% of the outstanding shares of Nextel Common Stock, Motorola will have the right to nominate two members for election to the Nextel Board. Keith Bane, Motorola's former Executive Vice President and President, Global Strategy and Corporate Development, was first elected to the Nextel Board on July 31, 1995 and continues to serve on the Nextel Board as Motorola's designated nominee. In the event of a transfer of shares of Nextel Common Stock by Motorola, one transferee of at least 5% of the outstanding shares of Nextel Common Stock, designated by Motorola and approved by Nextel (whose consent will not be unreasonably withheld), will have the right (so long as such transferee owns at least 5% of the outstanding shares of Nextel Common Stock) to nominate one person to the Nextel Board.

        The twelfth paragraph of Item 6 is amended and restated to read as follows:

        Also in connection with the Securities Purchase Agreement, Motorola granted Investor an option to purchase up to an additional 18,000,000 shares of Nextel Common Stock (adjusted to reflect Nextel's 2:1 stock split effective June 7, 2000) in three tranches over a six-year period. The Investor exercised its option to purchase the first tranche in full on August 25, 1997 and its option to purchase the second tranche in full on August 25, 1999. The remaining tranche was exercisable for up to 10,000,000 shares at $10.75 per share (adjusted to reflect Nextel's 2:1 stock split effective June 7, 2000) during the 30-day period following July 28, 2001. Such option was not exercised and expired by its terms. In addition, subject to certain limitations, Motorola has granted Investor a right of first refusal to purchase shares of Nextel Common Stock owned by Motorola. However, Investor waived its right of first refusal under the Securities Purchase Agreement to purchase shares of Nextel Common Stock owned by Motorola in connection with the sale of up to 60,000,000 shares of Nextel Common Stock by Motorola, either in one or more brokers' transactions, in one or more negotiated sales, in one or more deferred sale transactions with a broker-dealer firm pursuant to variable rate forward sale contracts or similar arrangements, in a combination thereof or otherwise through the end of 2003. Investor has acknowledged that a sale or sales made pursuant to a deferred sale transaction such as a forward sale contract or similar arrangement shall be deemed consummated upon entering the deferred sale agreement and that the future settlement of such arrangement shall be covered by the waiver previously described.

        Item 6 is amended to add the following paragraphs after the fifteenth paragraph of Item 6:

        On March 3, 2003 and March 4, 2003 Motorola entered into the Contracts pursuant to which Motorola may elect to receive a notional amount of cash at any time during the term of the Contracts as advances against a future sale of up to 25,000,000 shares, in the aggregate, of Nextel Class A Common Stock as set forth below (the "Contract Shares").

CUSIP No.    65332V103   13D   Page 8 of 14 Pages

        Each of the Contracts provide Motorola with a modified put option and the counterparty with a modified call option with respect to the Contract Shares subject to such Contract. Pursuant to each Contract, Motorola will deliver, in ten components of nearly equal size with adjustments to eliminate fractional shares (each a "Component"), a number of shares of Nextel Class A Common Stock (or, at the option of Motorola, the cash equivalent of such shares) equal to the product of (1) the number of Contract Shares subject to such Component and (2) the Exchange Ratio, which will be determined as described below.

Counterparty
to Contract
   Underlying
Shares
   Component
   Valuation
Dates
   Exchange Ratio
Goldman Sachs
Capital Markets,
L.P.		   8,333,333   1
2
3
4
5
6
7
8
9
10		   2/17/2006
2/21/2006
2/22/2006
2/23/2006
2/24/2006
2/27/2006
2/28/2006
3/1/2006
3/2/2006
3/3/2006		   (i)





(ii)




(iii)		   If the volume weighted average price for the regular
trading session (the "Settlement Price") of the Nextel
Class A Common Stock on the Valuation Date is less
than or equal to $13.08 (the "Floor Price"), the
Exchange Ratio will be one;
  
If the Settlement Price is greater than the Floor Price
but less than $16.29 (the "Cap Price"), the
Exchange Ratio will be equal to the Floor Price
divided by the Settlement Price; and
  
If the Settlement Price is equal to or greater than the
Cap Price, the Exchange Ratio will be Floor Price +
(Settlement Price - Cap Price) divided by the
Settlement Price.

Citibank N.A.,
New York
 
8,333,333
 
1
2
3
4
5
6
7
8
9
10
 
2/20/2007
2/21/2007
2/22/2007
2/23/2007
2/26/2007
2/27/2007
2/28/2007
3/1/2007
3/2/2007
3/5/2007
 
(i)




(ii)




(iii)
 
If the average closing price (the "Settlement Price")
of the Nextel Class A Common Stock on the
Valuation Date is less than or equal to $13.42 (the
"Floor Price"), the Exchange Ratio will be one;
  
If the Settlement Price is greater than the Floor Price
but less than $17.6178 (the "Cap Price"), the
Exchange Ratio will be equal to the Floor Price
divided by the Settlement Price; and
  
If the Settlement Price is equal to or greater than the
Cap Price, the Exchange Ratio will be Floor Price +
(Settlement Price - Cap Price) divided by the
Settlement Price.

Citibank N.A.,
New York
 
8,333,334
 
1
2
3
4
5
6
7
8
9
10
 
2/20/2008
2/21/2008
2/22/2008
2/25/2008
2/26/2008
2/27/2008
2/28/2008
2/29/2008
3/3/2008
3/4/2008
 
(i)





(ii)




(iii)
 
If the average closing price (the "Settlement
Price") of the Nextel Class A Common Stock
on the Valuation Date is less than or equal to
$13.42 (the "Floor Price"), the Exchange Ratio
will be one;
  
If the Settlement Price is greater than the Floor
Price but less than $20.4105 (the "Cap Price"),
the Exchange Ratio will be equal to the Floor
Price divided by the Settlement Price; and
  
If the Settlement Price is equal to or greater
than the Cap Price, the Exchange Ratio will be
Floor Price + (Settlement Price - Cap Price)
divided by the Settlement Price.

        To secure its obligations under each of the Contracts, among other things, Motorola pledged the Contract Shares subject to the Contract to the counterparty under the terms set forth in such Contract.

CUSIP No.    65332V103   13D   Page 9 of 14 Pages

        The former sixteenth paragraph of Item 6 is amended and restated to read as follows:

        The foregoing descriptions of the Contribution and Merger Agreement, the Merger Agreement Amendment, the Motorola Stock Purchase Agreement, the Registration Rights Agreement and the Contracts are summaries and all statements made in this Schedule 13D, as amended, which relate to such agreements are qualified in their entirety by reference to the complete text of each of the Contribution and Merger Agreement, the Merger Agreement Amendment, the Motorola Stock Purchase Agreement, the Registration Rights Agreement and each of the Contracts which are incorporated herein by reference and copies of which were previously filed or are attached as described below in Item 7.


Item 7.    Material to be Filed as Exhibits.

        Item 7 is amended to add the following exhibits.

Exhibit 7   Confirmation of Variable Forward Share Transaction by and between Motorola, Inc. and Goldman Sachs Capital Markets, L.P.

Exhibit 8
 
Confirmation of Variable Forward Share Transaction by and between Motorola, Inc. and Citibank N.A., New York.

Exhibit 9
 
Confirmation of Variable Forward Share Transaction by and between Motorola, Inc. and Citibank N.A., New York.
CUSIP No.    65332V103   13D   Page 10 of 14 Pages


SIGNATURES

        After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this statement is true, complete and correct.

Dated: March 3, 2003   MOTOROLA, INC.

 
 
By:
 
/s/  DAVID W. DEVONSHIRE      
    Name:   David W. Devonshire
 Executive Vice President and
Chief Financial Officer

Dated: March 3, 2003
 
MOTOROLA SMR, INC.

 
 
By:
 
/s/  CAROL H. FORSYTE      
    Name:   Carol H. Forsyte
 Assistant Secretary

Dated: March 3, 2003
 
MOTOROLA CANADA LIMITED

 
 
By:
 
/s/  CAROL H. FORSYTE      
    Name:   Carol H. Forsyte
 Assistant Secretary
CUSIP No.    65332V103   13D   Page 11 of 14 Pages


APPENDIX 1
INFORMATION CONCERNING
THE DIRECTORS AND EXECUTIVE OFFICERS OF MOTOROLA, INC.

        The following table sets forth the name, business address, and principal occupation or employment at the present time for each director and executive officer of Motorola. Unless otherwise noted, each such person is a citizen of the United States. In addition, unless otherwise noted, each such person's business address is 1303 East Algonquin Road, Schaumburg, Illinois 60196.

DIRECTORS OF MOTOROLA

Christopher B. Galvin   Chairman of the Board and Chief Executive Officer, Motorola, Inc.

Mike S. Zafirovski
 
President and Chief Operating Officer, Motorola, Inc.

Francesco Caio
 
Chief Executive Officer, Netscalibur. His Business address is:Via Caldera 21, 20153 Milano, Italy. Mr. Caio is a citizen of Italy.

H. Laurance Fuller
 
Retired; formerly Co-Chairman of the Board of Directors, BP Amoco, p.l.c. His business address is: Primary Business Center, 1111 E. Warrenville Road, Suite 257, Naperville IL 60563.

Anne P. Jones
 
Consultant. Her business address is: 5716 Bent Branch Road, Bethesda, MD 20816.

Judy C. Lewent
 
Executive Vice President and Chief Financial Officer and President, Human Health Asia, Merck & Co., Inc. Her business address is: Merck & Co., Inc., One Merck Drive, Whitehouse Station, NJ 08889.

Dr. Walter E. Massey
 
President of Morehouse College. His business address is: Morehouse College, 830 Westview Drive, SW, Atlanta, GA 30314.

Nicholas Negroponte
 
Chairman of the Massachusetts Institute of Technology Media Laboratory. His business address is: Massachusetts Institute of Technology Media Lab, 20 Ames St. E15-210, Cambridge, MA 02139.

Indra K. Nooyi
 
President and Chief Financial Officer, PepsiCo, Inc. Her business address is: 700 Anderson Hill Road, Purchase NY 10577.

John E. Pepper, Jr
 
Chairman of the Executive Committee, Procter & Gamble Co. His business address is: Procter & Gamble Co., One Procter & Gamble Plaza, Cincinnati, OH 45202.

Samuel C. Scott III
 
Chairman, President and Chief Executive Officer, Corn Products International. His business address is: CPC International, Inc., 6500 Archer Road, Summit-Argo, IL 60501.

Douglas A. Warner III
 
Retired; formerly Chairman of the Board, J.P. Morgan Chase & Co. His business address is: J.P. Morgan Chase & Co., 345 Park Avenue, 11th Floor, New York, NY 10154.

B. Kenneth West
 
Senior Consultant for Corporate Governance to Teachers Insurance and Annuity Association-College Retirement Equities Fund. His business address is: Retired Chairman of the Board, Harris Bankcorp, Inc., 32196 North River Road, Libertyville, IL 60048-4247.

Dr. John A. White
 
Chancellor, University of Arkansas. His business address is: University of Arkansas, 425 Administration Building, Fayetteville, AR 72701.
CUSIP No.    65332V103   13D   Page 12 of 14 Pages

EXECUTIVE OFFICERS OF MOTOROLA, INC.
(WHO ARE NOT ALSO DIRECTORS OF MOTOROLA)

Robert L. Barnett   Executive Vice President.

Gregory Q. Brown
 
Executive Vice President, President and Chief Executive Officer, Commercial Government and Industrial Solutions Sector.

Dennis J. Carey
 
Executive Vice President, President and Chief Executive Officer, Integrated Electronics Systems Sector.

Eugene A. Delaney
 
Executive Vice President and President, Global Relations and Resources Organization.

David W. Devonshire
 
Executive Vice President and Chief Financial Officer.

Glenn A. Gienko
 
Executive Vice President and Motorola Director of Human Resources.

A. Peter Lawson
 
Executive Vice President, General Counsel and Secretary.

Thomas J. Lynch
 
Executive Vice President, President and Chief Executive Officer, Personal Communications Sector.

Daniel M. Moloney
 
Executive Vice President, President and Chief Executive Officer, Broadband Communications Sector.

Adrian R. Nemcek
 
Executive Vice President, President and Chief Executive Officer, Global Telecom Solutions Sector.

Fred (Theodore) A. Shlapak
 
Executive Vice President, President and Chief Executive Officer, Semiconductor Products Sector. Mr. Shlapak is a citizen of Canada.

Leif G. Soderberg
 
Senior Vice President and Director, Global Strategy and Corporate Development

Padmasree Warrior
 
Senior Vice President and Chief Technology Officer.
CUSIP No.    65332V103   13D   Page 13 of 14 Pages


APPENDIX 2

INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF MOTOROLA SMR, INC.

        The following table sets forth the name, business address, and principal occupation or employment at the present time for each director and executive officer of Motorola SMR, Inc. Unless otherwise noted, each such person is a citizen of the United States. In addition, unless otherwise noted, each such person's business address is 1303 East Algonquin Road, Schaumburg, Illinois 60196.

DIRECTORS OF MOTOROLA SMR, INC.

Garth L. Milne   Treasurer of SMR, Inc. Senior Vice President and Treasurer of Motorola, Inc.

EXECUTIVE OFFICERS OF MOTOROLA SMR, INC.
(WHO ARE NOT ALSO DIRECTORS OF MOTOROLA SMR, INC.)

A. Peter Lawson   Secretary of SMR, Inc. Executive Vice President, General Counsel and Secretary of Motorola, Inc.
CUSIP No.    65332V103   13D   Page 14 of 14 Pages


APPENDIX 3

INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF MOTOROLA CANADA LIMITED

        The following table sets forth the name, business address, and principal occupation or employment at the present time for each director and executive officer of Motorola Canada Limited. To the best of Motorola Canada Limited's knowledge, the citizenship of the directors and executive officers is as listed below. In addition, unless otherwise noted, each such person's business address is 1303 East Algonquin Road, Schaumburg, Illinois 60196.

DIRECTORS OF MOTOROLA CANADA LIMITED

Frank A. Maw   President, Motorola Canada Limited. His business address is: 8133 Warden, Markham, Ontario L6G 1B3. Citizenship: Canadian

Robert Nichols
 
Vice President and Corporate Controller of Motorola Canada Limited. His business address is: 8133 Warden, Markham, Ontario L6G 1B3. Citizenship: Canadian

Edward J. Hughes
 
Assistant Treasurer of Motorola Canada Limited. Corporate Vice President and Director of Finance, Global Relations and Resources Organization, Motorola, Inc. Citizenship: U.S.

EXECUTIVE OFFICERS OF MOTOROLA CANADA LIMITED
(WHO ARE NOT ALSO DIRECTORS OF MOTOROLA CANADA LIMITED)

Garth L. Milne   Treasurer of Motorola Canada Limited. Senior Vice President and Treasurer of Motorola, Inc. Citizenship: U.S.

Paul C. Frew
 
Vice President and Director, Government Relations, Motorola Canada Limited. His business address is: 8133 Warden, Markham, Ontario L6G 1B3. Citizenship: Canadian


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APPENDIX 1 INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF MOTOROLA, INC.
APPENDIX 2 INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF MOTOROLA SMR, INC.
APPENDIX 3 INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF MOTOROLA CANADA LIMITED
 EX-7 3 a2105025zex-7.htm EXHIBIT 7
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Exhibit 7

To:   Goldman Sachs Capital Markets, L.P.

 
 
Attention: James P. Ziperski, Managing Director

From:
 
Motorola, Inc.
Attention: Michele Tracy, Director of Capital Markets
Phone: (847) 538-5612
Fax: (847) 576-4768

Date:
 
March 3, 2003

Re:
 
Variable Share Forward Transaction

Ref. No:
 
1.03.0304.1—1.03.0304.4—1.03.0304.7—1.03.0304.10—1.03.0304.13—1.03.0304.16—
1.03.0304.19—1.03.0304.22—1.03.0304.25—1.03.0304.28

Dear Sir(s):

        The purpose of this communication (this "Confirmation") is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (this "Transaction") between Goldman Sachs Capital Markets, L.P. (the "Counterparty") and Motorola, Inc. ("Motorola"). This communication constitutes a "Confirmation" as referred to in the ISDA Form specified below.

