<PAGE> 1
AS FILED ELECTRONICALLY WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1,
1996
REGISTRATION NO. 333-01223
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LUCENT TECHNOLOGIES INC.
<TABLE>
<S> <C>
A DELAWARE I.R.S. EMPLOYER
CORPORATION NO. 22-3408857
</TABLE>
600 MOUNTAIN AVENUE, MURRAY HILL, NEW JERSEY 07974
(908) 582-8500
AGENT FOR SERVICE
RICHARD J. RAWSON
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
600 MOUNTAIN AVENUE,
MURRAY HILL, NEW JERSEY 07974
(908) 582-8500
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY STATE.
SUBJECT TO COMPLETION
PROSPECTUS DATED APRIL 1, 1996
$3,500,000,000
LUCENT TECHNOLOGIES LOGO
NOTES AND WARRANTS
------------------------
Lucent Technologies Inc. (the "Company"), directly, through agents
designated from time to time, or through dealers or underwriters also to be
designated, may sell from time to time notes, debentures and other debt
securities (the "Notes") of the Company, and Warrants (the "Warrants") to
purchase Notes, for an aggregate offering price of up to $3,500,000,000, or the
equivalent thereof in one or more foreign currencies or currency units, on terms
to be determined at the time of sale. The specific designation, aggregate
principal amount, maturities, rates or method of calculating rates and time of
payment of interest, purchase price, any terms for redemption or repayment, the
currencies or currency units in which the Notes are denominated or payable,
whether the Notes are issuable in registered form or bearer form (with or
without interest coupons) or both, or in uncertificated form, whether Notes
initially will be represented by a single temporary or permanent global Note,
the duration, purchase price, exercise price and detachability of any Warrants,
and the agent, dealer or underwriter, if any, in connection with the sale of,
and any other terms with respect to, the Notes and/or Warrants in respect of
which this Prospectus is being delivered are set forth in the accompanying
Prospectus Supplement ("Prospectus Supplement"). The Company reserves the sole
right to accept and, together with its agents from time to time, to reject in
whole or in part any proposed purchase of Notes or Warrants to be made directly
or through agents.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
If an agent of the Company or a dealer or an underwriter is involved in the
sale of the Notes or Warrants in respect of which this Prospectus is being
delivered, the agent's commission or dealer's or underwriter's discount is set
forth in, or may be calculated from, the Prospectus Supplement and the net
proceeds to the Company from such sale will be the purchase price of such Notes
or Warrants less such commission in the case of an agent, the purchase price
of such Notes or Warrants in the case of a dealer or the public offering price
less such discount in the case of an underwriter, and less, in each case, the
other attributable issuance expenses. The aggregate proceeds to the Company
from all the Notes and Warrants will be the purchase price of Notes and
Warrants sold, less the aggregate of agents' commissions and dealers' and
underwriters' discounts and other expenses of issuance and distribution. The
net proceeds to the Company from the sale of Notes and Warrants are also set
forth in the Prospectus Supplement. See "Plan of Distribution" for possible
indemnification arrangements for the agents, dealers and underwriters.
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, 1996
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR
THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS
AND PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR BY ANY AGENT, DEALER OR UNDERWRITER. THE DELIVERY OF THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT SHALL NOT IMPLY THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS AND PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO
WHICH THEY RELATE.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 ("Exchange Act") and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission ("SEC"). Such reports, proxy statements and other information filed
by the Company can be inspected and copied at the public reference facilities
maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, DC 20549, and at the regional offices of the SEC located at 13th
Floor, 7 World Trade Center, New York, NY 10048 and Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, IL 60661-2511. Such material can
also be inspected at the New York Stock Exchange. Copies of such material can
also be obtained at prescribed rates from the Public Reference Section of the
SEC, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549.
------------------------
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the SEC (File
No. 1-11639) and are incorporated herein by reference.
(1) The Company's Registration Statement on Form 10 (No. 1-11639) filed
with the Commission on February 26, 1996 (the "Form 10") including the exhibits
thereto, as amended by Amendment No. 1 thereto filed on Form 10/A on March 12,
1996 and Amendment No. 2 thereto filed on Form 10/A on March 22, 1996 and
Amendment No. 3 thereto filed on Form 10/A on April 1, 1996.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Notes and Warrants shall be deemed to be
incorporated by reference in this Prospectus and to be part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein or in the accompanying Prospectus
Supplement modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
COPIES OF THE ABOVE DOCUMENTS, OTHER THAN EXHIBITS UNLESS SPECIFICALLY
INCORPORATED BY REFERENCE INTO THE INFORMATION THAT THIS PROSPECTUS
INCORPORATES, MAY BE OBTAINED UPON REQUEST WITHOUT CHARGE FROM THE SECRETARY'S
DEPARTMENT, LUCENT TECHNOLOGIES INC., 600 MOUNTAIN AVENUE, MURRAY HILL, NEW
JERSEY 07974 (TELEPHONE NUMBER 908-582-8500).
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THE COMPANY
The Company was incorporated in November 1995 under the laws of the State
of Delaware and has its principal executive offices at 600 Mountain Avenue,
Murray Hill, New Jersey 07928 (telephone number 908-582-8500).
The Company is one of the world's leading designers, developers and
manufacturers of telecommunications systems, software and products. The Company
is a global market leader in the sale of public telecommunications network
systems, business communications systems and microelectronic components for
communications applications. Further, the Company is the largest supplier in the
United States of telecommunications products for consumers. In addition, the
Company supports network operators and businesses with engineering,
installation, maintenance and operations support services. The Company's
research and development activities are conducted through Bell Laboratories,
which consists of approximately three-quarters of the total resources of AT&T's
former Bell Laboratories division.
The Company's systems for network operators enable network operators to
provide wireline and wireless local, long-distance and international voice, data
and video services. The Company's networks include switching, transmission and
cable systems packaged and customized with application software, operations
support systems and associated professional services. The Company's business
systems are primarily customer premises-based telecommunications systems that
enable businesses to communicate within and between locations. The Company
designs, develops and sells high-performance integrated circuits, electronic
power systems and optoelectronic components for communications applications,
both for other manufacturers and for incorporation into its own systems and
products. In addition, the Company offers a wide range of communications
products in the United States for consumers and small businesses, including
corded, cordless and cellular telephones, telephone answering systems and
related accessories.
The Company is a majority owned subsidiary of AT&T Corp. ("AT&T"). AT&T has
announced its intention, subject to the satisfaction of certain conditions, to
divest its ownership interest in the Company by December 31, 1996 by means of a
tax-free distribution to its shareholders.
RECENT DEVELOPMENTS
The Company's business is highly seasonal, with revenue and net income
concentrated in the fourth quarter of the year. Consequently, during the three
quarters ending in March, June and September, the Company historically has not
been as profitable as in the quarter ending in December, and the Company
traditionally incurs losses in the first quarter. Such seasonality also causes
the Company's cash flow requirements to vary greatly from quarter to quarter.
In the first quarter of 1996, the Company expects to incur a net loss
before cumulative effects of accounting changes, net of taxes in the range of
$100 million to $140 million as compared to a net loss of $22 million in the
first quarter of 1995. For the second quarter of 1996, the Company expects that
it may earn substantially less than the $159 million earned in the second
quarter of 1995, resulting in a loss for the first half of 1996. There are
several factors influencing the significantly lower operating results
anticipated for the first half of 1996: (i) one-time expenses associated with
the Company's transition to operation as an independent publicly held company,
including replication and modification of information, payroll and financial
systems, and development of corporate identity programs; (ii) increased selling,
general and administrative expenses associated with plans that pre-date the
Company's restructuring decisions; (iii) the planned increase in expenditure by
the Company for research and development; and (iv) one-time costs associated
with the integration of the businesses purchased from Philips Electronics NV in
February 1996. The impact on selling, general and administrative expenses of the
actions taken in connection with the Company's strategic reorganization is not
expected to be realized until the second quarter of 1996 and subsequent periods.
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USE OF PROCEEDS
The Company intends to use the proceeds from the sale of the Notes and
Warrants towards refunding of debt, capital expenditures and general corporate
purposes. The specific use of proceeds will be indicated in the accompanying
Prospectus Supplement hereto. The amount and timing of the sales of the Notes
and Warrants will depend on market conditions and the availability of other
funds to the Company.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the unaudited historical ratios of earnings
to fixed charges of the Company and its subsidiaries.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
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1995 1994 1993 1992 1991
- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
-- 3.2 2.8 1.7 --
</TABLE>
For the purpose of calculating the ratio: (i) earnings have been calculated
by adding fixed charges to income before income taxes, and by deducting
therefrom interest capitalized during the period and the Company's share of the
undistributed income in less-than-fifty-percent-owned affiliates; and (ii) fixed
charges comprise total interest (including capitalized interest) and the portion
of rentals representative of the interest factor. For the years ended December
31, 1995 and 1991, the ratio computations indicate that earnings were inadequate
to cover fixed charges by $1,154 million and $1,529 million, respectively. The
years ended December 31, 1995 and 1991 include pre-tax restructuring and other
charges of $2,801 million and $1,006 million, respectively.
DESCRIPTION OF THE NOTES
The Notes are to be issued under an indenture (the "Indenture"), dated as
of April 1, 1996, between the Company and The Bank of New York, as Trustee (the
"Trustee").
A copy of the Indenture is filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by, reference to all the provisions of the Indenture. References are to the
Indenture, and wherever particular provisions are referred to, such provisions
are incorporated by reference as part of the statement made, and the statement
is qualified in its entirety by such reference.
GENERAL
The Indenture does not limit the aggregate principal amount of Notes which
may be issued thereunder and provides that the Notes may be issued from time to
time in one or more series. Reference is made to the Prospectus Supplement which
accompanies this Prospectus for a description of the Notes being offered thereby
including: (1) the aggregate principal amount of such Notes; (2) the percentage
of their principal amount at which such Notes will be sold; (3) the date(s) on
which such Notes will mature, or whether such Notes are payable on demand; (4)
the rate(s) per annum at which such Notes will bear interest, if any, or the
method of calculating such rate or rates of interest; (5) the times at which
such interest, if any, will be payable; (6) the terms for redemption or early
repayment, if any; (7) the denominations in which such Notes are authorized to
be issued; (8) the coin or currency in which the Notes are denominated, which
may be a composite currency such as the European Currency Unit; (9) any
provision enabling payments of the principal of or any premium or interest on
the Notes in a coin or currency other than the currency in which the Notes are
denominated, including a non-U.S. dollar denominated currency; (10) the manner
in which the amount of payments of principal of and any premium or interest on
the Notes is to be determined if such determination is to be made with reference
to one or more indexes; (11) whether such Notes are issuable in registered form
("registered Notes") or bearer form (with or without interest coupons) ("bearer
Notes") or both, and whether such Notes shall be uncertificated; (12) whether
any series of Notes will be represented by one or more temporary or permanent
global securities and, if so, whether any such global securities will be in
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registered or bearer form, the identity of the depository for such global
security or securities and the method of transferring beneficial interests in
such global security or securities; (13) if a temporary global security is to be
issued with respect to a series or any portion thereof, the terms upon which
interests in such temporary global security may be exchanged for interests in a
permanent global security or for definitive Notes of the series and the terms
upon which interest in a permanent global security, if any, may be exchanged for
definitive Notes of the series; (14) information with respect to book-entry
procedures, if any; (15) whether and under what circumstances the Company will
pay additional amounts on any Notes held by a person who is not a United States
person in respect of taxes or similar charges withheld and, if so, whether the
Company will have the option to redeem such Notes rather than pay such
additional amounts; and (16) any other terms, including any terms which may be
required by or advisable under United States laws and regulations or advisable
in connection with the marketing of the Notes of such series, which will not be
inconsistent with the provisions of the Indenture.
Notes of any series may be registered Notes or bearer Notes or both as
specified in the terms of the series. Additionally, Notes of any series may be
represented by a single global note registered in the name of a depository's
nominee and, if so represented, beneficial interests in such global note will be
shown on, and transfers thereof will be effected only through, records
maintained by a designated depository and its participants. Notes of any series
may also be uncertificated. Unless otherwise indicated in the Prospectus
Supplement, no bearer Notes (including Notes in permanent global bearer form, as
described below) will be offered, sold, resold or delivered, directly or
indirectly, to persons who are within the United States or its possessions or to
any United States person in connection with their original issuance or their
exchange for a portion of a temporary or permanent global Note. For purposes of
this Prospectus, "United States person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or of any political subdivision
thereof, or an estate or trust the income of which is subject to United States
Federal income taxation regardless of its source.
Unless otherwise indicated in the Prospectus Supplement, principal and
interest, if any, will be payable at the office of one or more paying agents as
specified in the Prospectus Supplement; provided that payment of interest may be
made at the option of the Company by check mailed to the address of the person
entitled thereto as it appears in the register of the Notes. To the extent set
forth in the Prospectus Supplement, except in special circumstances set forth in
the Indenture, interest, if any, on bearer Notes will be payable only against
presentation and surrender of the coupons for the interest installments
evidenced thereby as they mature at the office of a paying agent of the Company
located outside of the United States and its possessions. The Company will
maintain one or more such agents for a period of two years after the principal
of such bearer Notes has become due and payable. During any period thereafter
for which it is necessary in order to conform to United States tax laws or
regulations, the Company will maintain a paying agent outside of the United
States and its possessions to which the bearer Notes and coupons related thereto
may be presented for payment and will provide the necessary funds therefor to
such paying agent upon reasonable notice.
Bearer Notes and the coupons related thereto will be transferable by
delivery. Unless otherwise indicated in the Prospectus Supplement, registered
Notes will be transferable at the office of one or more transfer or paying
agents as specified in the Prospectus Supplement.
The Notes will be unsecured obligations of the Company and will rank pari
passu with all other unsecured and unsubordinated indebtedness of the Company.
Unless otherwise indicated in the Prospectus Supplement, the Notes will be
issued only in denominations of $25,000, or the equivalent thereof in the case
of Notes denominated in a foreign currency or currency unit (rounded downward to
an integral multiple of 1,000 units of such foreign currency or currency unit),
and any integral multiple of $1,000 over $25,000, or, in the case of Notes
denominated in a foreign currency or currency unit, 1,000 units of such currency
or currency unit, or in such other denominations, not less than $25,000, as may
be specified in the terms of Notes of any particular series. No service charge
will be made for any transfer or exchange of such Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
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Notes may be issued as original issue discount Notes (bearing no interest
or interest at a rate which at the time of issuance is below market rates) to be
sold at a substantial discount below their stated principal amount. Federal
income tax consequences and other special considerations applicable to any such
original issue discount Notes will be described in the Prospectus Supplement
relating thereto.
Registered Notes may be exchanged for an equal aggregate principal amount
of registered Notes of the same series having the same date of maturity,
interest rate, original issue date and other terms in such authorized
denominations as may be requested upon surrender of the registered Notes to a
transfer agent of the Company as specified in the Prospectus Supplement and upon
fulfillment of all other requirements of such agent.
To the extent permitted by the terms of a series of Notes authorized to be
issued in registered form and bearer form, bearer Notes may be exchanged for an
equal aggregate principal amount of registered or bearer Notes of the same
series having the same date of maturity, interest rate, original issue date and
other terms in such authorized denominations as may be requested upon delivery
of the bearer Notes with all unpaid coupons relating thereto to a transfer or
paying agent of the Company as specified in the Prospectus Supplement and upon
fulfillment of all other requirements of such agent. Registered Notes will not
be exchangeable for bearer Notes.
TEMPORARY GLOBAL NOTES
If so specified in the Prospectus Supplement, all or any portion of the
Notes of a series that are issuable as bearer Notes initially will be
represented by one or more temporary global Notes, without interest coupons, to
be deposited with a common depository in London for Morgan Guaranty Trust
Company of New York, Brussels Office, as operator of the Euroclear System
("Euroclear"), and CEDEL S.A. ("CEDEL") for credit to the respective accounts of
the beneficial owners of such Notes (or to such other accounts as they may
direct). On and after the exchange date determined as provided in any such
temporary global Note and described in the Prospectus Supplement, the interest
in such temporary global Note will be exchangeable for definitive Notes in
bearer form, registered form, or permanent global form, or any combination
thereof, as specified in the Prospectus Supplement.
The Prospectus Supplement will set forth the procedures by which interest
in respect of any portion of a temporary global Note payable in respect of an
Interest Payment Date (as defined in such Prospectus Supplement) occurring prior
to the issuance of definitive Notes will be paid.
PERMANENT GLOBAL NOTES
If any Notes of a series are issuable in either bearer or registered
permanent global form, the Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in any such
permanent global Note may exchange such interests for Notes of such series and
of like tenor and principal amount in any authorized form and denomination. A
person having a beneficial interest in a permanent global Note, except with
respect to payment of principal of, premium, if any, and any interest on such
permanent global Note, will be treated as a holder of such principal amount of
outstanding Notes represented by such permanent global Note as shall be
specified in a written statement of the holder of such permanent global Note, or
in the case of a permanent global Note in bearer form, of Euroclear or CEDEL
which is produced to the Trustee by such person. Principal of, premium, if any,
and any interest on a permanent global Note will be payable in the manner
described in the Prospectus Supplement.
COVENANTS
Limitation on Secured Indebtedness. The Company covenants in the Indenture
that it will not, and will not permit any Restricted Subsidiary to, create,
assume, incur or guarantee any Secured Indebtedness without securing the Notes
equally and ratably with such Secured Indebtedness unless immediately thereafter
the aggregate amount of all Secured Indebtedness (not including Secured
Indebtedness with which the Notes are equally and ratably secured or Secured
Indebtedness which is concurrently being retired) and the discounted present
value of all net rentals payable under leases entered into in connection with
sale and leaseback
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transactions (as further described below) would not exceed 15% of Consolidated
Net Tangible Assets. (Section 4.03)
Limitation on Sale and Leaseback Transactions. The Company covenants in
the Indenture that it will not, and will not permit any Restricted Subsidiary
to, enter into any lease longer than three years (not including leases of newly
acquired, improved or constructed property) covering any Principal Property of
or any Restricted Subsidiary that is sold to any other person in connection with
such lease, unless either (a) immediately thereafter, the sum of (i) the
discounted present value of all net rentals payable under all such leases
entered into after January 31, 1996 (except any such leases entered into by a
Restricted Subsidiary before the time it became a Restricted Subsidiary) and
(ii) the aggregate amount of all Secured Indebtedness (not including Secured
Indebtedness with which the Notes are equally and ratably secured) does not
exceed 15% of Consolidated Net Tangible Assets, or (b) an amount equal to the
greater of (x) the net proceeds to the Company or a Restricted Subsidiary from
such sale and (y) the discounted present value of all net rentals payable
thereunder, is applied within 180 days to the retirement of long-term debt of
the Company or a Restricted Subsidiary (other than such debt which is
subordinate to the Notes or which is owing to the Company or a Restricted
Subsidiary). (Section 4.04)
Certain Definitions. "Secured Indebtedness" means indebtedness of the
Company or any Restricted Subsidiary for borrowed money secured by any lien upon
(or in respect of any conditional sale or other title retention agreement
covering) any Principal Property or the stock or indebtedness of a Restricted
Subsidiary, but excluding from such definition all indebtedness: (i) outstanding
on February 1, 1996 secured by liens (or arising from conditional sale or other
title retention agreements) existing on that date; (ii) incurred after January
31, 1996 to finance the acquisition, improvement or construction of such
property and either secured by purchase money mortgages or liens placed on such
property within 180 days of acquisition, improvement or construction or arising
from conditional sale or other title retention agreements; (iii) secured by
liens on Principal Property or the stock or indebtedness of Restricted
Subsidiaries and existing at the time of acquisition thereof; (iv) owing to the
Company or any other Restricted Subsidiary; (v) secured by liens existing at the
time a corporation becomes a Restricted Subsidiary; (vi) incurred to finance the
acquisition or construction of property secured by liens in favor of any country
or any political subdivision thereof; and (vii) constituting any replacement,
extension or renewal of any such indebtedness (to the extent such indebtedness
is not increased). "Principal Property" means land, land improvements, buildings
and associated factory, laboratory, office and switching equipment (excluding
all products marketed by the Company or any of its subsidiaries) constituting a
manufacturing, development, warehouse, service, office or operating facility
owned by or leased to the Company or a Restricted Subsidiary, located within the
United States and having an acquisition cost plus capitalized improvements in
excess of 1.25 per cent of Consolidated Net Tangible Assets as of the date of
such determination, other than any such property financed through the issuance
of tax-exempt governmental obligations, or which the Board of Directors
determines is not of material importance to the Company and its Restricted
Subsidiaries taken as a whole, or in which the interest of the Company and all
its subsidiaries does not exceed 50%. "Consolidated Net Tangible Assets" means
the total assets of the Company and its subsidiaries, less current liabilities
and certain intangible assets (other than product development costs).
