EXECUTION VERSION
Motorola Mobility Holdings, Inc.
600 North US Highway 45
Libertyville, Illinois 60048
November 30, 2010
To: Each of the Persons and entities listed on Schedule A (the "Icahn Group")
Ladies and Gentlemen:
This letter agreement shall become effective upon the appointment or
election of Daniel A. Ninivaggi (including any successor designated by the Icahn
Group, the "Icahn Designee") to the Board of Directors (the "Board") of Motorola
Mobility Holdings, Inc. (the "Company"). The Company understands and agrees
that, subject to the terms of, and in accordance with, this letter agreement,
the Icahn Designee may, if and to the extent he desires to do so, disclose
information he obtains while a member of the Board to the Representatives (as
hereinafter defined) and may discuss such information with any and all such
persons. As a result, you may receive certain non-public information regarding
the Company. You acknowledge that this information is proprietary to the Company
and may include trade secrets or other business information the disclosure of
which could harm the Company. In consideration for, and as a condition of,
non-public information being furnished to you (and, subject to the restrictions
in paragraph 2, your agents, representatives, attorneys, advisors, directors,
officers and employees, collectively, "Representatives"), you agree to treat any
and all information concerning the Company that is furnished to you or your
Representatives (regardless of the manner in which it is furnished, including
without limitation in written or electronic format or orally, gathered by visual
inspection or otherwise) by the Icahn Designee, or by or on behalf of the
Company, together with any notes, analyses, compilations, studies,
interpretations, documents or records containing, referring, relating to, based
upon or derived from such information, in whole or in part (collectively,
"Evaluation Material"), in accordance with the provisions of this letter
agreement, and to take or abstain from taking the other actions hereinafter set
forth.
1. The term "Evaluation Material" does not include information that (i) is
or has become generally available to the public other than as a result of a
direct or indirect disclosure by you or your Representatives in violation of
this letter agreement, (ii) was within your or any of your Representatives'
possession prior to its being furnished to you by the Icahn Designee, or by or
on behalf of the Company or (iii) is received from a source other than the Icahn
Designee, the Company or any of its representatives; provided, that in the case
of each of (ii) and (iii) above, the source of such information was not believed
by you, after inquiring of the disclosing person, to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company with respect to such information at
the time the same was disclosed.
2. You hereby agree that you and your Representatives will (a) keep the
Evaluation Material strictly confidential and (b) not disclose any of the
Evaluation Material in any manner whatsoever without the prior written consent
of the Company; provided, however, that you may disclose any of such information
to your Representatives (i) who need to know such information for the sole
purpose of advising you and (ii) who are informed by you of the confidential
nature of such information; provided, further, that you will be responsible for
any violation of this letter agreement by your Representatives as if they were
parties hereto except that you will not be so responsible with respect to any
such Representative who has executed a copy of this letter agreement as an
Additional Signatory and delivered such signed copy to the Company. It is
understood and agreed that the Icahn Designee shall not disclose to you or your
Representatives any Legal Advice (as defined below) that may be included in the
Evaluation Material with respect to which such disclosure would constitute
waiver of the Company's attorney client privilege; provided, however, that the
Icahn Designee may provide such disclosure if reputable outside legal counsel
provides the Company with a written opinion that such disclosure will not waive
the Company's attorney client privilege with respect to such Legal Advice.
"Legal Advice" as used herein shall be solely and exclusively limited to the
advice provided by legal counsel stating legal rights, duties, liabilities and
defenses and shall not include factual information or the formulation or
analysis of business strategy.
3. In the event that you or any of your Representatives are required by
applicable subpoena, legal process or other legal requirement to disclose any of
the Evaluation Material, you will promptly notify (except where such notice
would be legally prohibited) the Company in writing by facsimile and certified
mail so that the Company may seek a protective order or other appropriate
remedy. Nothing herein shall be deemed to prevent you or your Representatives,
as the case may be, from honoring a subpoena, legal process or other legal
requirement that seek or require discovery, disclosure or production of the
Evaluation Material if (a) you produce or disclose only that portion of the
Evaluation Material which your outside legal counsel advises you is legally
required to be so produced or disclosed; or (b) the Company consents in writing
to having the Evaluation Material produced or disclosed pursuant to the
subpoena, legal process or other legal requirement. In no event will you or any
of your Representatives oppose action by the Company to obtain a protective
order or other relief to prevent the disclosure of the Evaluation Material or to
obtain reliable assurance that confidential treatment will be afforded the
Evaluation Material. It is understood that there shall be no "legal requirement"
requiring you to disclose any Evaluation Material solely by virtue of the fact
that, absent such disclosure, you would be prohibited from purchasing, selling,
or engaging in derivative transactions with respect to, the Common Stock of the
Company or otherwise proposing or making an offer to do any of the foregoing.
Before filing any document with the SEC or other governmental or regulatory body
in which you intend to include Evaluation Material that you believe is legally
required to be included in such a filing, you will submit such filing to the
Company for review and will not include such Evaluation Material in such filing
if the Company provides you (not more than one business day following your
delivery of such filing to the Company), with a written opinion addressed to you
of reputable outside legal counsel experienced in the area, stating that the
Evaluation Material is not legally required to be included in such filing and
stating that you may rely upon such opinion.