        Counterparty is acting as principal in this Transaction and Goldman, Sachs & Co. ("Agent"), its affiliate, is acting as agent for Counterparty and Motorola in this Transaction. This Confirmation is a confirmation for purposes of Securities and Exchange Commission Rule 10b-10. Counterparty is not a member of the Securities Investor Protection Corporation.

        This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions (including the Annex thereto) (the "2000 Definitions") and the 2002 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with the 2000 Definitions, the "Definitions"), in each case as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.

        This Confirmation supplements, forms a part of, and is subject to, the 1992 ISDA Master Agreement (Multicurrency-Cross Border) dated as of March 19, 2002, as amended and supplemented from time to time (the "Agreement"), between Counterparty and Motorola. All provisions contained in, or incorporated by reference to, the Agreement shall govern this Confirmation except as expressly modified below. In the event of any inconsistency between this Confirmation and the Agreement, as the case may be, this Confirmation shall govern for purposes of this Transaction. For purposes of the Equity Definitions, this Transaction will be deemed to be a Forward Transaction. Solely with respect to this Transaction, Section 2(c)(ii) of the Agreement shall be applicable, therefore payments owed under this Transaction shall not be netted against payments owed with respect to other Transactions under this Agreement. The terms of the Credit Support Annex as specified in the Agreement ("Other Transactions CSA") shall not be applicable with respect to this Transaction and Confirmation. This Transaction shall be disregarded for purposes of determining Exposure with respect to the Other Transactions CSA. This Transaction and Confirmation shall instead be subject to the terms of the ISDA Credit Support Annex (Bilateral Form—New York Law) with such modifications and elections as specified herein (the "Variable Annex") as if the Variable Annex were included in the Schedule to the Agreement with respect to this Transaction. The Variable Annex shall only be applicable with respect to this Transaction.

        Counterparty may not designate an Early Termination Date with respect to this Transaction as a result of an Event of Default or Termination Event under the Agreement, if the condition or event giving rise to such Event of Default or Termination Event under the Agreement occurs in connection


with a Transaction or Transactions, other than this Transaction. Counterparty may not designate an Early Termination Date with respect to this Transaction as a result of (a) an Event of Default under Section 5(a)(v) or 5(a)(vi) of the Agreement or (b) a Credit Event Upon Merger under Section 5(b)(iv) if Posted Collateral under the Variable Annex consists of Collateral Shares. For the avoidance of doubt, Counterparty may designate an Early Termination Date with respect to this Transaction upon the occurrence of (a) an Event of Default under Sections 5(a)(vii) or 5(a)(viii) of the Agreement, and (b) a Credit Event Upon Merger under Section 5(b)(iv) if Posted Collateral under the Variable Annex consists of U.S. Treasuries. Counterparty may also designate an Early Termination Date with respect to this Transaction upon the occurrence of an Event of Default under Section 5(a)(i), (ii), (iii), and (iv) and Section 5(b)(i), (ii), and (iii) if the condition or event giving rise to such Event of Default or Termination Event under the Agreement occurs in connection with this Transaction or if this Transaction is an Affected Transaction, as applicable. Notwithstanding any provision specifying otherwise, and provided that an Event of Default under Section 5(a)(vii) has not occurred with respect to Motorola as the Defaulting Party (a "Motorola Bankruptcy Event"), Payments, Deliveries, or Settlement Amounts owed by Counterparty to Motorola under this Transaction shall not be withheld, netted or set off against other amounts owed by Motorola to the Counterparty under any other Transaction or Agreement.

1.
The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

Trade Date:   March 3, 2003

Seller:
 
Motorola

Buyer:
 
Counterparty

Shares:
 
The common shares (the "Shares") of Nextel Communications, Inc. (the "Issuer")

Number of Shares:
 
8,333,333

Forward Floor Price:
 
$13.08

Forward Cap Price:
 
$16.29

Prepayment Amount:
 
An amount equal to the present value on the Prepayment Date of US$108,999,996 assuming such amount was to be paid on the Settlement Date (such present value to be determined by the Counterparty using a discount rate equal to the Rate for the period from and including the Prepayment Date to, but excluding, the Settlement Date, plus 35 basis points per annum. The Prepayment Amount shall not be subject to adjustment as a result of the occurrence of an Extraordinary Event, Additional Disruption Event, Termination Event or otherwise.

 
 
 

2


Rate:
 
If the number of calendar days from the Prepayment Date to the Settlement Date is (i) equal to or less than 4 years, the rate shall be the zero coupon rate derived from the prevailing rate curve that appears on page "EDA Commodity CT" of Bloomberg or a successor page or (ii) greater than 4 years, the rate shall be the zero coupon rate derived from the prevailing rate curve that appears on page IRSB18 of Bloomberg or a successor page. If such rate does not appear on page IRSB18 or a successor page, the rate will be the zero coupon rate derived from the prevailing rate curve determined as if the parties had specified "USD-ISDA-Swap Rate", in each case, (x) on a semi-annual basis, (y) with a Day Count Fraction (as defined in the 2000 ISDA Definitions) equal to Actual/360, and (z) interpolated as necessary to account for the actual number of calendar days between the Prepayment Date and the Settlement Date.

Prepayment Date:
 
The earlier of (1) the date designated as the Prepayment Date by Motorola by providing Counterparty with not less than three (3) Business Days prior notice (2) any Early Termination Date and (3) the Settlement Date.

Prepayment:
 
Applicable

Variable Obligation:
 
Applicable

Settlement Currency:
 
USD

Exchange:
 
NASDAQ National Market

Related Exchange:
 
All Exchange(s)

Business Day:
 
New York.

Valuation:
 
 

Valuation Time:
 
As provided in Section 6.1 of the Equity Definitions.

Settlement Calculations:
 
For purposes of determining the Number of Shares to be Delivered (if Physical Settlement is applicable) or the Cash Settlement Amount (if Cash Settlement is applicable), the Transaction shall be split into 10 components of equal size (each a "Component"), with the Number of Shares allocated accordingly (with all fractional shares being allocated to the last Component). Each Component will have its own Valuation Date, with the Number of Shares to be Delivered or the Cash Settlement Amount for such Component determined as if it were a separate Transaction.

 
 
 

3


Valuation Date:
 
With respect to the specified Component, the date specified below (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already a Valuation Date):
Component
   Valuation Date
1   2/17/2006
2   2/21/2006
3   2/22/2006
4   2/23/2006
5   2/24/2006
6   2/27/2006
7   2/28/2006
8   3/1/2006
9   3/2/2006
10   3/3/2006
    provided that, if that date is a Disrupted Day, the Valuation Date for the relevant Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and which is not or is not deemed to be a Valuation Date in respect of any other Component under this Transaction; provided, further, that if the Valuation Date for the relevant Component has not occurred pursuant to the preceding proviso as of 8th Scheduled Trading Day following the Valuation Date for such Component, that 8th Scheduled Trading Day shall be the Valuation Date (irrespective of whether such day is a Valuation Date in respect of any other Component under this Transaction) and the Settlement Price shall be the price determined by the Calculation Agent.

Settlement Terms:
 
 

Settlement Price
 
In (ii) of 7.3(a) of the Equity Definitions, the words beginning with the words "mid-point of the highest" to the end of such sentence shall be deleted and replaced with the words, "The NASDAQ Volume Weighted Average Price per share of the Shares for the final hour of the regular trading session (including any extensions thereof) on the Valuation Date (without regard to pre-open or after hours trading outside of such regular trading session) as published by Bloomberg at 4:15 p.m. New York time on such date.

Settlement Method Election:
 
Applicable

Physical Settlement:
 
Applicable if designated as applicable by the Electing Party or if Cash Settlement is not designated as applicable by the Electing Party on or prior to the Settlement Method Election Date. Upon election of Physical Settlement, the Shares delivered by Motorola shall not be "restricted securities" within the meaning of Rule 144(a).

 
 
 

4


Cash Settlement:
 
Applicable if designated as applicable by the Electing Party on or prior to the Settlement Method Election Date.

Electing Party:
 
Motorola

Settlement Method Election Date:
 
Fifteen (15) Scheduled Trading Days prior to the March 3, 2006

Default Settlement Method:
 
Physical Settlement

Number of Shares to be Delivered:
 
As provided in Section 9.5 of the Equity Definitions.

Settlement Date:
 
Three (3) Scheduled Trading Days after the Valuation Date.

Cash Settlement Payment Date:
 
Three (3) Scheduled Trading Days after the Valuation Date.

Adjustments:
 
 

Method of Adjustment:
 
Calculation Agent Adjustment

Extraordinary Dividend:
 
Any cash dividend or distribution amount greater than zero (0) cents per Share per quarter.

Excess Dividend Amount:
 
Record Amount

Dividend Period:
 
First Period

Additional Payments:
 
If an Extraordinary Dividend per Share is declared by the Issuer to holders of record of a Share on any record date occurring during the Dividend Period, Motorola shall pay on the third Business Day following each date that the respective dividend is paid by the Issuer to the holders of the Shares on the record date during the Dividend Period an "Additional Payment Amount" to the Counterparty. Additional Payment Amount shall be equal to the product of (i) the Number of Shares and (ii) the Extraordinary Dividend paid by the Issuer per Share to the holders of the Shares on the record date during the Dividend Period. Upon payment of the Additional Payment Amount to the Counterparty, Motorola's obligation to deliver the Excess Dividend Amount or Extraordinary Dividend Amount on a Settlement Date, Cash Settlement Payment Date or otherwise shall be satisfied to the extent of such payment. Motorola may pay the Additional Payment Amount from distributions received with respect to Posted Collateral.

Extraordinary Events:
 
 

Consequences of Merger Event:
 
 
      (a) Share-for-Share:   Modified Calculation Agent Adjustment
      (b) Share-for-Other:   Cancellation and Payment
      (c) Share-for-Combined:   Component Adjustment
 
Determining Party:
 
Counterparty

Tender Offer:
 
Applicable

Consequences of Tender Offers:
 
 
     
(a) Share-for-Share:
 
Modified Calculation Agent Adjustment

 
 
 

5

     
(b) Share-for-Other:
 
Cancellation and Payment
     
(c) Share-for-Combined:
 
Component Adjustment
 
Determining Party:
 
Counterparty

Composition of Combined Consideration:
 
Notwithstanding Section 12.1 or 12.5 of the Equity Definitions, in respect of a Merger Event or Tender offer where the composition of the consideration could be determined by the holder of Shares equal to the Number of Shares, the Counterparty, acting in good faith and in a commercially reasonable manner under then current market conditions, will determine the composition of the consideration for purposes of this Transaction and shall notify Motorola promptly following such determination.

Nationalization, Insolvency or De-Listing Event:
 
Cancellation and Payment

Determining Party:
 
Counterparty

        Prior to the termination of this Transaction as a result of an Extraordinary Event, Event of Default (that is not a Motorola Bankruptcy Event), Termination Event or otherwise, the Calculation Agent shall provide a notice (which shall not be more than 20 Business Days but not less than 3 Business Days prior to the date of termination) specifying the Extraordinary Event, Termination Event or other event leading to such termination, relevant terms and the date of termination (the "Early Termination Date") in addition to a request that Motorola specify the Settlement Method. Within three (3) Business Days of receiving such notice, Motorola shall elect the Settlement Method. Motorola's failure to elect a Settlement Method within three (3) Business Days of receiving notice shall result in an election of Physical Settlement. Upon the occurrence of a Motorola Bankruptcy Event, the Default Settlement Method shall be the applicable Settlement Method with respect to this Transaction, notwithstanding any election by Motorola to the contrary.

        On or within one Business Day following an Early Termination Date that does not occur as a result of a Motorola Bankruptcy Event, the Calculation Agent shall deliver to Motorola a notice specifying the determination amount, Cancellation Amount or amount owed as a result of the termination ("Termination Amount") expressed as a cash amount or a number of Shares, as applicable. If Motorola had timely elected Cash Settlement in respect of an Early Termination Date pursuant to the immediately preceeding paragraph, Counterparty or Motorola, as applicable, shall make a cash payment to the other party ("Receiving Party") by wire transfer of immediately available funds to an account designated by the Receiving Party in an amount equal to the Termination Amount no later than the Early Termination Date or the date designated following the notice of determination as set forth in Section 12.7 of the Equity Definitions, as applicable. If Cash Settlement is the applicable Settlement Method and Motorola fails to make the payment when due, Counterparty shall net and offset such Termination Amount owed by Motorola first against the Prepayment Amount, if not yet paid, and any balance shall be applied against the proceeds from the Posted Collateral under the Variable Annex up to the amount owed. If Physical Settlement is the applicable method (1) Motorola shall deliver to the Counterparty, the lesser of (a) number of Shares to be delivered as specified in the notice or (b) the Number of Shares and (2) the Shares delivered by Motorola shall not be "restricted securities" within the meaning of Rule 144(a). Notwithstanding the provisions of the Agreement or Section 12 of the Equity Definitions or otherwise, upon any cancellation or termination of this Transaction where Physical Settlement is the applicable Settlement Method, the delivery obligation owed by Motorola (with respect to this Transaction) to Counterparty with respect to this Transaction shall never exceed the Number of Shares (and any proceeds of such Shares) and provided that a

6


Motorola Bankruptcy Event has not occurred, Counterparty shall pay Motorola the Prepayment Amount on the Early Termination Date, if not paid.

Additional Disruption Events:

  Change in Law:   Applicable
 
Failure to Deliver:
 
Not Applicable
 
Insolvency Filing:
 
Not Applicable
 
Hedging Disruption:
 
Not Applicable
 
Increased Cost of Hedging:
 
Not Applicable
 
Loss of Stock Borrow:
 
Inapplicable with respect to the 90 days following the Trade Date. With respect to the remaining term of the Transaction following the 90 day period, Loss of Stock Borrow shall be Applicable; provided however, that the Hedging Party must notify Motorola of its intention to terminate this Transaction at least three (3) Business Days prior to terminating the contract and the basis for the termination; provided further that during the 3 Business Days following Motorola's receipt of such notice, Motorola may elect and if it elects to (1) partially terminate this Transaction up to an amount equal to the number of Shares for which Counterparty is unable to maintain a stock borrow position, (2) bear the increase in the cost to borrow above the Initial Stock Loan Rate with respect to such Shares and elect to (a) pay on a quarterly basis, three (3) Business Days following each quarter, in cash to the Counterparty, the amount by which the Counterparty's actual cost of borrow exceeds the Initial Stock Loan Rate, or (b) have the Counterparty adjust the Forward Cap Price if such adjustment is sufficient to produce value equivalent to the amount by which the Counterparty's actual cost of borrow exceeds the Initial Stock Loan Rate, or (3) either directly or indirectly, provide for a loan of Shares in such amount and upon terms consistent with then-applicable law, in a form agreed between the parties, with a lender acceptable to the Counterparty acting in a commercially reasonable manner, and at a rate equal to the Initial Stock Loan Rate, then the Counterparty shall no longer be able to terminate this Transaction.

 
 
The definition of "Loss of Stock Borrow" shall be deleted and replaced with the following words "means the Hedging party is unable, after using commercially reasonable efforts, (a) to borrow (or maintain a borrowing of) Shares with respect to this Transaction or (b) to borrow (or maintain a borrowing of) Shares with respect to this Transaction at a rate equal to or less than the Maximum Stock Loan Rate for 20 consecutive Business Days.
   
Maximum Stock Loan Rate:
 
60 basis points per annum.