"Restricted Subsidiary" means (i) any Subsidiary of the Company which has
substantially all its property in the United States, which owns or is a lessee
of any Principal Property and in which the investment of the Company and all its
Subsidiaries exceeds 1.25 per cent of Consolidated Net Tangible Assets as of the
date of such determination, other than certain financing Subsidiaries and
Subsidiaries formed or acquired after January 31, 1996 for the purpose of
acquiring the business or assets of another person and that do not acquire all
or any substantial part of the business or assets of the Company or any
Restricted Subsidiary and (ii) any other Subsidiary designated by the Board of
Directors of the Company as a Restricted Subsidiary. "Subsidiary" means any
corporation a majority of the voting shares of which are at the time owned or
controlled directly or indirectly, by the Company or by one or more
Subsidiaries, or by the Company and one or more Subsidiaries. (Section 1.01)
Limitation on Consolidation, Merger, Sale or Conveyance of Assets. Nothing
in the Indenture shall prevent any consolidation of the Company with, or merger
of the Company into, any other corporation or corporations (whether or not
affiliated with the Company), or successive consolidations or mergers to which
the Company or its successor or successors shall be a party or parties, or shall
prevent any sale or conveyance
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of the property of the Company (including stock of subsidiaries) as an entirety
or substantially as an entirety to any other corporation (whether or not
affiliated with the Company) authorized to acquire and own or operate the same;
provided that the Company covenants in the Indenture that upon any such
consolidation, merger, sale or conveyance, the due and punctual payment of the
principal of (and premium, if any) and interest on all of the Notes of each
series, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of the Indenture to be
performed or observed by the Company shall be expressly assumed, by supplemental
indenture executed and delivered to the Trustee by the corporation formed by
such consolidation, or into which the Company shall have been merged, or which
shall have acquired such property. The Indenture does not contain any covenants
or provisions which would afford protection to Noteholders in the event of a
highly leveraged transaction. (Section 5.01)
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that, if an Event of Default specified therein in
respect of any series of Notes shall have happened and be continuing, either the
Trustee or the holders of 25% in principal amount of the outstanding Notes of
such series may declare the principal of all of the Notes of such series to be
due and payable. (Section 6.01).
Events of Default in respect of the Notes of any series are defined in the
Indenture as being: default for 90 days in payment of any interest installment
when due; unless otherwise specified in the Prospectus Supplement with respect
to the Notes of any series, default in payment of principal of or premium, if
any, on Notes of such series when due; default for 90 days after written notice
to the Company by the Trustee or by the holders of 25% in principal amount of
the outstanding Notes of such series in performance of any agreement in the
Notes or Indenture in respect of such series; and certain events of bankruptcy,
insolvency and reorganization. (Section 6.01)
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default in respect of any series of Notes, give to the holders
of such series notice of all uncured and unwaived defaults known to it; provided
that, except in the case of default in payment on any of the Notes of such
series, the Trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
holders of such series. The term "default" for the purpose of this provision
means any event which is, or after notice or passage of time or both would be,
an Event of Default. (Section 7.05)
The Indenture contains provisions entitling the Trustee, subject to the
duty of the Trustee during an Event of Default in respect of any series of Notes
to act with the required standard of care, to refuse to perform any duty or
exercise any right or power unless it receives indemnity satisfactory to it.
(Section 7.01)
The Indenture provides that the holders of a majority in principal amount
of the outstanding Notes of any series may direct the time, method and place of
conducting proceedings for remedies available to the Trustee, or exercising any
trust or power conferred on the Trustee, in respect of such series. (Section
6.06)
In certain cases, the holders of a majority in principal amount of the
outstanding Notes of a series may on behalf of the holders of all Notes of such
series waive any past default or Event of Default, or compliance with certain
provisions of the Indenture, except among other things a default in payment of
the principal of, premium, if any, or interest on, any of the Notes of such
series. (Sections 6.01 and 6.06)
The terms for any series of Notes may provide that the holders of Notes of
such series shall act as one class together with the holders of Notes of one or
more other series in voting, giving notice, waiving, giving directions or taking
any other specified, permitted or authorized action.
DISCHARGE AND DEFEASANCE
Under terms satisfactory to the Trustee, the Company may discharge certain
obligations to holders of any series of Notes issued under the Indenture which
have not already been delivered to the Trustee for cancellation and which have
either become due and payable or are by their terms due and payable within one
year (or scheduled for redemption within one year) by irrevocably depositing
with the Trustee as trust funds an amount in cash sufficient to pay at maturity
(or upon redemption) the principal of and interest on such Notes. (Section 8.01)
8
<PAGE> 10
In the case of any series of Notes the exact amounts (including the
currency of payment) of principal of and interest due on such series can be
determined at the time of making the deposit referred to below, the Company at
its option may also (i) discharge any and all of its obligations to holders of
such series of Notes ("defeasance") on the 91st day after the conditions set
forth below have been satisfied, but may not thereby avoid its duty to register
the transfer or exchange of such series of Notes, to replace any temporary,
mutilated, destroyed, lost or stolen Notes of such series or to maintain an
office or agency in respect of such series of Notes, or (ii) be released with
respect to such series of Notes from the obligations imposed by the covenants
described under "Covenants" above ("covenant defeasance"). Defeasance and
covenant defeasance may be effected only if, among other things, (i) the Company
irrevocably deposits with the Trustee as trust funds (a) money in an amount, (b)
in the case of Notes payable only in U.S. Dollars, U.S. Government Obligations
which through the payment of interest and principal in respect thereof will
provide money in an amount or (c) a combination of (a) and (b), certified by a
nationally recognized firm of independent public accountants to be sufficient to
pay each installment of principal of and interest on all outstanding Notes of
such series on the dates such installments of principal and interest are due;
and (ii) the Company delivers to the Trustee an opinion of independent counsel
to the effect that the holders of such series of Notes will not recognize gain
or loss for United States Federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to United States Federal
income tax on the same amount and in the same manner and at the same time as
would have been the case if such defeasance or covenant defeasance had not
occurred (which opinion may include or be based on a ruling to that effect
received from or published by the Internal Revenue Service). "U.S. Government
Obligations" means (i) direct obligations of the United States of America for
the payment of which the full faith and credit of the United States of America
is pledged; or (ii) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America. (Sections 1.01 and 8.02)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in principal amount of the
outstanding Notes of each series affected thereby (with such series voting as a
separate class), to execute supplemental indentures adding any provisions to or
changing or eliminating any of the provisions of the Indenture or modifying the
rights of the holders of Notes of each such series, except that no such
supplemental indenture may, without the consent of each holder affected, among
other things, change the maturity of any Notes, or change the principal amount
thereof, or any premium thereon, or change the rate or change the time of
payment of interest thereon, make any Note payable in money other than that
stated in the Note, or reduce the aforesaid percentage of outstanding Notes.
(Sections 9.01 and 9.02)
CONCERNING THE TRUSTEE
The Company may from time to time maintain lines of credit, and have other
customary banking relationships, with The Bank of New York, the Trustee under
the Indenture.
DESCRIPTION OF THE WARRANTS
The Company may issue Warrants for the purchase of Notes. Warrants may be
issued independently or together with any Notes offered by any Prospectus
Supplement and may be attached to or separate from such Notes. The Warrants will
be issued under a Warrant Agreement to be entered into between the Company and a
bank or trust company, as Warrant Agent, and may be issued in one or more
series, all as set forth in the Prospectus Supplement relating to the particular
issue of Warrants. The Warrant Agent will act solely as an agent of the Company
in connection with the Warrants and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
Warrants. The following summaries of certain provisions of the form of Warrant
Agreement do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, the provisions of the form of Warrant Agreement
(including the form of certificate evidencing the Warrants ("Warrant
Certificate")), copies of which are filed as exhibits to the Registration
Statement.
9
<PAGE> 11
GENERAL
If Warrants are offered, the Prospectus Supplement will describe the
following terms of the Warrants offered hereby (to the extent such terms are
applicable to such Warrants): (i) the offering price; (ii) the coin or currency
for which Warrants may be purchased, which may be a composite currency such as
the European Currency Unit; (iii) the date on which the right to exercise the
Warrants shall commence and the date on which such right shall expire or, if the
Warrants are not continuously exercisable throughout such period, the specific
date or dates on which they will be exercisable; (iv) whether the Warrants will
be issuable in registered or bearer form or both and whether the Warrants will
be issued in temporary and/or permanent global form, or in uncertificated form;
(v) the designation, aggregate principal amount, currency or currency unit and
other terms of the Notes purchasable upon exercise of the Warrants and, if such
Notes are issuable in bearer form, restrictions applicable to the purchase of
Notes in bearer form upon exercise of the Warrants; (vi) the designation and
terms of the Notes with which the Warrants are issued and the number of Warrants
issued with each such Note; (vii) the date on and after which the Warrants and
the related Notes will be separately transferable; (viii) the principal amount
of Notes purchasable upon exercise of one Warrant and the price at which and
currency or currency units in which such principal amount of Notes may be
purchased upon such exercise; (ix) United States Federal income tax
consequences; and (x) any other terms of the Warrants, including any terms which
may be required or advisable under United States laws or regulations.
Warrant Certificates may be exchanged for new Warrant Certificates of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office of
the Warrant Agent or any other office indicated in the Prospectus Supplement.
Prior to the exercise of their Warrants, holders of Warrants will not have any
of the rights of holders of the Notes purchasable upon such exercise, including
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Notes purchasable upon such exercise or to enforce covenants in the
Indenture.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase such principal amount of
Notes at such exercise price as shall in each case be set forth in, or
calculable from, the Prospectus Supplement relating to the Warrants. Warrants
may be exercised at any time up to 5:00 P.M. New York time on the date set forth
in the Prospectus Supplement relating to such Warrants. After such time on the
date (or such later date to which such date may be extended by the Company),
unexercised Warrants will become void.
Subject to any restrictions and additional requirements that may be set
forth in the Prospectus Supplement relating thereto, Warrants may be exercised
by delivery to the Warrant Agent of the Warrant Certificate evidencing such
Warrants properly completed and duly executed and of payment as provided in the
Prospectus Supplement of the amount required to purchase the Notes purchasable
upon such exercise. Warrants will be deemed to have been exercised upon receipt
of such Warrant Certificate and payment at the corporate trust office of the
Warrant Agent or any other office indicated in the Prospectus Supplement and the
Company will, as soon as practicable thereafter, issue and deliver the Notes
purchasable upon such exercise. If fewer than all of the Warrants represented by
such Warrant Certificate are exercised, a new Warrant Certificate will be issued
for the remaining amount of the Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Notes and Warrants being offered hereby in four
ways: (i) directly to purchasers, (ii) through agents, (iii) through dealers, or
(iv) through underwriters. Any or all of the foregoing may be customers of,
engage in transactions with or perform services for the Company in the ordinary
course of business.
Offers to purchase the Notes and Warrants may be solicited directly by the
Company or by agents designated by the Company from time to time. Any such
agent, who may be deemed to be an underwriter as that term is defined in the
Securities Act of 1933, as amended (the "Securities Act"), involved in the offer
or sale of the Notes and/or Warrants in respect of which this Prospectus is
delivered will be named, and any
10
<PAGE> 12
commission payable by the Company to such agent set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
Agents may be entitled under agreements, which may be entered into with the
Company, to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act.
If a dealer is utilized in the sale of the Notes and/or Warrants in respect
of which this Prospectus is delivered, the Company will sell such Notes and/or
Warrants to the dealer, as principal. The dealer may then resell such Notes
and/or Warrants to the public (or to other dealers for resale to the public at
prices to be determined by such other dealers) at varying prices to be
determined by such dealer at the time of resale. Dealers may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If the sale is accomplished through an underwriter or underwriters, the
Company will enter into an underwriting agreement with such underwriters at the
time of sale to them and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement, which will be used
by the underwriters to make resales of the Securities in respect of which this
Prospectus is delivered to the public. The underwriters may be entitled, under
the relevant underwriting agreement, to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Notes and/or Warrants from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on a specified future date. Institutions with
which Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, educational and charitable
institutions, and other institutions, but shall in all cases be subject to the
approval of the Company. Except as otherwise provided in the Prospectus
Supplement, Contracts will not be subject to any conditions except that the
purchase by an institution of the Notes covered by its Contract shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject. A commission indicated in the
Prospectus Supplement will be paid to agents and underwriters soliciting
purchases of the Notes and/or Warrants pursuant to Contracts accepted by the
Company.
The place and time of delivery for the Notes and/or Warrants in respect of
which this Prospectus is delivered are set forth in the accompanying Prospectus
Supplement.
FOR FLORIDA RESIDENTS
AT&T, the parent of the Company, provides telecommunications services
between the United States and Cuba jointly with Empresa de Telecomunicaciones
Internacionales de Cuba ("EMTELCUBA"), the Cuban telephone company, pursuant to
all applicable U.S. laws and regulations. All payments due EMTELCUBA are handled
in accordance with the provisions of the Cuban Assets Control Regulations and
the Cuban Democracy Act of 1992 and specific licenses issued thereunder. AT&T is
the sole owner of the Cuban American Telephone and Telegraph Company ("CATT"), a
Cuban corporation. CATT owns cable facilities between the United States and Cuba
that were activated on November 25, 1994.
This information is accurate as of the date hereof. Current information
concerning the Company's and its affiliates' business dealings with the
government of Cuba or with any person or affiliate located in Cuba may be
obtained from the Division of Securities and Investor Protection of the Florida
Department of Banking and Finance, the Capitol, Tallahassee, Florida 32399-0350,
telephone number (904) 488-9805.
LEGAL OPINIONS
Richard J. Rawson, Senior Vice President and General Counsel of the
Company, is passing upon the legality of the Notes and Warrants for the Company.
11
<PAGE> 13
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company and its subsidiaries at December 31, 1995 and 1994 and for the years
ended December 31, 1995, 1994 and 1993 incorporated by reference in this
Prospectus and Registration Statement have been incorporated herein in reliance
upon the report of Coopers & Lybrand L.L.P., independent auditors, given on the
authority of that firm as experts in accounting and auditing.
12
<PAGE> 14
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee............................ $1,206,897
Rating Agency Fees....................................................... 50,000*
Fees and Expenses of Trustee............................................. 5,000*
Printing and Distributing Prospectus and Miscellaneous Material.......... 125,000*
Accountants' Fees........................................................ 15,000*
Legal Fees and Expenses.................................................. 50,000*
Blue Sky Fees and Expenses............................................... 15,000*
Miscellaneous Expenses................................................... 33,103*
-------
Total.......................................................... $1,500,000*
=======
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation, a
"derivative action") if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, if they had no reasonable
cause to believe their conduct was unlawful. A similar standard is applicable in
the case of derivative actions, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with the defense or
settlement of such actions, and the statute requires court approval before there
can be any indemnification where the person seeking indemnification has been
found liable to the corporation. The statute provides that it is not exclusive
of other indemnification that may be granted by a corporation's bylaws,
disinterested director vote, stockholder vote, agreement or otherwise.
The Restated Certificate of Incorporation of the Company (the
"Certificate") provides that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person, or a person of whom such person is the legal
representative, is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, will be indemnified and held harmless by
the Company to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss reasonably incurred or
suffered by such person in connection therewith. Such right to indemnification
includes the right to have the Company pay the expenses incurred in defending
any such proceeding in advance of its final disposition, subject to the
provisions of the DGCL. Such rights are not exclusive of any other right which
any person may have or thereafter acquire under any statute, provision of the
Certificate, By-Law, agreement, vote of stockholders or disinterested directors
or otherwise. No repeal or modification of such provision will in any way
diminish or adversely affect the rights of any director, officer, employee or
agent of the Company thereunder in respect of any occurrence or matter arising
prior to any such repeal or modification. The Certificate also specifically
authorizes the Company to maintain insurance and to grant similar
indemnification rights to employees or agents of the Company.
II-1
<PAGE> 15
The DGCL permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability for (i) any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) payments of unlawful dividends or unlawful stock
repurchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
The Certificate provides that a director of the Company will not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except, if required by the DGCL as
amended from time to time, for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL, which concerns unlawful payments of
dividends, stock purchases or redemptions, or (iv) for any transaction from
which the director derived an improper personal benefit. Neither the amendment
nor repeal of such provision will eliminate or reduce the effect of such
provision in respect of any matter occurring, or any cause of action, suit or
claim that, but for such provision, would accrue or arise prior to such
amendment or repeal.
The Underwriting Agreements provide for indemnification by the Underwriters
of the registrant, its Directors and officers, and by the registrant of the
Underwriters, for certain liabilities, including liabilities arising under the
Act, and affords certain rights of contribution with respect thereto.
The Separation and Distribution Agreement by and among the Company, AT&T
Corp. ("AT&T") and NCR Corporation ("NCR") provides for indemnification by the
Company of AT&T and its directors, officers and employees for certain
liabilities, including liabilities under the Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C> <C>
1A -- Form of Underwriting Agreement
1B -- Form of Distribution Agreement
1C -- Form of International Distribution Agreement
4A -- Indenture dated as April 1, 1996, between the Company and The Bank of New York, as
Trustee*
4B -- Form of Permanent Global Registered Fixed Rate Note
4C -- Form of Definitive Registered Fixed Rate Note
4D -- Form of Temporary Global Bearer Fixed Rate Note
4E -- Form of Permanent Global Bearer Fixed Rate Note
4F -- Form of Definitive Bearer Fixed Rate Note*
4G -- Form of Warrant Agreement
4H -- Form of Medium Term Global Floating Rate Note, Registered Security
4I -- Form of Medium Term Definitive Floating Rate Note, Registered Security
5 -- Opinion of Richard J. Rawson, Senior Vice President and General Counsel of the
registrant, as to the legality of the securities being registered*
12 -- Computation of Ratio of Earnings to Fixed Charges (Exhibit 12.1 to the Company's
Registration Statement on Form 10 (File No. 1-11639))
23A -- Consent of Coopers & Lybrand L.L.P.*
</TABLE>
II-2
<PAGE> 16
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C> <C>
23B -- Consent of Richard J. Rawson, Senior Vice President and General Counsel of the
registrant, is contained in opinion of counsel filed as Exhibit 5*
25 -- Statement of Eligibility of the Trustee (Form T-1)*
27 -- Financial Data Schedule
</TABLE>
- ---------------
* Filed herewith. All other exhibits listed above have been previously filed.
(b) Financial Statement Schedules.
The following financial statement schedules are incorporated by reference
herein:
Schedule of Valuation and Qualifying Accounts (Schedule II to the
Company's Registration Statement on Form 10 (File No. 1-11639)).
Schedules not listed above have been omitted because information required
to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE> 17
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
* * * * *
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors and officers of the registrant pursuant to
the provisions referred to in the first, second, third and fifth paragraphs of
Item 15 above or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director or officer
of the registrant in the successful defense of any action, suit or proceeding)
is asserted against the registrant by such director or officer in connection
with the securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-4
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in Murray Hill, New Jersey on the 1st day of April,
1996.
LUCENT TECHNOLOGIES INC.
By /s/ HENRY B. SCHACHT
------------------------------------
Henry B. Schacht
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- --------------------------------- --------------
<S> <C> <C>
/s/ HENRY B. SCHACHT Chief Executive Officer April 1, 1996
- ---------------------------------------------
Henry B. Schacht
/s/ DONALD K. PETERSON Chief Financial Officer and Chief April 1, 1996
- --------------------------------------------- Accounting Officer
Donald K. Peterson
/s/ PAMELA F. CRAVEN Director April 1, 1996
- ---------------------------------------------
Pamela F. Craven
/s/ MAUREEN B. TART Director April 1, 1996
- ---------------------------------------------
Maureen B. Tart
/s/ MARILYN J. WASSER Director April 1, 1996
- ---------------------------------------------
Marilyn J. Wasser
</TABLE>
II-5
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- --------
<S> <C>
1A Form of Underwriting Agreement
1B Form of Distribution Agreement
1C Form of International Distribution Agreement
4A Indenture dated as of April 1, 1996, between the Company and The Bank of New York,
as Trustee*
4B Form of Permanent Global Registered Fixed Rate Note
4C Form of Definitive Registered Fixed Rate Note
4D Form of Temporary Global Bearer Fixed Rate Note
4E Form of Permanent Global Bearer Fixed Rate Note
4F Form of Definitive Bearer Fixed Rate Note*
4G Form of Warrant Agreement
4H Form of Medium Term Global Floating Rate Note, Registered Security
4I Form of Medium Term Definitive Floating Rate Note, Registered Security
5 Opinion of Richard J. Rawson, Senior Vice President and General Counsel of the
registrant, as to the legality of the securities being registered*
12 Statement re: Computation of Ratio of Earnings to Fixed Charges (Exhibit 12.1 to the
Company's Registration Statement on Form 10 (File No. 1-11639))
23A Consent of Coopers & Lybrand L.L.P.*
23B Consent of Richard J. Rawson, Senior Vice President and General Counsel of the
registrant, is contained in opinion of counsel filed as Exhibit 5*
25 Statement of Eligibility of the Trustee (Form T-1)*
27 Financial Data Schedule
</TABLE>
- ---------------
* Filed herewith. All other exhibits listed above have been previously filed.
