<PAGE> 1
AS FILED ELECTRONICALLY WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 12,
1996
REGISTRATION NO. 333-01223
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 1
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.
------------------------
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. / /
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) FEE(3)
<S> <C> <C> <C> <C>
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Debt Securities and Warrants to
purchase Debt Securities............. $3,500,000,000 100% $3,500,000,000 $1,206,897
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</TABLE>
(1) Or if any debt securities are issued (i) at original issue discount, such
greater amount as shall result in an aggregate initial offering price of the
equivalent of $3,500,000,000, or (ii) with an initial offering price
denominated in a foreign currency or currency unit, such amount as shall
result in an aggregate initial offering price equivalent to $3,500,000,000.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(3) Of the amount shown, $34,483 was paid at the time of the original filing of
this Registration Statement on February 26, 1996.
------------------------
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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<PAGE> 2
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 MARCH 12, 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.
------------------------
, 1996
<PAGE> 3
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.
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).
2
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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.
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>
-- 3.4 3.1 2.1 --
</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 $1,122 million and $1,622 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.
3
<PAGE> 5
DESCRIPTION OF THE NOTES
The Notes are to be issued under an indenture (the "Indenture"), dated as
of , 1996, between the Company and , 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
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.
4
<PAGE> 6
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.
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
5
<PAGE> 7
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 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
6
<PAGE> 8
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. (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 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 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 all affected
series (acting as one class) 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 all affected series (acting as one class) 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;
7
<PAGE> 9
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 all affected series (acting as one class) 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 all affected series (acting as one class) 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)
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
8
<PAGE> 10
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 all series affected thereby (voting as one 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
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.
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
9
<PAGE> 11
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 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
10
<PAGE> 12
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.
is passing upon the legality of the Notes and Warrants
for any agent, dealer or underwriter which may be involved in any sale thereof.
Such firm from time to time acts as counsel for the Company and its
subsidiaries.
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.
11
<PAGE> 13
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> 14
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 , 1996, between the Company and 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> 15
<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>
- ---------------
* To be filed by amendment.
(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.
(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
II-3
<PAGE> 16
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> 17
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 12th day of March,
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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<C> <S> <C>
/s/ HENRY B. SCHACHT Chief Executive Officer March 12, 1996
- ------------------------------------------
Henry B. Schacht
/s/ DONALD K. PETERSON Chief Accounting Officer and March 12, 1996
- ------------------------------------------ Chief Financial Officer
Donald K. Peterson
/s/ PAMELA F. CRAVEN Director March 12, 1996
- ------------------------------------------
Pamela F. Craven
/s/ MAUREEN B. TART Director March 12, 1996
- ------------------------------------------
Maureen B. Tart
/s/ MARILYN J. WASSER Director March 12, 1996
- ------------------------------------------
Marilyn J. Wasser
</TABLE>
II-5
<PAGE> 18
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 , 1996, between the Company and 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>
- ---------------
* To be filed by amendment.
<PAGE> 1
Exhibit 1A
LUCENT TECHNOLOGIES INC.
FORM OF UNDERWRITING AGREEMENT
( , 199 )
--------------- -
New York, New York
(Representative of the Several Underwriters)
As Representative of the Several Underwriters
c/o
Dear Sirs:
The undersigned, Lucent Technologies Inc. (the "Company"), hereby
confirms its agreement with the several Underwriters, named in Schedule I
hereof, as follows:
1. Underwriters and Representative. The term "Underwriters" as used
herein shall mean the several persons, firms and corporations named in Schedule
I hereof, and the term "Underwriter" shall mean any one of such persons, firms
or corporations. The terms "Underwriters," persons" "firms" and "corporations"
as used herein shall include the singular of such terms as well as the plural.
The term "Representative" shall mean the representative to whom this Agreement
is addressed, who, by signing this Agreement, represents that it has been
authorized by each Underwriter to execute this Agreement on behalf of such
Underwriter and to act for such Underwriter in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint.
2. Description of Notes. The Company proposes to issue ________________
principal amount of its ______________ (the "Notes") under an Indenture dated as
of _____________, 1996 (the "Indenture") between the Company and ______________,
Trustee (the "Trustee"). The Notes are more fully described in the Registration
Statement hereinafter mentioned.
3. Representations and Warranties of the Company. The Company
represents and warrants to the several Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement No.__________
including a prospectus relating to notes of the Company including the
Notes, which has become effective under the Securities Act of 1933 (the
"Act"), and has filed or will file with, or has delivered or will
deliver for filing to, the Commission a prospectus supplement
specifically relating to the Notes pursuant to Rule 424 under the Act.
The term "Registration Statement" means the Registration Statement as
amended to the date hereof together with such prospectus supplement.
The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically
relating to
<PAGE> 2
2
the Notes, as filed with, or delivered for filing to, the Commission
pursuant to Rule 424. The term "preliminary prospectus" means any
preliminary prospectus supplement specifically relating to the Notes
together with the Basic Prospectus. As used herein, Registration
Statement, Basic Prospectus, Prospectus, and preliminary prospectus
shall include in each case the material, if any, incorporated by
reference therein.