 
 
 

7

   
Initial Stock Loan Rate:
 
15 basis points per annum.
   
Hedging Party:
 
Counterparty
 
Increased Cost of Stock Borrow:
 
Not Applicable
 
Increased Cost of Hedging:
 
Not Applicable
   
Determining Party:
 
Counterparty.
 
Non-Reliance:
 
Applicable

Agreements and Acknowledgements Regarding Hedging Activities:
 
Applicable

Additional Acknowledgements:
 
Applicable

        Dispute Mechanism:    With respect to any calculation, adjustment or determination (a "Determination") made by the Counterparty as the Calculation Agent, Hedging Party or as the Determining Party, Counterparty shall provide to Motorola, notice of any Determinations (not less than two (2) Business Day prior to the effective date of such Determination, whenever practicable (if Counterparty is unable to provide notice of such Determinations prior to the effective date then Counterparty shall provide notice on the effective date of the determination) providing in reasonable detail the relevant assumptions and valuations underlying such Determination (including, if applicable, assumptions by the Counterparty with respect to volatility, expected dividends, stock loan rate, and liquidity relevant to the shares or to the Transaction). If Motorola disputes any Determination made by the Counterparty, within two (2) Business Days of being notified of such Determination, and if Motorola and Counterparty are unable to agree on a Determination within one (1) Business Day of Counterparty being notified of such dispute, Motorola and Counterparty agree to jointly appoint an independent third party dealer in equity derivatives with experience in transactions similar to this Transaction to make such Determination (a "Substitute Calculation Agent" and if Motorola and Counterparty do not promptly agree on a Substitute Calculation Agent within two (2) Business Days of Counterparty being notified of the dispute, Motorola and Counterparty shall each choose such a third party dealer on the third (3) Business Day of Counterparty being notified of the dispute, and the third party dealers shall together promptly appoint another such third party dealer as the Substitute Calculation Agent to make such Determination). The Determination by the Substitute Calculation Agent shall be made as promptly as practicable after appointment and shall be binding on Motorola and Counterparty absent manifest error. This Transaction shall be adjusted based on the Substitute Calculation Agent's determination which adjustment shall be effective as of the effective date of the initial Determination. The expenses of such third party dealer shall be borne equally by Motorola and Counterparty.

        2.    Calculation Agent:    Counterparty, subject to the Dispute Mechanism specified above; provided that if an Event of Default has occurred with respect to the Counterparty, Motorola shall appoint an independent dealer in equity derivatives to perform the functions of the Calculation Agent.

        3.    Governing law:    As specified in the Agreement

        4.    Credit Support Annex:    For purposes of the Variable Annex, the following shall constitute certain elections, variables and other modifications set forth in Paragraph 13 of the Variable Annex:

            (a)    Security Interest for "Obligations".    The term "Obligations" as used in the Variable Annex includes no additional obligations with respect to Motorola or Counterparty.

            (b)  Secured Party for purposes of the Variable Annex shall mean only the Counterparty.

            (c)  Pledgor for purposes of the Variable Annex shall mean only Motorola.

8


            (d)  Credit Support Obligations.    Delivery Amount for purposes of the Variable Annex shall have the meaning specified in Paragraph 3(a); provided that, for purposes of determining the Delivery Amount if the Posted Collateral consists of solely of Collateral Shares, the Value of such Collateral Shares shall be an amount equal to the Number of Shares, notwithstanding Paragraph 12 of the Variable Annex. Return Amount for purposes of the Variable Annex shall have the meaning specified in Paragraph 3(b); provided that, for purposes of determining the Return Amount if the Posted Collateral consists solely of Collateral Shares, the Value of such Collateral Shares shall be an amount equal to the Number of Shares, notwithstanding Paragraph 12 of the Variable Annex. Credit Support Amount for purposes of the Variable Annex shall mean the Independent Amount applicable to the Pledgor.

            (e)  Eligible Collateral.    The following items will qualify as "Eligible Collateral" with respect to Motorola for purposes of the Variable Annex.

Eligible Collateral
   Motorola (Pledgor)
   Valuation
Percentage
  
Shares free of any lien, security interest or other encumbrance that are (i) not "restricted securities" within the meaning of Rule 144(a) and (ii) have a holding period by Motorola within the meaning of Rule 144(d) of at least one year on the date such Shares are posted as Collateral (the "Collateral Shares")   X   100 %

Negotiable debt obligations issued by the U.S. Treasury Department ("U.S. Treasuries") having a remaining term to maturity of not more than thirty years
 
X
 
100
%

            (f)    Other Eligible Support.    There shall be no "Other Eligible Support" for either party for purposes of this Variable Annex.

            (g)  Threshold.

                (i)  Independent Amount for purposes of the Variable Annex with respect to Pledgor shall mean, (1) the Number of Shares or (2) or U.S. Treasuries that are equal in value to 150% of the market value of the Number of Shares (market value to be determined by the Valuation Agent in good faith and in a commercially reasonable manner). Motorola shall determine the form of Eligible Collateral posted as Independent Amount, in its sole discretion.

              (ii)  Threshold for purposes of the Variable Annex shall not be applicable with respect to the Counterparty and shall not be applicable with respect to Motorola.

              (iii)  Minimum Transfer Amount, for purposes of the Variable Annex means, with respect to the Pledgor, $0.00.

              (iv)  Rounding. The Delivery Amount and the Return Amount will be rounded up and down respectively to the nearest integral multiple of $1,000.

              (v)  Substitution. "Substitution Date" for purposes of the Variable Annex has the meaning specified in Paragraph 4(d)(ii); Consent shall be applicable; provided however, consent shall not be required if substitution is of (1) Collateral Shares or (2) U.S. Treasuries equal in value to 150% of the market value on the substitution Date of the Number of Shares held as Posted Collateral.

            (h)  Valuation and Timing.

9

                (i)  "Valuation Agent" means Counterparty unless an Event of Default has occurred with respect to the Counterparty in which case, the Valuation Agent shall be an independent third party dealer in the equity derivatives appointed by Motorola.

              (ii)  "Valuation Date" means any Local Business Day designated by the Valuation Agent or Counterparty.

              (iii)  "Valuation Time" means the close of business in the city of the Valuation Agent on the Valuation Date or date of calculation, as applicable.

              (iv)  "Notification Time" means 1:00 p.m., New York time on a Local Business Day.

            (i)    Dispute Resolution.

                (i)  Value.    For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of Posted Collateral Support will be calculated as follows: with respect to any U.S. Treasuries, the sum of (I)(x) the mean of the high bid and low asked prices quoted on such date by an principal market maker for such U.S. Treasuries chosen by the Disputing Party, or (y) if no quotations are available from a principal market maker for such date, the mean of such high bid and low asked prices as of the day, next preceding such date, on which such quotations are available, plus (II) the accrued interest on such U.S. Treasuries (except to the extent Transferred pursuant to any applicable provisions of this Agreement or included in the applicable price referred to in (I) of this clause (A)) as of such date.

            (j)    Holding and Using Posted Collateral.    For purposes of the Variable Annex, the Secured Party and its Custodian will be entitled to hold Posted Collateral pursuant to Paragraph 6(b); provided an Event of Default has not occurred with respect to the Secured Party and provided that if the Secured Party appoints a Custodian, the Custodian shall be a broker-dealer subsidiary or Affiliate of the Secured Party registered pursuant to Section 15 of the Securities Exchange Act of 1934, or a commercial bank, operating from an office in the continental United States, whose general long-term unsubordinated unsecured debt is at such time rated at least "A" by S&P and at least "A2" by Moody's.

            (k)  Use of Posted Collateral.    For purposes of the Variable Annex the provisions of Paragraph 6(c)(i) shall not be applicable with respect to the Counterparty.

            (l)    Distributions.

                (i)  The "Interest Rate" will be 0%.

              (ii)  Notwithstanding Paragraph 6(d) of the Variable Annex, (A) any Distributions with respect to Collateral Shares held as Posted Collateral and received by Secured Party shall not be Transferred to the Pledgor and shall instead by held by Secured Party as Posted Collateral and (B) any Distributions with respect to U.S. Treasuries held as Posted Collateral and received by Secured Party shall be Transferred to the Pledgor in accordance with Paragraph 6(d) of the Variable Annex. For the Distributions held as Posted Collateral pursuant to clause (A) in the preceding sentence, such Distribution shall be an additional Independent Amount with respect to Pledgor unless transferred to Counterparty in accordance with the terms of this Transaction.

10


        5.    Amendments to the ISDA Form.    Counterparty and Motorola hereby amend the Agreement as follows:

            (a)  Transfer.    Section 7 of the ISDA Form is hereby amended by (1) adding in the third line thereof after the word "party" the words "which consent shall not be unreasonably withheld" and (2) adding the following subsection (c):

            Counterparty may transfer or assign its rights and obligations in whole to an Affiliate ("Transferee Affiliate") provided that (i)(a) such Transferee Affiliate is the same or better credit quality as the Counterparty, as determined in good faith by Motorola, or (b) the Counterparty (if Counterparty has a Credit Support Provider then the Credit Support Provider) provides a guaranty in a form acceptable to Motorola or in a form substantially similar to the guaranty provided by the Credit Support Provider to Motorola, if applicable, naming Motorola as beneficiary, with respect to this Transaction and the Transferee Affiliate, (ii) such Transferee Affiliate accepts and agrees to the terms of this Transaction and the Agreement in a form and in a manner acceptable to Motorola and (iii) the Motorola is not required to make any additional payments or withhold any additional amounts with respect to this Transaction or with respect to the Posted Collateral that it would not have had to make or withhold but for the transfer or assignment.

            (b)  Set-off.    Except upon the occurrence of a Motorola Bankruptcy Event, the set-off provision as specified in the Agreement or otherwise shall not be applicable with respect to this Transaction. Counterparty may not exercise its right of set-off under the Agreement with respect to this Transaction against any other Transactions under the Agreement or any other agreements unless a Motorola Bankruptcy Event occurs.

        6.    Cancellation Amount.    Section 12.8 of the Equity Definitions shall be amended by deleting (a) in Section 12.8(d) the words "the Determining Party reasonably believes" in the third line of Section 12.8(d) and replacing such words with the words, "both parties agree", (b) in Section 12.8(d) the second to last sentence beginning with the words, "When considering", and (c) subsection (e) of 12.8.

        7.    Prepayment Amount.    Notwithstanding any provisions in this Confirmation, or otherwise, and upon satisfaction of the following conditions, the Prepayment Amount shall be paid by the Counterparty to Motorola on the Prepayment Date and such payment shall not be withheld for any reason: (i) Motorola shall have executed this Confirmation, (ii) an Event of Default under Section 5(a)(vii) of the Agreement has not occurred with respect to Motorola, (iii) any Collateral Shares, if held by Counterparty as Posted Collateral, consist of Shares represented by certificates containing no restrictive legend, and (iv) Motorola shall have delivered to Counterparty the Credit Support Amount as required under the Variable Annex. Unless a Motorola Bankruptcy Event has occurred with respect to Motorola or an Early Termination Date has occurred and Motorola has elected Cash Settlement as the applicable Settlement Method, the Prepayment Amount shall not be netted or set-off against any other amounts owed by Motorola to the Counterparty under this Transaction, or any other Transaction under this Agreement.

        8.    Collateral.    

            (a)  Motorola represents, on each date on which Motorola delivers or Counterparty otherwise receives Posted Collateral, in connection with this Transaction, that (i) Motorola is the owner of all Posted Collateral free of any lien, security interest, claim or other encumbrance, (ii) Motorola has the power and authority and has obtained all of the necessary consents and approvals to grant a first priority security interest to Counterparty in the Posted Collateral, (iii) upon the delivery of the Shares as described above and any other Posted Collateral in a manner acceptable to Counterparty, Counterparty will have a valid and perfected first priority security interest in the

11

    Posted Collateral and (iv) the pledge of the Posted Collateral will not violate or conflict with the terms of any agreement made by or applicable to Motorola.

            (b)  Motorola will use best efforts to preserve and protect Counterparty's security interest in the Posted Collateral, will defend Counterparty's right, title, lien and security interest in and to the Posted Collateral against the claims and demands of all persons whomsoever, and will do all such acts and things and deliver all such documents and instruments, including without limitation further pledges, assignments, account control agreements, financing statements and continuation statements, as Counterparty may reasonably deem necessary or advisable from time to time in order to preserve, protect and perfect such security interest or to enable Counterparty to exercise or enforce its rights with respect to any Posted Collateral.

            (c)  Motorola will not permit any lien, security interest, charge, adverse claim, restriction on transfer or other encumbrance, other than the lien and security interest Motorola created hereby in favor of Counterparty, to exist upon any of the Posted Collateral. Motorola will not take any action that could in any way limit or adversely affect the ability of Counterparty to realize upon its rights in the Posted Collateral.

            (d)  Counterparty hereby notifies Motorola that, with respect to Collateral posted with Counterparty, (i) in the event of Counterparty's failure, Motorola will likely be considered an unsecured creditor of Counterparty as to all such Collateral then controlled by Counterparty; (ii) the Securities Investor Protection Act of 1970 (15 U.S.C. 78aaa through 7811l) does not protect Motorola with respect to any such Collateral deposited with Counterparty; and (iii) such Collateral will not be subject to the requirements of and customer protections afforded by the Securities and Exchange Commission customer protection rules and Rules 8c-1, 15c2-1, 15c3-2 and 15c3-3 under the Securities Exchange Act of 1934, as amended.

            Notwithstanding the foregoing, subsection (ii) of the preceding paragraph, Motorola will not be considered an unsecured creditor of the Counterparty if section 6(c)(i) of the Variable Annex is not applicable with respect to the Counterparty.

            (e)  If Motorola does not otherwise satisfy its delivery obligation pursuant to this Transaction, Counterparty is hereby authorized and directed by Motorola to apply the Shares posted as Collateral hereunder in satisfaction of such delivery obligation.

        9.    Pledgor's Voting Rights in Collateral.    Pledgor shall have the right, provided that the Pledgor provides five (5) Business Days notice prior to the relevant record date to the Secured Party, to vote and to give consents, ratifications and waivers with respect to the Posted Collateral, and exercise any other consensual rights pertaining to the Posted Collateral. Secured Party shall deliver to Pledgor, or as otherwise specified by the Pledgor, proxies, powers of attorney, consents, ratifications and waivers in respect of any of the Posted Collateral and the Secured Party shall use commercially reasonable efforts to effect any such votes, consents, ratifications or waivers and carry out its duties under such powers of attorney.

        10.    Securities Law Representations and Agreements:    

            (a)  Counterparty agrees that it will conduct its initial hedging activities in connection with the Transaction in the manner described in the interpretive letter from the Securities and Exchange Commission (the "SEC") issued to Goldman, Sachs & Co., dated December 20, 1999, regarding variable delivery forward contracts, it being understood that Counterparty will introduce into the public market a quantity of securities of the same class as the Shares equal to the Number of Shares in a manner consistent with the manner-of-sale requirements under paragraph (f) of Rule 144 ("Rule 144") under the Securities Act of 1933, as amended (the "Securities Act"). Counterparty agrees that it has not solicited or arranged for the solicitation of orders to buy securities of the same class as the Shares in anticipation of or in connection with this Transaction.