<PAGE> 1
EXHIBIT 4A
LUCENT TECHNOLOGIES INC.
AND
THE BANK OF NEW YORK
TRUSTEE
------------
INDENTURE
DATED AS OF APRIL 1, 1996
------------
SECURITIES
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Reconciliation and tie between Indenture dated as of April 1, 1996 and the
Trust Indenture Act of 1939. This reconciliation section does not constitute
part of the Indenture.
Trust Indenture Act Indenture
of 1939 Section Section
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310(a)(1)....................................................... 7.10
(a)(2)....................................................... 7.10
(a)(3)....................................................... Inapplicable
(a)(4)....................................................... Inapplicable
(b).......................................................... 7.08; 7.10
(c).......................................................... Inapplicable
311(a).......................................................... 7.11
(b).......................................................... 7.11
(c).......................................................... Inapplicable
312(a).......................................................... 2.07
(b).......................................................... 10.03
(c).......................................................... 10.03
313(a).......................................................... 7.06
(b)(1)....................................................... Inapplicable
(b)(2)....................................................... 7.06
(c).......................................................... 10.02
(d).......................................................... 7.06
314(a).......................................................... 4.02; 10.02
(b).......................................................... Inapplicable
(c)(1)....................................................... 10.04
(c)(2)....................................................... 10.04
(c)(3)....................................................... Inapplicable
(d).......................................................... Inapplicable
(e).......................................................... 10.05
(f).......................................................... Inapplicable
315(a).......................................................... 7.01(b)
(b).......................................................... 7.05; 10.02
(c).......................................................... 7.01(a)
(d).......................................................... 7.01(c)
(e).......................................................... 6.07
316(a)(last sentence)........................................... 10.10
(a)(1)....................................................... 6.06
(a)(2)....................................................... Inapplicable
(b).......................................................... 6.04
317(a).......................................................... 6.02
(b).......................................................... 2.06
318(a).......................................................... 10.01
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TABLE OF CONTENTS*
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PARTIES........................................................... 1
RECITALS OF THE COMPANY:
Purpose of Indenture...................................... 1
Compliance with Legal Requirements........................ 1
Purpose of and Consideration for Indenture................ 1
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE.
Section 1.01. Definitions.......................... 1
Affiliate............................ 1
Agent................................ 2
Attributable Debt.................... 2
Authorized Newspaper................. 2
Board of Directors................... 3
Board Resolution..................... 3
Company.............................. 3
Company Order........................ 3
Consolidated Net Tangible Assets..... 3
Default.............................. 4
Depositary........................... 4
Funded Debt.......................... 4
Global Security...................... 5
Holder or Securityholder............. 5
Indebtedness......................... 5
Indenture............................ 6
Lien................................. 6
Officer.............................. 7
Officers' Certificate................ 8
Opinion of Counsel................... 8
Original Issue Discount Security..... 8
Principal............................ 8
Principal Property................... 8
Registered Security.................. 9
Responsible Officer.................. 9
Restricted Securities................ 10
Restricted Subsidiary................ 10
Sale and Leaseback Transaction....... 11
SEC.................................. 12
Secured Indebtedness................. 12
Series or Series of Securities....... 16
Securities........................... 16
Subsidiary........................... 16
TIA.................................. 16
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* The Table of Contents is not part of the Indenture.
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ARTICLE 1. (Continued)
Trust Indenture Act of 1939.............. 16
Trustee.................................. 17
U.S. Government Obligations.............. 17
U.S. Person.............................. 17
Unregistered Security.................... 18
Voting Shares............................ 18
Yield to Maturity........................ 18
Section 1.02. Other Definitions........................ 18
Section 1.03. Incorporation by Reference of
Trust Indenture Act...................... 18
Section 1.04. Rules of Construction.................... 19
ARTICLE 2.
THE SECURITIES.
Section 2.01. Issuable in Series....................... 20
Section 2.02. Establishment of Terms and Form of
Series of Securities..................... 21
Section 2.03. Execution, Authentication and Delivery... 25
Section 2.04. Registrar and Paying Agent............... 30
Section 2.05. Payment on Securities.................... 31
Section 2.06. Paying Agent to Hold Money in Trust...... 32
Section 2.07. Securityholder Lists; Ownership of
Securities............................... 32
Section 2.08. Transfer and Exchange.................... 34
Section 2.09. Replacement Securities................... 36
Section 2.10. Outstanding Securities................... 37
Section 2.11. Temporary Securities; Global Securities.. 38
Section 2.12. Cancellation............................. 42
Section 2.13. Defaulted Interest....................... 42
Section 2.14. CUSIP Numbers............................ 42
ARTICLE 3.
REDEMPTION.
Section 3.01. Notice to Trustee........................ 42
Section 3.02. Selection of Securities to be Redeemed... 43
Section 3.03. Notice of Redemption..................... 44
Section 3.04. Effect of Notice of Redemption........... 45
Section 3.05. Deposit of Redemption Price.............. 46
Section 3.06. Mandatory and Optional Sinking Funds..... 46
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ARTICLE 4.
COVENANTS.
Section 4.01. Payment of Securities.................... 51
Section 4.02. Reports by the Company................... 53
Section 4.03. Limitations on Liens..................... 54
Section 4.04. Limitations and Sales on Leasebacks...... 55
Section 4.05. Waiver of Covenants...................... 56
ARTICLE 5.
SUCCESSOR CORPORATION.
Section 5.01. Consolidation, Merger, Sale or
Conveyance............................... 56
Section 5.02. Assumption and Substitution.............. 57
Section 5.03. Opinion of Counsel....................... 59
ARTICLE 6.
DEFAULTS AND REMEDIES.
Section 6.01. Events of Default; Acceleration of
Maturity; Waiver of Default.............. 59
Section 6.02. Collection of Indebtedness by Trustee;
Trustee May Prove Debt................... 64
Section 6.03. Application of Proceeds.................. 69
Section 6.04. Limitation on Suits by Securityholders... 70
Section 6.05. Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default........ 72
Section 6.06. Control by Securityholders; Waiver of
Defaults................................. 73
Section 6.07. Right of Court to Require Filing of
Undertaking to Pay Costs................. 75
ARTICLE 7.
TRUSTEE.
Section 7.01. Duties of Trustee........................ 76
Section 7.02. Rights of Trustee........................ 78
Section 7.03. Individual Rights of Trustee............. 79
Section 7.04. Trustee Disclaimer....................... 79
Section 7.05. Notice of Default........................ 79
Section 7.06. Reports by Trustee to Holders............ 80
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ARTICLE 7. (Continued)
Section 7.07. Compensation and Indemnity............... 81
Section 7.08. Replacement of Trustee................... 82
Section 7.09. Successor Trustee, Agents by
Merger, etc.............................. 85
Section 7.10. Eligibility; Disqualification............ 85
Section 7.11. Preferential Collection of Claims
Against Company.......................... 86
ARTICLE 8.
DISCHARGE OF INDENTURE.
Section 8.01. Satisfaction and Discharge of Indenture.. 87
Section 8.02. Defeasance upon Deposit of Monies or
U.S. Government Obligations.............. 89
Section 8.03. Application of Monies Deposited.......... 92
Section 8.04. Repayment of Monies Held................. 92
Section 8.05. Return of Monies Unclaimed for
Two Years................................ 93
Section 8.06. Indemnity for Government Obligations..... 94
ARTICLE 9.
AMENDMENTS AND WAIVERS.
Section 9.01. Without Consent of Holders............... 94
Section 9.02. With Consent of Holders.................. 95
Section 9.03. Compliance with Trust Indenture Act...... 97
Section 9.04. Revocation and Effect of Consents........ 97
Section 9.05. Notation on or Exchange of Securities.... 98
Section 9.06. Trustee Protected........................ 98
ARTICLE 10.
MISCELLANEOUS.
Section 10.01. Trust Indenture Act Controls............. 99
Section 10.02. Notices.................................. 99
Section 10.03. Communication by Holders with
Other Holders............................ 101
Section 10.04. Certificate and Opinion as to
Conditions Precedent..................... 101
Section 10.05. Statements Required in Certificate
or Opinion............................... 102
Section 10.06. Legal Holidays........................... 103
Section 10.07. Governing Law............................ 103
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ARTICLE 10. (Continued)
Section 10.08. No Adverse Interpretation of Other
Agreements............................... 103
Section 10.09. No Recourse Against Others............... 103
Section 10.10. When Treasury Securities Disregarded..... 104
Section 10.11. Rules by Trustee, Paying Agent,
Registrar................................ 104
Section 10.12. Execution in Counterparts................ 105
Section 10.13. Securities in a Foreign Currency......... 105
Section 10.14. Judgment Currency........................ 107
SIGNATURES AND SEALS.................................................. 109
ACKNOWLEDGMENTS....................................................... 110
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INDENTURE dated as of April 1, 1996, between Lucent
Technologies Inc., a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Company"), and The Bank of New York, as
trustee, a corporation duly organized and validly existing under the laws of the
State of New York (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") as herein
provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.01. DEFINITIONS.
"Affiliate" means any person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
the Company.
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"Agent" means any Paying Agent or Registrar.
"Attributable Debt" means, as of the date of its
determination, the present value (discounted semiannually at an interest rate
implicit in the terms of the lease) of the obligation of a lessee for rental
payments pursuant to any Sale and Leaseback Transaction (reduced by the amount
of the rental obligations of any sublessee of all or part of the same property)
during the remaining term of such Sale and Leaseback Transaction (including any
period for which the lease relating thereto has been extended), such rental
payments not to include amounts payable by the lessee for maintenance and
repairs, insurance, taxes, assessments and similar charges and for contingent
rents (such as those based on sales), provided, however, that in the case of any
Sale and Leaseback Transaction in which the lease is terminable by the lessee
upon the payment of a penalty, Attributable Debt shall mean the lesser of the
present value of (a) the rental payments to be paid under such Sale and
Leaseback Transaction until the first date (after the date of such
determination) upon which it may be so terminated plus the then applicable
penalty upon such termination and (b) the rental payments required to be paid
during the remaining term of such Sale and Leaseback Transaction (assuming such
termination provision is not exercised).
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of
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publication or in the English language, customarily published on each business
day. Whenever successive weekly publications in an Authorized Newspaper are
required hereunder they may be made (unless otherwise expressly provided herein)
on the same or different days of the week and in the same or different
Authorized Newspapers.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Secretary or an Assistant Secretary of the
Company to have been adopted by the Board of Directors and to be in full force
and effect on the date of the certificate, and delivered to the Trustee.
"Company" means Lucent Technologies Inc. until a successor
replaces it subject to the provisions of Article 5 and thereafter means the
successor.
"Company Order" means an order signed by two Officers or by
any Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
"Consolidated Net Tangible Assets" means, at any date, the
total assets appearing in the most recently prepared consolidated balance sheet
of the Company and its consolidated Subsidiaries as of the end of the most
recent fiscal quarter of the Company for which such balance sheet is available,
prepared in accordance with generally accepted accounting principles, less (a)
all current
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liabilities as shown on such balance sheet and (b) Intangible Assets.
"Intangible Assets" means the value (net of any applicable reserves), as shown
on or reflected in such balance sheet, of: (i) all trade names, trademarks,
licenses, patents, copyrights and goodwill; (ii) organization costs; and (iii)
deferred charges (other than prepaid items such as insurance, taxes, interest,
commissions, rents and similar items and tangible assets being amortized); but
in no event shall the term "Intangible Assets" include product development cost.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means, (i) with respect to Global Securities of
any Series which are offered for sale solely outside of the United States, a
common depositary for Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euro-clear System, and CEDEL S.A., and (ii) with
respect to Global Securities of any Series which are offered for sale in the
United States, a clearing agency registered under the Securities Exchange Act
of 1934, or any successor thereto, which shall in either case be designated by
the Company pursuant to either Section 2.02 or 2.11.
"Funded Debt" means any Indebtedness maturing by its terms
more than one year from the date of the determination thereof, including any
Indebtedness renewable or extendible at the
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option of the obligor to a date later than one year from the date of the
determination thereof.
"Global Security" means, with respect to any Series of
Securities issued hereunder, a Security, which may be a Registered Security, or
an Unregistered Security, executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture including Section 2.11 and
pursuant to a Company Order, and which shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all of the outstanding
Securities of such Series or a portion thereof, in either case having the same
terms, including, without limitation, the same issue date, date or dates on
which principal is due, interest rate or method of determining interest, and, in
the case of Original Issue Discount Securities, which have the same issue price.
"Global Security" shall include any temporary global Security and any permanent
global Security.
"Holder" or "Securityholder" means a bearer of an Unregistered
Security or of a coupon appertaining thereto or a person in whose name a
Registered Security is registered on the Registrar's books.
"Indebtedness" of any corporation means all indebtedness
representing money borrowed which is created, assumed, incurred or guaranteed in
any manner by such corporation or for which such corporation is otherwise
responsible or liable (whether by
<PAGE> 13
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agreement to purchase indebtedness of, or to supply funds to or invest in,
others).
"Indenture" means this Indenture as amended or supplemented
from time to time and shall include the forms and terms of particular Series of
Securities established as contemplated hereunder.
"Lien" means any mortgage, pledge, security interest, lien,
charge or other encumbrance, but shall not include any of the foregoing types of
encumbrances on any property held for sale in the ordinary course of business,
inventory and work in progress or that are incidental to the conduct of the
business of the Company or any Restricted Subsidiary or the ownership of the
property and assets of any of them and that were not incurred in connection with
the incurrence of any Indebtedness. Such incidental encumbrances that are to be
excluded from the term "Lien" include, without limitation: pledges or deposits
made to secure obligations of the Company or a Restricted Subsidiary under
workmen's compensation laws or similar legislation; liens imposed by law, such
as materialmen's, mechanics', carriers', workmen's, vendors', repairmen's, or
other like liens incurred in the ordinary course of business; governmental
(Federal, state or municipal) liens arising out of contracts for the purchase of
products of the Company or a Restricted Subsidiary, and deposits or pledges to
obtain the release of any of the foregoing liens; liens created by or resulting
from any litigation or legal proceeding that is
<PAGE> 14
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currently being contested in good faith by appropriate proceedings; leases made
or existing on Principal Property entered into in the ordinary course of
business by the Company or a Restricted Subsidiary; landlords' liens under
leases of Principal Property to which the Company or a Restricted Subsidiary is
a party; zoning restrictions, easements, licenses or restrictions on the use of
Principal Property or minor irregularities in the title thereto; deposits in
connection with bids, tenders, contracts (other than for the payment of money)
to which the Company or any Restricted Subsidiary is a party; deposits to secure
public or statutory obligations of the Company or any Restricted Subsidiary;
deposits in connection with obtaining or maintaining self-insurance or to obtain
the benefits of any law, regulation or arrangement pertaining to unemployment
insurance, old age pensions, social security or similar matters; deposits of
cash or obligations of the United States of America to secure surety, appeal or
customs bonds to which the Company or any Restricted Subsidiary is a party; and
liens for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings.
"Officer" means the Chairman of the Board of Directors, any
Vice-Chairman of the Board of Directors, the Chief Executive Officer, the
President, any Vice-President (whether or not designated by a number or numbers,
or a word or words added before or after the title Vice
<PAGE> 15
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President), the Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by any Officer and an Assistant Treasurer or an Assistant Secretary
of the Company.
"Opinion of Counsel" means a written opinion of legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee of
or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01.
"Principal" whenever used with reference to the securities or
any portion thereof shall be deemed to include "and premium, if any."
"Principal Property" means any land, land improvements,
buildings and associated factory, laboratory, office and switching equipment
(excluding all products marketed by the Company or any Subsidiary) constituting
a manufacturing facility, development facility, warehouse facility, service
facility, office facility or operating facility (including any portion thereof),
which facility (a) is owned by or leased to the Company or any Restricted
Subsidiary, (b) is located within the United States and (c) has an acquisition
cost plus capitalized improvements in excess of 1.25% of Consolidated Net
Tangible Assets as of the date of such
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determination, other than (i) any such facility, or portion thereof, which has
been financed by obligations issued by or on behalf of a State, a Territory or a
possession of the United States, or any political subdivision of any of the
foregoing, or the District of Columbia, the interest on which is excludable from
gross income of the holders thereof (other than a "substantial user" of such
facility or a "related person" as those terms are used in Section 147 of the
Internal Revenue code of 1986, as amended (the "Code")) pursuant to the
provisions of Section 103 of the Code (or any similar provisions hereafter
enacted) as in effect at the time of issuance of such obligations, (ii) any such
facility which the Board of Directors may by resolution declare is not of
material importance to the Company and the Restricted Subsidiaries taken as a
whole and (iii) any such facility, or portion thereof, owned or leased jointly
or in common with one or more persons other than the Company and any Subsidiary
and in which the interest of the Company and all Subsidiaries does not exceed
50%.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest by the Registrar.
"Responsible Officer", when used with respect to the Trustee,
shall mean the chairman or any vice-chairman of the board of directors or trust
<PAGE> 17
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committee, the chairman or any vice-chairman of the executive committee of the
board of directors or trust committee, the president, any vice-president, the
cashier, the secretary, the treasurer, any trust officer, any second or
assistant vice-president or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject.
"Restricted Securities" means any shares of capital stock or
Indebtedness of any Restricted Subsidiary.
"Restricted Subsidiary" means (a) any Subsidiary (i) which has
substantially all its property within the United States of America, (ii) which
owns or is a lessee of any Principal Property, and (iii) in which the investment
of the Company and all other Subsidiaries exceeds 1.25% of Consolidated Net
Tangible Assets as of the date of such determination; provided, however, that
the term "Restricted Subsidiary" shall not include (A) any Subsidiary (x)
primarily engaged in the business of purchasing, holding, collecting, servicing
or otherwise dealing in and with installment sales contracts, leases, trust
receipts, mortgages, commercial paper or other financing instruments and any
collateral or agreements relating thereto, including in the business,
individually or through partnerships, of financing (whether through long- or
short-term borrowings, pledges, discounts or otherwise) the sales, leasing or
other operations of the Company
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and the Subsidiaries or any of them, or (y) engaged in the business of financing
the assets and operations of third parties; provided that notwithstanding (x)
and (y) above, such Subsidiary shall be a Restricted Subsidiary if it owns,
leases or operates any property which would qualify as Principal Property except
as incidental to such financing business; or (B) any Subsidiary acquired or
organized after January 31, 1996 for the purpose of acquiring the stock or
business or assets of any person other than the Company or any Restricted
Subsidiary, whether by merger, consolidation, acquisition of stock or assets or
similar transaction analogous in purpose or effect, so long as such Subsidiary
does not acquire by merger, consolidation, acquisition of stock or assets or
similar transactions analogous in purpose or effect all or any substantial part
of the business or assets of the Company or any Restricted Subsidiary; and (b)
any other Subsidiary which is hereafter designated by the Board of Directors as
a Restricted Subsidiary.
