LOCKUP AGREEMENT

        This Lockup Agreement ("Agreement") by and between Spencer F. Segura Family Trust ("Seller") and Motorola, Inc. ("Motorola") sets out the terms and conditions of the agreement by Seller to tender 117,267 shares of common stock, par value $0.01, (the "Shares") of Next Level Communications, Inc. ("Next Level") pursuant to the Offer (as defined below) made by Motorola, Inc. ("Motorola").

1.    The Offer and Acceptance    

        1.1.    Tender Offer.    Motorola has made a tender offer to purchase all outstanding Shares, not owned by Motorola or its subsidiaries, pursuant an Offer to Purchase filed with the Securities and Exchange Commission on January 27, 2003, as the same has been amended from time to time (as so amended, the "Offer"). The Offer will be amended to provide for an Offer price of $1.18 per Share.

        1.2.    Deposit of Shares.    Subject to the terms and conditions hereof, Seller shall, no later than March 28, 2003, accept the Offer by depositing all 117,267 Shares owned by it and any additional Shares Seller may become beneficial owner of, including but not limited to the exercising of stock options or warrants ("Seller's Shares"), together with a completed and executed letter of transmittal similar in form to Exhibit (a)(l)(ii) in the Offer to Purchase with respect to Seller's Shares with Mellon Investor Services LLC.

        1.3.    Non-Withdrawal.    Subject to the terms and conditions hereof, Seller irrevocably agrees not to withdraw or take any action to withdraw any of Seller's Shares deposited pursuant to the Offer, notwithstanding any withdrawal rights it may have under the terms of the Offer or otherwise, unless this Agreement is terminated in accordance with its terms, prior to Motorola accepting for payment and paying for Seller's Shares pursuant to the Offer.

2.    Representations and Warranties    

        2.1.    Representation and Warranties of Seller.    Seller hereby represents and warrants to Motorola that:

        (a)  Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, and Seller has all requisite power and authority to enter into this Agreement, to carry out its obligations hereunder and to sell Seller's Shares to Motorola pursuant to the Offer without the consent or approval of any other person that has not been obtained;

        (b)  the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by Seller;

        (c)  Neither the execution and delivery of this Agreement by Seller nor consummation of the transactions contemplated hereby by the Seller (i) violates or conflicts with any provision of any certificate of incorporation, bylaws, certificate of formation, operating agreement or any other organizational document applicable to Seller, (ii) violates or conflicts with any law, statute, rule, regulation, judgment, order, injunction or decree applicable to the Seller, or (iii) violates, conflicts with, results in a breach of any provision of, constitutes a default under, or results in the termination of, any of the terms, conditions or provisions of any agreement or other obligation to which the Seller is a party;

        (d)  Seller has duly executed and delivered this Agreement. This Agreement constitutes a valid and binding obligation enforceable against Seller in accordance with its terms, subject to bankruptcy, insolvency, and other laws of general application limiting the enforcement of creditors' rights generally and to general principles of equity;


 

End of Preview

 

Home        Intelligence        Services        Subscriptions        News        About Us

Contact Us       Terms of Use       Resend Documents       Shopping Cart

Copyright © 2008 The Consus Group LLC