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            (b)  Motorola hereby represents, warrants and agrees in favor of Counterparty on the Trade Date:

                (i)  Prior to entering into the Transaction, the Shares posted as collateral ("Collateral Shares") were "restricted securities" within the meaning of Rule 144;

              (ii)  Motorola's holding period for the Collateral Shares, determined in accordance with paragraph (d) of Rule 144, exceeds twelve (12) months;

              (iii)  Motorola has no reason to believe that the Issuer has not complied with the reporting requirements as outlined in Rule 144(c)(1); and

              (iv)  Other than pursuant to the Transaction, and similar transactions entered into on or about the Trade Date, that in the aggregate relate to a total of not more than 50 million Shares, neither Motorola nor any, nor any other "person" associated with Motorola within the meaning of paragraph (a)(2) of Rule 144 (each such other person, an "Associated Person"), have, within the three-month period immediately preceding the Trade Date of a Transaction, (x) sold, pledged or otherwise disposed of or hedged any long position in any shares issued by the Issuer that are of the same class as the Shares or any securities issued by the Issuer that are convertible into shares of such class or any interest in such shares or securities or (y) acted in concert with any person in connection with the sale, pledge, other disposition or hedge of any such shares or securities or any interest therein, in each case to the extent such sale, pledge, other disposition or hedge may be aggregated pursuant to Rule 144 with the sales effected in reliance on Rule 144 in connection with the Transaction.

            (c)  Motorola acknowledges and agrees on the Trade Date that:

                (i)  The entering into of the Transaction will constitute a "sale" of the Collateral Shares related to such Transaction for purposes of Rule 144 and Motorola has not taken and will not take any action that would cause the sale made pursuant to such Transaction to fail to meet all applicable requirements of Rule 144;

              (ii)  Motorola will transmit a Form 144 for filing with the SEC and, if applicable, the Exchange contemporaneously with execution of the Transaction, and Motorola will provide to Counterparty via facsimile a copy of each Form 144 relating to the Transaction promptly after filing such form with the SEC; and

              (iii)  Motorola will deliver a seller's representation letter to Counterparty in a form customarily used by Counterparty contemporaneously with the execution of the relevant Transaction and each representation, warranty and agreement in such representation letter shall be deemed to be incorporated herein.

            (d)  Motorola understands and will comply with Motorola's responsibilities under applicable securities laws in connection with the Transactions including, but not limited to, the provisions of Rule 144 and the filing requirements (to the extent applicable) of Sections 13 and 16 of the Securities Exchange Act of 1934.

        11.    Additional Representations and Agreements:    

            (a)  In connection with this Transaction Motorola represents and acknowledges to the other party on the Trade Date of this Transaction that Motorola has no material non-public information concerning the Issuer.

            (b)  Motorola is an "accredited investor" as that term is defined under Regulation D of the Securities Act and is entering into this Transaction for its own account and not with a view to a transfer, resale or distribution and understands that such Transaction may involve the purchase or sale of a security as defined in the Securities Act and the securities laws of certain states, that any

13


    such security has not been registered under the Securities Act or the securities laws of any state and, therefore, may not be sold, pledged, hypothecated, transferred or otherwise disposed of unless such security is registered under the Securities Act and any applicable state securities law, or an exemption from registration is available.

            (c)  Neither party is insolvent and neither party will be rendered insolvent as a result of the Transaction.

        12.    Acknowledgments:    

        The parties hereto intend for:

            (a)  This Transaction to be a "securities contract" and a "swap agreement" as defined in the Bankruptcy Code (Title 11 of the United States Code) (the "Bankruptcy Code"), and the parties hereto are entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 555 and 560 of the Bankruptcy Code.

            (b)  A party's right to liquidate this Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the ISDA Master Agreement with respect to the other party to constitute a "contractual right" as described in the Bankruptcy Code.

            (c)  Any cash, securities or other property provided as performance assurance, credit support or collateral with respect to this Transaction to constitute "margin payments" and "transfers" as defined in the Bankruptcy Code.

            (d)  All payments for, under or in connection with this Transaction, all payments for the Shares and the transfer of such Shares to constitute "settlement payments" and "transfers" as defined in the Bankruptcy Code.

        13.    Indemnification:    

        Motorola agrees to indemnify and hold harmless Counterparty, its Affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (Counterparty and each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject, and relating to or arising out the Transaction with respect to any applicable securities laws and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. Motorola will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a final judgment by a court to have resulted from Counterparty's breach of a material term of the Transaction or this Confirmation, willful misconduct, gross negligence, fraud or bad faith. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Motorola shall contribute, to the maximum extent permitted by law (but only to the extent that such harm was not caused by Counterparty's breach of a material term of the Transaction or this Confirmation, willful misconduct, gross negligence, fraud or bad faith), to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability.

        14.    Construction of Contract.    

        The parties acknowledge that each term, provision, and clause of this Confirmation has been jointly constructed, negotiated, and prepared by the combined efforts of the parties to the exclusion of neither party. The parties agree that the terms, provisions, and clauses of this Confirmation should not be interpreted in favor of one party against the other as the result of any construction, negotiation, or preparation thereof.

14


        15.    Agent:    

        Motorola understands and agrees that the Agent will act as agent for both parties with respect to this Transaction. The Agent is so acting solely in its capacity as agent for Motorola and Counterparty pursuant to instructions from Motorola and Counterparty. The Agent shall have no responsibility or personal liability to either party arising from any failure by either party to pay or perform any obligation under this Transaction. Each party agrees to proceed solely against the other to collect or recover any amount owing to it or enforce any of its rights in connection with or as a result of this Transaction.

        Notwithstanding any provisions of the Agreement, all communications relating to the Transaction or the Agreement shall be transmitted exclusively through the Agent.

        Other Remuneration: The Agent received other remuneration from Counterparty in relation to this Transaction. The amount and source of such other remuneration will be furnished upon written request. The time of this Transaction is available upon request.

15

        Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Motorola) correctly sets forth the terms of the agreement between Counterparty and Motorola with respect to this Transaction, by manually signing this Confirmation or this page thereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Motorola at the facsimile numbers specified in the Agreement.

    Yours faithfully,

 
 
MOTOROLA, INC.

 
 
By:
 
     
Name:
Title:
Agreed and Accepted By:    

GOLDMAN SACHS CAPITAL MARKETS, L.P.
 
 

By:
 
 
 
 
Name:
Title:		    

GOLDMAN, SACHS & CO.
Solely in its capacity as Agent hereunder
 
 

By:
 
 
 
 
   
Name:
Title:		    

16



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 EX-8 4 a2105025zex-8.htm EXHIBIT 8
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Exhibit 8

To:   Citibank N.A., New York

 
 
Attention: Bill Ortner, Managing Director, Corporate Equity Derivatives
Phone: (212) 723-7355
Fax: (212) 723-8328

From:
 
Motorola, Inc.
Attention: Michele Tracy, Director of Capital Markets
Phone: (847) 538-5612
Fax: (847) 576-4768

Date:
 
March 3, 2003

Re:
 
Variable Share Forward Transaction

Ref. No:
 
E03-00430, 431—E03-00432, 433—E03-00434, 435—E03-00436, 437—E03-00438, 439—E03-00440, 441—E03-00442, 443—E03-00444, 445—E03-00446, 447—E03-00448, 449

Dear Sir(s):

        The purpose of this communication (this "Confirmation") is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (this "Transaction") between Citibank N.A., New York (the "Counterparty") and Motorola, Inc. ("Motorola"). This communication constitutes a "Confirmation" as referred to in the ISDA Form specified below.

        This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions (including the Annex thereto) (the "2000 Definitions") and the 2002 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with the 2000 Definitions, the "Definitions"), in each case as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.

        This Confirmation supplements, forms a part of, and is subject to, the 1992 ISDA Master Agreement (Multicurrency-Cross Border) dated as of March 15, 2002, as amended and supplemented from time to time (the "Agreement"), between Counterparty and Motorola. All provisions contained in, or incorporated by reference to, the Agreement shall govern this Confirmation except as expressly modified below. In the event of any inconsistency between this Confirmation and the Agreement, as the case may be, this Confirmation shall govern for purposes of this Transaction. For purposes of the Equity Definitions, this Transaction will be deemed to be a Forward Transaction. Solely with respect to this Transaction, Section 2(c)(ii) of the Agreement shall be applicable, therefore payments owed under this Transaction shall not be netted against payments owed with respect to other Transactions under this Agreement. The terms of the Credit Support Annex as specified in the Agreement ("Other Transactions CSA") shall not be applicable with respect to this Transaction and Confirmation. This Transaction shall be disregarded for purposes of determining Exposure with respect to the Other Transactions CSA. This Transaction and Confirmation shall instead be subject to the terms of the ISDA Credit Support Annex (Bilateral Form—New York Law) with such modifications and elections as specified herein (the "Variable Annex") as if the Variable Annex were included in the Schedule to the Agreement with respect to this Transaction. The Variable Annex shall only be applicable with respect to this Transaction.

        Counterparty may not designate an Early Termination Date with respect to this Transaction as a result of an Event of Default or Termination Event under the Agreement, if the condition or event giving rise to such Event of Default or Termination Event under the Agreement occurs in connection with a Transaction or Transactions, other than this Transaction. Counterparty may not designate an Early Termination Date with respect to this Transaction as a result of (a) an Event of Default under


Section 5(a)(v) or 5(a)(vi) of the Agreement or (b) a Credit Event Upon Merger under Section 5(b)(iv) if Posted Collateral under the Variable Annex consists of Collateral Shares. For the avoidance of doubt, Counterparty may designate an Early Termination Date with respect to this Transaction upon the occurrence of (a) an Event of Default under Sections 5(a)(vii) or 5(a)(viii) of the Agreement, and (b) a Credit Event Upon Merger under Section 5(b)(iv) if Posted Collateral under the Variable Annex consists of U.S. Treasuries. Counterparty may also designate an Early Termination Date with respect to this Transaction upon the occurrence of an Event of Default under Section 5(a)(i), (ii), (iii), and (iv) and Section 5(b)(i), (ii), and (iii) if the condition or event giving rise to such Event of Default or Termination Event under the Agreement occurs in connection with this Transaction or if this Transaction is an Affected Transaction, as applicable. Notwithstanding any provision specifying otherwise, and provided that an Event of Default under Section 5(a)(vii) has not occurred with respect to Motorola as the Defaulting Party (a "Motorola Bankruptcy Event"), Payments, Deliveries, or Settlement Amounts owed by Counterparty to Motorola under this Transaction shall not be withheld, netted or set off against other amounts owed by Motorola to the Counterparty under any other Transaction or Agreement.

1.
The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

Trade Date:   March 4, 2003

Seller:
 
Motorola

Buyer:
 
Counterparty

Shares:
 
The common shares (the "Shares") of Nextel Communications, Inc. (the "Issuer")

Number of Shares:
 
8,333,333

Forward Floor Price:
 
$13.4200

Forward Cap Price:
 
$17.6178

Prepayment Amount:
 
An amount equal to the present value on the Prepayment Date of US$111,833,329 assuming such amount was to be paid on the Settlement Date (such present value to be determined by the Counterparty using a discount rate equal to the Rate for the period from and including the Prepayment Date to, but excluding, the Settlement Date, plus 35 basis points per annum. The Prepayment Amount shall not be subject to adjustment as a result of the occurrence of an Extraordinary Event, Additional Disruption Event, Termination Event or otherwise.

 
 
 

2


Rate:
 
If the number of calendar days from the Prepayment Date to the Settlement Date is (i) equal to or less than 4 years, the rate shall be the zero coupon rate derived from the prevailing rate curve that appears on page "EDA Commodity CT" of Bloomberg or a successor page or (ii) greater than 4 years, the rate shall be the zero coupon rate derived from the prevailing rate curve that appears on page IRSB18 of Bloomberg or a successor page. If such rate does not appear on page IRSB18 or a successor page, the rate will be the zero coupon rate derived from the prevailing rate curve determined as if the parties had specified "USD-ISDA-Swap Rate", in each case, (x) on a semi-annual basis, (y) with a Day Count Fraction (as defined in the 2000 ISDA Definitions) equal to Actual/360, and (z) interpolated as necessary to account for the actual number of calendar days between the Prepayment Date and the Settlement Date.

Prepayment Date:
 
The earlier of (1) the date designated as the Prepayment Date by Motorola by providing Counterparty with not less than three (3) Business Days prior notice (2) any Early Termination Date and (3) the Settlement Date.

Prepayment:
 
Applicable

Variable Obligation:
 
Applicable

Settlement Currency:
 
USD

Exchange:
 
NASDAQ National Market

Related Exchange:
 
All Exchange(s)

Business Day:
 
New York.

Valuation:
 
 

Valuation Time:
 
As provided in Section 6.1 of the Equity Definitions.

Settlement Calculations:
 
For purposes of determining the Number of Shares to be Delivered (if Physical Settlement is applicable) or the Cash Settlement Amount (if Cash Settlement is applicable), the Transaction shall be split into 10 components of equal size (each a "Component"), with the Number of Shares allocated accordingly (with all fractional shares being allocated to the last Component). Each Component will have its own Valuation Date, with the Number of Shares to be Delivered or the Cash Settlement Amount for such Component determined as if it were a separate Transaction.

 
 
 

3


Valuation Date:
 
With respect to the specified Component, the date specified below (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already a Valuation Date):
Component
   Valuation Date
1   2/20/2007
2   2/21/2007
3   2/22/2007
4   2/23/2007
5   2/26/2007
6   2/27/2007
7   2/28/2007
8   3/1/2007
9   3/2/2007
10   3/5/2007
    provided that, if that date is a Disrupted Day, the Valuation Date for the relevant Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and which is not or is not deemed to be a Valuation Date in respect of any other Component under this Transaction; provided, further, that if the Valuation Date for the relevant Component has not occurred pursuant to the preceding proviso as of 8th Scheduled Trading Day following the Valuation Date for such Component, that 8th Scheduled Trading Day shall be the Valuation Date (irrespective of whether such day is a Valuation Date in respect of any other Component under this Transaction) and the Settlement Price shall be the price determined by the Calculation Agent.

Settlement Terms:
 
 

Settlement Price
 
In (ii) of 7.3(a) of the Equity Definitions, the words beginning with the words "mid-point of the highest" to the end of such sentence shall be deleted and replaced with the words, "The NASDAQ Volume Weighted Average Price per share of the Shares for the final hour of the regular trading session (including any extensions thereof) on the Valuation Date (without regard to pre-open or after hours trading outside of such regular trading session) as published by Bloomberg at 4:15 p.m. New York time on such date.

Settlement Method Election:
 
Applicable

Physical Settlement:
 
Applicable if designated as applicable by the Electing Party or if Cash Settlement is not designated as applicable by the Electing Party on or prior to the Settlement Method Election Date. Upon election of Physical Settlement, the Shares delivered by Motorola shall not be "restricted securities" within the meaning of Rule 144(a).

 
 
 

4


Cash Settlement:
 
Applicable if designated as applicable by the Electing Party on or prior to the Settlement Method Election Date.

Electing Party:
 
Motorola

Settlement Method Election Date:
 
Fifteen (15) Scheduled Trading Days prior to March 5, 2007

Default Settlement Method:
 
Physical Settlement

Number of Shares to be Delivered:
 
As provided in Section 9.5 of the Equity Definitions.

Settlement Date:
 
Three (3) Scheduled Trading Days after the Valuation Date.

Cash Settlement Payment Date:
 
Three (3) Scheduled Trading Days after the Valuation Date.

Adjustments:
 
 

Method of Adjustment:
 
Calculation Agent Adjustment

Extraordinary Dividend:
 
Any cash dividend or distribution amount greater than zero (0) cents per Share per quarter.

Excess Dividend Amount:
 
Record Amount

Dividend Period:
 
First Period

Additional Payments:
 
If an Extraordinary Dividend per Share is declared by the Issuer to holders of record of a Share on any record date occurring during the Dividend Period, Motorola shall pay on the third Business Day following each date that the respective dividend is paid by the Issuer to the holders of the Shares on the record date during the Dividend Period an "Additional Payment Amount" to the Counterparty. Additional Payment Amount shall be equal to the product of (i) the Number of Shares and (ii) the Extraordinary Dividend paid by the Issuer per Share to the holders of the Shares on the record date during the Dividend Period. Upon payment of the Additional Payment Amount to the Counterparty, Motorola's obligation to deliver the Excess Dividend Amount or Extraordinary Dividend Amount on a Settlement Date, Cash Settlement Payment Date or otherwise shall be satisfied to the extent of such payment. Motorola may pay the Additional Payment Amount from distributions received with respect to Posted Collateral.