"Sale and Leaseback Transaction" means any arrangement with
any person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property (whether such Principal Property is now owned or
hereafter acquired) that has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such person, other than (a) temporary leases
for a term, including renewals at the option of the lessee, of not more than
three years; (b) leases between the Company and a
<PAGE> 19
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Restricted Subsidiary or between Restricted Subsidiaries; and (c) leases of
Principal Property executed by the time of, or within 180 days after the latest
of, the acquisition, the completion of construction or improvement (including
any improvements on property which will result in such property becoming
Principal Property), or the commencement of commercial operation of such
Principal Property.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means (a) Indebtedness of the Company
or a Restricted Subsidiary which is secured by any Lien upon any Principal
Property or Restricted Securities and (b) Indebtedness of the Company or a
Restricted Subsidiary in respect of any conditional sale or other title
retention agreement covering Principal Property or Restricted Securities; but
"Secured Indebtedness" shall not include any of the following:
(i) Indebtedness of the Company and the Restricted
Subsidiaries outstanding on February 1, 1996, secured by then existing
Liens upon, or incurred in connection with conditional sales agreements
or other title retention agreements with respect to, Principal Property
or Restricted Securities;
(ii) Indebtedness which is secured by (A) purchase money Liens
upon Principal Property or Restricted Securities acquired after January
31, 1996, or (B) Liens placed on Principal Property after January 31,
1996, during
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construction or improvement thereof (including any improvements on
property which will result in such property becoming Principal
Property) or placed thereon within 180 days after the later of
acquisition, completion of construction or improvement or the
commencement of commercial operation of such Principal Property or
improvement, or placed on Restricted Securities acquired after January
31, 1996, or (C) conditional sale agreements or other title retention
agreements with respect to any Principal Property or Restricted
Securities acquired after January 31, 1996 if (in each case referred to
in this subparagraph (ii)) (x) such Lien or agreement secures all or
any part of the Indebtedness incurred for the purpose of financing all
or any part of the purchase price or cost of construction of such
Principal Property or improvement or Restricted Securities and (y) such
Lien or agreement does not extend to any Principal Property or
Restricted Securities other than the Principal Property or Restricted
Securities so acquired or the Principal Property, or portion thereof,
on which the property so constructed, or such improvement is located;
provided, however, that the amount by which the aggregate principal
amount of Indebtedness secured by any such Lien or agreement exceeds
the cost to the Company or such Restricted Subsidiary of the related
acquisition, construction or improvement shall be considered to be
"Secured Indebtedness";
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(iii) Indebtedness which is secured by Liens on Principal
Property or Restricted Securities, which Liens exist at the time of
acquisition (by any manner whatsoever) of such Principal Property or
Restricted Securities by the Company or a Restricted Subsidiary;
(iv) Indebtedness of Restricted Subsidiaries owing to the
Company or any other Restricted Subsidiary and Indebtedness of the
Company owing to any Restricted Subsidiary;
(v) in the case of any corporation which becomes (by any
manner whatsoever) a Restricted Subsidiary after January 31, 1996,
Indebtedness which is secured by Liens upon, or conditional sale
agreements or other title retention agreements with respect to, its
property which constitutes Principal Property or Restricted Securities,
which Liens exist at the time such corporation becomes a Restricted
Subsidiary;
(vi) guarantees by the Company of Secured Indebtedness and
Attributable Debt of any Restricted Subsidiaries and guarantees by a
Restricted Subsidiary of Secured Indebtedness and Attributable Debt of
the Company and any other Restricted Subsidiaries;
(vii) Indebtedness arising from any Sale and Leaseback
Transaction;
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(viii) Indebtedness secured by Liens on property of the
Company or a Restricted Subsidiary in favor of the United States of
America, any State, Territory or possession thereof, or the District of
Columbia, or any department, agency or instrumentality or political
subdivision of the United States of America or any State, Territory or
possession thereof, or the District of Columbia, or in favor of any
other country or any political subdivision thereof, if such
Indebtedness was incurred for the purpose of financing all or any part
of the purchase price or the cost of construction of the property
subject to such Liens; provided, however, that the amount by which the
aggregate principal amount of Indebtedness secured by any such Lien
exceeds the cost to the Company or such Restricted Subsidiary of the
related acquisition or construction shall be considered to be "Secured
Indebtedness"; and
(ix) the replacement, extension or renewal (or successive
replacements, extensions or renewals) of any Indebtedness (in whole or
in part) excluded from the definition of "Secured Indebtedness" by
subparagraphs (i) through (viii) above; provided, however, that no Lien
securing, or conditional sale or title retention agreement with respect
to, such Indebtedness shall extend to or cover any Principal Property
or any Restricted Securities, other than such property which secured
the Indebtedness so
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replaced, extended or renewed (plus improvements on or to any such
Principal Property); provided further, however, that to the extent that
such replacement, extension or renewal increases the principal amount
of Indebtedness secured by such Lien or is in a principal amount in
excess of the principal amount of Indebtedness excluded from the
definition of "Secured Indebtedness" by subparagraphs (i) through
(viii) above, the amount of such increase or excess shall be considered
to be "Secured Indebtedness".
In no event shall the foregoing provisions be interpreted to mean or their
operation to cause the same Indebtedness to be included more than once in the
calculation of "Secured Indebtedness" as that term is used in this Indenture.
"Series" or "Series of Securities" means a series of
Securities with substantially identical terms except as to denomination (and
except as may reflect the differences between Registered, definitive,
temporary, permanent, Global, Unregistered and uncertificated Securities within
a Series, if any) with a title to distinguish the Securities of the Series from
the Securities of any other Series. The terms for any Series of Securities may
provide that the holders of Securities of such Series shall act as one class
together with the holders of Securities of one or more other Series in voting,
giving notice, waiving, giving directions or taking any other specified,
permitted or authorized action.
"Securities" means the debentures, notes or other obligations
of the Company issued, authenticated and delivered under this Indenture.
"Subsidiary" means any corporation a majority of the Voting
Shares of which are at the time owned or controlled, directly or indirectly, by
the Company or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939.
"Trust Indenture Act of 1939" means (except as herein
otherwise expressly provided) the Trust Indenture Act of 1939
<PAGE> 24
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(15 U.S.C. Sections 77aaa -7bbbb) as amended, as in force at the date of this
Indenture as originally executed.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and thereafter means the successor and if, at any
time, there is more than one Trustee, "Trustee" as used with respect to the
Securities of any Series shall mean the Trustee with respect to that Series.
"U.S. Government Obligations" means:
(i) direct obligations of the United States of America
for the payment of which the full faith and credit of
the United States of America is pledged: or
(ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the
United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
"U.S. Person" means a citizen, national or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
<PAGE> 25
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"Unregistered Security" means any Security issued hereunder
which is not a Registered Security.
"Voting Shares" means as to shares of a particular
corporation, outstanding shares of stock of any class of such corporation
entitled to vote in the election of directors, excluding shares entitled so to
vote only upon the happening of some contingency.
"Yield to Maturity" means the yield to maturity, calculated by
the Company at the time of issuance of a Series of Securities or at the time of
issuance of the Securities of a Series or portion thereof, or, if applicable, at
the most recent determination of interest on such Series or Securities in
accordance with accepted financial practice.
SECTION 1.02. OTHER DEFINITIONS.
Term Section
---- -------
"Event of Default".................................. 6.01
"Legal Holiday"..................................... 10.06
"Paying Agent"...................................... 2.04
"Registrar"......................................... 2.04
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part
<PAGE> 26
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of this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a
Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
TIA have the meanings assigned to them therein.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance
with generally accepted accounting
principles, and, except as may otherwise be
herein expressly provided, the term
"generally accepted accounting principles"
with respect to any computation required or
permitted hereunder shall mean such
accounting principles as are
<PAGE> 27
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generally accepted at the date of such
computation; and
(3) "or" is not exclusive.
ARTICLE 2.
THE SECURITIES.
SECTION 2.01. ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. There may be Registered Securities and
Unregistered Securities within a Series and the Unregistered Securities may be
subject to such restrictions, and contain such legends, as may be required by
United States laws and regulations. Securities of different Series may differ
in any respect; provided that all Series of Securities shall be equally and
ratably entitled to the benefits of this Indenture.
<PAGE> 28
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SECTION 2.02. ESTABLISHMENT OF TERMS AND FORM OF SERIES OF SECURITIES.
(a) At or prior to the issuance of any Series of Securities,
the following shall be established either by or pursuant to a Board Resolution
or by an indenture supplemental hereto:
(1) the title of the Securities of the Series (which
title shall distinguish the Securities of the Series
from the Securities of any other Series and from any
other securities issued by the Company);
(2) any limit upon the aggregate principal amount of
the Securities of the Series which may be
authenticated and delivered under this Indenture
(which limit shall not pertain to Securities
authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Section 2.08,
2.09, 2.11, 3.05 or 9.05);
(3) the date or dates on which the principal of the
Securities of the Series is payable or whether the
Securities of a Series are due upon demand by the
Holder;
(4) the rate or rates at which the Securities of the
Series shall bear interest, if any, or the method of
calculating such rate or rates of interest, the date
or dates from which such
<PAGE> 29
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interest shall accrue, the dates on which such
interest shall be payable and, with respect to
Registered Securities, the record date for the
interest payable on any interest payment date;
(5) the place or places where the principal of and
interest on Registered Securities and Unregistered
Securities, if any, of the Series shall be payable;
(6) the period or periods within which, the price or
prices at which, and the terms and conditions upon
which, Securities of the Series may be redeemed, in
whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem
or purchase Securities of the Series pursuant to any
sinking fund or analogous provisions or upon the
happening of a specified event or at the option of a
Holder thereof and the period or periods within
which, the price or prices at which, and the terms
and conditions upon which, Securities of the Series
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) if in other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the Series shall be issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities
<PAGE> 30
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of the Series which shall be payable upon declaration
of acceleration of the maturity thereof pursuant to
Section 6.01;
(10) whether Securities of the Series shall be
issuable as Registered Securities or Unregistered
Securities (with or without interest coupons), or
both, or whether such Securities shall be
uncertificated, and any restrictions applicable to
the payment, offering, sale or delivery of
Unregistered Securities and whether, and the terms
upon which, Unregistered Securities of a Series may
be exchanged for Registered Securities of the same
Series and vice versa;
(11) whether and under what circumstances the Company
will pay additional amounts on the Securities of that
Series held by a person who is not a U.S. Person in
respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay
such additional amounts;
(12) the form of the Securities (or forms thereof if
Unregistered Securities and Registered Securities
shall be issuable in such Series) including such
legends as may be required by United States laws or
regulations, the form of any coupons or temporary
global Security which may be issued and the forms of
any certificates which may be
<PAGE> 31
-24-
required hereunder or under United States laws or
regulations in connection with the offering, sale,
delivery or exchange of Unregistered Securities;
(13) the coin or currency in which the Securities of
the Series are denominated, including multiple
currency units;
(14) if other than the coin or currency in which the
Securities of the Series are denominated, the coin or
currency in which payment of the principal of,
premium, if any, or interest on the Securities of the
Series shall be payable;
(15) if the amount of payments of principal of,
premium, if any, or interest on the Securities of the
Series may be determined with reference to one or
more indices, the manner in which such amounts
shall be determined;
(16) whether Securities of the Series are issuable
as, or exchangeable for, one or more Global
Securities and, in such case, the terms upon which
interests in such Global Security or Global
Securities shall be exchangeable by the Company or
the Holder thereof for definitive Securities, and the
identity of the Depositary for such Series; and
(17) any other terms of the Series (which terms shall
not be inconsistent with the provisions of this
Indenture) including any terms which may be required
by or advisable under United States laws
<PAGE> 32
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or regulations or advisable in connection with the marketing
of Securities of that Series.
(b) If the terms and form or forms of any Series of Securities
are established by or pursuant to a Board Resolution, the Company shall deliver
a copy of such Board Resolution to the Trustee at or prior to the issuance of
such Series with (1) the form or forms of Security which have been approved
attached thereto, or (2) if such Board Resolution authorizes a specific Officer
or Officers to approve the terms and form or forms of the Securities, a
certificate of such Officer or Officers approving the terms and form or forms of
Security with such form or forms of Securities attached thereto. Such Board
Resolution or certificate may provide general terms or parameters for one or
more Series or for Securities of any Series and may provide that the specific
terms of one or more Series or for Securities of a Series may be determined
in accordance with or pursuant to the Company Order referred to in Section
2.03(d) hereof.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DELIVERY.
(a) Securities shall be executed on behalf of the Company by
its Chairman of the Board of Directors, any Vice-Chairman of the Board of
Directors, the Chief Executive Officer, the President or a Vice President, its
Treasurer or an Assistant Treasurer, and may but need not have its corporate
seal reproduced thereon which may but need not be attested by its Secretary or
an Assistant Secretary. Signatures shall be manual or facsimile. The coupons
of Unregistered Securities shall bear the facsimile signature of the Treasurer
or an Assistant Treasurer of the Company.
<PAGE> 33
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(b) If an Officer, an Assistant Treasurer or an Assistant
Secretary whose signature is on a Security or coupon no longer holds that office
at the time the Security is authenticated, the Security or coupon shall be valid
nevertheless.
(c) A Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent and no coupon shall
be valid until the Security to which it appertains has been so authenticated.
Such signature shall be conclusive evidence that the Security has been
authenticated under this Indenture. Each Unregistered Security shall be dated
the date of its original issuance and each Registered Security shall be dated
the date of its authentication.
(d) The Trustee shall authenticate and deliver Securities of
any Series for original issue from time to time in the aggregate principal
amount established for such Series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by a Company Order. The maturity
date, original issue date, interest rate and any other terms of the Securities
of such Series shall be determined by or pursuant to such Company Order and
procedures. If provided for in such procedures, such Company Order may authorize
authentication and delivery pursuant to oral instructions from the Company or
its duly authorized agent, which instructions shall be promptly confirmed in
writing.
The Trustee may conclusively rely on the documents and opinion
delivered pursuant to Section 2.02 and this Section 2.03,
<PAGE> 34
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as applicable (unless revoked by superseding comparable documents or opinions)
as to the authorization of the Board of Directors of any Securities delivered
hereunder, the form thereof and the legality, validity, binding effect and
enforceability thereof.
In authenticating Securities under this Indenture and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) the form and general terms of such Securities have
been established in conformity with the provisions of
this Indenture; and
(2) that Securities in such form, when completed as to
specific terms substantially in accordance with the
Board Resolution establishing such form or any
actions taken pursuant thereto (the records of which
actions shall have been evidenced as provided in such
Board Resolution), when executed and delivered by the
Company to the Trustee for authentication, and when
authenticated and delivered by the Trustee in
accordance with the Indenture, all in the manner and
subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general
applicability relating to or
<PAGE> 35
-28-
affecting the enforcement of creditors' rights and to
general equity principles.
If the terms and form or forms of such Securities have been
established by or pursuant to a Board Resolution as permitted by Section 2.02,
the Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will adversely affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the foregoing, until the Company has delivered
an Officers' Certificate to the Trustee and the Registrar stating that, as a
result of the action described in such Officers' Certificate, the Company would
not suffer adverse consequences under the provisions of United States law or
regulations in effect at the time of the delivery of Unregistered Securities,
(i) delivery of Unregistered Securities will be made only outside the United
States and its possessions and (ii) Unregistered Securities will be released in
definitive form whether in the form of a Global Security or otherwise to the
person entitled to physical delivery thereof only upon presentation of a
certificate in the form prescribed by the Company in such Officers' Certificate.
(e) The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution (or certificate of an
Officer or Officers) or supplemental indenture pursuant to Section 2.02.
<PAGE> 36
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(f) The Trustee may appoint an authenticating agent to
authenticate Securities. The fees and expenses of any authenticating agent shall
be paid by the Company. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
(g) The form of the Trustee's Certificate of Authentication to
appear on the Securities shall read as follows:
This is one of the Securities described in the
within-mentioned Indenture.
THE BANK OF NEW YORK
_______________________
As Trustee,
By__________________________
Authorized Signatory
(h) If an authenticating agent has been appointed pursuant to
Section 2.03(f) the form of the Authenticating Agent's Certificate of
Authentication to appear on the Securities shall read as follows:
This is one of the Securities described in the
within-mentioned Indenture.
As Authenticating Agent,
By__________________________
Authorized Officer
<PAGE> 37
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SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall maintain in the Borough of Manhattan, State
of New York, an office or agency where Registered Securities may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where (subject to Sections 2.05 and 2.08) Securities may be presented for
payment or for exchange ("Paying Agent"). With respect to any Series of
Securities issued in whole or in part as Unregistered Securities, the Company
shall maintain one or more Paying Agents located outside the United States and
its possessions and shall maintain such Paying Agents for a period of two years
after the principal of such Unregistered Securities has become due and payable.
During any period thereafter for which it is necessary in order to conform to
United States tax law or regulations, the Company will maintain a Paying Agent
outside the United States and its possessions to which the Unregistered
Securities or coupons appertaining thereto may be presented for payment and will
provide the necessary funds therefor to such Paying Agent upon reasonable
notice. The Registrar shall keep a register with respect to each Series of
Securities issued in whole or in part as Registered Securities and to their
transfer and exchange. The Company may appoint one or more co-Registrars and one
or more additional Paying Agents for each Series of Securities and the Company
may terminate the appointment of any co-Registrar or Paying Agent at any time
upon written notice. The term "Registrar" includes any co-Registrar, except that
any co-Registrar shall not keep the register. The term "Paying Agent" includes
any additional Paying
<PAGE> 38
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Agent. The Company shall notify the Trustee of the name and address of any Agent
not a party to this Indenture. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such.
SECTION 2.05. PAYMENT ON SECURITIES.
(a) Subject to the following provisions, the Company will pay
to the Trustee the amounts of principal of and interest on the Securities at the
times and for the purposes set forth herein and in the text of the Securities
for each Series, and the Company hereby authorizes and directs the Trustee from
funds so paid to it to make or cause to be made payment of the principal of and
interest, if any, on the Securities and coupons of each Series as set forth
herein and in the text of such Securities and coupons. Except as otherwise
provided with respect to any Series of Securities, the Trustee will arrange
directly with any Paying Agent for the payment, or the Trustee will make
payment, from funds furnished by the Company, of the principal of and interest,
if any, on the Securities and coupons of each Series by check in the currency in
which the Securities are payable.
(b) Interest, if any, on Registered Securities of a Series
shall be paid on each interest payment date for such Series to the Holder
thereof at the close of business on the relevant record dates specified in the
Securities of such Series. The Company may pay such interest by check mailed to
such Holder's address as it appears on the register for Securities of such
Series. Principal of Registered Securities shall be payable only
<PAGE> 39
-32-
against presentation and surrender thereof at the office of the Paying Agent in
New York, New York, unless the Company shall have otherwise instructed the
Trustee in writing.
(c) To the extent provided in the Securities of a Series, (i)
payments with respect to which coupons have been issued by the Company shall be
paid only against presentation and surrender of the coupons as they mature and
(ii) original issue discount (as defined in Section 1273 of the Internal Revenue
Code of 1986, as amended), if any, on Unregistered Securities with respect to
which coupons have not been issued shall be paid only against presentation and
surrender of such Securities; in either case at the office of a Paying Agent
located outside of the United States and its possessions, unless the Company
shall have otherwise instructed the Trustee in writing. Principal of
Unregistered Securities shall be paid only against presentation and surrender
thereof as provided in the Securities of a Series. If at the time a payment of
principal of or interest, if any, or original issue discount, if any, on an
Unregistered Security or coupon shall become due, the payment of the full amount
so payable at the office or offices of all the Paying Agents outside the United
States and its possession is illegal or effectively precluded because of the
imposition of exchange controls or other similar restrictions on the payment of
such amount in the applicable currency, then the Company may instruct the
Trustee to make such payments at the office of a Paying Agent located in the
United States, provided that provision for such payment in the United States
would not cause such Unregistered Security to be
<PAGE> 40
-33-
treated as a "registration-required obligation" under United States law and
regulations.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any or all Series of Securities, or the Trustee,
all money held by the Paying Agent for the payment of principal or interest on
such Series of Securities, and that the Paying Agent will notify the Trustee of
any default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. If the Company or a subsidiary acts as Paying Agent, it shall
segregate the money held by it for the payment of principal or interest on any
Series of Securities and hold such money as a separate trust fund. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon so doing the Paying Agent shall have no further liability for the
money so paid.
SECTION 2.07. SECURITYHOLDER LISTS; OWNERSHIP OF SECURITIES.
(a) The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of each Series of Securities. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee semiannually on or before
the last day of June and December in each year, and at such other times as
<PAGE> 41
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the Trustee may request in writing, a list, in such form and as of such date as
the Trustee may reasonably require, containing all the information in the
possession or control of the Registrar, the Company or any of its Paying Agents
other than the Trustee as to the names and addresses of Holders of each such
Series of Securities. If there are Unregistered Securities of any Series
outstanding, even if the Trustee is the Registrar, the Company shall furnish to
the Trustee such a list containing such information with respect to Holders of
such Unregistered Securities only.