(b)(i) Each part of the Registration Statement (including the
material incorporated by reference therein) when such part became
effective, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (ii) each
preliminary prospectus, if any, relating to any Notes, filed pursuant
to Rule 424 under the Act, complied when so filed in all material
respects with the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the applicable rules and regulations of the
Commission thereunder, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the Trust Indenture
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Registration Statement and the Prospectus do
not and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration
Statement, any preliminary prospectus or the Prospectus in reliance
upon written information furnished to the Company by or on behalf of
any Underwriter specifically for inclusion therein or as to any
statements in or omissions from the Statement of Eligibility and
Qualification of the Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference in
the Prospectus complied when filed with the Commission in all material
respects with the provisions of the Securities Exchange Act of 1934
(the "Exchange Act"), together with the applicable instructions, rules
and regulations of the Commission thereunder, and each document, if
any, hereafter filed under the Exchange Act and so incorporated by
reference in the Prospectus will comply when so filed in all material
respects with the requirements of such Exchange Act and such applicable
instructions, rules and regulations.
(d) The accountants who have certified or shall certify the
financial statement filed and to be filed with the Commission as parts
of the Registration Statement and the Prospectus are public or
certified accountants, independent with respect to the Company, as
required by the Act and the rules and regulations of the Commission
thereunder.
(e) Neither the issuance or sale of the Notes nor the consummation
of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will result in a breach of any of the
terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which the
Company is a party or by which it is bound,
<PAGE> 3
3
or the Company's Certificate of Incorporation or By-Laws, or, to the
beat of its knowledge, any order, rule or regulation applicable to the
Company of any court, federal or state regulatory body, administrative
agency or other governmental body having jurisdiction over the Company
or its properties.
4. Purchase and Sale of Notes. On the basis of the representations and
warranties and on the terms and subject to the conditions herein set forth, each
of the Underwriters agrees to purchase from the Company, severally and not
jointly, and on the terms and subject to the conditions herein set forth the
Company agrees to sell to each of the Underwriters, severally and not jointly,
the principal amount of Notes set forth opposite its name in Schedule I hereof,
less the respective amounts of Contract Notes, if any, allocated to each of the
Underwriters as provided below, at ____ % of the principal amount thereof,
together with accrued interest, if any, thereon from ________, 199_ to and
including the date of any, thereon from payment and delivery.
Notes to be purchased by the Underwriters are hereinafter called
Underwriters' Notes, and Notes to be purchased pursuant to delayed delivery
contracts substantially in the form attached hereto as Schedule II with such
changes as may be approved by the Company (the "Delayed Delivery Contracts") are
hereinafter called Contract Notes.
The Company hereby authorizes the Underwriters to solicit from
institutional investors of the type described in the preliminary prospectus
under the heading "Delayed Delivery Arrangements" offers to purchase Contract
Notes on [____] at the initial public offering price thereof plus accrued
interest, if any, from [____], pursuant to Delayed Delivery Contracts. Delayed
Delivery Contracts are to be solicited from and made only with institutional
investors of the type so described. Each Delayed Delivery Contract shall be for
a minimum of $ principal amount of Notes. Each purchaser shall be
approved by the Company and shall furnish such evidence as may be satisfactory
to the Company of the authority of the person executing such Delayed Delivery
Contract on behalf of the purchaser, and the aggregate principal amount of all
Contract Notes shall not be more than $ unless the Company otherwise
agrees. The Company will pay to the Representative for the accounts of the
several Underwriters a commission equal to ____________ of 1% of the aggregate
principal amount of Contract Notes. Such payment shall be made at the time of
closing by crediting the same against the purchase price of the Underwriters'
Notes payable to the Company pursuant to the first paragraph of this Section 4.
Upon the submission by the Representative from time to time to the Company of
Delayed Delivery Contracts executed by institutional investors of the type
described In the preliminary prospectus, the Company shall within two full
business days thereafter, notify the Representatives of its approval or
disapproval of such Delayed Delivery Contracts. The Underwriters will not have
any responsibility in respect of the validity or performance of any of the
Delayed Delivery Contracts.
The principal amount of Notes to be purchased by each Underwriter as
set forth in Schedule I hereto shall be reduced by an amount which shall bear
the same proportion to the total principal amount of Contract Notes as the
principal amount of Notes set forth opposite the name of such Underwriter bears
to the aggregate principal amount set forth in Schedule I hereto, except to the
extent that you determine that such reduction shall be otherwise that in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Notes to be purchased by all Underwriters shall be
[$ ], the aggregate principal amount set forth in Schedule I hereto, less
the aggregate principal amount of Contract Notes.
<PAGE> 4
4
The terms of the public offering of the Notes are as set forth in the
Prospectus.
5. Closing. Delivery of, and payment of the purchase price for, the
Notes which the Underwriters severally agree to purchase shall be made at the
office of ____________________, __________________, New York, New York, at 10:00
a.m.(1) on __________ 199_ or at such other place or time on the same or such
other day as shall be agreed upon by the Company and the Representative. The
time and date for such payment and delivery are herein referred to as the "time
of closing". At the time of closing, the Company will deliver the Underwriters'
Notes, registered in such names and in such authorized denominations as the
Representative shall have specified not less than two business days prior to the
day of closing, against payment therefor as provided in section 6 hereof, to the
Representative for the respective accounts of the Underwriters.