Extraordinary Events:
 
 

Consequences of Merger Event:
 
 
      (a) Share-for-Share:   Modified Calculation Agent Adjustment
      (b) Share-for-Other:   Cancellation and Payment
      (c) Share-for-Combined:   Component Adjustment
 
Determining Party:
 
Counterparty

Tender Offer:
 
Applicable

Consequences of Tender Offers:
 
 
     
(a) Share-for-Share:
 
Modified Calculation Agent Adjustment

 
 
 

5

     
(b) Share-for-Other:
 
Cancellation and Payment
     
(c) Share-for-Combined:
 
Component Adjustment
 
Determining Party:
 
Counterparty

Composition of Combined Consideration:
 
Notwithstanding Section 12.1 or 12.5 of the Equity Definitions, in respect of a Merger Event or Tender offer where the composition of the consideration could be determined by the holder of Shares equal to the Number of Shares, the Counterparty, acting in good faith and in a commercially reasonable manner under then current market conditions, will determine the composition of the consideration for purposes of this Transaction and shall notify Motorola promptly following such determination.

Nationalization, Insolvency or De-Listing Event:
 
Cancellation and Payment

Determining Party:
 
Counterparty

        Prior to the termination of this Transaction as a result of an Extraordinary Event, Event of Default (that is not a Motorola Bankruptcy Event), Termination Event or otherwise, the Calculation Agent shall provide a notice (which shall not be more than 20 Business Days but not less than 3 Business Days prior to the date of termination) specifying the Extraordinary Event, Termination Event or other event leading to such termination, relevant terms and the date of termination (the "Early Termination Date") in addition to a request that Motorola specify the Settlement Method. Within three (3) Business Days of receiving such notice, Motorola shall elect the Settlement Method. Motorola's failure to elect a Settlement Method within three (3) Business Days of receiving notice shall result in an election of Physical Settlement. Upon the occurrence of a Motorola Bankruptcy Event, the Default Settlement Method shall be the applicable Settlement Method with respect to this Transaction, notwithstanding any election by Motorola to the contrary.

        On or within one Business Day following an Early Termination Date that does not occur as a result of a Motorola Bankruptcy Event, the Calculation Agent shall deliver to Motorola a notice specifying the determination amount, Cancellation Amount or amount owed as a result of the termination ("Termination Amount") expressed as a cash amount or a number of Shares, as applicable. If Motorola had timely elected Cash Settlement in respect of an Early Termination Date pursuant to the immediately preceeding paragraph, Counterparty or Motorola, as applicable, shall make a cash payment to the other party ("Receiving Party") by wire transfer of immediately available funds to an account designated by the Receiving Party in an amount equal to the Termination Amount no later than the Early Termination Date or the date designated following the notice of determination as set forth in Section 12.7 of the Equity Definitions, as applicable. If Cash Settlement is the applicable Settlement Method and Motorola fails to make the payment when due, Counterparty shall net and offset such Termination Amount owed by Motorola first against the Prepayment Amount, if not yet paid, and any balance shall be applied against the proceeds from the Posted Collateral under the Variable Annex up to the amount owed. If Physical Settlement is the applicable method (1) Motorola shall deliver to the Counterparty, the lesser of (a) number of Shares to be delivered as specified in the notice or (b) the Number of Shares and (2) the Shares delivered by Motorola shall not be "restricted securities" within the meaning of Rule 144(a). Notwithstanding the provisions of the Agreement or Section 12 of the Equity Definitions or otherwise, upon any cancellation or termination of this Transaction where Physical Settlement is the applicable Settlement Method, the delivery obligation owed by Motorola (with respect to this Transaction) to Counterparty with respect to this Transaction shall never exceed the Number of Shares (and any proceeds of such Shares) and provided that a

6


Motorola Bankruptcy Event has not occurred, Counterparty shall pay Motorola the Prepayment Amount on the Early Termination Date, if not paid.

Additional Disruption Events:

  Change in Law:   Applicable
 
Failure to Deliver:
 
Not Applicable
 
Insolvency Filing:
 
Not Applicable
 
Hedging Disruption:
 
Not Applicable
 
Increased Cost of Hedging:
 
Not Applicable
 
Loss of Stock Borrow:
 
Inapplicable with respect to the 90 days following the Trade Date. With respect to the remaining term of the Transaction following the 90 day period, Loss of Stock Borrow shall be Applicable; provided however, that the Hedging Party must notify Motorola of its intention to terminate this Transaction at least three (3) Business Days prior to terminating the contract and the basis for the termination; provided further that during the 3 Business Days following Motorola's receipt of such notice, Motorola may elect and if it elects to (1) partially terminate this Transaction up to an amount equal to the number of Shares for which Counterparty is unable to maintain a stock borrow position, (2) bear the increase in the cost to borrow above the Initial Stock Loan Rate with respect to such Shares and elect to (a) pay on a quarterly basis, three (3) Business Days following each quarter, in cash to the Counterparty, the amount by which the Counterparty's actual cost of borrow exceeds the Initial Stock Loan Rate, or (b) have the Counterparty adjust the Forward Cap Price if such adjustment is sufficient to produce value equivalent to the amount by which the Counterparty's actual cost of borrow exceeds the Initial Stock Loan Rate, or (3) either directly or indirectly, provide for a loan of Shares in such amount and upon terms consistent with then-applicable law, in a form agreed between the parties, with a lender acceptable to the Counterparty acting in a commercially reasonable manner, and at a rate equal to the Initial Stock Loan Rate, then the Counterparty shall no longer be able to terminate this Transaction.

 
 
The definition of "Loss of Stock Borrow" shall be deleted and replaced with the following words "means the Hedging party is unable, after using commercially reasonable efforts, (a) to borrow (or maintain a borrowing of) Shares with respect to this Transaction or (b) to borrow (or maintain a borrowing of) Shares with respect to this Transaction at a rate equal to or less than the Maximum Stock Loan Rate for 20 consecutive Business Days.
   
Maximum Stock Loan Rate:
 
60 basis points per annum.

 
 
 

7

   
Initial Stock Loan Rate:
 
15 basis points per annum.
   
Hedging Party:
 
Counterparty
 
Increased Cost of Stock Borrow:
 
Not Applicable
 
Increased Cost of Hedging:
 
Not Applicable
   
Determining Party:
 
Counterparty.
 
Non-Reliance:
 
Applicable

Agreements and Acknowledgements Regarding Hedging Activities:
 
Applicable

Additional Acknowledgements:
 
Applicable

        Dispute Mechanism:    With respect to any calculation, adjustment or determination (a "Determination") made by the Counterparty as the Calculation Agent, Hedging Party or as the Determining Party, Counterparty shall provide to Motorola, notice of any Determinations (not less than two (2) Business Day prior to the effective date of such Determination, whenever practicable (if Counterparty is unable to provide notice of such Determinations prior to the effective date then Counterparty shall provide notice on the effective date of the determination) providing in reasonable detail the relevant assumptions and valuations underlying such Determination (including, if applicable, assumptions by the Counterparty with respect to volatility, expected dividends, stock loan rate, and liquidity relevant to the shares or to the Transaction). If Motorola disputes any Determination made by the Counterparty, within two (2) Business Days of being notified of such Determination, and if Motorola and Counterparty are unable to agree on a Determination within one (1) Business Day of Counterparty being notified of such dispute, Motorola and Counterparty agree to jointly appoint an independent third party dealer in equity derivatives with experience in transactions similar to this Transaction to make such Determination (a "Substitute Calculation Agent" and if Motorola and Counterparty do not promptly agree on a Substitute Calculation Agent within two (2) Business Days of Counterparty being notified of the dispute, Motorola and Counterparty shall each choose such a third party dealer on the third (3) Business Day of Counterparty being notified of the dispute, and the third party dealers shall together promptly appoint another such third party dealer as the Substitute Calculation Agent to make such Determination). The Determination by the Substitute Calculation Agent shall be made as promptly as practicable after appointment and shall be binding on Motorola and Counterparty absent manifest error. This Transaction shall be adjusted based on the Substitute Calculation Agent's determination which adjustment shall be effective as of the effective date of the initial Determination. The expenses of such third party dealer shall be borne equally by Motorola and Counterparty.

        2.    Calculation Agent:    Counterparty, subject to the Dispute Mechanism specified above; provided that if an Event of Default has occurred with respect to the Counterparty, Motorola shall appoint an independent dealer in equity derivatives to perform the functions of the Calculation Agent.

        3.    Governing law:    As specified in the Agreement

        4.    Credit Support Annex:    For purposes of the Variable Annex, the following shall constitute certain elections, variables and other modifications set forth in Paragraph 13 of the Variable Annex:

            (a)    Security Interest for "Obligations".    The term "Obligations" as used in the Variable Annex includes no additional obligations with respect to Motorola or Counterparty.

            (b)  Secured Party for purposes of the Variable Annex shall mean only the Counterparty.

            (c)  Pledgor for purposes of the Variable Annex shall mean only Motorola.

8


            (d)  Credit Support Obligations. Delivery Amount for purposes of the Variable Annex shall have the meaning specified in Paragraph 3(a); provided that, for purposes of determining the Delivery Amount if the Posted Collateral consists of solely of Collateral Shares, the Value of such Collateral Shares shall be an amount equal to the Number of Shares, notwithstanding Paragraph 12 of the Variable Annex. Return Amount for purposes of the Variable Annex shall have the meaning specified in Paragraph 3(b); provided that, for purposes of determining the Return Amount if the Posted Collateral consists solely of Collateral Shares, the Value of such Collateral Shares shall be an amount equal to the Number of Shares, notwithstanding Paragraph 12 of the Variable Annex. Credit Support Amount for purposes of the Variable Annex shall mean the Independent Amount applicable to the Pledgor.

            (e)  Eligible Collateral. The following items will qualify as "Eligible Collateral" with respect to Motorola for purposes of the Variable Annex.

Eligible Collateral
   Motorola (Pledgor)
   Valuation
Percentage
  
Shares free of any lien, security interest or other encumbrance that are (i) not "restricted securities" within the meaning of Rule 144(a) and (ii) have a holding period by Motorola within the meaning of Rule 144(d) of at least one year on the date such Shares are posted as Collateral (the "Collateral Shares")   X   100 %

Negotiable debt obligations issued by the U.S. Treasury Department ("U.S. Treasuries") having a remaining term to maturity of not more than thirty years
 
X
 
100
%

            (f)    Other Eligible Support.    There shall be no "Other Eligible Support" for either party for purposes of this Variable Annex.

            (g)  Threshold.

                (i)  Independent Amount for purposes of the Variable Annex with respect to Pledgor shall mean, (1) the Number of Shares or (2) or U.S. Treasuries that are equal in value to 150% of the market value of the Number of Shares (market value to be determined by the Valuation Agent in good faith and in a commercially reasonable manner). Motorola shall determine the form of Eligible Collateral posted as Independent Amount, in its sole discretion.

              (ii)  Threshold for purposes of the Variable Annex shall not be applicable with respect to the Counterparty and shall not be applicable with respect to Motorola.

              (iii)  Minimum Transfer Amount, for purposes of the Variable Annex means, with respect to the Pledgor, $0.00.

              (iv)  Rounding.    The Delivery Amount and the Return Amount will be rounded up and down respectively to the nearest integral multiple of $1,000.

              (v)  Substitution.    "Substitution Date" for purposes of the Variable Annex has the meaning specified in Paragraph 4(d)(ii); Consent shall be applicable; provided however, consent shall not be required if substitution is of (1) Collateral Shares or (2) U.S. Treasuries equal in value to 150% of the market value on the substitution Date of the Number of Shares held as Posted Collateral.

9


            (h)  Valuation and Timing.

                (i)  "Valuation Agent" means Counterparty unless an Event of Default has occurred with respect to the Counterparty in which case, the Valuation Agent shall be an independent third party dealer in the equity derivatives appointed by Motorola.

              (ii)  "Valuation Date" means any Local Business Day designated by the Valuation Agent or Counterparty.

              (iii)  "Valuation Time" means the close of business in the city of the Valuation Agent on the Valuation Date or date of calculation, as applicable.

              (iv)  "Notification Time" means 1:00 p.m., New York time on a Local Business Day.

            (i)    Dispute Resolution.

                (i)  Value.    For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of Posted Collateral Support will be calculated as follows: with respect to any U.S. Treasuries, the sum of (I)(x) the mean of the high bid and low asked prices quoted on such date by an principal market maker for such U.S. Treasuries chosen by the Disputing Party, or (y) if no quotations are available from a principal market maker for such date, the mean of such high bid and low asked prices as of the day, next preceding such date, on which such quotations are available, plus (II) the accrued interest on such U.S. Treasuries (except to the extent Transferred pursuant to any applicable provisions of this Agreement or included in the applicable price referred to in (I) of this clause (A)) as of such date.

            (j)    Holding and Using Posted Collateral.    For purposes of the Variable Annex, the Secured Party and its Custodian will be entitled to hold Posted Collateral pursuant to Paragraph 6(b); provided an Event of Default has not occurred with respect to the Secured Party and provided that if the Secured Party appoints a Custodian, the Custodian shall be a broker-dealer subsidiary or Affiliate of the Secured Party registered pursuant to Section 15 of the Securities Exchange Act of 1934, or a commercial bank, operating from an office in the continental United States, whose general long-term unsubordinated unsecured debt is at such time rated at least "A" by S&P and at least "A2" by Moody's.

            (k)  Use of Posted Collateral.    For purposes of the Variable Annex the provisions of Paragraph 6(c)(i) shall not be applicable with respect to the Counterparty.

            (l)    Distributions.

                (i)  The "Interest Rate" will be 0%.

              (ii)  Notwithstanding Paragraph 6(d) of the Variable Annex, (A) any Distributions with respect to Collateral Shares held as Posted Collateral and received by Secured Party shall not be Transferred to the Pledgor and shall instead by held by Secured Party as Posted Collateral and (B) any Distributions with respect to U.S. Treasuries held as Posted Collateral and received by Secured Party shall be Transferred to the Pledgor in accordance with Paragraph 6(d) of the Variable Annex. For the Distributions held as Posted Collateral pursuant to clause (A) in the preceding sentence, such Distribution shall be an additional Independent Amount with respect to Pledgor unless transferred to Counterparty in accordance with the terms of this Transaction.

10


        5.    Amendments to the ISDA Form.    Counterparty and Motorola hereby amend the Agreement as follows:

            (a)  Transfer.    Section 7 of the ISDA Form is hereby amended by (1) adding in the third line thereof after the word "party" the words "which consent shall not be unreasonably withheld" and (2) adding the following subsection (c):

            Counterparty may transfer or assign its rights and obligations in whole to an Affiliate ("Transferee Affiliate") provided that (i)(a) such Transferee Affiliate is the same or better credit quality as the Counterparty, as determined in good faith by Motorola, or (b) the Counterparty (if Counterparty has a Credit Support Provider then the Credit Support Provider) provides a guaranty in a form acceptable to Motorola or in a form substantially similar to the guaranty provided by the Credit Support Provider to Motorola, if applicable, naming Motorola as beneficiary, with respect to this Transaction and the Transferee Affiliate, (ii) such Transferee Affiliate accepts and agrees to the terms of this Transaction and the Agreement in a form and in a manner acceptable to Motorola and (iii) the Motorola is not required to make any additional payments or withhold any additional amounts with respect to this Transaction or with respect to the Posted Collateral that it would not have had to make or withhold but for the transfer or assignment.