(b) Ownership of Registered Securities of a Series shall be
proved by the register for such Series kept by the Registrar. Ownership of
Unregistered Securities may be proved by the production of such Unregistered
Securities or by a certificate or affidavit executed by the person holding such
Unregistered Securities or by a depository with whom such Unregistered
Securities were deposited, if the certificate or affidavit is satisfactory to
the Trustee. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Unregistered Security or coupon and the
person in whose name a Registered Security is registered as the absolute owner
thereof for all purposes.
SECTION 2.08. TRANSFER AND EXCHANGE.
(a) Where Registered Securities of a Series are presented to
the Registrar with a request to register their transfer or to exchange them for
an equal principal amount of
<PAGE> 42
-35-
Registered Securities of the same Series, date of maturity, interest rate, and
original issue date of other authorized denominations, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met.
(b) If both Registered and Unregistered Securities are
authorized for a Series of Securities and the terms of such Securities permit,
(i) Unregistered Securities may be exchanged for an equal principal amount of
Registered Securities or Unregistered Securities of the same Series, date of
maturity, interest rate, and original issue date in any authorized denominations
upon delivery to the Registrar (or a Paying Agent, if the exchange is for
Unregistered Securities) of the Unregistered Security with all unmatured coupons
and all matured coupons in default appertaining thereto and if all other
requirements of the Registrar (or such Paying Agent) and such Securities for
such exchange are met, and (ii) Registered Securities may be exchanged for an
equal principal amount of Unregistered Securities of the same Series, date of
maturity, interest rate, and original issue date in any authorized denominations
(except that any coupons appertaining to such Unregistered Securities which have
matured and have been paid shall be detached) upon delivery to the Registrar of
the Registered Securities and if all other requirements of the Registrar (or
such Paying Agent) and such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered
Securities for Registered Securities or Registered
<PAGE> 43
-36-
Securities for Unregistered Securities will be subject to the satisfaction of
the provisions of United States law and regulations in effect at the time of
such exchange, and no exchange of Registered Securities for Unregistered
Securities will be made until the Company has notified the Trustee and the
Registrar that, as a result of such exchange, the Company would not suffer
adverse consequences under such law or regulations.
(c) To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities upon surrender of Securities for
registration of transfer or for exchange as provided in this Section. The
Company will not make any charge for any registration of transfer or exchange
but may require the payment by the party requesting such registration of
transfer or exchange of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
(d) Neither the Company nor the Registrar shall be required
(i) to issue, register the transfer of or exchange Securities of any Series for
the period of 15 days immediately preceding the selection of any such Securities
to be redeemed, or (ii) to register the transfer of or exchange Securities of
any Series selected, called or being called for redemption as a whole or the
portion being redeemed of any such Securities selected, called or being called
for redemption in part.
(e) Unregistered Securities or any coupons appertaining
thereto shall be transferable by delivery.
<PAGE> 44
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SECTION 2.09. REPLACEMENT SECURITIES.
(a) If a mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall issue
and the Trustee shall authenticate a replacement Registered Security, if such
surrendered Security was a Registered Security, or a replacement Unregistered
Security with coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was an Unregistered Security,
of the same Series, date of maturity, interest rate, and original issue date if
the Trustee's requirements are met.
(b) If the Holder of a Security claims that the Security or
any coupon appertaining thereto has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Registered Security, if such Holder's claim pertains to a Registered Security,
or a replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim pertains to an Unregistered Security,
of the same Series, date of maturity, interest rate, and original issue date, if
the Trustee's requirements are met; provided, however, that the Trustee or the
Company may require any such Holder to provide to the Trustee or the Company
security or indemnity sufficient in the judgment of the Company and the Trustee
to protect the Company, the Trustee, any Agent or any
<PAGE> 45
-38-
authenticating agent from any loss which any of them may suffer if a Security is
replaced. The Company may charge the party requesting a replacement Security for
its expenses in replacing a Security.
(c) Every replacement Security is an additional obligation of
the Company.
SECTION 2.10. OUTSTANDING SECURITIES.
(a) Securities outstanding at any time are all Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it
ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
(c) If the Paying Agent holds on a redemption date or maturity
date money sufficient to pay all amounts due on Securities of such Series, they
shall cease to be outstanding and interest on them ceases to accrue.
(d) Any acquisition of any Security by the Company or an
Affiliate shall not operate as a redemption or satisfaction of the indebtedness
represented by such Security unless and until the same is cancelled and
delivered to the Trustee or surrendered to the Trustee for cancellation.
(e) In determining whether the Holders of the requisite
principal amount of outstanding Securities of any Series have
<PAGE> 46
-39-
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, or whether sufficient funds are available for redemption or for any
other purpose, the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.01.
SECTION 2.11. TEMPORARY SECURITIES; GLOBAL SECURITIES.
(a) Until definitive Registered Securities of any Series are
ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Registered Securities of such Series. Temporary
Registered Securities of any Series shall be substantially in the form of
definitive Registered Securities of such Series but may have variations that the
Company considers appropriate for temporary Securities. Every temporary
Registered Security shall be executed by the Company and authenticated by the
Trustee, and registered by the Registrar, upon the same conditions, and with
like effect, as a definitive Registered Security. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Registered Securities of the same Series, date of maturity, interest rate, and
original issue date in exchange for temporary Registered Securities. All
references herein to "definitive Registered Securities" shall be deemed to apply
equally to permanent global Registered Securities.
<PAGE> 47
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(b) Until definitive or permanent global Unregistered
Securities of any Series are ready for delivery, the Company may prepare and
execute and the Trustee shall authenticate one or more temporary Unregistered
Securities, which may have coupons attached or which may be in the form of a
single temporary global Unregistered Security of that Series. The temporary
Unregistered Security or Securities of any Series shall be substantially in the
form approved by or pursuant to a Board Resolution and shall be delivered
outside the United States and its possessions to such person or persons as the
Company shall direct against such certification as the Company may from time to
time prescribe by or pursuant to a Board Resolution. The temporary Unregistered
Security or Securities of a Series shall be executed by the Company and
authenticated by the Trustee upon the same conditions, and with like effect, as
a definitive Unregistered Security of such Series, except as provided herein or
therein. A temporary Unregistered Security or Securities shall be exchangeable
for definitive or permanent global Unregistered Securities at the time and on
the conditions, if any, specified in the temporary Security.
(c) Upon any exchange of a part of a temporary or permanent
global Unregistered Security of a Series for definitive or permanent global
Unregistered Securities of such Series, the temporary or permanent global
Unregistered Security, as the case may be, shall be endorsed by the Trustee or
an authenticating agent for the Trustee to reflect the reduction of its
principal amount by an amount equal to the aggregate principal amount of
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definitive or permanent Unregistered Securities, as the case may be, of such
Series so exchanged and endorsed. Upon any exchange of a part of a temporary or
permanent global Registered Security of a Series for definitive or permanent
global Registered Securities of such Series, the temporary or permanent global
Registered Security, as the case may be, shall be endorsed by the Trustee or an
authenticating agent for the Trustee to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of definitive or
permanent Registered Securities, as the case may be, of such Series so exchanged
and endorsed.
(d) If the Company shall establish pursuant to Section 2.02
that the Securities of a particular Series are to be issued as one or more
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with Section 2.03 and the Company Order delivered to the Trustee
thereunder, authenticate and deliver to the Depositary or pursuant to the
Depositary's instruction one or more Global Securities. Each Global Security
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(e) Notwithstanding any other provision of this Section 2.11
or of Section 2.08, except for exchanges of Global Securities as provided in
Section 2.11(c), a Global Security may be transferred, in whole but not in part
and in the manner
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provided in Section 2.08, only to another nominee of the Depositary for such
Series, or to a successor Depositary for such Series selected or approved by the
Company or to a nominee of such successor Depositary.
(f) If at any time the Depositary for a Series of Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such Series or, with respect to a Depositary contemplated by clause (ii) of
the definition thereof, if at any time the Depositary for such Series shall no
longer be registered or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation and, in any such
case, a successor Depositary for such Series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be applicable
to the Securities of such Series and the Company will execute, and the Trustee
will authenticate and deliver in accordance with a Company Order, Securities of
such Series in definitive registered form without coupons, or in definitive
bearer form with coupons, as applicable, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such Series in exchange for such Global Security.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities and coupons to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Securities and
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coupons surrendered to them, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
registration of transfer, or for exchange, payment or cancellation and may
dispose of cancelled Securities in accordance with its standard procedures. The
Company may not issue new Securities to replace Securities of such Series that
it has paid or delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults on a payment of interest on a Series
of Securities, it shall pay the defaulted interest as provided in such
Securities or in any lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed and acceptable to the
Trustee.
SECTION 2.14. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP"
numbers, and, if so, "CUSIP" numbers may be used in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities. Any such redemption shall not be affected by any defect in or
omission of such CUSIP numbers. The Company will promptly notify the Trustee of
any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION.
SECTION 3.01. NOTICE TO TRUSTEE.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or any part
thereof, or may covenant to redeem and pay the Series of Securities or any part
thereof, before maturity at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is
obligated to redeem all or part of the Series of Securities pursuant to the
terms of such Securities, it shall notify the Trustee of the redemption date and
the principal amount of the
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Series of Securities to be redeemed. The Company shall give thirty days (sixty
days if the Trustee is required to make a selection under Section 3.02) advance
notice to the Trustee before the redemption date or such lesser notice as shall
be satisfactory to the Trustee.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
Upon notice that less than all the Securities of a Series of
the same tenor are to be redeemed, the Trustee shall thereupon select the
Securities of the Series of the specified tenor to be redeemed in such manner as
the Trustee shall deem fair and appropriate, such selection to be made from
Securities of the Series of the specified tenor that are outstanding and that
have not previously been called for redemption. Securities of the Series and
portions of them selected by the Trustee shall be in amounts of $1,000 or
integral multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.02(a)(8), in amounts equal
to the minimum principal denomination for each such Series and integral
multiples thereof. Provisions of the Indenture that apply to Securities of a
Series called for redemption also apply to portions of Securities of that Series
called for redemption. The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 90 days before a
redemption date, the Company shall mail a notice of redemption by
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first-class mail to each Holder of Registered Securities that are to be
redeemed.
(b) If Unregistered Securities are to be redeemed, notice of
redemption shall be published in an Authorized Newspaper in The City of New
York, and if such Securities to be redeemed are listed on the London Stock
Exchange, London, and, if such Securities to be redeemed are listed on the
Luxembourg Stock Exchange, Luxembourg, once in each of four successive calendar
weeks, the first publication to be not less than 30 nor more than 90 days before
the redemption date.
(c) All notices shall identify the Series of Securities
(which may include CUSIP numbers) to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a
Series are to be redeemed, the identification (and,
in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) the Securities of the Series called for
redemption and that all unmatured coupons, if any,
appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price;
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(6) that interest on Securities of the Series called
for redemption ceases to accrue on and after the
redemption date; and
(7) if the redemption is for a mandatory or optional
sinking fund payment.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed or published, Securities
of a Series called for redemption become due and payable on the redemption date.
Upon surrender to the Paying Agent of such Securities together with all
unmatured coupons, if any, appertaining thereto, such Securities shall be paid
at the redemption price plus accrued interest to the redemption date, but
regular installments of interest due on or prior to the redemption date will be
payable, in the case of Unregistered Securities, to the bearers of the coupons
for such interest upon surrender thereof, and, in the case of Registered
Securities, to the Holders of such Securities of record at the close of business
on the relevant record dates.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit
with the Trustee money sufficient to pay the redemption price of and (unless the
redemption date shall be an interest
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payment date) interest accrued to the redemption date on all Securities to be
redeemed on that date.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder of that
Security a new Security or Securities of the same Series, the same form and the
same date of maturity, interest rate, and original issue date in authorized
denominations equal in aggregate principal amount to the unredeemed portion of
the Security surrendered.
SECTION 3.06. MANDATORY AND OPTIONAL SINKING FUNDS.
The minimum amount of any sinking fund payment provided for by
the terms of any Series of Securities is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of any Series of Securities is herein referred to as an
"optional sinking fund payment". The date on which a sinking fund payment is to
be made is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such Series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
Series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to
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Section 2.12, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company
through any optional redemption provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any Series, the Company will deliver to the Trustee a written
statement signed by an authorized officer of the Company (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such Series, (b)
stating that none of the Securities of such Series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such Series have occurred (which have not been waived or
cured) and are continuing, (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to such
Series and, if so, specifying the amount of such optional sinking fund payment
which the Company intends to pay on or before the next succeeding sinking fund
payment date, and (e) specifying such sinking fund payment date. Any Securities
of such Series to be credited and required to be delivered to the Trustee in
order for the Company to be entitled to credit therefor as aforesaid which have
not theretofore been delivered to the Trustee shall be
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delivered for cancellation pursuant to Section 2.12 to the Trustee with such
written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Company shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such sixtieth day, to deliver such written statement and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such Series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such Series in respect thereof and (ii) that the
Company will make no optional sinking fund payment with respect to such Series
as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request) with
respect to the Securities of any particular Series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of Securities
of such Series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $50,000 or
less and the Company makes no
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such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 3.02, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such Series to absorb said cash, as nearly as may be possible, and
shall (if requested in writing by the Company) inform the Company of the serial
numbers of the Securities of such Series (or portions thereof) so selected.
Securities of any Series which are (a) owned by the Company or an entity known
by the Trustee to be directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, as shown by the
Security register, and not known to the Trustee to have been pledged or
hypothecated by the Company or any such entity or (b) identified in an Officers'
Certificate at least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the Company or an
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be excluded from Securities of
such Series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Company (or the Company, if it shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
Series to be given in substantially the manner provided in Section 3.03 (and
with the effect provided in Section 3.04) for the redemption of Securities of
such Series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
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Series shall be added to the next cash sinking fund payment for such Series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular Series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such Series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such Series at maturity.
At least one business day before each sinking fund payment
date, the Company shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a Series with sinking fund moneys or mail any notice of redemption
of Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default with respect to such Securities except that, where the mailing
of notice of redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided that it
shall have received from the Company a sum sufficient for such redemption.
Except as aforesaid, any moneys in the sinking fund for such Series at the time
when any such default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund,
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shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article Six and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 6.06 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE 4.
COVENANTS.
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided herein and in the Securities.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment. If the Securities of a Series provide for
the payment of additional amounts as contemplated by Section 2.02(a)(11), at
least 10 days prior to the first interest payment date with respect to that
Series of Securities (or if the Securities of that Series will not bear interest
prior to maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the
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below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and any premium or
interest on the Securities of that Series shall be made to Holders of Securities
of that Series or any related coupons who are not U.S. persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the Series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent such additional amounts as may be required pursuant to the terms
applicable to such Series. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 4.02. REPORTS BY THE COMPANY.
The Company covenants:
(a) to file with the Trustee, within 15 days after the Company
is required to file the same with the SEC, copies of the annual reports and of
the information, documents and other reports
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(or copies of such portions of any of the foregoing as the SEC may from time to
time by rules and regulations prescribe) which the Company may be required to
file with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the SEC, in accordance with rules and regulations
prescribed from time to time by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant to section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the SEC, in accordance with
the rules and regulations prescribed from time to time by the SEC, such
additional information, documents, and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations; and
(c) to transmit by mail to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, within 30 days after the filing
thereof with the Trustee, and to all Holders whose names appear on the list
furnished to the Trustee by the Company under Section
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2.07(a), such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section 4.02 as
may be required by rules and regulations prescribed from time to time by the
SEC.
SECTION 4.03. LIMITATIONS ON LIENS.
The Company will not create, assume, incur or guarantee, and
will not permit any Restricted Subsidiary to create, assume, incur or guarantee,
any Secured Indebtedness without making provision whereby all the Securities of
each Series shall be secured equally and ratably with (or prior to) such Secured
Indebtedness (together with, if the Company shall so determine, any other
Indebtedness of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Securities of each Series) so
long as such Secured Indebtedness shall be outstanding unless such Secured
Indebtedness, when added to (a) the aggregate amount of all Secured Indebtedness
then outstanding (not including in this computation Secured Indebtedness if the
Securities are secured equally and ratably with (or prior to) such Secured
Indebtedness and further not including in this computation any Secured
Indebtedness which is concurrently being retired) and (b) the aggregate amount
of all Attributable Debt then outstanding pursuant to Sale and Leaseback
Transactions entered into by the Company after January 31, 1996, or entered into
by a Restricted Subsidiary after January 31, 1996, or, if later, the date on
which it became a Restricted Subsidiary (not including in this
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computation any Attributable Debt which is concurrently being retired), would
not exceed 15% of Consolidated Net Tangible Assets.
SECTION 4.04. LIMITATIONS ON SALES AND LEASEBACKS.
The Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless (a) the sum
of (i) the Attributable Debt to be outstanding pursuant to such Sale and
Leaseback Transaction, (ii) all Attributable Debt then outstanding pursuant to
all other Sale and Leaseback Transactions entered into by the Company after
January 31, 1996, or entered into by a Restricted Subsidiary after January
31, 1996, or, if later, the date on which it became a Restricted Subsidiary and
(iii) the aggregate of all Secured Indebtedness then outstanding (not including
in this computation Secured Indebtedness if the Securities of each Series are
secured equally and ratably with (or prior to) such Secured Indebtedness) would
not exceed 15% of Consolidated Net Tangible Assets, or (b) an amount equal to
the greater of (i) the net proceeds to the Company or the Restricted Subsidiary
of the sale of the Principal Property sold and leased back pursuant to such Sale
and Leaseback Transaction and (ii) the amount of Attributable Debt to be
outstanding pursuant to such Sale and Leaseback Transaction is applied to the
retirement of Funded Debt of the Company or any Restricted Subsidiaries (other
than Funded Debt which is subordinate to the Securities of each Series or which
is owing to
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the Company or any Restricted Subsidiaries) within 180 days after the
consummation of such Sale and Leaseback Transaction.
SECTION 4.05. WAIVER OF COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 4.03 and 4.04 hereof with
respect to the Securities of any Series if before or after the time for such
compliance the holders of a majority in aggregate principal amount of the
Securities of such Series at the time outstanding treating all such Series as a
class shall, by action of such Securityholders in accordance with this
Indenture, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect (x) any other Series of Securities or (y) such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and duties of the Trustee in respect
of any such covenant or condition shall remain in full force and effect.
ARTICLE 5.
SUCCESSOR CORPORATION.
SECTION 5.01. CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
Nothing contained in this Indenture or in any of the
Securities of any Series shall prevent any consolidation of the Company with, or
merger of the Company into, any other corporation or corporations (whether or
not affiliated with the Company), or successive consolidations or mergers to
which the Company or its
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successor or successors shall be a party or parties, or shall prevent any sale
or conveyance of the property of the Company (including stock of subsidiaries)
as an entirety or substantially as an entirety to any other corporation (whether
or not affiliated with the Company) authorized to acquire and own or operate the
same; provided, however, and the Company hereby covenants and agrees, that upon
any such consolidation, merger, sale or conveyance, the due and punctual payment
of the principal of (and premium, if any) and interest on all of the Securities
of each Series, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, shall be expressly assumed, by
supplemental indenture, satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation formed by such consolidation, or
into which the Company shall have been merged, or which shall have acquired such
property.
SECTION 5.02. ASSUMPTION AND SUBSTITUTION.
In case of any such consolidation, merger, sale or conveyance,
and following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein.
Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of Lucent Technologies Inc., any or
all of the Securities issuable pursuant to the provisions of Section 2.01 which
theretofore shall not have
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been signed by the Company and delivered to the Trustee; and, upon the order of
such successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee on its behalf for that purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself any other
corporation or entity (whether or not affiliated with the Company) or acquiring
by purchase or otherwise all or any part of the property of any other
corporation or entity (whether or not affiliated with the Company).
SECTION 5.03. OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 7.01 and
7.02, may receive an Opinion of Counsel as conclusive evidence
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that any consolidation, merger, sale or conveyance and any such assumption
complies with the provisions of this Article 5.
ARTICLE 6.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 6.01. EVENTS OF DEFAULT; ACCELERATION OF MATURITY; WAIVER OF DEFAULT.