The Company agrees to make the Underwriters' Notes available to the
Representative for examination on behalf of the Underwriters at the office of
_____________________, ____________________, New York, New York, not later then
2:00 p.m. on the business day next preceding the day of closing.
If for any reason (other than termination of this Agreement in
accordance with the provisions of section 8, 9 or 10 hereof), one or more of the
Underwriters shall fail or refuse to pay for the Underwriters' Notes it has or
they have agreed to purchase (any such Underwriter being hereinafter referred to
as a "defaulting Underwriter"), and the aggregate principal amount of the
Underwriters' Notes which such defaulting Underwriter or Underwriters but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Notes, the remaining Underwriters shall be obligated severally in
the proportion which the amounts of Notes set forth opposite their names in
Schedule I of this Agreement bear to the aggregate principal amount of
Underwriters' Notes set forth opposite the names of all such non-defaulting
Underwriters (or in such other proportion as the Representative shall specify)
to purchase the Underwriters' Notes which the defaulting Underwriter or
Underwriters agreed but failed or refused to purchase; provided that in no event
shall the principal amount of Notes that any Underwriter is obligated to
purchase be increased pursuant to the provisions of this paragraph by more than
one-ninth of the principal amount of Notes set forth opposite its name in
Schedule I without the written consent of such Underwriter. In the event that
any defaulting Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Notes the aggregate principal amount of which is more then
one-tenth of the aggregate principal amount of the Notes, and if arrangements
satisfactory to the Representative and the Company for the purchase of all such
Notes are not made within two business days after such default, this Agreement
will terminate without liability on the part of any of the non-defaulting
Underwriters or of the Company. In the event that the non-defaulting
Underwriters agree to purchase, in accordance with this paragraph, all the
Underwriters' Notes which the defaulting Underwriter or Underwriters fail or
refuse to purchase, the Representative or the Company shall have the right to
postpone the time of closing, but in no event longer than five business days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Except
to the extent provided in subparagraphs (d) and (g) of section 7 hereof,
termination of this Agreement pursuant to this section 5 shall be without any
liability on the part of the Company or any Underwriter other than a defaulting
Underwriter which shall have failed, otherwise than for some reason sufficient
to justify under the terms hereof the cancellation or termination of its
- --------------------
(1) Times mentioned herein are New York time.
<PAGE> 5
5
obligations hereunder, to pay for the Notes which such Underwriter has agreed to
purchase (any such failure or refusal being hereinafter referred to as a
"default"). Unless this Agreement is terminated in accordance with any of its
provisions, a default by one or more of the Underwriters shall not relieve any
other Underwriter from its obligation to purchase the Notes which it has agreed
to purchase.
6. Payment. At the time of closing, the Company will cause the
Underwriters' Notes to be delivered to the Representative for the account of
each Underwriter against payment of the purchase price of such Notes by
certified or official bank check or checks payable to the order of the Company
in New York Clearing House or other next day funds.
7. Covenants of the Company. The Company agrees as follows:
(a) The Company will not file any amendment or supplement to the
Registration Statement or the Prospectus of which the Representative
shall not previously have been advised or which shall be disapproved by
______________________, which firm is acting as counsel for the
Underwriters, and will not file any document pursuant to the Exchange
Act which is deemed to be incorporated by reference in the Prospectus
of which _____________________ shall not previously have been advised.
(b) The Company will deliver to the Representative a reasonable
number of copies of the registration statement as originally filed
(including documents incorporated by reference therein) and of all
amendments thereto up to the time of closing, one of which shall be
signed by or on behalf of the proper officers of the Company and a
majority of its Board of Directors and shall contain a signed copy of
each consent and certificate included therein or filed as an exhibit
thereto. Promptly upon the filing with the Commission of any amendment
to the Registration Statement or of any supplement to or amendment of
the Prospectus, the Company will deliver to the Representative a
reasonable number of copies thereof, one copy of any such amendment to
the Registration Statement to be signed and to include signed consents
and certificates as above described. The terms "supplement" and
"amendment" or "amend", as used in this Agreement, shall include all
documents filed by the Company with the Commission subsequent to the
date of the Basic Prospectus, pursuant to the Exchange Act, which are
deemed to be incorporated by reference in the Prospectus.
(c) The Company will advise the Representative promptly (confirming
such advice in writing) of any official request made by the Commission
for amendment to the Registration Statement or Prospectus or for
additional information with respect thereto and of any official notice
of the institution of proceedings for, or of the entry of, a stop order
suspending the effectiveness of the Registration Statement. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if such a stop order should be entered, the Company will
make every reasonable effort to obtain the lifting or removal thereof
as soon as possible.
(d) The Company will pay all expenses in connection with the
preparation and filing of the Registration Statement, the preparation
of the Indenture, the rating of the Notes, the issuance and delivery of
the Notes and the printing of the copies of any
<PAGE> 6
6
preliminary prospectus and of the Prospectus to be furnished as
provided in the first sentence of subparagraph (h) below; and will pay
any taxes on the issuance of the Notes, but will not pay any transfer
taxes. The Company will not be required to pay any amount for any
expenses of the Representative or any of the Underwriters, except the
cost of mailing to Underwriters of copies of the Registration Statement
and all amendments thereto (including documents incorporated by
reference), the preliminary prospectuses and the Prospectus, and except
as provided by subparagraph (g) below, and provided that if no Notes
are delivered to and purchased by the Underwriters hereunder for any
reason other than a default by one or more of the Underwriters or the
termination of this Agreement pursuant to section 10 hereof, the
Company, in addition to any payment provided for by subparagraph (g) of
this section 7, will reimburse the Representative for the reasonable
out-of-pocket expenses of the Underwriters, not exceeding $50,000, and
for the fees and disbursements of _____________________, the
Underwriters agreeing to pay such expenses, fees and disbursements in
any other event. The Company will not in any event be liable to any of
the several Underwriters for damages on account of loss of anticipated
profits.