4. You acknowledge that (a) none of the Company or any of its
representatives makes any representation or warranty, express or implied, as to
the accuracy or completeness of the Evaluation Material, and (b) none of the
Company or any of its representatives shall have any liability to you or to any
of your Representatives relating to or resulting from the use of the Evaluation
Material or any errors therein or omissions therefrom. You and your
Representatives shall not directly or indirectly initiate contact or
communication with any executive or employee of the Company other than Sanjay K.
Jha concerning Evaluation Material, or to seek any information in connection
therewith from any such person other than Sanjay K. Jha, without the prior
consent of the Company.
5. All Evaluation Material shall remain the property of the Company.
Neither you nor any of your Representatives shall by virtue of our disclosure of
and/or your use of any Evaluation Material acquire any rights with respect
thereto, all of which rights (including all intellectual property rights) shall
remain exclusively with the Company.
6. You acknowledge that the Evaluation Material may constitute material
non-public information under applicable federal and state securities laws, and
that you shall not trade or engage in any derivative transaction, on the basis
of such information in violation of such laws.
7. You hereby represent and warrant to the Company that this letter
agreement has been duly authorized, executed and delivered by you, and is a
valid and binding obligation, enforceable against you in accordance with its
terms.
8. It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder.
9. You acknowledge that the value of the Evaluation Material to the Company
is unique and substantial, but may be impractical or difficult to assess in
monetary terms. In the event of an actual or threatened violation of this letter
agreement, in addition to any and all other remedies which may be available to
the Company, you expressly consent to the Company's seeking the enforcement of
this letter agreement by injunctive relief or specific performance, without
proof of actual damages.
10. Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of the Court of Chancery or other federal or state courts
of the State of Delaware in the event any dispute arises out of this letter
agreement or the transactions contemplated by this letter agreement, (b) agrees
that it shall not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (c) agrees that it shall not
bring any action relating to this letter agreement or the transactions
contemplated by this letter agreement in any court other than the Court of
Chancery or other federal or state courts of the State of Delaware, and each of
the parties irrevocably waives the right to trial by jury, and (d) each of the
parties irrevocably consents to service of process by a reputable overnight
delivery service, signature requested, to the address of such parties' principal
place of business or as otherwise provided by applicable law. THIS LETTER
AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION
AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS
EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.
11. This letter agreement contain the entire understanding of the parties
with respect to the subject matter hereof and thereof and may be amended only by
an agreement in writing executed by the parties hereto.
12. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be in writing and shall be deemed validly given, made or served, if (a) given by
telecopy and email, when such telecopy is transmitted to the telecopy number set
forth below and sent to the email address set forth below and the appropriate
confirmation is received or (b) if given by any other means, when actually
received during normal business hours at the address specified in this
subsection:
if to the Company: Motorola Mobility Holdings, Inc.
600 North US Highway 45
Libertyville, Illinois 60048
Attention: General Counsel
Facsimile: (847) 523-0727
with a copy to: Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, NY 10019
Attention: Patricia A. Vlahakis
Gregory E. Ostling
Facsimile: (212) 403-2000
if to the Icahn Group: c/o Icahn Associates Corp.
767 Fifth Avenue, 47th Floor
New York, NY 10153
Attention: Keith Schaitkin (kls@sfire.com)
Tara Keating (tk@sfire.com)
Facsimile: (212) 688-1158
13. If at any time subsequent to the date hereof, any provision of this
letter agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon the legality or enforceability of any other provision of this letter
agreement.
14. This letter agreement may be executed in two or more counterparts which
together shall constitute a single agreement.
15. This letter agreement and the rights and obligations herein may not be
assigned or otherwise transferred, in whole or in part, by you without the
express written consent of the Company.
16. This letter agreement shall expire two years from the date on which the
Icahn Designee ceases to be a director of the Company.
Please confirm your agreement with the foregoing by signing and returning one
copy of this letter to the undersigned, whereupon this letter agreement shall
become a binding agreement between you and the Company.
Very truly yours,
MOTOROLA MOBILITY HOLDINGS, INC.
By: /s/ Marshall Brown
------------------
Name: Marshall Brown
Title: Vice President
[Signature Page to the Confidentiality Agreement between Motorola Mobility
Holdings and Icahn Group, dated November 30, 2010]
Accepted and agreed as of the date first written above:
Icahn Partners LP
By: /s/ Keith Cozza
---------------
Name: Keith Cozza
Title: Chief Compliance Officer
Icahn Partners Master Fund LP
By: /s/ Keith Cozza
---------------
Name: Keith Cozza
Title: Chief Compliance Officer
High River Limited Partnership
By: Hopper Investments LLC, its general partner
By: Barberry Corp., its sole member
By: /s/ Keith Cozza
---------------
Name: Keith Cozza
Title: Secretary and Treasurer
/s/ Carl C. Icahn
-----------------
Carl C. Icahn
/s/ Daniel A. Ninivaggi
-----------------------
Daniel A. Ninivaggi
[Signature Page to the Confidentiality Agreement between Motorola Mobility
Holdings and Icahn Group, dated November 30, 2010]
SCHEDULE A
----------
Icahn Partners LP
Icahn Partners Master Fund LP
High River Limited Partnership
Carl C. Icahn
Daniel A. Ninivaggi