In case one or more of the following Events of Default shall
have occurred and be continuing with respect to the Securities of any Series
("Events of Default"), that is to say:
(a) default in the payment of any installment of interest
upon any of the Securities of that Series as and when
the same shall become due and payable, and
continuance of such default for a period of 90 days;
or
(b) default in the payment of the principal of (or
premium, if any, on) any of the Securities of that
Series as and when the same shall become due and
payable either at maturity, upon redemption, by
declaration or otherwise; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on
the part of the Company in the Securities of that
Series, in this Indenture contained or in any
supplemental indenture under which the Securities of
that Series have been issued, excluding any failure
which resulted from a change in generally accepted
accounting principles, for a period of 90
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days after the date on which written notice of such
failure (specified as a "Notice of Default"),
requiring the Company to remedy the same, shall have
been given to the Company by the Trustee or to the
Company and the Trustee by Holders of at least
twenty-five percent in aggregate principal amount of
the Securities of such Series at the time
outstanding; or
(d) a court or governmental agency having jurisdiction in
the premises shall enter a decree or order for relief
in respect of the Company in an involuntary case
under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any
substantial part of its property or ordering the
winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or
taking possession by a receiver,
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liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or
for any substantial part of its property or make any
general assignment for the benefit of creditors; or
the Company shall admit in writing its inability to
pay its debts generally as they become due, or
corporate action shall be taken by the Company in
furtherance of any of the aforesaid purposes; or
(f) any other Event of Default provided in the applicable
resolution of the Board of Directors or in the
supplemental indenture under which such Series of
Securities is issued, as the case may be, as
contemplated by Section 2.02.
then and in each and every such case, unless the principal of all the Securities
of that Series shall have already become due and payable, either the Trustee or
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of that Series then outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the principal (or, if the Securities of that Series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that Series) of all the Securities of that Series to be due and
payable immediately, and upon any such declaration the same (or, in the case of
Original Issue Discount Securities, such specified amount) shall become and
shall be immediately due and payable,
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anything in this Indenture, in any supplemental indenture under which the
Securities of that Series have been issued or in the Securities of that Series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if, at any time after the principal of the Securities of
that Series (or, if the Securities of that Series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that Series) shall have been so declared and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Company shall pay, or shall deposit with
the Trustee a sum sufficient to pay, all matured installments of interest upon
all the Securities of that Series and the principal of (and premium, if any, on)
any and all Securities of that Series which shall have become due otherwise than
by declaration, with interest upon such principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law)
upon any overdue installments of interest at the same rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of that Series, to the date of such payment or deposit, and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith,
and if any and all defaults under this Indenture with respect to the Securities
of that Series, other than the
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nonpayment of the principal of the Securities of that Series which shall have
become due by declaration, shall have been remedied -- then and in every such
case the Holders of a majority in aggregate principal amount of the Securities
of that Series then outstanding by written notice to the Company and to
the Trustee may waive all defaults and rescind and annul such declaration and
its consequences; but no such waiver or rescission or annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission or annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in every
such case the Company,
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the Trustee and the Holders of the Securities shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company, the Trustee and the Holders of the Securities shall continue as
though no such proceedings had been taken.
SECTION 6.02. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE
MAY PROVE DEBT.
The Company covenants that (1) in case default shall be made
in the payment of any installment of interest on any of the Securities of any
Series, as and when the same shall become due and payable, and such default
shall have continued for a period of 90 days, or (2) in case default shall be
made in the payment of the principal of (or premium, if any, on) any of the
Securities of any Series when the same shall have become due and payable,
whether upon maturity or upon redemption or upon declaration or otherwise --
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of the Securities of such Series, the whole amount that
then shall have become due and payable on all Securities of such Series for
principal (and premium, if any) and interest, with interest upon any overdue
principal (and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon any overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such Series,
and, in addition thereto, such further amount as shall be
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sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree and may
enforce any such judgment or final decree against the Company or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon such Securities wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Company or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other
obligor, or in case of any other judicial proceedings relative to the Company or
other obligor upon the Securities of any Series, or to the creditors or property
of the Company or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and
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payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, (a) to file and prove a claim or claims for the whole
amount of principal (or, if the Securities of any Series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such Series), premium, if any, and interest owing and unpaid in
respect of the Securities of any Series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee, its
agents and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Company or other obligor upon the Securities of any
Series, or to the creditors or property of the Company or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf of
the Holders of the Securities of any Series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and (c) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf
and any
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receiver, assignee, liquidator, custodian, trustee or other similar official is
hereby authorized by each of the Securityholders to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any Series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and to assert claims under this
Indenture, or under any of the Securities of any Series or coupons, if any,
appertaining thereto, may be enforced by the Trustee without the possession of
any of the Securities of such Series or of any coupons appertaining thereto or
the production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the
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holders of the Securities or coupons appertaining to such Securities in respect
of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any holders of such Securities or coupons parties to any such proceedings.
In the case of a default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture, or in aid of the exercise
of any power granted in this Indenture, or otherwise, and the Trustee may
enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 6.03. APPLICATION OF PROCEEDS.
Any moneys collected by the Trustee pursuant to Section 6.02
in respect of any Series of Securities shall be applied in the order following,
at the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal (or premium, if any) or interest, upon
presentation of the several Securities and coupons, if any, appertaining to such
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Securities in respect of which moneys have been collected and making a notation
thereon the payment if only partially paid, and upon surrender thereof if fully
paid:
First: To the payment of costs and expenses of collection,
reasonable compensation to the Trustee, its agents and counsel, and all
other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith;
Second: In case the principal of the Securities of such Series
in respect of which moneys have been collected shall not have become
due, to the payment of interest on the Securities of such Series in
default, in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case
of Original Issue Discount Securities) specified in the Securities of
such Series, such payments to be made ratably to the persons entitled
thereto;
Third: In case the principal of the Securities of such Series
in respect of which moneys have been collected shall have become due by
declaration or otherwise, to the payment of the whole amount then owing
and unpaid upon all of the Securities of such Series for principal (and
premium, if any) and interest, with interest on the overdue principal
(and premium, if any), and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of
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interest, at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such Series, and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such Series, then to the payment of such principal (and
premium, if any) and interest or Yield to Maturity without preference
or priority of principal (and premium if any) over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal (and
premium, if any), or of any installment of interest over any other
installment of interest, or of any Security of such Series over any
other Security of such Series, ratably to the aggregate of such
principal (and premium, if any) and interest or Yield to Maturity; and
Fourth: To the Company.
SECTION 6.04. LIMITATION ON SUITS BY SECURITYHOLDERS.
No Holder of any Security of any Series or any coupon
appertaining thereto shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a receiver, trustee, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of Default
and unless also the holders of not less than twenty-five percent in aggregate
principal amount of the
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Securities of such Series then outstanding shall have made written request upon
the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any such action
or proceedings and no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 6.06; it being understood and
intended and being expressly covenanted by the taker and holder of every
Security or coupon with every other taker and holder and the Trustee that no one
or more holders of Securities of any Series or coupons appertaining thereto
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Securities or coupons, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities of the applicable Series and
coupons, if any, appertaining thereto. For the protection and enforcement of the
provisions of this Section 6.04, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture or any
provision of any Security, the right of any Holder of any
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Security to receive payment of the principal of, premium, if any and interest on
such Security, on or after the respective due dates expressed in such Security,
or any redemption date, and the right of any Holder of a coupon to receive
payment of interest due as provided in such coupon, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such holder.
SECTION 6.05. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF
DEFAULT.
All powers and remedies given by this Article Six to the
Trustee or to the Securityholders or the Holders of any coupons shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof
or of any other powers and remedies available to the Trustee or the
Securityholders or the Holders of any coupons, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder of the Securities or coupons in exercising any right or power
accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article Six or by law to the Trustee or to the
Securityholders or the Holders of any coupons may be exercised from time to
time, and as often as
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shall be deemed expedient, by the Trustee or by the Securityholders or the
Holders of any coupons.
SECTION 6.06. CONTROL BY SECURITYHOLDERS; WAIVER OF DEFAULTS.
The holders of a majority in aggregate principal amount of the
Securities of each Series affected (with each Series voting as a separate class)
at the time outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such Series by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 7.01)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all Series so affected not joining in
the giving of said direction, it being understood that (subject to Section 7.01)
the Trustee shall have no duty to ascertain whether or not such actions or
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forebearances are unduly prejudicial to such holders. Nothing in this Indenture
shall impair the right of the Trustee in its discretion to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
or directions by Securityholders. Prior to the declaration of the maturity of
the Securities of any Series as provided in Section 6.01, the Holders of a
majority in aggregate principal amount of the Securities of such Series at the
time outstanding may on behalf of the holders of all the Securities of such
Series waive any past default hereunder with respect to such Series and its
consequences, except a default in the payment of the principal of (or premium,
if any) or interest on any of the Securities of such Series. In the case of any
such waiver, the Company, the Trustee and the holders of the Securities of
such Series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 6.07. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING
TO PAY COSTS.
All parties to this Indenture agree, and each Holder of any
Security or coupon appertaining thereto, by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay
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the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and or expenses, against
any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section 6.07 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders of any
Series, holding in the aggregate more than ten percent in principal amount of
the Securities of such Series outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security on or after the due date expressed
in such Security.
ARTICLE 7.
TRUSTEE.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise its rights and powers under this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no implied
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covenants or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that
(1) This paragraph does not limit the effect of
paragraph (b) of this Section.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.06.
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(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to the provisions of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order, demands notice or other
communication of the Company mentioned herein shall be sufficiently evidenced by
Company Order and any resolution of the Board of Directors may be sufficiently
evidenced to the Trustee by
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a copy thereof certified by a Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel of its selection,
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate; and
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
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SECTION 7.04. TRUSTEE DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities. It shall not be accountable for
the Company's use of the proceeds from the Securities or for moneys paid over to
the Company pursuant to the Indenture, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULT.
If a Default occurs and is continuing with respect to the
Securities of any Series and if it is known to the Trustee, the Trustee shall
mail to each Holder of a Security of that Series entitled to receive reports
pursuant to Section 4.02(c) (and, if Unregistered Securities of that Series are
outstanding, shall cause to be published at least once in an Authorized
Newspaper in The City of New York, and if such Securities are listed on the
London Stock Exchange, London, and, if such Securities are listed on The
Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment of the principal of
or interest on the Securities of any Series, the Trustee may withhold the notice
if and so long as its Board of Directors, the executive Committee, or a Trust
Committee of directors or Responsible Officers in good faith determines that
withholding such notice is in the interests of Securityholders of that Series.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder entitled
to receive reports pursuant to Section 4.02(c) a brief report dated as of such
date that complies with TIA Section 313(a) if such report is required by such
TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b).
(b) At the time that it mails such a report to
Securityholders, the Trustee shall file a copy of that report with the SEC and
with each stock exchange on which the Securities are listed. The Company shall
provide written notice to the Trustee when the Securities of any Series are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time
such compensation for its services as is agreed upon in writing between the
Company and the Trustee. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it in connection with the performance of its duties under this
Indenture. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss
or liability incurred by it arising out of or in connection with its acceptance
or administration of the trust or trusts
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hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel provided that
the Trustee shall pay the fees and expenses of such counsel. The Company need
not pay for any settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
(d) To secure the payment obligations of the Company pursuant
to this Section, the Trustee shall have a lien prior to the Securities of any
Series on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Securities of a
Series.
(e) If the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(d) or (e) occurs, such expenses
and the compensation for such services are intended to constitute expenses of
administration under any Federal or state bankruptcy, insolvency or related law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the
appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of
any Series by so notifying the Company. The Holders
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of a majority in principal amount of the Securities of any Series may remove the
Trustee with respect to that Series by so notifying the Trustee and the Company
in writing and may appoint a successor Trustee for such Series with the
Company's consent. The Company may remove the Trustee with respect to Securities
of any Series if:
(1) the Trustee fails to comply with Section
7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or public officer takes charge of
the Trustee or its property or;
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to Securities of
any Series, the Company shall promptly appoint a successor Trustee for such
Series.
(d) If a successor Trustee with respect to the Securities of
any Series does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of a
majority in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(e) If the Trustee with respect to the Securities of any
Series fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of such
Trustee and the appointment of a successor Trustee.
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(f) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities by
publishing notice of such event once in an Authorized Newspaper in The City of
New York, and if Securities of that Series are listed on the London Stock
Exchange, London, and if Securities of that Series are listed on the Luxembourg
Stock Exchange, Luxembourg, and by mailing written notice of such event by
first-class mail to the Holders of Securities of such Series entitled to receive
reports pursuant to Section 4.02(c).
(g) All provisions of this Section 7.08 except subparagraphs
(b)(1) and (e) and the words "subject to the lien provided for in Section 7.07"
in subparagraph (f) shall apply also to any Paying Agent located outside the
U.S. and its possessions as required by Section 2.04.
(h) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) Series, the
Company, the retiring Trustee and such
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successor Trustee shall execute and deliver a supplemental indenture wherein
such successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, such successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those Series
to which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to the Securities of a Series, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that the trusteeship for Securities of that or those Series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE, AGENTS BY MERGER, ETC.
If the Trustee or any Agent consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business assets to, another corporation, the
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successor corporation, without any further act, shall be the successor Trustee
or Agent, as the case may be.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee with respect to
each Series of Securities who satisfies the requirement of TIA Section
310(a)(1). The Trustee shall always have a combined capital and surplus of at
least $100,000,000 as set forth in its most recent published annual report of
condition. The Trustee for the Securities of any Series issued hereunder shall
be subject to the provisions of Section 310(b) of the TIA during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the TIA with respect to the Securities
of any Series, there shall be excluded this Indenture with respect to Securities
of any particular Series of Securities other than that Series. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
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creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8.
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONIES.
SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE.
If at any time (a) the Company shall have delivered to the
Trustee cancelled or for cancellation all Securities of any Series theretofore
authenticated and all unmatured coupons, if any, appertaining thereto (other
than any Securities of such Series and coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.09), or (b) in the case of any Series of Securities where
the exact amount (including currency of payment) of principal of and interest
due on which can be determined at the time of making the deposit referred to in
clause (ii) below, (i) all the Securities of such Series and all unmatured
coupons appertaining thereto, not theretofore delivered to the Trustee cancelled
or for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Company shall deposit or cause to be
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deposited with the Trustee as trust funds the entire amount in cash sufficient
to pay at maturity or upon redemption all such Securities not theretofore
delivered to the Trustee cancelled or for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, but excluding, however, the
amount of any moneys for the payment of principal of (and premium, if any) or
interest on the Securities (1) theretofore deposited with the Trustee and repaid
by the Trustee to the Company in accordance with the provisions of Section 8.05,
or (2) paid to any State or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company, then
this Indenture shall cease to be of further effect with respect to the
Securities of such Series (except as to the provisions applicable to transfers
and exchanges of Securities of such Series and any coupons appertaining thereto
and the obligations of the Company to the Trustee under Section 7.07 which shall
survive) and the Trustee on demand of and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to the Securities of such Series. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Securities.
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SECTION 8.02. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT OBLIGATIONS.
In the case of any Series of Securities the exact amount
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (1)
below at the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to the
Securities of such Series and coupons, if any, appertaining thereto on the 91st
day after the applicable conditions set forth below have been satisfied or (b)
the Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Sections 4.03, 4.04 and 5.01 with respect to
the Securities of such Series at any time after the applicable conditions set
forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds
in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of
the Securities of such Series and coupons
appertaining thereto (i) money in an amount, or (ii)
in the case of any Series of Securities the payments
on which may only be made in U.S. dollars, U.S.
Government Obligations which
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through the payment of interest and principal in
respect thereof in accordance with their terms will
provide, not later than one day before the due date
of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the
opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to
pay and discharge each installment of principal of,
and interest on, the outstanding Securities of such
Series and coupons appertaining thereto on the dates
such installments of interest or principal are due;
(2) if the Securities of such Series are then listed on
the New York Stock Exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the
effect that the Company's exercise of its option
under this paragraph would not cause such Securities
to be delisted;
(3) no Event of Default or event (including such deposit)
which with notice or lapse of time would become an
Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on
the date of such deposit;
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(4) the Company shall have delivered to the Trustee an
opinion of independent counsel satisfactory to the
Trustee to the effect that Holders of the Securities
of such Series and coupons appertaining thereto will
not recognize income, gain or loss for Federal income
tax purposes as a result of the Company's exercise of
its option under this Section 8.02 and will be
subject to Federal income tax on the same amount and
in the same manner and at the same times as would
have been the case if such option had not been
exercised, which opinion may, but is not required to,
include or be based upon a ruling to that effect
received from or published by the Internal Revenue
Service.
"Discharged" means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by, and obligations under the Securities of
such Series and coupons appertaining thereto and to have satisfied all the
obligations under this Indenture relating to the Securities of such Series and
coupons appertaining thereto (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except (A) the rights
of holders of the Securities of such Series and coupons appertaining thereto to
receive, from the trust fund described in clause (1) above, payment of the
principal of and the interest on such Securities of such Series and coupons
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when such payments are due; (B) the Company's obligations with respect to such
Securities of such Series under Sections 2.04, 2.08, 2.09, 2.11 and 8.03; and
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
SECTION 8.03. APPLICATION OF MONEYS DEPOSITED.
All moneys deposited with the Trustee pursuant to Section 8.01
or 8.02 shall be held in trust and applied by it to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent), to the Holders of the particular Securities of such Series and of
coupons appertaining thereto for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due, and to become due thereon
for principal (and premium, if any) and interest.
SECTION 8.04. REPAYMENT OF MONEYS HELD.
In connection with the satisfaction and discharge of this
Indenture with respect to the Securities of any Series, all moneys then held by
any Paying Agent under the provisions of this Indenture with respect to such
Series of Securities shall, upon written demand of the Company, be repaid to it
or paid to the Trustee and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
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SECTION 8.05. RETURN OF MONEYS UNCLAIMED FOR TWO YEARS.
Any moneys deposited with or paid to the Trustee or any Paying
Agent pursuant to any provision of this Indenture for payment of the principal
of (and premium, if any,) or interest on the Securities of any Series and any
coupon appertaining thereto and not applied but remaining unclaimed for two
years after the date upon which the principal of (and premium, if any) or
interest on such Securities or coupons, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee or such Paying
Agent on written demand; and the Holder of any of the Securities of such Series
or coupons appertaining thereto shall thereafter look only to the Company for
any payment which such Holder may be entitled to collect and all liability of
the Trustee or any Paying Agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment with respect to moneys deposited with it for
any payment (a) in respect of Registered Securities of any Series, shall at the
expense of the Company, mail by first-class mail to holders of such Securities
at their address as they shall appear on the Security register, addresses as
they shall appear on the Security register, and (b) in respect of Unregistered
Securities of any Series, shall at the expense of the Issuer cause to be
published once, in an Authorized Newspaper in the Borough of Manhattan, The City
of New York, and if the Securities of such Series are listed
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on the London Stock Exchange, once in an Authorized Newspaper in London, and if
the Securities of such Series are listed on the Luxembourg Stock Exchange, once
in an Authorized Newspaper in Luxembourg, notice, that such moneys remain and
that, after a date specified therein, which shall not be less than thirty days
from the date of such mailing or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.06. INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company shall pay and shall indemnify the Trustee and each
Securityholder of each Series in respect of which the deposit shall have been
made against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such obligations.
ARTICLE 9.
AMENDMENTS AND WAIVERS.
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may enter into one or more
supplemental indentures without consent of any Securityholder for any of the
following purposes:
(1) to cure any ambiguity, defect or inconsistency herein
or in the Securities of any Series or to make any
other change, PROVIDED no such action
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shall adversely affect the rights of any
Securityholder; or
(2) to comply with Article 5; or
(3) to secure the Securities pursuant to Section 4.03; or
(4) to provide for uncertificated Securities in addition
to or in place of certificated Securities; or
(5) to provide for the issuance of and establish the form
and terms and conditions of Securities of any Series
as provided in Section 2.02, to establish the form of
any certifications required to be furnished pursuant
to the terms of this Indenture or any Series of
Securities, or to add to the rights of the Holders of
any Series of Securities, or to surrender any right
or power conferred on the Company.
SECTION 9.02. WITH CONSENT OF HOLDERS.
(a) With the written consent of the Holders of a majority in
principal amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company and the
Trustee may enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of this Indenture or of any supplemental
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indenture or to modify, in each case in any manner not covered by Section 9.01,
the rights of the Securityholders of each such Series. The Holders of a majority
in principal amount of the outstanding Securities of each Series affected by
such waiver (with each Series voting as a class), by notice to the Trustee, may
waive compliance by the Company with any provision of this Indenture, any
supplemental indenture or the Securities of any such Series, provided, however,
without the consent of each Securityholder affected, an amendment or waiver may
not:
(1) reduce the amount of Securities whose
Holders must consent to an amendment or
waiver;
(2) change the rate of or change the time for
payment of interest on any Security;
(3) change the principal of or change the fixed
maturity of any Security;
(4) waive a Default in the payment of the
principal of or interest on any Security;
(5) make any Security payable in money other
than that stated in the Security; or
(6) make any change in Sections 6.06 (third
sentence), 6.04 (last paragraph), or the
proviso in the last sentence of Section
9.02(a).