(e) The Company will apply the proceeds from the sale of the Notes
as set forth under the heading "Use of Proceeds" appearing in the
Prospectus.
(f) So long as any of the Notes shall remain outstanding, the
Company will furnish to the Representative, upon request and in
reasonable quantities for distribution to the Underwriters, copies of
such documents, reports and other information as may be required to be
furnished to noteholders under the Indenture.
(g) The Company will use its best efforts to qualify the Notes, or
to assist in the qualification of the Notes by or on behalf of the
Representative, for offer and sale under the securities or Blue Sky
laws of such states as the Representative may designate, and will pay
or reimburse the Representative for counsel fees filing fees and
out-of-pocket expenses in connection with such that the Company Shall
not be qualification; provided that the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any state or to pay, or to incur, or to reimburse
the Representative for, any such expenses if no notes are delivered to
and purchased by the Underwriters hereunder because of a default by one
or more of the Underwriters or the termination of this Agreement
pursuant to section 10 hereof.
(h) The Company will furnish to the Representative or to the
respective Underwriters as many copies of the Prospectus as the
Representative or the respective Underwriters may reasonably request
for the purposes contemplated by the Act. If. during such period after
the first date of the public offering of the Notes as, in the opinion
of the counsel for the Underwriters, the Prospectus is required by law
to be delivered, any event shall occur which should be set forth in a
supplement to or an amendment of the Prospectus in order to make the
Prospectus not misleading, the Company will, upon the occurrence of
each such event, forthwith at its expense, either (i) prepare and
furnish to the Representative or to the respective Underwriters as many
copies as the
<PAGE> 7
7
Representative or the respective Underwriters may reasonably request
for the purposes contemplated by the Act of a supplement to or
amendment of the Prospectus which will supplement or amend the
Prospectus or (ii) file with the Commission documents deemed
incorporated by reference in the Prospectus, in either case so that as
supplemented or amended, it will not at the date of such supplement or
amendment contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statement
therein not misleading. For the purpose of this subparagraph (h), the
Company will furnish such reasonable information with respect to itself
as the Representative may from time to time request, and the
Representative, at its own expense, may visit any of the properties of
the Company and may inspect the books of account of the Company at any
reasonable time. Notwithstanding any of the other provisions of this
subparagraph (h), the Company shall not be under any obligation to
furnish any supplement to or amendment of the Prospectus on account of
any change in, or to include in any amended prospectus any change in,
the information furnished to the Company by any Underwriter or
Underwriters or by the Representative on its or their behalf for use in
the Prospectus, unless the Representative has advised the Company in
writing of such change and has requested the Company at the expense of
such Underwriter or Underwriters to prepare a supplement to or
amendment of the Prospectus to reflect such change or to include such
change in an amended prospectus.
(i) The Company will cause to be made generally available to its
security holders as soon as practicable an earnings statement or
statements which shall meet the requirements of Section 11(a) of the
Act and Rule 158 promulgated thereunder.
(j) Until the business day following the Closing Date, the Company
will not, without the consent of the Representative offer, sell or
contract to sell, or announce the offering of, any debt securities [(if
applicable) denominated or payable in any currency or currency unit
other then U.S. dollars] covered by the Registration Statement or any
other registration statement filed under the Act.
8. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Underwriters' Notes shall be
subject to the following additional conditions:
(a) At the time of closing, the Indenture shall be qualified under
the Trust Indenture Act, the Prospectus shall have been filed or
delivered for filing to the Commission not later than 5:00 p.m. on the
second business day following the date hereof, no stop order suspending
the effectiveness of the Registration Statement, as amended from time
to time, shall be in effect and no proceedings for that purpose shall
be pending before or threatened by the Commission, and the
Representative shall have received a certificate dated the day of the
closing and signed by a Vice President or the Treasurer of the Company
to the effect that no such stop order is in effect and, to the
knowledge of the Company, no proceedings for such purpose are pending
before, or threatened by, the Commission,
<PAGE> 8
8
(b) At or prior to the time of closing, the Representative shall
have received from counsel for the Company, an opinion, satisfactory to
___________________, to the effect that --
(i) The Company is a corporation in good standing, duly
organized and validly existing under the laws of the State of
Delaware; and is authorized by its Certificate of Incorporation to
transact the business in which it is engaged, as set forth in the
Prospectus;
(ii) The Company is duly qualified to transact the business in
which it is engaged, as set forth in the Prospectus, in each state
in which it operates;
(iii) The indenture has been duly executed and delivered
pursuant to due authorization by appropriate corporate action, is a
valid and binding agreement in accordance with its terms and has
been duly qualified under the trust Indenture Act;
(iv) the Notes, when duly executed, registered and authenticated
pursuant to the indenture and delivered to and paid for by the
Underwriters in accordance with the provisions hereof in the case of
the Underwriters' Notes, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of Contract Notes, will be
legal, valid and binding obligations of the Company in accordance
with their terms;
(v) this Agreement has been duly authorized, executed and
delivered on behalf of the Company and is valid and binding on the
Company, except as rights to indemnity and contribution hereunder
may be limited under applicable law;
(vi) each Delayed Delivery Contract has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding agreement of the Company in accordance with its terms;
(vii) all consents, approvals, authorizations or other orders of
regulatory authorities legally required for the execution of the
Indenture and the issuance and sale of the Notes to the Underwriters
pursuant to the terms of this Agreement, or to purchasers pursuant
to Delayed Delivery Contracts, have been obtained; and
(viii) except as to financial statements and schedules contained
therein, which such opinion need not pass upon, (A) each document or
portion thereof incorporated by reference in the Prospectus complied
when filed with the Commission as to form in all material respects
with the requirements of the Exchange Act, together with the
applicable instructions, rules and regulations of the Commission
thereunder, (B) each part of the Registration Statement when it
became effective complied as to form in all material respects with
the requirements of the Act and the applicable instructions, rules
and regulations of the Commission thereunder; and (C) the
Registration Statement and the Prospectus, as amended or
supplemented, if applicable, comply, and at the date hereof
<PAGE> 9
9
complied, as to form in all material respects with the requirements
of the Act and the applicable instructions, rules and regulations to
the Commission thereunder.
(c) At or prior to the time of closing, the Representative shall
have received from ___________________ an opinion to the effect
specified in clauses (iii) through (vi), and (viii)(B) and (C) of
subparagraph (b) above.
(d) At each of the dates hereof and at or prior to the time of
closing, the Representative shall have received an executed copy of a
letter of Coopers & Lybrand, addressed to the Company and to the
Representative, to the effect that (i) they are independent public
accountants as required by the Act and the applicable published rules
and regulations of the Commission thereunder; (ii) the audited
financial statements contained or incorporated by reference in the
Registration Statement, as amended or supplemented from time to time,
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the applicable
published rules and regulations of the Commission thereunder; and (iii)
nothing has come to their attention as the result of specified
procedures not constituting an audit that caused them to believe (A)
that the unaudited financial statements, if any, contained in or
incorporated by reference as aforesaid, do not so comply and are not
fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements contained as aforesaid, (B) that there was
any change in the capital stock or long or intermediate term debt of
the Company, or any decrease in net assets, from the date of the latest
balance sheet which is contained in or incorporated by reference as
aforesaid, to a date not more than five days prior to the date of such
letter or (C) that there were any decreases, as compared with the
corresponding period in the preceding year, in total revenues, income
before interest deductions or net income from the date of the latest
figures for such items contained in the Registration Statement to the
date of the latest available financial statements of the Company;
provided that, with respect to any of the items specified in clause
(iii), such letter may contain an exception for matters which the
Registration Statement discloses have occurred or may occur; and
provided further, that the letter may vary from the requirements
specified in this subparagraph in such manner as the Representative in
its sole discretion may determine to be immaterial or in such manner as
may be acceptable to the Representative.
(e) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the Registration Statement and the Prospectus
there shall not have been, at the time of closing, any material adverse
change, financial or otherwise, in the condition of the Company from
that set forth in the Registration Statement and the Prospectus the
representations and warranties of the Company herein shall be true at
the time of closing; the Company shall not have failed, at or prior to
the time of closing, to have performed all agreements herein contained
which should have been performed by it at or prior to such time; and
the Representative shall have received, at the time of closing, a
<PAGE> 10
10
certificate to the foregoing effect dated the day of the closing and
signed by a Vice President or the Treasurer of the Company.
In case any of the conditions specified above in this section 8 shall
not have been fulfilled, this Agreement may be terminated by the Representative
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (d) and (g) of section 7 hereof.
9. Conditions of Company's Obligation. The obligation of the Company to
deliver the Notes upon payment therefor shall be subject to the following
conditions:
At the time of closing, the Indenture shall be qualified under the
Trust Indenture Act, the Prospectus shall have been filed or delivered for
filing to the Commission not later than 5:00 p.m. on the second business day
following the date hereof and no stop order suspending the effectiveness of the
Registration Statement, as amended from time to time; shall be in effect and no
proceedings for that purpose shall then be pending before, or threatened by, the
Commission.
In case any of the conditions specified above in this section 9 shall
not have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representative. Any such
termination shall be without liability of any party to any other party except to
the extent provided in subparagraphs (d) and (g) of section 7 hereof.
10. Termination of Agreement. This Agreement may be terminated, by
delivering written notice of termination to the Company at any time prior to the
time of closing, by the Representative with the consent of Underwriters which,
together with the Representative, have agreed to purchase in the aggregate 50%
or more of the aggregate principal amount of the Notes, if after the signing of
this Agreement trading in securities generally on the New York Stock Exchange
shall have been materially suspended or materially limited or minimum prices
shall have been established on such Exchange (which shall not include trading
suspensions or limitations resulting from the operation of General Rules 80A and
80B of such Exchange, as amended or supplemented), or a banking moratorium shall
have been declared by either federal or New York State authorities.