            (b)  Set-off.    Except upon the occurrence of a Motorola Bankruptcy Event, the set-off provision as specified in the Agreement or otherwise shall not be applicable with respect to this Transaction. Counterparty may not exercise its right of set-off under the Agreement with respect to this Transaction against any other Transactions under the Agreement or any other agreements unless a Motorola Bankruptcy Event occurs.

        6.    Cancellation Amount.    Section 12.8 of the Equity Definitions shall be amended by deleting (a) in Section 12.8(d) the words "the Determining Party reasonably believes" in the third line of Section 12.8(d) and replacing such words with the words, "both parties agree", (b) in Section 12.8(d) the second to last sentence beginning with the words, "When considering", and (c) subsection (e) of 12.8.

        7.    Prepayment Amount.    Notwithstanding any provisions in this Confirmation, or otherwise, and upon satisfaction of the following conditions, the Prepayment Amount shall be paid by the Counterparty to Motorola on the Prepayment Date and such payment shall not be withheld for any reason: (i) Motorola shall have executed this Confirmation, (ii) an Event of Default under Section 5(a)(vii) of the Agreement has not occurred with respect to Motorola, (iii) any Collateral Shares, if held by Counterparty as Posted Collateral, consist of Shares represented by certificates containing no restrictive legend, and (iv) Motorola shall have delivered to Counterparty the Credit Support Amount as required under the Variable Annex. Unless a Motorola Bankruptcy Event has occurred with respect to Motorola or an Early Termination Date has occurred and Motorola has elected Cash Settlement as the applicable Settlement Method, the Prepayment Amount shall not be netted or set-off against any other amounts owed by Motorola to the Counterparty under this Transaction, or any other Transaction under this Agreement.

        8.    Collateral.    

            (a)  Motorola represents, on each date on which Motorola delivers or Counterparty otherwise receives Posted Collateral, in connection with this Transaction, that (i) Motorola is the owner of all Posted Collateral free of any lien, security interest, claim or other encumbrance, (ii) Motorola has the power and authority and has obtained all of the necessary consents and approvals to grant a first priority security interest to Counterparty in the Posted Collateral, (iii) upon the delivery of the Shares as described above and any other Posted Collateral in a manner acceptable to Counterparty, Counterparty will have a valid and perfected first priority security interest in the

11

    Posted Collateral and (iv) the pledge of the Posted Collateral will not violate or conflict with the terms of any agreement made by or applicable to Motorola.

            (b)  Motorola will use best efforts to preserve and protect Counterparty's security interest in the Posted Collateral, will defend Counterparty's right, title, lien and security interest in and to the Posted Collateral against the claims and demands of all persons whomsoever, and will do all such acts and things and deliver all such documents and instruments, including without limitation further pledges, assignments, account control agreements, financing statements and continuation statements, as Counterparty may reasonably deem necessary or advisable from time to time in order to preserve, protect and perfect such security interest or to enable Counterparty to exercise or enforce its rights with respect to any Posted Collateral.

            (c)  Motorola will not permit any lien, security interest, charge, adverse claim, restriction on transfer or other encumbrance, other than the lien and security interest Motorola created hereby in favor of Counterparty, to exist upon any of the Posted Collateral. Motorola will not take any action that could in any way limit or adversely affect the ability of Counterparty to realize upon its rights in the Posted Collateral.

            (d)  If Motorola does not otherwise satisfy its delivery obligation pursuant to this Transaction, Counterparty is hereby authorized and directed by Motorola to apply the Shares posted as Collateral hereunder in satisfaction of such delivery obligation.

        9.    Pledgor's Voting Rights in Collateral.    Pledgor shall have the right, provided that the Pledgor provides five (5) Business Days notice prior to the relevant record date to the Secured Party, to vote and to give consents, ratifications and waivers with respect to the Posted Collateral, and exercise any other consensual rights pertaining to the Posted Collateral. Secured Party shall deliver to Pledgor, or as otherwise specified by the Pledgor, proxies, powers of attorney, consents, ratifications and waivers in respect of any of the Posted Collateral and the Secured Party shall use commercially reasonable efforts to effect any such votes, consents, ratifications or waivers and carry out its duties under such powers of attorney.

        10.    Securities Law Representations and Agreements:    

            (a)  Counterparty agrees that it will conduct its initial hedging activities in connection with the Transaction in the manner described in the interpretive letter from the Securities and Exchange Commission (the "SEC") issued to Goldman, Sachs & Co., dated December 20, 1999, regarding variable delivery forward contracts, it being understood that Counterparty will introduce into the public market a quantity of securities of the same class as the Shares equal to the Number of Shares in a manner consistent with the manner-of-sale requirements under paragraph (f) of Rule 144 ("Rule 144") under the Securities Act of 1933, as amended (the "Securities Act"). Counterparty agrees that it has not solicited or arranged for the solicitation of orders to buy securities of the same class as the Shares in anticipation of or in connection with this Transaction.

            (b)  Motorola hereby represents, warrants and agrees in favor of Counterparty on the Trade Date:

                (i)  Prior to entering into the Transaction, the Shares posted as collateral ("Collateral Shares") were "restricted securities" within the meaning of Rule 144;

              (ii)  Motorola's holding period for the Collateral Shares, determined in accordance with paragraph (d) of Rule 144, exceeds twelve (12) months;

              (iii)  Motorola has no reason to believe that the Issuer has not complied with the reporting requirements as outlined in Rule 144(c)(1); and

12


              (iv)  Other than pursuant to the Transaction, and similar transactions entered into on or about the Trade Date, that in the aggregate relate to a total of not more than 50 million Shares, neither Motorola nor any, nor any other "person" associated with Motorola within the meaning of paragraph (a)(2) of Rule 144 (each such other person, an "Associated Person"), have, within the three-month period immediately preceding the Trade Date of a Transaction, (x) sold, pledged or otherwise disposed of or hedged any long position in any shares issued by the Issuer that are of the same class as the Shares or any securities issued by the Issuer that are convertible into shares of such class or any interest in such shares or securities or (y) acted in concert with any person in connection with the sale, pledge, other disposition or hedge of any such shares or securities or any interest therein, in each case to the extent such sale, pledge, other disposition or hedge may be aggregated pursuant to Rule 144 with the sales effected in reliance on Rule 144 in connection with the Transaction.

            (c)  Motorola acknowledges and agrees on the Trade Date that:

                (i)  The entering into of the Transaction will constitute a "sale" of the Collateral Shares related to such Transaction for purposes of Rule 144 and Motorola has not taken and will not take any action that would cause the sale made pursuant to such Transaction to fail to meet all applicable requirements of Rule 144;

              (ii)  Motorola will transmit a Form 144 for filing with the SEC and, if applicable, the Exchange contemporaneously with execution of the Transaction, and Motorola will provide to Counterparty via facsimile a copy of each Form 144 relating to the Transaction promptly after filing such form with the SEC; and

              (iii)  Motorola will deliver a seller's representation letter to Counterparty in a form customarily used by Counterparty contemporaneously with the execution of the relevant Transaction and each representation, warranty and agreement in such representation letter shall be deemed to be incorporated herein.

            (d)  Motorola understands and will comply with Motorola's responsibilities under applicable securities laws in connection with the Transactions including, but not limited to, the provisions of Rule 144 and the filing requirements (to the extent applicable) of Sections 13 and 16 of the Securities Exchange Act of 1934.

        11.    Additional Representations and Agreements:    

            (a)  In connection with this Transaction Motorola represents and acknowledges to the other party on the Trade Date of this Transaction that Motorola has no material non-public information concerning the Issuer.

            (b)  Motorola is an "accredited investor" as that term is defined under Regulation D of the Securities Act and is entering into this Transaction for its own account and not with a view to a transfer, resale or distribution and understands that such Transaction may involve the purchase or sale of a security as defined in the Securities Act and the securities laws of certain states, that any such security has not been registered under the Securities Act or the securities laws of any state and, therefore, may not be sold, pledged, hypothecated, transferred or otherwise disposed of unless such security is registered under the Securities Act and any applicable state securities law, or an exemption from registration is available.

            (c)  Neither party is insolvent and neither party will be rendered insolvent as a result of the Transaction.

13


        12.    Acknowledgments:    

        The parties hereto intend for:

            (a)  This Transaction to be a "securities contract" and a "swap agreement" as defined in the Bankruptcy Code (Title 11 of the United States Code) (the "Bankruptcy Code"), and the parties hereto are entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 555 and 560 of the Bankruptcy Code.

            (b)  A party's right to liquidate this Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the ISDA Master Agreement with respect to the other party to constitute a "contractual right" as described in the Bankruptcy Code.

            (c)  Any cash, securities or other property provided as performance assurance, credit support or collateral with respect to this Transaction to constitute "margin payments" and "transfers" as defined in the Bankruptcy Code.

            (d)  All payments for, under or in connection with this Transaction, all payments for the Shares and the transfer of such Shares to constitute "settlement payments" and "transfers" as defined in the Bankruptcy Code.

        13.    Indemnification:    

        Motorola agrees to indemnify and hold harmless Counterparty, its Affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (Counterparty and each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject, and relating to or arising out the Transaction with respect to any applicable securities laws and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. Motorola will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a final judgment by a court to have resulted from Counterparty's breach of a material term of the Transaction or this Confirmation, willful misconduct, gross negligence, fraud or bad faith. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Motorola shall contribute, to the maximum extent permitted by law (but only to the extent that such harm was not caused by Counterparty's breach of a material term of the Transaction or this Confirmation, willful misconduct, gross negligence, fraud or bad faith), to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability.

        14.    Construction of Contract.    

        The parties acknowledge that each term, provision, and clause of this Confirmation has been jointly constructed, negotiated, and prepared by the combined efforts of the parties to the exclusion of neither party. The parties agree that the terms, provisions, and clauses of this Confirmation should not be interpreted in favor of one party against the other as the result of any construction, negotiation, or preparation thereof.

        15.    Additional Provisions:    

            (a)  Motorola represents and acknowledges to Counterparty that Motorola understands no obligations of Counterparty to Motorola hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Counterparty or any governmental agency; and

14

            (b)  Notwithstanding any provision of the Agreement to the contrary, Counterparty shall be entitled to assign its rights and obligations hereunder to make or receive cash payments and transfer of Shares and other related rights to one or more entities that are wholly-owned, directly or indirectly, by Citigroup Inc., or any successor thereto (each, a "Counterparty Affiliate"); provided that Motorola shall have full recourse to Counterparty in the event of the failure by a Counterparty Affiliate to perform any of such obligations hereunder.

        Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Motorola) correctly sets forth the terms of the agreement between Counterparty and Motorola with respect to this Transaction, by manually signing this Confirmation or this page thereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Motorola at the facsimile numbers specified in the Agreement.

    Yours faithfully,

 
 
MOTOROLA, INC.

 
 
By:
 
     
Name:
Title:
Agreed and Accepted By:    

CITIBANK N.A., NEW YORK
 
 

By:
 
 
 
 
Name:
Title:		    

15



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Exhibit 9

To:   Citibank N.A., New York

 
 
Attention: Bill Ortner, Managing Director, Corporate Equity Derivatives
Phone: (212) 723-7355
Fax: (212) 723-8328

From:
 
Motorola, Inc.
Attention: Michele Tracy, Director of Capital Markets
Phone: (847) 538-5612
Fax: (847) 576-4768

Date:
 
March 3, 2003

Re:
 
Variable Share Forward Transaction

Ref. No:
 
E03-00450, 451—E03-00452, 453—E03-00454, 455—E03-00456, 457—E03-00458, 459—E03-00460, 461—E03-00462, 463—E03-00464, 465—E03-00466, 467—E03-00468, 469

Dear Sir(s):

        The purpose of this communication (this "Confirmation") is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below (this "Transaction") between Citibank N.A., New York (the "Counterparty") and Motorola, Inc. ("Motorola"). This communication constitutes a "Confirmation" as referred to in the ISDA Form specified below.

        This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions (including the Annex thereto) (the "2000 Definitions") and the 2002 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with the 2000 Definitions, the "Definitions"), in each case as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.

        This Confirmation supplements, forms a part of, and is subject to, the 1992 ISDA Master Agreement (Multicurrency-Cross Border) dated as of March 15, 2002, as amended and supplemented from time to time (the "Agreement"), between Counterparty and Motorola. All provisions contained in, or incorporated by reference to, the Agreement shall govern this Confirmation except as expressly modified below. In the event of any inconsistency between this Confirmation and the Agreement, as the case may be, this Confirmation shall govern for purposes of this Transaction. For purposes of the Equity Definitions, this Transaction will be deemed to be a Forward Transaction. Solely with respect to this Transaction, Section 2(c)(ii) of the Agreement shall be applicable, therefore payments owed under this Transaction shall not be netted against payments owed with respect to other Transactions under this Agreement. The terms of the Credit Support Annex as specified in the Agreement ("Other Transactions CSA") shall not be applicable with respect to this Transaction and Confirmation. This Transaction shall be disregarded for purposes of determining Exposure with respect to the Other Transactions CSA. This Transaction and Confirmation shall instead be subject to the terms of the ISDA Credit Support Annex (Bilateral Form—New York Law) with such modifications and elections as specified herein (the "Variable Annex") as if the Variable Annex were included in the Schedule to the Agreement with respect to this Transaction. The Variable Annex shall only be applicable with respect to this Transaction.

        Counterparty may not designate an Early Termination Date with respect to this Transaction as a result of an Event of Default or Termination Event under the Agreement, if the condition or event giving rise to such Event of Default or Termination Event under the Agreement occurs in connection with a Transaction or Transactions, other than this Transaction. Counterparty may not designate an Early Termination Date with respect to this Transaction as a result of (a) an Event of Default under


Section 5(a)(v) or 5(a)(vi) of the Agreement or (b) a Credit Event Upon Merger under Section 5(b)(iv) if Posted Collateral under the Variable Annex consists of Collateral Shares. For the avoidance of doubt, Counterparty may designate an Early Termination Date with respect to this Transaction upon the occurrence of (a) an Event of Default under Sections 5(a)(vii) or 5(a)(viii) of the Agreement, and (b) a Credit Event Upon Merger under Section 5(b)(iv) if Posted Collateral under the Variable Annex consists of U.S. Treasuries. Counterparty may also designate an Early Termination Date with respect to this Transaction upon the occurrence of an Event of Default under Section 5(a)(i), (ii), (iii), and (iv) and Section 5(b)(i), (ii), and (iii) if the condition or event giving rise to such Event of Default or Termination Event under the Agreement occurs in connection with this Transaction or if this Transaction is an Affected Transaction, as applicable. Notwithstanding any provision specifying otherwise, and provided that an Event of Default under Section 5(a)(vii) has not occurred with respect to Motorola as the Defaulting Party (a "Motorola Bankruptcy Event"), Payments, Deliveries, or Settlement Amounts owed by Counterparty to Motorola under this Transaction shall not be withheld, netted or set off against other amounts owed by Motorola to the Counterparty under any other Transaction or Agreement.

1.
The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

Trade Date:   March 4, 2003

Seller:
 
Motorola

Buyer:
 
Counterparty

Shares:
 
The common shares (the "Shares") of Nextel Communications, Inc. (the "Issuer")

Number of Shares:
 
8,333,334

Forward Floor Price:
 
$13.4200

Forward Cap Price:
 
$20.4105

Prepayment Amount:
 
An amount equal to the present value on the Prepayment Date of US$111,833,342 assuming such amount was to be paid on the Settlement Date (such present value to be determined by the Counterparty using a discount rate equal to the Rate for the period from and including the Prepayment Date to, but excluding, the Settlement Date, plus 35 basis points per annum. The Prepayment Amount shall not be subject to adjustment as a result of the occurrence of an Extraordinary Event, Additional Disruption Event, Termination Event or otherwise.