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(b) It is not necessary under this Section 9.02 for the
Securityholders to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
9.02, the Company shall transmit by mail a notice, setting forth in general
terms the substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities
that are entitled to receive reports pursuant to Section 4.02(c). Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities of one or
more Series shall be set forth in a supplemental indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, direction or waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a
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Security or portion of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment, direction or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every
Securityholder of each Series affected by such amendment or waiver.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may, at the direction of the Company, place an
appropriate notation about an amendment or waiver on any Security of any Series
thereafter authenticated. The Company in exchange for Securities of that Series
may issue and the Trustee shall authenticate new Securities of that Series that
reflect the amendment or waiver.
SECTION 9.06. TRUSTEE PROTECTED.
The Trustee may require an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the applicable provisions of this Indenture. The Trustee need not
sign any supplemental indenture that adversely affects its rights, duties,
obligations or standard of care hereunder.
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ARTICLE 10.
MISCELLANEOUS.
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with a provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
SECTION 10.02. NOTICES.
(a) Unless otherwise herein provided, any notice or
communication by the Company or the Trustee to the other is duly given if in
writing and delivered in person, mailed by first-class mail, or sent by
facsimile transmission (confirmed by hard copy):
if to the Company to:
Lucent Technologies Inc.
200 Mountain Avenue
Murray Hill, NJ 07974
Attention: Senior Treasury Manager
Facsimile Number: [(___) ___-____]
if to the Trustee to:
The Bank of New York
101 Barclay Street
Floor 21W
New York, NY 10286
Attention: Corporate Trust Trustee Administration
_______________________
Facsimile Number: (212) 815-5915
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(b) The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities
entitled to receive reports pursuant to Section 4.02(c) shall be mailed by
first-class mail, postage prepaid, to the addresses for Holders of Registered
Securities shown on the register kept by the Registrar and to addresses filed
with the Trustee for other Holders. Failure to so mail a notice or communication
or any defect in such notice or communication shall not affect its sufficiency
with respect to other Holders of Securities of that or any other series entitled
to receive notice.
(d) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and to each Agent at the
same time.
(f) If it shall be impractical in the opinion of the Trustee
or the Company to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
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(g) In case, by reason of the suspension of regular mail
service, or by reason of any other cause, it shall be impossible to mail any
notice as required by this Indenture, then such method of notification as shall
be made with the approval of the Trustee shall constitute a sufficient mailing
of such notice.
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to TIA
Section 312(b) with other Securityholders of that Series or of all Series with
respect to their rights under this Indenture or under the Securities of that
Series or of all Series. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
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(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(3) a statement that, in the opinion of such person, he
has made such examination or investigation as is
necessary to enable him to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such persons such condition or covenant has been
complied with.
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SECTION 10.06. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which
banking institutions are not required to be open. If a payment date is a Legal
Holiday at a place of payment, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 10.07. GOVERNING LAW.
This Indenture, each Security and any coupons shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State without
giving effect to the principles of conflict of laws thereof.
SECTION 10.08. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or an Affiliate. No such indenture, loan
or debt agreement may be used to interpret this Indenture.
SECTION 10.09. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim
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based on, in respect of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
SECTION 10.10. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or any Affiliate of the Company shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Securities and that the pledgee is
not the Company or an Affiliate of the Company.
SECTION 10.11. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
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SECTION 10.12. EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one instrument.
SECTION 10.13. SECURITIES IN A FOREIGN CURRENCY.
Unless otherwise specified in a Company Order delivered
pursuant to Section 2.03(d) of this Indenture with respect to a Series of
Securities, whenever for purposes of this Indenture any action may be taken by
the holders of a specified percentage in aggregate principal amount of
Securities of all Series or all Series affected at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than United States dollars, then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of United States dollars
that could be obtained for such amount at the Market Exchange Rate, as such rate
shall be certified to the Trustee by an Officers' Certificate. For purposes of
this Section 10.13, Market Exchange Rate shall mean the noon United States
dollar buying rate for that currency for cable transfers quoted in New York City
as certified for customs purposes by the Federal Reserve Bank of New York;
provided, however, in the case of European Currency Units ("ECUs") Market
Exchange Rate shall mean the rate of exchange
<PAGE> 113
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determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to such currency, the
Company shall use, in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York or, in the case of ECUs,
the rate of exchange as published in the Journal, as of the most recent
available date or quotations or, in the case of ECUs, rates of exchange from one
or more major banks in New York City or in the country of issue of the currency
in question, which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECUs, rates of exchange as the Company shall
deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent number of votes which each Holder or proxy shall be entitled to
in respect of Securities of a Series denominated in a currency other than United
States dollars.
All decisions and determinations of the Company regarding the
Market Exchange Rate shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and irrevocably binding upon
the Company, the Trustee and all Holders.
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SECTION 10.14. JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert any sum due in respect of the
principal of, premium, if any, or interest in the Securities of any Series (the
"Required Currency") into a currency in which such judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final judgment is entered, unless such day is not a New York Banking Day
then, to the extent permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final judgment
is entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be
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enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due not previously tendered or recovered under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day on
which banking institutions in The City of New York are authorized by law or
required by executive order to close.
The Bank of New York hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, LUCENT TECHNOLOGIES INC. has caused this
Indenture to be signed and acknowledged by its Chairman of the Board, any Vice
Chairman,its Chief Executive Officer, its President, its Chief Financial
Officer, or its Vice President and Treasurer, and its corporate seal to be
affixed hereunto and the same to be attested by its Secretary or by one of its
Assistant Secretaries; and The Bank of New York has caused this Indenture to
be signed and acknowledged by one of its , and its corporate
seal to be affixed hereunto and the same to be attested by its
<PAGE> 116
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Executed and delivered in The City of New York, State of New York, as of the
day and year first written above.
LUCENT TECHNOLOGIES INC.
By_________________________
Name:
Title:
(SEAL)
Attest
_____________________________
Assistant Secretary
THE BANK OF NEW YORK
By_________________________
Name:
Title:
(SEAL)
Attest:
_____________________________
Name:
Title:
<PAGE> 1
Exhibit 4F
[FORM OF FACE OF DEFINITIVE BEARER FIXED RATE NOTE]
Promissory Note
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
No._________________________________ Initial Optional
Redemption Date: ______________
Principal Amount: U.S. $____________ Optional Redemption Price: ________
Interest Rate: _____________________
Annual Redemption
Issue Price: _______________________ Price Reduction: ______________
Original Issue Date: ______________ Optional Repayment
Date(s): ________________
Maturity Date: __________________________________
________________________________________________________________________________
The following information is provided solely for the purpose of applying the
U.S. Federal income tax original issue discount ("OID") rules to this note. If
applicable, the information below will be completed.
Yield to Maturity: Issue Date:
Maximum OID Attributable to Maximum Total OID per $1,000
initial Accrual Period per of initial principal amount:
$1,000 of initial principal
amount (computed under the
____________ method):
________________________________________________________________________________
LUCENT TECHNOLOGIES INC.
EURO-MEDIUM TERM NOTES, SERIES ___
This Note is a Note in respect of a portion of a duly authorized issue
of Euro-Medium Term Notes, Series _____ (the "Notes") of Lucent Technologies
Inc., a Delaware corporation (the "Company"), issued pursuant to an Indenture
dated as of ______________, 1996 (the "Indenture"), between the Company and
__________, as trustee (the "Trustee"), copies of which are on file and may be
examined at the principal corporate trust office of the Trustee in The City of
New York and at the corporate trust office of the Trustee in London. The bearer
of this Note and the coupons, if any, appertaining hereto, whether or not
attached, is deemed to have notice of all the provisions hereof and of the
Indenture and such provisions are binding on him. Unless the context otherwise
requires, the term used herein shall have the meanings specified in the
Indenture and in the terms and conditions set forth herein.
<PAGE> 2
- 2 -
Subject to the provisions hereof, the Company for value received,
hereby promises to pay to the bearer, upon presentation and surrender hereof,
the Principal Amount specified above (the "Principal Amount"), on the Maturity
Date specified above (the "Maturity Date") or, if such day is not a Business
Day, as defined below, on the next succeeding Business Day, unless earlier
redeemed in accordance with the terms hereof, and to pay interest on said
Principal Amount annually in arrears, at the Interest Rate per annum specified
above (the "Interest Rate"), on April 15 of each year, commencing on the April
15 immediately succeeding the Original Issue Date specified above (the "Original
Issue Date") or, if any such day is not a Business Day, on the next succeeding
Business Day, until payment of said Principal Amount has been made or duly
provided for, and the Maturity Date (each an "Interest Payment Date"), but only,
in the case of interest, if any, due on or before the Maturity Date, upon
presentation and surrender of the interest coupons, if any, attached hereto as
they shall severally mature. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Such payment shall be made outside the United
States in such coin or currency of the United States as at the time of payment
shall be legal tender for the payment of public and private debts therein.
"Business Day" means any day other than a Saturday or Sunday, and that is
neither a legal holiday nor a day on which banking institutions in the City of
New York, the City of London or Brussels, Belgium are authorized or required by
law, regulation or executive order to be closed.
As used herein, "United States Person" means any citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, or any estate or trust the income of which is subject to United States
federal income taxation regardless of its source, and "United States" means the
United States of America (including the States and the District of Columbia),
its territories, its possessions, and any other areas subject to its
jurisdiction.
The terms and conditions of the Notes set forth on the reverse hereof,
except as otherwise provided herein, shall be binding on the Company and the
bearer hereof and shall for all purposes have the same effect as though fully
set forth at this place. Except as otherwise provided herein, the Company shall
make all payments as and when provided herein and shall be bound by all its
covenants set forth herein.
Neither this Note nor any coupon appertaining hereto shall be valid or
become obligatory for any purpose until the certificate of authentication hereon
shall have been signed by the Trustee acting in accordance with the Indenture.
This Note and the coupons, if any, appertaining hereto shall be
governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, Lucent Technologies Inc., has caused this Note to
be duly executed under its corporate seal, and coupons bearing the facsimile
signature of a duly authorized officer of Lucent Technologies Inc. to be hereto
annexed.
Dated: __________________, 19__ LUCENT TECHNOLOGIES INC.
[SEAL]
Attest
____________________________ By:__________________________
Title
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described
in the within-mentioned Indenture.
____________,
<PAGE> 3
- 3 -
_____________________________
as Trustee
Date of Authentication:
________________________ By:__________________________
Authorized Signatory
<PAGE> 4
- 4 -
[FORM OF FACE OF INTEREST COUPON
FOR FIXED RATE DEFINITIVE NOTE]
ANY UNITED STATES PERSON WHO HOLDS THIS COUPON WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
Note: _________________________ Principal amount of Note:
U.S. $_______________
Interest Payment Date: Issue Price: _______________
[April 15, 19__ or
Maturity Date] Original Issue Date
of Note:_______________
Interest Rate: ___________________
Maturity Date of Note: __________
Interest Amount:__________________
LUCENT TECHNOLOGIES INC.
EURO-MEDIUM TERM NOTES, SERIES _____
This coupon appertains to an Lucent Technologies Inc., Euro-Medium Term
Note, Series ____ of the Principal Amount and with the Original Issue Date and
the Maturity Date specified above (the "Note"), the number of which is set forth
hereon.
On the Interest Payment Date set forth above (unless the Note shall
have been duly called for redemption and payment of the redemption price shall
have been made or duly provided for), Lucent Technologies Inc., a New York
corporation (the "Company"), shall pay to the bearer (subject to the terms and
conditions of the Note which shall be binding on the holder of this coupon
whether or not attached to the Note), upon presentation and surrender hereof, at
the Interest Amount specified above, in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts therein (together with any Additional
Amounts in respect thereof which may be payable under the terms of such Note),
being the interest then payable on such Note.
Payment of this coupon will be made upon presentation and surrender
hereof at the offices of such paying agents in such places outside the United
States of America as the Company may from time to time determine. The initial
paying agents and their respective addresses are set forth on the reverse
hereof.
LUCENT TECHNOLOGIES INC.
By: ______________________________
Title
<PAGE> 5
- 5 -
[FORM OF REVERSE OF INTEREST COUPON
FOR FIXED RATE DEFINITIVE NOTE]
TRUSTEE
- ----------
New York, New York
Address
United States of America
PAYING AGENT
Name of Buying Agent Name of Paying Agent
Address Address
London Luxembourg
England
<PAGE> 6
- 6 -
[FORM OF REVERSE OF FIXED RATE BEARER NOTE]
1. Form, Denomination and Exchange
This Note is a bearer Note and is in the denomination of U.S. $5,000 or
an integral multiple thereof. Title to this Note and any coupon appertaining
hereto will pass by delivery. This Note is an "Original Issue Discount Note"
only if so stated in a legend on the face hereof.
If this Note is a Temporary Global Note, on or after the 40th day
following the Issue Date (the "Exchange Date") and provided that Final
Certification (as defined below) with respect to all or a portion of this Note
has occurred, this Note or such portion, as the case may be, will be cancelled
and replaced by a permanent global Note, without interest coupons (a "Permanent
Global Note"), to be deposited in London with a common depositary (the "Common
Depositary") for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear") and Centrale de Livraison de
Valeurs Mobilieres, S.A. ("CEDEL"). "Final Certification" means the delivery to
the Trustee of a certificate (a "Clearing System Certificate") signed by
Euro-clear or CEDEL, as the case may be, dated no earlier than the Exchange
Date, to the effect that on such date, based solely on certifications it has
received in writing, by tested telex or by electronic transmission from member
organizations appearing on its records as being entitled to a portion of the
principal amount hereof, this Note (or the portion of the principal amount
hereof specified in such Clearing System Certificate), (i) are owned by persons
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) ("financial institutions") purchasing for their own
account or for resale, or (b) acquired the Notes through foreign branches of
United States financial institutions and who hold the Notes through such United
States financial institution on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that Euro-clear or Cedel, as the case may be, may advise the
Company or the Company's agent, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7),
and to the further effect that United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i),
(ii) or (iii) have certified that they have not acquired the Notes for purposes
of resale directly or indirectly to a United States person or to a person within
the United States of its possessions.
If this Note is a Permanent Global Note, upon 30 days' notice to the
Trustee, the holder hereof may exchange all or a portion of this Note for a
definitive Note or Notes in bearer form, with coupons attached (if interest is
payable on this Note), in any authorized denominations (each a "Definitive
Note").
2. Payment and Paying Agents
If this Note is a Temporary Global Note, interest, if any, payable in
respect of an Interest Payment Date occurring prior to the Exchange Date will be
paid to each of Euro-clear and CEDEL with respect to that portion of this Note
held for its account by the Common Depositary upon certification by Euro-clear
or CEDEL, as the case may be, to the Trustee, as specified in such Temporary
Global Note.
If this Note is a Permanent Global Note, interest or Additional
Amounts, if any, payable in respect of an Interest Payment Date and the
principal amount payable at maturity will be paid to each of Euro-clear and
CEDEL, with respect to that portion of this Note held for its account by the
Common Depositary. Each of Euro-clear and CEDEL will in such circumstances
credit the interest, principal, or additional amount received by it with respect
to the portion of such Permanent Global Note to the accounts of or for the
beneficial owners thereof.
If this Note is a Definitive Note, interest, if any, in respect of an
Interest Payment Date will be paid, upon the presentation and surrender to one
of the paying agents listed below of the appropriate coupon appertaining hereto,
to the bearer thereof.
<PAGE> 7
- 7 -
Payments of principal of and interest, if any, and Additional Amounts,
if any, on this Note will be payable, upon presentation and surrender of this
Note or any coupon appertaining hereto, as the case may be, subject to any
applicable laws and regulations, at the offices of such paying agents located
outside the United States as the Company may appoint from time to time. Such
payments will be made, at the option of the holder of this Note or a coupon
appertaining hereto, as the case may be, by a check mailed or delivered outside
the United States, or, upon written notice reasonably given, by transfer to a
U.S. dollar account maintained by the payee with a bank located outside the
United States. No payment with respect to this Note will be made at the
principal corporate trust office of the Trustee or any other paying agency
maintained by the Company in the United States nor will such payment be made by
transfer to an account, or by mail to an address, in the United States.
Notwithstanding the foregoing, payments in U.S. dollars of principal of and
interest, if any, and Additional Amounts, if any, on this Note will be made at
the principal corporate trust office of the Trustee in The City of New York if
payment of the full amount hereof at all paying agencies outside the United
States is illegal or effectively precluded by exchange controls or other similar
restrictions provided that provision for such payment in the United States would
not cause such Note to be treated as a "registration-required obligation" under
United States federal income tax law.
The Company, has initially appointed as paying agents of this Note the
corporate trust office of _______________ in London and _______________________
in Luxembourg. The Company may terminate the appointment of any of the paying
agents from time to time, except that the Company will maintain at least one
paying agent in a city where this Note may be presented for payment and may be
surrendered for exchange; provided, that so long as this Note is listed on the
Luxembourg Stock Exchange and such stock exchange shall so require, the Company
will maintain a paying agent in Luxembourg for this Note.
All moneys paid by the Company to a paying agent for the payment of
principal of or interest, if any, or Additional Amounts, if any, on this Note
which remain unclaimed at the end of two years after such principal, interest,
if any, or Additional Amounts, if any, shall have become due and payable will be
repaid to the Company and the holder of this Note or any coupon appertaining
hereto will thereafter look only to the Company for payment thereof.
3. Optional Redemption
Unless the face of this Note indicates that an Optional Redemption
Price is applicable to such Note, this Note will not be redeemable prior to its
maturity at the option of the Company except in the event of certain changes
involving United States taxes or the imposition of certain information reporting
requirements, as described below. If the face of this Note indicates that an
Optional Redemption Price is applicable to this Note, then this Note may be
redeemed at the option of the Company as a whole, or from time to time in part,
on or after the Initial Optional Redemption Date specified on the face hereof
and prior to the Maturity Date, at the Optional Redemption Price specified on
the face hereof (expressed as a percentage of the principal amount hereof,
provided that if this Note is an Original Issue Discount Note, the principal
amount payable upon redemption hereof shall be limited to the principal amount
of the Note that would then be due and payable upon acceleration hereof as
provided in the second paragraph of Section 6 hereof) (such Optional Redemption
Price being subject to reduction as hereinafter provided), together in each case
with accrued interest to the date of redemption and Additional Amounts (as
hereinafter defined), if any; provided that if the face of this Note indicates
that this Note is subject to an "Annual Redemption Price Reduction," then the
Optional Redemption Price shall decline at each anniversary of the Initial
Optional Redemption Date by the Annual Redemption Price Reduction until the
Optional Redemption Price is 100% of such principal amount. Notice of intention
to redeem Notes pursuant to this paragraph will be given to the holders of the
Notes in accordance with "Notices" below. Such notices will be given at least
once upon not less than 30 nor more than 60 days notice. Such notices of
redemption shall specify the date fixed for redemption and the applicable
redemption price. If less than all the Notes with like tenor and terms are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee by such
method as the Trustee shall deem appropriate and fair.
The Notes may be redeemed at the option of the Company, in whole, but
not in part, at any time at a redemption price equal to 100% of the principal
amount (provided that if this Note is an Original Issue Discount Note, the
principal amount payable upon redemption hereof shall be limited to the
principal amount of this Note that would then be due and payable upon
acceleration hereof as provided in the second paragraph of Section 6 hereof),
<PAGE> 8
- 8 -
together with accrued interest to the date fixed for redemption, if the Company
shall determine that as a result of (a) any change in or amendment to the laws
(or any regulations or rulings promulgated thereunder) of the United States or
of any political subdivision or taxing authority thereof or therein, or any
change in or clarification of an official position regarding the application or
official interpretation of such laws, regulations or rulings, or (b) any action
taken by a taxing authority of, or decision rendered by a court of competent
jurisdiction in, the United States or any political subdivision thereof or
therein, whether or not such action or decision is generally applied or is taken
or rendered with respect to the Company, which change, amendment, clarification,
action or decision becomes effective after the original issuance of any Notes,
the Company has or will become required to pay additional amounts as described
below under "Payment of Additional Amounts" and such obligation cannot be
avoided by the Company taking reasonable measures available to it at nominal
cost. Prior to the publication of any notice of redemption pursuant to this
paragraph, the Company shall deliver to the Trustee (i) a certificate stating
that the Company is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Company to so redeem have occurred, and (ii) an opinion of counsel, satisfactory
to the Trustee, to such effect based on such statement of facts. In the case of
any such redemption of the Notes, notice of such redemption will not be given
more than 90 days before the first date on which the Company would have been
required to pay the additional amounts were a payment on the Notes then due.