A termination of this Agreement pursuant to this section 10 shall be
without liability of any party to any other party.
11. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold each Underwriter, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, harmless from and against any and all losses, claims, damages, and
liabilities with respect to the Notes or any other securities of the Company
arising because the Registration Statement, any preliminary prospectus used in
connection with the offering of the Notes or the Prospectus (if used within the
period set forth in section 7(h) hereof and if used, as amended or supplemented
by all amendments or supplements thereto which have been furnished to the
Representative or to such Underwriter) contained or is alleged to have contained
any untrue statement of a material fact or omitted or is alleged to have omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except as to losses, claims, damages or
liabilities caused by any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon information furnished to the Company
herein or otherwise in writing by or on behalf of any
<PAGE> 11
11
Underwriter for use in connection with the preparation of any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereof, or caused by any statement in or omission from the Statement
of Eligibility and Qualification of the Trustee under the Indenture, provided
that the indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of Notes to any person if a copy of the
Prospectus (as amended or supplemented by all amendments or supplements thereto
which have been furnished to the Representative or to such Underwriter, but
without documents incorporated by reference therein or exhibits) shall not have
been sent, mailed or given to such person, if required by the Act, at or prior
to the written confirmation of the sale of such Notes to such person.
(b) Each Underwriter agrees to indemnify and hold the Company, its
directors, its officers who sign the registration statement, and each person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, harmless from and against any and all losses, claims,
damages and liabilities arising because the Registration Statement or any
preliminary prospectus relating to the Notes, or the Prospectus or any amendment
or supplement thereto contained or is alleged to have contained any untrue
statement of a material fact or omitted or is alleged to have omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission or alleged untrue
statement or omission was made in any such preliminary prospectus or in the
Registration Statement or Prospectus or any amendment or supplement thereto in
reliance upon information furnished to the Company herein or otherwise in
writing by or on behalf of such Underwriter for use in connection with the
preparation thereof.
(c) The Company and each Underwriter agree that upon the
commencement of any action against it, its directors, its officers who sign the
registration statement, or any person controlling it as aforesaid in respect of
which indemnity may be sought on account of any indemnity agreement contained
herein, it will promptly give written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought, but the omission so to
notify such indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they may have
to the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them. In the
event that the parties to any such action (including impleaded parties) include
both the indemnifying party and the indemnified party and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
<PAGE> 12
12
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
indemnified patties, which firm shall be designated in writing by the
Representative in the case of an action in which one or more Underwriters, or
controlling persons are indemnified parties and by the Company in the case of an
action in which the Company or any of its directors, officers or controlling
persons are indemnified parties. The indemnifying party or parties shall not be
liable under this Agreement with respect to any settlement made by any
indemnified party or parties without prior written consent by the indemnifying
party or parties to such settlement.
(d) If the indemnification provided for in subparagraph (a) or (b)
of this section 11 is unavailable to an indemnified party in respect of any
losses, claims, damages, or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect primarily the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Notes and also to reflect where
appropriate the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions or
alleged statements or omissions which resulted in such losses, claims, damages,
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters, and the
parties, relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subparagraph (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this subparagraph (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in this subparagraph (d) shall be deemed to include, subject to the
limitations set forth above in this section 11, any legal or other expenses
reasonably incurred by such indemnified party in connection with defending any
such action or claim. Notwithstanding the provisions of this subparagraph (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has been required to pay, otherwise than pursuant
to this subparagraph (d), by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from and person who was not guilty of such fraudulent
misrepresentation. Each Underwriter's obligation to contribute pursuant to this
subparagraph (d) is several in an amount which shall bear the same proportion to
the total principal amount of Notes set forth opposite the name of such
Underwriter in Schedule I hereto (plus any increase in such amount as may be
required pursuant to Section 5 hereof).
<PAGE> 13
13
12. Miscellaneous. This Agreement shall inure to the benefit of the
Company, its directors, its officers who sign the registration statement, the
several Underwriters and each controlling person referred to in section 11
hereof and their respective successors. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under in respect of this Agreement or any
provision herein contained. The term "successor" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Notes from any of
the several Underwriters.
13. Notices. All communications hereunder shall be in writing, and
if to the Underwriters, unless otherwise provided, shall be mailed or delivered
to the Representative at [ ] and if to the Company, unless otherwise
provided, shall be mailed or delivered to the Company attention:
[______________________].
14. Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
15. Survival Clause. Except with respect to any Underwriter who is
in default within the meaning of section 5 hereof, the indemnity and
contribution agreement contained in section 11 hereof and the representations
and warranties of the Company set forth in this Agreement or in any certificate
furnished pursuant hereto shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter, or
(iii) acceptance of and payment for the Notes.
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company and
the several Underwriters, in accordance with its terms.
Very truly yours,
LUCENT TECHNOLOGIES INC.
By
------------------------------------
Name:
Title:
<PAGE> 14
14
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
(Representative of the Several Underwriters)
By:
Acting severally on behalf of itself
and the several Underwriters named
herein.
<PAGE> 15
15
SCHEDULE I
Name Principal Amount
- ---- ----------------
<PAGE> 16
16
SCHEDULE II
LUCENT TECHNOLOGIES INC.