 
 
 

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Rate:
 
If the number of calendar days from the Prepayment Date to the Settlement Date is (i) equal to or less than 4 years, the rate shall be the zero coupon rate derived from the prevailing rate curve that appears on page "EDA Commodity CT" of Bloomberg or a successor page or (ii) greater than 4 years, the rate shall be the zero coupon rate derived from the prevailing rate curve that appears on page IRSB18 of Bloomberg or a successor page. If such rate does not appear on page IRSB18 or a successor page, the rate will be the zero coupon rate derived from the prevailing rate curve determined as if the parties had specified "USD-ISDA-Swap Rate", in each case, (x) on a semi-annual basis, (y) with a Day Count Fraction (as defined in the 2000 ISDA Definitions) equal to Actual/360, and (z) interpolated as necessary to account for the actual number of calendar days between the Prepayment Date and the Settlement Date.

Prepayment Date:
 
The earlier of (1) the date designated as the Prepayment Date by Motorola by providing Counterparty with not less than three (3) Business Days prior notice (2) any Early Termination Date and (3) the Settlement Date.

Prepayment:
 
Applicable

Variable Obligation:
 
Applicable

Settlement Currency:
 
USD

Exchange:
 
NASDAQ National Market

Related Exchange:
 
All Exchange(s)

Business Day:
 
New York.

Valuation:
 
 

Valuation Time:
 
As provided in Section 6.1 of the Equity Definitions.

Settlement Calculations:
 
For purposes of determining the Number of Shares to be Delivered (if Physical Settlement is applicable) or the Cash Settlement Amount (if Cash Settlement is applicable), the Transaction shall be split into 10 components of equal size (each a "Component"), with the Number of Shares allocated accordingly (with all fractional shares being allocated to the last Component). Each Component will have its own Valuation Date, with the Number of Shares to be Delivered or the Cash Settlement Amount for such Component determined as if it were a separate Transaction.

 
 
 

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Valuation Date:
 
With respect to the specified Component, the date specified below (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already a Valuation Date):
Component
   Valuation Date
1   2/20/2008
2   2/21/2008
3   2/22/2008
4   2/25/2008
5   2/26/2008
6   2/27/2008
7   2/28/2008
8   2/29/2008
9   3/3/2008
10   3/4/2008
    provided that, if that date is a Disrupted Day, the Valuation Date for the relevant Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and which is not or is not deemed to be a Valuation Date in respect of any other Component under this Transaction; provided, further, that if the Valuation Date for the relevant Component has not occurred pursuant to the preceding proviso as of 8th Scheduled Trading Day following the Valuation Date for such Component, that 8th Scheduled Trading Day shall be the Valuation Date (irrespective of whether such day is a Valuation Date in respect of any other Component under this Transaction) and the Settlement Price shall be the price determined by the Calculation Agent.

Settlement Terms:
 
 

Settlement Price
 
In (ii) of 7.3(a) of the Equity Definitions, the words beginning with the words "mid-point of the highest" to the end of such sentence shall be deleted and replaced with the words, "The NASDAQ Volume Weighted Average Price per share of the Shares for the final hour of the regular trading session (including any extensions thereof) on the Valuation Date (without regard to pre-open or after hours trading outside of such regular trading session) as published by Bloomberg at 4:15 p.m. New York time on such date.

Settlement Method Election:
 
Applicable

Physical Settlement:
 
Applicable if designated as applicable by the Electing Party or if Cash Settlement is not designated as applicable by the Electing Party on or prior to the Settlement Method Election Date. Upon election of Physical Settlement, the Shares delivered by Motorola shall not be "restricted securities" within the meaning of Rule 144(a).

 
 
 

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Cash Settlement:
 
Applicable if designated as applicable by the Electing Party on or prior to the Settlement Method Election Date.

Electing Party:
 
Motorola

Settlement Method Election Date:
 
Fifteen (15) Scheduled Trading Days prior to March 4, 2008

Default Settlement Method:
 
Physical Settlement

Number of Shares to be Delivered:
 
As provided in Section 9.5 of the Equity Definitions.

Settlement Date:
 
Three (3) Scheduled Trading Days after the Valuation Date.

Cash Settlement Payment Date:
 
Three (3) Scheduled Trading Days after the Valuation Date.

Adjustments:
 
 

Method of Adjustment:
 
Calculation Agent Adjustment

Extraordinary Dividend:
 
Any cash dividend or distribution amount greater than zero (0) cents per Share per quarter.

Excess Dividend Amount:
 
Record Amount

Dividend Period:
 
First Period

Additional Payments:
 
If an Extraordinary Dividend per Share is declared by the Issuer to holders of record of a Share on any record date occurring during the Dividend Period, Motorola shall pay on the third Business Day following each date that the respective dividend is paid by the Issuer to the holders of the Shares on the record date during the Dividend Period an "Additional Payment Amount" to the Counterparty. Additional Payment Amount shall be equal to the product of (i) the Number of Shares and (ii) the Extraordinary Dividend paid by the Issuer per Share to the holders of the Shares on the record date during the Dividend Period. Upon payment of the Additional Payment Amount to the Counterparty, Motorola's obligation to deliver the Excess Dividend Amount or Extraordinary Dividend Amount on a Settlement Date, Cash Settlement Payment Date or otherwise shall be satisfied to the extent of such payment. Motorola may pay the Additional Payment Amount from distributions received with respect to Posted Collateral.

Extraordinary Events:
 
 

Consequences of Merger Event:
 
 
      (a) Share-for-Share:   Modified Calculation Agent Adjustment
      (b) Share-for-Other:   Cancellation and Payment
      (c) Share-for-Combined:   Component Adjustment
 
Determining Party:
 
Counterparty

Tender Offer:
 
Applicable

Consequences of Tender Offers:
 
 
     
(a) Share-for-Share:
 
Modified Calculation Agent Adjustment

 
 
 

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(b) Share-for-Other:
 
Cancellation and Payment
     
(c) Share-for-Combined:
 
Component Adjustment
 
Determining Party:
 
Counterparty

Composition of Combined Consideration:
 
Notwithstanding Section 12.1 or 12.5 of the Equity Definitions, in respect of a Merger Event or Tender offer where the composition of the consideration could be determined by the holder of Shares equal to the Number of Shares, the Counterparty, acting in good faith and in a commercially reasonable manner under then current market conditions, will determine the composition of the consideration for purposes of this Transaction and shall notify Motorola promptly following such determination.

Nationalization, Insolvency or De-Listing Event:
 
Cancellation and Payment
 
Determining Party:
 
Counterparty

        Prior to the termination of this Transaction as a result of an Extraordinary Event, Event of Default (that is not a Motorola Bankruptcy Event), Termination Event or otherwise, the Calculation Agent shall provide a notice (which shall not be more than 20 Business Days but not less than 3 Business Days prior to the date of termination) specifying the Extraordinary Event, Termination Event or other event leading to such termination, relevant terms and the date of termination (the "Early Termination Date") in addition to a request that Motorola specify the Settlement Method. Within three (3) Business Days of receiving such notice, Motorola shall elect the Settlement Method. Motorola's failure to elect a Settlement Method within three (3) Business Days of receiving notice shall result in an election of Physical Settlement. Upon the occurrence of a Motorola Bankruptcy Event, the Default Settlement Method shall be the applicable Settlement Method with respect to this Transaction, notwithstanding any election by Motorola to the contrary.

        On or within one Business Day following an Early Termination Date that does not occur as a result of a Motorola Bankruptcy Event, the Calculation Agent shall deliver to Motorola a notice specifying the determination amount, Cancellation Amount or amount owed as a result of the termination ("Termination Amount") expressed as a cash amount or a number of Shares, as applicable. If Motorola had timely elected Cash Settlement in respect of an Early Termination Date pursuant to the immediately preceeding paragraph, Counterparty or Motorola, as applicable, shall make a cash payment to the other party ("Receiving Party") by wire transfer of immediately available funds to an account designated by the Receiving Party in an amount equal to the Termination Amount no later than the Early Termination Date or the date designated following the notice of determination as set forth in Section 12.7 of the Equity Definitions, as applicable. If Cash Settlement is the applicable Settlement Method and Motorola fails to make the payment when due, Counterparty shall net and offset such Termination Amount owed by Motorola first against the Prepayment Amount, if not yet paid, and any balance shall be applied against the proceeds from the Posted Collateral under the Variable Annex up to the amount owed. If Physical Settlement is the applicable method (1) Motorola shall deliver to the Counterparty, the lesser of (a) number of Shares to be delivered as specified in the notice or (b) the Number of Shares and (2) the Shares delivered by Motorola shall not be "restricted securities" within the meaning of Rule 144(a). Notwithstanding the provisions of the Agreement or Section 12 of the Equity Definitions or otherwise, upon any cancellation or termination of this Transaction where Physical Settlement is the applicable Settlement Method, the delivery obligation owed by Motorola (with respect to this Transaction) to Counterparty with respect to this Transaction shall never exceed the Number of Shares (and any proceeds of such Shares) and provided that a

6


Motorola Bankruptcy Event has not occurred, Counterparty shall pay Motorola the Prepayment Amount on the Early Termination Date, if not paid.

Additional Disruption Events:

    Change in Law:   Applicable
   
Failure to Deliver:
 
Not Applicable
   
Insolvency Filing:
 
Not Applicable
   
Hedging Disruption:
 
Not Applicable
   
Increased Cost of Hedging:
 
Not Applicable
   
Loss of Stock Borrow:
 
Inapplicable with respect to the 90 days following the Trade Date. With respect to the remaining term of the Transaction following the 90 day period, Loss of Stock Borrow shall be Applicable; provided however, that the Hedging Party must notify Motorola of its intention to terminate this Transaction at least three (3) Business Days prior to terminating the contract and the basis for the termination; provided further that during the 3 Business Days following Motorola's receipt of such notice, Motorola may elect and if it elects to (1) partially terminate this Transaction up to an amount equal to the number of Shares for which Counterparty is unable to maintain a stock borrow position, (2) bear the increase in the cost to borrow above the Initial Stock Loan Rate with respect to such Shares and elect to (a) pay on a quarterly basis, three (3) Business Days following each quarter, in cash to the Counterparty, the amount by which the Counterparty's actual cost of borrow exceeds the Initial Stock Loan Rate, or (b) have the Counterparty adjust the Forward Cap Price if such adjustment is sufficient to produce value equivalent to the amount by which the Counterparty's actual cost of borrow exceeds the Initial Stock Loan Rate, or (3) either directly or indirectly, provide for a loan of Shares in such amount and upon terms consistent with then-applicable law, in a form agreed between the parties, with a lender acceptable to the Counterparty acting in a commercially reasonable manner, and at a rate equal to the Initial Stock Loan Rate, then the Counterparty shall no longer be able to terminate this Transaction.

 
 
The definition of "Loss of Stock Borrow" shall be deleted and replaced with the following words "means the Hedging party is unable, after using commercially reasonable efforts, (a) to borrow (or maintain a borrowing of) Shares with respect to this Transaction or (b) to borrow (or maintain a borrowing of) Shares with respect to this Transaction at a rate equal to or less than the Maximum Stock Loan Rate for 20 consecutive Business Days.
   
Maximum Stock Loan Rate:
 
60 basis points per annum.

 
 
 

7

   
Initial Stock Loan Rate:
 
15 basis points per annum.
   
Hedging Party:
 
Counterparty
 
Increased Cost of Stock Borrow:
 
Not Applicable
 
Increased Cost of Hedging:
 
Not Applicable
   
Determining Party:
 
Counterparty.
 
Non-Reliance:
 
Applicable

Agreements and Acknowledgements Regarding Hedging Activities:
 
Applicable

Additional Acknowledgements:
 
Applicable

        Dispute Mechanism:    With respect to any calculation, adjustment or determination (a "Determination") made by the Counterparty as the Calculation Agent, Hedging Party or as the Determining Party, Counterparty shall provide to Motorola, notice of any Determinations (not less than two (2) Business Day prior to the effective date of such Determination, whenever practicable (if Counterparty is unable to provide notice of such Determinations prior to the effective date then Counterparty shall provide notice on the effective date of the determination) providing in reasonable detail the relevant assumptions and valuations underlying such Determination (including, if applicable, assumptions by the Counterparty with respect to volatility, expected dividends, stock loan rate, and liquidity relevant to the shares or to the Transaction). If Motorola disputes any Determination made by the Counterparty, within two (2) Business Days of being notified of such Determination, and if Motorola and Counterparty are unable to agree on a Determination within one (1) Business Day of Counterparty being notified of such dispute, Motorola and Counterparty agree to jointly appoint an independent third party dealer in equity derivatives with experience in transactions similar to this Transaction to make such Determination (a "Substitute Calculation Agent" and if Motorola and Counterparty do not promptly agree on a Substitute Calculation Agent within two (2) Business Days of Counterparty being notified of the dispute, Motorola and Counterparty shall each choose such a third party dealer on the third (3) Business Day of Counterparty being notified of the dispute, and the third party dealers shall together promptly appoint another such third party dealer as the Substitute Calculation Agent to make such Determination). The Determination by the Substitute Calculation Agent shall be made as promptly as practicable after appointment and shall be binding on Motorola and Counterparty absent manifest error. This Transaction shall be adjusted based on the Substitute Calculation Agent's determination which adjustment shall be effective as of the effective date of the initial Determination. The expenses of such third party dealer shall be borne equally by Motorola and Counterparty.

        2.    Calculation Agent:    Counterparty, subject to the Dispute Mechanism specified above; provided that if an Event of Default has occurred with respect to the Counterparty, Motorola shall appoint an independent dealer in equity derivatives to perform the functions of the Calculation Agent.

        3.    Governing law:    As specified in the Agreement

        4.    Credit Support Annex:    For purposes of the Variable Annex, the following shall constitute certain elections, variables and other modifications set forth in Paragraph 13 of the Variable Annex:

            (a)    Security Interest for "Obligations".    The term "Obligations" as used in the Variable Annex includes no additional obligations with respect to Motorola or Counterparty.

            (b)  Secured Party for purposes of the Variable Annex shall mean only the Counterparty.

            (c)  Pledgor for purposes of the Variable Annex shall mean only Motorola.

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            (d)  Credit Support Obligations.    Delivery Amount for purposes of the Variable Annex shall have the meaning specified in Paragraph 3(a); provided that, for purposes of determining the Delivery Amount if the Posted Collateral consists of solely of Collateral Shares, the Value of such Collateral Shares shall be an amount equal to the Number of Shares, notwithstanding Paragraph 12 of the Variable Annex. Return Amount for purposes of the Variable Annex shall have the meaning specified in Paragraph 3(b); provided that, for purposes of determining the Return Amount if the Posted Collateral consists solely of Collateral Shares, the Value of such Collateral Shares shall be an amount equal to the Number of Shares, notwithstanding Paragraph 12 of the Variable Annex. Credit Support Amount for purposes of the Variable Annex shall mean the Independent Amount applicable to the Pledgor.

            (e)  Eligible Collateral.    The following items will qualify as "Eligible Collateral" with respect to Motorola for purposes of the Variable Annex.

Eligible Collateral
   Motorola (Pledgor)
   Valuation
Percentage
  
Shares free of any lien, security interest or other encumbrance that are (i) not "restricted securities" within the meaning of Rule 144(a) and (ii) have a holding period by Motorola within the meaning of Rule 144(d) of at least one year on the date such Shares are posted as Collateral (the "Collateral Shares")   X   100 %

Negotiable debt obligations issued by the U.S. Treasury Department ("U.S. Treasuries") having a remaining term to maturity of not more than thirty years
 
X
 
100
%

            (f)    Other Eligible Support.    There shall be no "Other Eligible Support" for either party for purposes of this Variable Annex.

            (g)  Threshold.