If the Company shall determine, based upon a written opinion of
independent counsel, that any payment made outside the United States by the
Company or any of its Paying Agents in respect of any Note or coupon would,
under any present or future laws or regulations of the United States, be subject
to any certification, information or other reporting requirement of any kind,
the effect of which requirement is the disclosure to the Company, any Paying
Agent or any governmental authority of the nationality, residence or identity of
a beneficial owner of such Note or coupon who is a United States Alien as
defined under "Payment of Additional Amounts" (other than a requirement (a) that
would not be applicable to a payment made by the Company at any Paying Agent (i)
directly to the beneficial owner, or (ii) to a custodian, nominee or other
agent, or (b) which could be satisfied by such a custodian, nominee or other
agent certifying to the effect that such beneficial owner is a United States
Alien; provided, however, that in each case referred to in clauses (a)(ii) and
(b) payment by such custodian, nominee or agent to such beneficial owner is not
otherwise subject to any requirement referred to in this sentence), the Company
at its election shall either (x) redeem the Notes, as a whole and not in part,
at a redemption price equal to 100% of the principal amount thereof (provided
that if this Note is an Original Issue Discount Note, the principal amount
payable upon redemption hereof shall be the principal amount of this Note that
would then be due and payable upon acceleration hereof as provided in the second
paragraph of Section 6 below) together with accrued interest to the date fixed
for redemption, or (y) if the conditions of the third paragraph under "Payment
of Additional Amounts" are satisfied, pay the additional amounts specified in
such paragraph. The Company shall make such determination as soon as
practicable, notify the Trustee, and publish prompt notice thereof
("Determination Notice"), stating the effective date of such certification,
information or reporting requirement, whether the Company will redeem the Notes
or pay the additional amounts specified in the third paragraph under "Payment of
Additional Amounts", and (if applicable) the last date by which the redemption
of the Notes must take place, as provided in the next succeeding sentence. If
the Notes are to be redeemed, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Company shall elect by notice to the Trustee at least 60 days before the date
fixed for redemption, unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company shall not so redeem the Notes if the
Company shall subsequently determine, based upon a written opinion of
independent counsel, not less than 30 days prior to the date fixed for
redemption, that subsequent payments would not be subject to any certification,
information or other requirement, in which case the Company shall notify the
Trustee, which shall publish prompt notice of such subsequent determination and
any earlier redemption notice shall be revoked and of no further effect. If the
Company elects as provided in clause (y) above to pay additional amounts, and as
long as the Company is obligated to pay such additional amounts, the Company may
subsequently redeem the Notes, at any time, as a whole and not in part, at a
redemption price equal to 100% of their principal amount (provided that if this
Note is an Original Issue Discount Note, the principal amount payable upon
redemption hereof shall be the principal amount of this Note that would then be
due and payable upon acceleration hereof as provided in the second paragraph of
Section 6 below), together, with accrued interest, if any, to the date fixed for
redemption but without reduction for any applicable United States withholding
taxes.
<PAGE> 9
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Notice of intention to redeem Notes pursuant to the two preceding
paragraphs will be given to the holders of the Notes in accordance with
"Notices" below. Notice will be given at least once not more than 90 nor less
than 30 days prior to the date fixed for redemption. Notices of redemption will
specify the date fixed for redemption and the applicable redemption price.
This Note should be presented for payment upon redemption together with
all unmatured coupons, failing which (i) the amount of any missing unmatured
coupons will be deducted from the sum due for payment or (ii) in lieu thereof
indemnity satisfactory to the Company and the Paying Agent will be supplied to
the Company and the Paying Agent by the person presenting. Each amount so
deducted will be paid in the manner mentioned above against surrender of the
missing coupon.
4. Notices
Notices to holders of Notes will be given by publication once in each
of four successive calendar weeks in English in a leading daily newspaper of
general circulation in London, and, so long as the Notes are listed on the
Luxembourg Stock Exchange and such stock exchange so requires, in a daily
newspaper of general circulation in Luxembourg or, if publication in either
London or Luxembourg is not practical, elsewhere in Western Europe. Such
publication is expected to be made in the Financial Times, The Wall Street
Journal, and the Luxembourg Wort. Such notices will be deemed to have been given
on the date of the first publication or, if published in such newspapers on
different dates, on the dates of the first such publication.
5. Payment of Additional Amounts
The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest to the holder of this Note or a coupon
appertaining hereto who is a United States Alien (as defined below) such amounts
("Additional Amounts") as may be necessary so that every net payment of the
principal of and interest on this Note, after deductions or withholding for or
on account of any present or future tax, assessment or other governmental charge
imposed on or as a result of such payment by the United States or any political
subdivision or taxing authority thereof or therein, will not be less than the
amount provided for herein or in such coupon to be then due and payable.
However, the Company will not be required to pay any such additional amounts for
or on account of:
(a) any tax, assessment or other governmental charge (i) which
would not have been so imposed but for the existence of any present or
former connection between such holder (or between a fiduciary, settlor
or beneficiary of, or a person holding a power over, such holder, if
such holder is an estate or a trust, or a member or shareholder of such
holder, if such holder is a partnership or corporation) and the United
States, the Commonwealth of Puerto Rico or any territory or possession
of the United States or areas subject to its jurisdiction, as the case
may be, including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, person holding a power, member or shareholder)
being or having been a citizen or resident thereof or treated as a
resident thereof, or being or having been engaged in a trade or
business therein, or being or having been present therein, or having or
having had a permanent establishment therein, (ii) imposed by reason of
such holder's past or present status as a personal holding company,
foreign personal holding company or a controlled foreign corporation
with respect to the United States, a corporation which accumulates
earnings to avoid United States federal income tax, or as a private
foundation or other tax exempt organization or (iii) imposed by reason
of the holder's past or present status as the actual or constructive
owner of 10% or more of the total combined voting power of all classes
of stock of the Company entitled to vote, or a controlled foreign
corporation that is related to the Company through stock ownership;
(b) any estate, inheritance, gift sales, transfer, personal
property, interest equalization, franchise, excise or similar tax,
assessment or other governmental charge;
<PAGE> 10
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(c) any tax, assessment or other governmental charge which is
payable otherwise than by withholding from payment on any Note or
coupon;
(d) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment on any Note or coupon,
if such payment can be made without such withholding by any other
Paying Agent or the Company in Western Europe;
(e) any tax, assessment or other governmental charge which would
not have been imposed but for a failure to comply with applicable
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
connection with the United States of the holder or beneficial owner of
a Note or coupon if such compliance is required by statute or
regulation of the United States as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(f) any tax assessment or other governmental charge which would
not have been imposed but for the presentation by the holder of any
Note or any coupon appertaining thereto for payment on a date more than
10 days after the date on which such payment became due and payable or
the date on which payment thereof was duly provided for, whichever
occurred later; or
(g) any combination of items (a), (b), (c), (d), (e) and (f);
nor will Additional Amounts be paid with respect to any payment on this Note or
coupon to a holder who is a fiduciary or partnership or other than the sole
beneficial owner of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
would not have been entitled to the Additional Amounts had such beneficiary
settlor, member or beneficial owner been the holder of this Note or coupon.
The term "United States Alien" means any person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a nonresident alien
individual or a nonresident alien fiduciary of a foreign estate or trust.
Notwithstanding the foregoing, if and so long as the certification,
identification, documentation, information or other reporting requirements
applicable to this Note or coupons, if any, appertaining thereto referred to in
the third paragraph under "Optional Redemption" above would be fully satisfied
by payment of a backup withholding tax or similar charge, the Company may elect,
by so stating in the Determination Notice, to have the provisions of this
paragraph apply in lieu of the provisions of such paragraph relating to
redemption. In such event, the Company will pay as additional amounts such
amounts as may be necessary so that following the effective date of such
requirements every net payment made outside the United States by the Company or
any Paying Agent of principal of and interest, if any, on this Note of which the
beneficial owner is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to the
Company, any payment agent or any United States governmental authority), after
deduction or withholding for or on account of such backup withholding tax or
similar charge (other than a backup withholding tax or similar charge which is
(i) the result of a certification, identification, documentation, information or
other reporting requirement described in the first parenthetical clause of such
paragraph, or (ii) imposed as a result of the facts that the Company or any
Paying Agent has actual knowledge that the beneficial owner of this Note or
coupon is within the category of persons described in clause (a) of the first
paragraph of this section, or (iii) imposed as a result of presentation of this
Note or coupon for payment more than 15 days after the later of the date on
which such payment becomes due and payable or the date on which payment thereof
is duly provided for), will not be less than the amount provided for in this
Note or coupon to be then due and payable.
<PAGE> 11
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6. Events of Default
The occurrence of one or more of the following events shall constitute
an Event of Default with respect to the Notes (i) default for 30 days in the
payment of interest on the Notes when the same becomes due and payable and
continuance of such default for a period of 90 days; (ii) default in the payment
of the principal of any of the Notes when the same becomes due and payable at
maturity, upon redemption or otherwise; (iii) failure to perform any other
covenant or agreement of the Company in the Indenture for the benefit of the
Notes, continued for 90 days after written notice as provided in the Indenture
and (iv) certain events of insolvency, as provided in the Indenture.
If an Event of Default with respect to the Notes at the time
outstanding occurs and is continuing, either the Trustee or the holders of at
least 25% in aggregate principal amount of the outstanding Notes by notice as
provided in the Indenture may declare the principal amount of all the Notes to
be due and payable immediately; provided, however, that if this Note is an
Original Issue Discount Note, the amount in respect of this Note that will
become so due and payable will be the sum of (i) the Issue Price specified in
the legend on the face hereof multiplied by the Principal Amount, (ii) the
aggregate of the portions of the original issue discount which shall be added
cumulatively each April 15 for each annual period terminated prior to the date
of acceleration and (iii) accrued amortization of the original issue discount
(calculated using the "constant interest" method, in accordance with generally
accepted accounting principles in effect in the United States on __________,
1996) from the preceding April 15 to the date of acceleration. The portion of
the original issue discount added each April 15, in respect of each such annual
period shall be the yield to maturity specified in the legend on the face hereof
times the adjusted principal amount as calculated in accordance with the
immediately preceding sentence for the preceding April 15.
As used in this Section 6 and in Section 7 the term "principal amount"
means, in the case of any Original Issue Discount Note, the amount that would
then be due and payable upon redemption or acceleration of the maturity thereof,
as the case may be, as specified in such Note.
7. Modification, Waiver and Meeting
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the holders of not less than a
majority in aggregate principal amount of all the outstanding Securities of each
series affected by such supplemental indenture (with each series voting as a
class). Under certain circumstances set forth in the Indenture, the Company and
the Trustee may without the consent of the holders of the Securities enter into
a supplemental indenture.
The holders of not less than a majority, in, aggregate principal amount
of the outstanding Securities of each Series (as defined in the Indenture)
affected by such waiver with each series voting as a class may, by notice to the
Trustee on behalf of all holders of Notes, waive any past default or compliance
by the Company with any provision of the Indenture of the Securities of any such
series, provided, however, that without the consent of each Securityholder
affected thereby, no amendment or waiver may:
(1) reduce the amount of securities whose holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on
any Security;
(3) change the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or interest on
any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change for waiver of compliance with certain provisions of
the Indenture or for waiver of certain defaults.
<PAGE> 12
- 12 -
This Note may be exchanged for an equal principal amount of Notes of
the same maturity, interest rate, and original issue date in any authorized
denominations upon delivery to a Paying Agent of the Note with all unmatured
coupons and all matured coupons in default appertaining thereto and if all
requirements of such Paying Agent for such exchange are met.
A meeting of the holders of the Notes may be called at any time by the
Trustee, the Company or the holders of at least 25% in aggregate principal
amount of the outstanding Notes, in any such case upon notice given in
accordance with Section 4 "Notices". Under the Indenture, the Trustee may make
reasonable rules for action by, or a meeting of, the holders of the Notes.
8. Repayment at Option of Holder
Unless an Optional Repayment Date or Dates is indicated on the face of
this Note, this Note shall not be subject to repayment at the option of the
holder prior to this Maturity Date. If an Optional Repayment Date or Dates is
indicated on the face of this Note, this Note may be subject to repayment on the
Optional Repayment Date or Dates specified on the face hereof on the terms set
forth herein. On any Optional Repayment Date, this Note may be payable in whole
or in part in increments of U.S. $1,000 (provided that any remaining principal
amount hereof shall not be less than the minimum authorized denomination hereof)
at the option of the holder hereof at a price equal to 100% of the principal
amount to be repaid (provided that if this Note is an Original Issue Discount
Note, the principal amount payable upon any such repayment hereof shall be the
principal amount of this Note that would then be due and payable upon
acceleration hereof as provided in the second paragraph of Section 6 above)
together with interest hereon payable to the date of repayment and Additional
Amounts, if any. For this Note to be repaid in whole or in part at the option of
the holder hereof, the Company must receive at the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, at least 30 calendar
days but not more than 45 calendar days prior to the date of repayment (i) this
Note with the form entitled "Option to Elect Repayment" on the reverse hereof
duly completed or (ii) a telegram, telex, facsimile transmission or a letter
from a member of a national securities exchange, the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States setting forth the name of the holder of this Note, the principal amount
of this Note, the principal amount of this Note to be repaid, the certificate
number of a description of the tenor or terms of this Note, a statement that the
option to elect repurchase is being exercised thereby and a guarantee that this
Note to be repaid, together with the duly completed form entitled "Option to
Elect Repayment" on the reverse hereof, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter, and this Note and form duly completed must be
received by the Trustee by such fifth Business Day.
<PAGE> 13
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
_________________________________________
(Please print or typewrite the name
and address of the undersigned.)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be increments of U.S. $1,000)
which the holder elects to have repaid:________________________; and specify the
denomination or denominations (which shall not be less than the minimum
authorized denomination) of the Notes to be issued to the holder for the portion
of the within Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid):
___________________
Date: _____________ ____________________________________
NOTICE: The Signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of the within instrument in
every particular without alteration
or enlargement
<PAGE> 1
Exhibit 5
April 1, 1996
Lucent Technologies Inc.
600 Mountain Avenue
Murray Hill, N.J. 07974
Dear Sirs:
With reference to the registration statement on Form S-3 (the
"Registration Statement") that Lucent Technologies Inc. (the "Company") has
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to $3.5 billion of the Company's notes (the "Notes"),
to be issued under an indenture dated as of April 1, 1996 (the "Indenture"),
between the Company and The Bank of New York, Trustee, and warrants to purchase
Notes (the "Warrants"), I am of the opinion that:
1. the Company is a duly organized and validly existing
corporation under the laws of the State of Delaware;
2. the execution and delivery of the Indenture and issuance of
the Notes and the Warrants have been duly authorized by
appropriate corporate action;
3. the Indenture, when duly executed by the parties, will be a
valid and binding agreement in accordance with its terms, and
the Notes, when duly executed and authenticated in accordance
with the terms of the Indenture and delivered in accordance
with the provisions of either an underwriting, distribution or
international distribution agreement, substantially in the
forms filed as exhibits to the Registration Statement, will be
legally issued and binding obligations of the Company in
accordance with their terms, in each case subject to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement
of creditors rights and to general equity principles;
4. when the Warrants have been duly authorized and duly executed
by the Company and countersigned as provided in the relevant
Warrant Agreement and when duly paid for and delivered
pursuant to a sale in the manner described in the Registration
Statement, including the prospectus and any prospectus
supplement relating to such sale, such Warrants will be duly
authorized and will be valid and binding obligations of the
Company in accordance with, and subject to, their terms of the
relevant Warrant Agreement, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors rights
and to general equity principles; and
5. the Company meets all the requirements for filing the
Registration Statement.
<PAGE> 2
In connection with my rendering this opinion, I have reviewed (i) the
Indenture and the Warrants; (ii) the Registration Statement; (iii) certain
resolutions adopted or to be adopted by the Board of Directors of the Company;
and (iv) such other documents, records and papers as I have deemed necessary or
appropriate in order to give the opinions set forth herein. I am familiar with
the proceedings heretofore taken, by the Company in connection with the
authorization, registration, issuance and sale of the Shares. I have, with your
consent, relied as to factual matters on certificates or other doucments
furnished by the Company or its officers and by govenmental authorities and upon
such other documents and data that I have deemed appropriate. I have assumed
the authenticity of all documents submitted to us as copies.
I am not a member of the Bar of any jurisdiction other than the State
of New York and the District of Columbia, and, with your consent, I am opining
herein as to the effect on the subject transaction only of the General
Corporation Law of the State of Delaware, and I express no opinion with respect
to the applicability thereto, or the effect thereon, of any other laws or the
laws of any other jurisdiction.
I hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to the reference to me in the Prospectus that is a
part of the Registration Statement. In giving such cconsent, I do not hereby
admit that I am in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933.
Very truly yours,
/s/ Richard J. Rawson
Richard J. Rawson
Senior Vice President and
General Counsel
<PAGE> 1
Exhibit 23A
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement of
Lucent Technologies Inc. on Form S-3 (File No. 333-01223) of our report
dated January 25, 1996 (Note 14 is dated February 1, 1996), on our audits of the
consolidated financial statements and financial statement schedule of Lucent
Technologies Inc. at December 31, 1995 and 1994 and for the years ended
December 31, 1995, 1994, and 1993 which report is included in the registration
statement on Form 10/A (File No. 001-11639) of Lucent Technologies Inc. We also
consent to the reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
1301 Avenue of the Americas
New York, New York
April 1, 1996
<PAGE> 1
Exhibit 25
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) /__/
-------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------------
LUCENT TECHNOLOGIES INC.
(Exact name of obligor as specified in its charter)
Delaware 22-3408857
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 Mountain Avenue
Murray Hill, New Jersey 07974
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
CONFORMED COPY
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 27th day of March, 1996.
THE BANK OF NEW YORK
By: /S/LLOYD A. MCKENZIE
-------------------------------
Name: LLOYD A. MCKENZIE
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE> 5
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a
member of the Federal Reserve System, at the close of business December 31,
1995, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,500,312
Interest-bearing balances .......... 643,938
Securities:
Held-to-maturity securities ........ 806,221
Available-for-sale securities ...... 2,036,768
Federal funds sold and securities purchased
under agreements to resell in
domestic offices of the bank:
Federal funds sold ................... 4,166,720
Securities purchased under agreements
to resell........................... 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 27,068,535
LESS: Allowance for loan and
lease losses ..................... 520,024
LESS: Allocated transfer risk
reserve........................... 1,000
Loans and leases, net of unearned
income and allowance, and reserve 26,547,511
Assets held in trading accounts ...... 758,462
Premises and fixed assets (including
capitalized leases) ................ 615,330
Other real estate owned .............. 63,769
Investments in unconsolidated
subsidiaries and associated
companies .......................... 223,174
Customers' liability to this bank on
acceptances outstanding ............ 900,795
Intangible assets .................... 212,220
Other assets ......................... 1,186,274
-----------
Total assets ......................... $42,711,907
===========
LIABILITIES
Deposits:
In domestic offices ................ $21,248,127
Noninterest-bearing ................ 9,172,079
Interest-bearing ................... 12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,535,088
Noninterest-bearing ................ 64,417
Interest-bearing ................... 9,470,671
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 2,095,668
Securities sold under agreements
to repurchase .................... 69,212
Demand notes issued to the U.S.
Treasury ........................... 107,340
Trading liabilities .................. 615,718
Other borrowed money:
With original maturity of one year
or less .......................... 1,638,744
With original maturity of more than
one year ......................... 120,863
Bank's liability on acceptances exe-
cuted and outstanding .............. 909,527
Subordinated notes and debentures .... 1,047,860
Other liabilities .................... 1,836,573
-----------
Total liabilities .................... 39,224,720
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,995,316
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C>
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 29,668
Cumulative foreign currency transla-
tion adjustments .................. (5,747)
-----------
Total equity capital ................ 3,487,187
-----------
Total liabilities and equity
capital ........................... $42,711,907
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
-