NOTES
DELAYED DELIVERY CONTRACT
Lucent Technologies Inc. 199
c/o
Dear Sirs:
The undersigned hereby agrees to purchase from Lucent Technologies Inc.
(the "Company"), and the Company agrees to sell to the undersigned, on ________,
199_ (the "Delivery Date"),
$
---------------------------
principal amount of the Company's Notes (the "Notes") offered by the Company's
Prospectus dated _________ 199_, receipt of a copy of which is hereby
acknowledged, at a purchase price of ____% of the principal amount thereof, plus
accrued interest, if any thereon from ________________, 199_ to the date of
payment and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Notes which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House or other next-day funds, at
___________________, New York, NY, at 10:00 o'clock a.m.,
New York time, on the Delivery Date, upon delivery to the undersigned of the
Notes to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may properly
designate by written or telegraphic communications addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Notes on the Delivery Date and the obligation of the Company to sell and
deliver Notes on the Delivery Date shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Notes to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the Underwriters of, such part of the Notes as is to be sold
to them. Promptly after completion of sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
<PAGE> 17
17
Failure to take delivery of and make payment for Notes by any purchaser
under any other Delayed Delivery Contract shall not relieve the undersigned of
its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party without the written consent of the other.
It this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
---------------------------
(Purchaser)
By
---------------------------
---------------------------
(Title)
---------------------------
---------------------------
(Address)
Accepted
LUCENT TECHNOLOGIES INC.
By
----------------------------------------
(Authorized Signature)
<PAGE> 18
18
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (please print)
Telephone No.
Name (including Area Code) Department
---- --------------------- ----------
<PAGE> 1
- 1 -
Exhibit 1B
LUCENT TECHNOLOGIES INC.
Medium Term Notes, Series [ ]
FORM OF DISTRIBUTION AGREEMENT
(_________, 199_)
(Name of Agents)
(Address)
Ladies and Gentlemen:
Lucent Technologies Inc., a Delaware corporation (the "Company"),
proposes to issue and sell from time to time up to U.S. $_________ (or the
equivalent thereof in other currencies or currency units) aggregate principal
amount of its Medium Term Notes, Series [ ] (the "Notes"), as such amount shall
be reduced by the aggregate principal amount of any other debt securities and
the aggregate purchase price of any warrants issued by the Company, whether
within or without the United States (the "Other Securities"), pursuant to the
registration statement discussed in Section II hereof, or otherwise. The Notes
are to be issued under an Indenture dated as of _____________, 1996 (the
"Indenture") between the Company and ________________, Trustee (the "Trustee").
The Notes will be represented by either a global security registered in the name
of a nominee of The Depository Trust Company (the "Depository"), as Depositary
(a "Book-Entry Note"), or a certificate issued in definitive form (a
"Certificated Note"), as selected by the purchaser and agreed to by the Company
and specified in the applicable pricing supplement. Beneficial interests in
Book-Entry Notes will be shown on, and transfers thereof will be effected only
through records maintained by the Depositary and its participants. Book-Entry
Notes will not be issuable in definitive form except under the circumstances
described in the applicable prospectus supplement. The Notes shall be issued in
the currency or currency unit (the "Specified Currency") and shall have the
maturity ranges, annual interest rate (whether fixed or floating), redemption
provisions, repayment provisions and other terms set forth in the Prospectus
referred to below as it may be supplemented from time to time, including any
pricing supplement ("Pricing Supplement").
I.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes (a) directly to investors
on its own behalf or (b) through other agents, dealers or underwriters, the
Company hereby (i) appoints [agents] to act as its agents to
<PAGE> 2
- 2 -
solicit orders for, and to sell, all or part of the Notes during a period
beginning on the date hereof and ending when the Notes have been sold, or such
other time as the Company may specify to you in writing, and (ii) agrees that
whenever the Company determines to sell Notes directly to any of the Agents as
principal for resale to others it will enter into a Terms Agreement relating to
such sale in accordance with the provisions of Section I(b) hereof.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent, severally and not jointly, will use its reasonable best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. As soon as practicable, but in any
event not later than one business day in the location of each Agent concerned
after receipt of notice from the Company, the Agents will suspend solicitation
of offers of purchase Notes from the Company until such time as the Company has
advised them that such solicitation may be resumed.
Unless otherwise agreed between the Company and the Agents, the Company
agrees to pay each Agent, as consideration for soliciting the sale of any Notes,
a commission in the form of a discount equal to the following percentage of the
principal amount of each Note sold by such Agent:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
[From 9 months to 1 year .125%
More than 1 year to 18 months .150%
More than 18 months to 2 years .200%
More than 2 years to 3 years .250%
More than 3 years to 4 years .350%
More than 4 years to 5 years .450%
More than 5 years to 6 years .500%
More than 6 years to 7 years .550%
More than 7 years to 10 years .600%
More than 10 years to 15 years .625%
More than 15 years to 20 years .700%
More than 20 years to 40 years .750%]
</TABLE>
Each Agent is authorized to solicit offers to purchase Notes only in principal
amounts of U.S. $25,000 or any amount in excess thereof which is a whole
multiple of U.S. $10,000 or, if denominated in a Specified Currency other than
U.S. dollars, then the equivalent, at the noon buying rate in New York City for
cable transfers of such Specified Currency as certified for customs purposes by
the Federal Reserve _______________________ or, in the case of European Currency
Units at the rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official Journal of
the European Communities (or any successor publication), in either case on the
Business Day, as defined in the Indenture, immediately preceding the trade date
for such Notes, of U.S. $25,000 (rounded down to an integral multiple of 1,000
units of such Specified Currency) and any larger amount that is a whole multiple
of 1,000 units of such Specified Currency. Each Agent shall communicate to the
Company, orally or in writing, each reasonable offer received by it to purchase
Notes. The Company shall have the sole right to accept offers to purchase Notes
and may reject any such offer in
<PAGE> 3
- 3 -
whole or in part. Each Agent shall have the right to reject, in its discretion
reasonably exercised, any offer received by it to purchase the Notes in whole or
in part, and any such rejection shall not be deemed a breach of its agreements
contained herein.