                (i)  Independent Amount for purposes of the Variable Annex with respect to Pledgor shall mean, (1) the Number of Shares or (2) or U.S. Treasuries that are equal in value to 150% of the market value of the Number of Shares (market value to be determined by the Valuation Agent in good faith and in a commercially reasonable manner). Motorola shall determine the form of Eligible Collateral posted as Independent Amount, in its sole discretion.

              (ii)  Threshold for purposes of the Variable Annex shall not be applicable with respect to the Counterparty and shall not be applicable with respect to Motorola.

              (iii)  Minimum Transfer Amount, for purposes of the Variable Annex means, with respect to the Pledgor, $0.00.

              (iv)  Rounding.    The Delivery Amount and the Return Amount will be rounded up and down respectively to the nearest integral multiple of $1,000.

              (v)  Substitution.    "Substitution Date" for purposes of the Variable Annex has the meaning specified in Paragraph 4(d)(ii); Consent shall be applicable; provided however, consent shall not be required if substitution is of (1) Collateral Shares or (2) U.S. Treasuries equal in value to 150% of the market value on the substitution Date of the Number of Shares held as Posted Collateral.

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            (h)  Valuation and Timing.

                (i)  "Valuation Agent" means Counterparty unless an Event of Default has occurred with respect to the Counterparty in which case, the Valuation Agent shall be an independent third party dealer in the equity derivatives appointed by Motorola.

              (ii)  "Valuation Date" means any Local Business Day designated by the Valuation Agent or Counterparty.

              (iii)  "Valuation Time" means the close of business in the city of the Valuation Agent on the Valuation Date or date of calculation, as applicable.

              (iv)  "Notification Time" means 1:00 p.m., New York time on a Local Business Day.

            (i)    Dispute Resolution.

                (i)  Value.    For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of Posted Collateral Support will be calculated as follows: with respect to any U.S. Treasuries, the sum of (I)(x) the mean of the high bid and low asked prices quoted on such date by an principal market maker for such U.S. Treasuries chosen by the Disputing Party, or (y) if no quotations are available from a principal market maker for such date, the mean of such high bid and low asked prices as of the day, next preceding such date, on which such quotations are available, plus (II) the accrued interest on such U.S. Treasuries (except to the extent Transferred pursuant to any applicable provisions of this Agreement or included in the applicable price referred to in (I) of this clause (A)) as of such date.

            (j)    Holding and Using Posted Collateral.    For purposes of the Variable Annex, the Secured Party and its Custodian will be entitled to hold Posted Collateral pursuant to Paragraph 6(b); provided an Event of Default has not occurred with respect to the Secured Party and provided that if the Secured Party appoints a Custodian, the Custodian shall be a broker-dealer subsidiary or Affiliate of the Secured Party registered pursuant to Section 15 of the Securities Exchange Act of 1934, or a commercial bank, operating from an office in the continental United States, whose general long-term unsubordinated unsecured debt is at such time rated at least "A" by S&P and at least "A2" by Moody's.

            (k)  Use of Posted Collateral.    For purposes of the Variable Annex the provisions of Paragraph 6(c)(i) shall not be applicable with respect to the Counterparty.

            (l)    Distributions.

                (i)  The "Interest Rate" will be 0%.

              (ii)  Notwithstanding Paragraph 6(d) of the Variable Annex, (A) any Distributions with respect to Collateral Shares held as Posted Collateral and received by Secured Party shall not be Transferred to the Pledgor and shall instead by held by Secured Party as Posted Collateral and (B) any Distributions with respect to U.S. Treasuries held as Posted Collateral and received by Secured Party shall be Transferred to the Pledgor in accordance with Paragraph 6(d) of the Variable Annex. For the Distributions held as Posted Collateral pursuant to clause (A) in the preceding sentence, such Distribution shall be an additional Independent Amount with respect to Pledgor unless transferred to Counterparty in accordance with the terms of this Transaction.

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        5.    Amendments to the ISDA Form.    Counterparty and Motorola hereby amend the Agreement as follows:

            (a)  Transfer.    Section 7 of the ISDA Form is hereby amended by (1) adding in the third line thereof after the word "party" the words "which consent shall not be unreasonably withheld" and (2) adding the following subsection (c):

            Counterparty may transfer or assign its rights and obligations in whole to an Affiliate ("Transferee Affiliate") provided that (i)(a) such Transferee Affiliate is the same or better credit quality as the Counterparty, as determined in good faith by Motorola, or (b) the Counterparty (if Counterparty has a Credit Support Provider then the Credit Support Provider) provides a guaranty in a form acceptable to Motorola or in a form substantially similar to the guaranty provided by the Credit Support Provider to Motorola, if applicable, naming Motorola as beneficiary, with respect to this Transaction and the Transferee Affiliate, (ii) such Transferee Affiliate accepts and agrees to the terms of this Transaction and the Agreement in a form and in a manner acceptable to Motorola and (iii) the Motorola is not required to make any additional payments or withhold any additional amounts with respect to this Transaction or with respect to the Posted Collateral that it would not have had to make or withhold but for the transfer or assignment.

            (b)  Set-off.    Except upon the occurrence of a Motorola Bankruptcy Event, the set-off provision as specified in the Agreement or otherwise shall not be applicable with respect to this Transaction. Counterparty may not exercise its right of set-off under the Agreement with respect to this Transaction against any other Transactions under the Agreement or any other agreements unless a Motorola Bankruptcy Event occurs.

        6.    Cancellation Amount.    Section 12.8 of the Equity Definitions shall be amended by deleting (a) in Section 12.8(d) the words "the Determining Party reasonably believes" in the third line of Section 12.8(d) and replacing such words with the words, "both parties agree", (b) in Section 12.8(d) the second to last sentence beginning with the words, "When considering", and (c) subsection (e) of 12.8.

        7.    Prepayment Amount.    Notwithstanding any provisions in this Confirmation, or otherwise, and upon satisfaction of the following conditions, the Prepayment Amount shall be paid by the Counterparty to Motorola on the Prepayment Date and such payment shall not be withheld for any reason: (i) Motorola shall have executed this Confirmation, (ii) an Event of Default under Section 5(a)(vii) of the Agreement has not occurred with respect to Motorola, (iii) any Collateral Shares, if held by Counterparty as Posted Collateral, consist of Shares represented by certificates containing no restrictive legend, and (iv) Motorola shall have delivered to Counterparty the Credit Support Amount as required under the Variable Annex. Unless a Motorola Bankruptcy Event has occurred with respect to Motorola or an Early Termination Date has occurred and Motorola has elected Cash Settlement as the applicable Settlement Method, the Prepayment Amount shall not be netted or set-off against any other amounts owed by Motorola to the Counterparty under this Transaction, or any other Transaction under this Agreement.

        8.    Collateral.    

            (a)  Motorola represents, on each date on which Motorola delivers or Counterparty otherwise receives Posted Collateral, in connection with this Transaction, that (i) Motorola is the owner of all Posted Collateral free of any lien, security interest, claim or other encumbrance, (ii) Motorola has the power and authority and has obtained all of the necessary consents and approvals to grant a first priority security interest to Counterparty in the Posted Collateral, (iii) upon the delivery of the Shares as described above and any other Posted Collateral in a manner acceptable to Counterparty, Counterparty will have a valid and perfected first priority security interest in the

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    Posted Collateral and (iv) the pledge of the Posted Collateral will not violate or conflict with the terms of any agreement made by or applicable to Motorola.

            (b)  Motorola will use best efforts to preserve and protect Counterparty's security interest in the Posted Collateral, will defend Counterparty's right, title, lien and security interest in and to the Posted Collateral against the claims and demands of all persons whomsoever, and will do all such acts and things and deliver all such documents and instruments, including without limitation further pledges, assignments, account control agreements, financing statements and continuation statements, as Counterparty may reasonably deem necessary or advisable from time to time in order to preserve, protect and perfect such security interest or to enable Counterparty to exercise or enforce its rights with respect to any Posted Collateral.

            (c)  Motorola will not permit any lien, security interest, charge, adverse claim, restriction on transfer or other encumbrance, other than the lien and security interest Motorola created hereby in favor of Counterparty, to exist upon any of the Posted Collateral. Motorola will not take any action that could in any way limit or adversely affect the ability of Counterparty to realize upon its rights in the Posted Collateral.

            (d)  If Motorola does not otherwise satisfy its delivery obligation pursuant to this Transaction, Counterparty is hereby authorized and directed by Motorola to apply the Shares posted as Collateral hereunder in satisfaction of such delivery obligation.

        9.    Pledgor's Voting Rights in Collateral.    Pledgor shall have the right, provided that the Pledgor provides five (5) Business Days notice prior to the relevant record date to the Secured Party, to vote and to give consents, ratifications and waivers with respect to the Posted Collateral, and exercise any other consensual rights pertaining to the Posted Collateral. Secured Party shall deliver to Pledgor, or as otherwise specified by the Pledgor, proxies, powers of attorney, consents, ratifications and waivers in respect of any of the Posted Collateral and the Secured Party shall use commercially reasonable efforts to effect any such votes, consents, ratifications or waivers and carry out its duties under such powers of attorney.

        10.    Securities Law Representations and Agreements:    

            (a)  Counterparty agrees that it will conduct its initial hedging activities in connection with the Transaction in the manner described in the interpretive letter from the Securities and Exchange Commission (the "SEC") issued to Goldman, Sachs & Co., dated December 20, 1999, regarding variable delivery forward contracts, it being understood that Counterparty will introduce into the public market a quantity of securities of the same class as the Shares equal to the Number of Shares in a manner consistent with the manner-of-sale requirements under paragraph (f) of Rule 144 ("Rule 144") under the Securities Act of 1933, as amended (the "Securities Act"). Counterparty agrees that it has not solicited or arranged for the solicitation of orders to buy securities of the same class as the Shares in anticipation of or in connection with this Transaction.

            (b)  Motorola hereby represents, warrants and agrees in favor of Counterparty on the Trade Date:

                (i)  Prior to entering into the Transaction, the Shares posted as collateral ("Collateral Shares") were "restricted securities" within the meaning of Rule 144;

              (ii)  Motorola's holding period for the Collateral Shares, determined in accordance with paragraph (d) of Rule 144, exceeds twelve (12) months;

              (iii)  Motorola has no reason to believe that the Issuer has not complied with the reporting requirements as outlined in Rule 144(c)(1); and

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              (iv)  Other than pursuant to the Transaction, and similar transactions entered into on or about the Trade Date, that in the aggregate relate to a total of not more than 50 million Shares, neither Motorola nor any, nor any other "person" associated with Motorola within the meaning of paragraph (a)(2) of Rule 144 (each such other person, an "Associated Person"), have, within the three-month period immediately preceding the Trade Date of a Transaction, (x) sold, pledged or otherwise disposed of or hedged any long position in any shares issued by the Issuer that are of the same class as the Shares or any securities issued by the Issuer that are convertible into shares of such class or any interest in such shares or securities or (y) acted in concert with any person in connection with the sale, pledge, other disposition or hedge of any such shares or securities or any interest therein, in each case to the extent such sale, pledge, other disposition or hedge may be aggregated pursuant to Rule 144 with the sales effected in reliance on Rule 144 in connection with the Transaction.

            (c)  Motorola acknowledges and agrees on the Trade Date that:

                (i)  The entering into of the Transaction will constitute a "sale" of the Collateral Shares related to such Transaction for purposes of Rule 144 and Motorola has not taken and will not take any action that would cause the sale made pursuant to such Transaction to fail to meet all applicable requirements of Rule 144;

              (ii)  Motorola will transmit a Form 144 for filing with the SEC and, if applicable, the Exchange contemporaneously with execution of the Transaction, and Motorola will provide to Counterparty via facsimile a copy of each Form 144 relating to the Transaction promptly after filing such form with the SEC; and

              (iii)  Motorola will deliver a seller's representation letter to Counterparty in a form customarily used by Counterparty contemporaneously with the execution of the relevant Transaction and each representation, warranty and agreement in such representation letter shall be deemed to be incorporated herein.

            (d)  Motorola understands and will comply with Motorola's responsibilities under applicable securities laws in connection with the Transactions including, but not limited to, the provisions of Rule 144 and the filing requirements (to the extent applicable) of Sections 13 and 16 of the Securities Exchange Act of 1934.

        11.    Additional Representations and Agreements:    

            (a)  In connection with this Transaction Motorola represents and acknowledges to the other party on the Trade Date of this Transaction that Motorola has no material non-public information concerning the Issuer.

            (b)  Motorola is an "accredited investor" as that term is defined under Regulation D of the Securities Act and is entering into this Transaction for its own account and not with a view to a transfer, resale or distribution and understands that such Transaction may involve the purchase or sale of a security as defined in the Securities Act and the securities laws of certain states, that any such security has not been registered under the Securities Act or the securities laws of any state and, therefore, may not be sold, pledged, hypothecated, transferred or otherwise disposed of unless such security is registered under the Securities Act and any applicable state securities law, or an exemption from registration is available.

            (c)  Neither party is insolvent and neither party will be rendered insolvent as a result of the Transaction.

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        12.    Acknowledgments:    

        The parties hereto intend for:

            (a)  This Transaction to be a "securities contract" and a "swap agreement" as defined in the Bankruptcy Code (Title 11 of the United States Code) (the "Bankruptcy Code"), and the parties hereto are entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 555 and 560 of the Bankruptcy Code.

            (b)  A party's right to liquidate this Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the ISDA Master Agreement with respect to the other party to constitute a "contractual right" as described in the Bankruptcy Code.

            (c)  Any cash, securities or other property provided as performance assurance, credit support or collateral with respect to this Transaction to constitute "margin payments" and "transfers" as defined in the Bankruptcy Code.

            (d)  All payments for, under or in connection with this Transaction, all payments for the Shares and the transfer of such Shares to constitute "settlement payments" and "transfers" as defined in the Bankruptcy Code.

        13.    Indemnification:    

        Motorola agrees to indemnify and hold harmless Counterparty, its Affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (Counterparty and each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject, and relating to or arising out the Transaction with respect to any applicable securities laws and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. Motorola will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a final judgment by a court to have resulted from Counterparty's breach of a material term of the Transaction or this Confirmation, willful misconduct, gross negligence, fraud or bad faith. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Motorola shall contribute, to the maximum extent permitted by law (but only to the extent that such harm was not caused by Counterparty's breach of a material term of the Transaction or this Confirmation, willful misconduct, gross negligence, fraud or bad faith), to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability.

        14.    Construction of Contract.    

        The parties acknowledge that each term, provision, and clause of this Confirmation has been jointly constructed, negotiated, and prepared by the combined efforts of the parties to the exclusion of neither party. The parties agree that the terms, provisions, and clauses of this Confirmation should not be interpreted in favor of one party against the other as the result of any construction, negotiation, or preparation thereof.

        15.    Additional Provisions:    

            (a)  Motorola represents and acknowledges to Counterparty that Motorola understands no obligations of Counterparty to Motorola hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Counterparty or any governmental agency; and

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            (b)  Notwithstanding any provision of the Agreement to the contrary, Counterparty shall be entitled to assign its rights and obligations hereunder to make or receive cash payments and transfer of Shares and other related rights to one or more entities that are wholly-owned, directly or indirectly, by Citigroup Inc., or any successor thereto (each, a "Counterparty Affiliate"); provided that Motorola shall have full recourse to Counterparty in the event of the failure by a Counterparty Affiliate to perform any of such obligations hereunder.

        Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Motorola) correctly sets forth the terms of the agreement between Counterparty and Motorola with respect to this Transaction, by manually signing this Confirmation or this page thereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Motorola at the facsimile numbers specified in the Agreement.

    Yours faithfully,

 
 
MOTOROLA, INC.

 
 
By:
 
     
Name:
Title:
Agreed and Accepted By:    

CITIBANK N.A., NEW YORK
 
 

By:
 
 
 
 
Name:
Title:		    

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