(b) Purchases as Principal. Each sale of Notes to an Agent, as
principal, shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which shall be substantially in the form of Exhibit A hereto and which may take
the form of an exchange of any standard form to written telecommunication
between such Agent and the Company) is herein referred to as a "Terms
Agreement." An Agent's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
price to be paid to the Company for such Notes, the Specified Currency in which
such Notes shall be denominated, on which interest is to be paid and in which
the redemption or repayment price, if any, is to be paid, the rate at which
interest will be paid on the Notes, whether such rate of interest shall be fixed
or floating and the time and place of delivery of any payment for such Notes
(the "Settlement Date"). Such Terms Agreement shall also specify any
requirements for opinions of counsel and letters from Coopers & Lybrand pursuant
to Section III hereof and may also contain additional provisions relating to
defaults by underwriters and other provisions relating to termination as may be
agreed at the time between the Company and the applicable Agent.
(c) Procedures. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Medium Term Notes, Series [ ] Administrative Procedures (attached hereto
as Exhibit B) (the "Procedures"), as amended from time to time. The Procedures
may be amended only by written agreement of the Company and the Agents.
(d) Delivery. The documents required to be delivered by Section III of
this Agreement shall be delivered on the date hereof or at such other time as
you and the Company may agree upon in writing (each a "time of closings").
(e) Other Securities. The Company agrees to notify each Agent of sales
by the Company of the Other Securities.
II.
The Company represents and warrants to each Agent that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") registration statement No. [ ] including a prospectus
relating to notes and warrants of the Company, including the Notes, which has
become effective under the Securities Act of 1933 (the "Act"), and has filed or
will file with, or has delivered or will deliver for filing to, the Commission a
prospectus supplement specifically relating to the Notes pursuant to Rule 424
under the Act. The term "Registration Statement" means such registration
statement, as amended to the date hereof, together with such prospectus
supplements, as amended to the date hereof. The term "Basic Prospectus" means
the prospectus, as amended, included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the
<PAGE> 4
- 4 -
prospectus supplement or supplements specifically relating to the Notes, as
filed with, or delivered for filing to, the Commission pursuant to Rule 424. The
term "preliminary prospectus" means any preliminary prospectus supplement
specifically relating to the Notes together with the Basic Prospectus. As used
herein, Registration Statement, Basic Prospectus, Prospectus and preliminary
prospectus shall include in each case the material, if any, incorporated by
reference therein.
(b) (i) Each part of the Registration Statement relating to the Notes,
filed with the Commission pursuant to the Act, when such part became effective,
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) each Prospectus, if any, relating to any Notes,
filed pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act and the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the applicable rules and regulations of the Commission thereunder,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and the Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Registration Statement and the Prospectus do
not and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement, any preliminary prospectus or the Prospectus in
reliance upon written information furnished to the Company by or on behalf of
any Agent specifically for inclusion therein or as to any statements in or
omissions from the Statement of Eligibility and Qualification of the Trustee
under the Indenture.
(c) Each document or portion thereof incorporated by reference in the
Prospectus complied when filed with the Commission in all material respects with
the provisions of the Securities Exchange Act of 1934 (the "Exchange Act"),
together with the applicable instructions, rules and regulations of the
Commission thereunder, and each document, if any, hereafter filed under the
Exchange Act and so incorporated by reference in the Prospectus will comply when
so filed in all material respects with the requirements of such Exchange Act,
instructions, rules and regulations.
(d) The accountants who have certified or shall certify the financial
statements filed and to be filed with the Commission as parts of the
Registration Statement and the Prospectus are public or certified accountants,
independent with respect to the Company, as required by the Act and the rules
and regulations of the Commission thereunder.
(e) Neither the issuance or sale of the Notes nor the consummation of
any other of the transactions contemplated in this Agreement nor the fulfillment
of the terms of this Agreement will result in a breach of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is a party or by
which it is bound, or the Company's Certificate of Incorporation or By-Laws, or,
to the best of its knowledge, any order, rule or regulation applicable to the
Company of any court, federal or state regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or its properties.
<PAGE> 5
- 5 -
III.
The obligations of each Agent hereunder are subject to the following
conditions:
(a) At the time of closing and at each Settlement Date with respect to
any Terms Agreement, the Indenture shall be qualified under the Trust Indenture
Act and no stop order suspending the effectiveness of the Registration Statement
as amended from time to time, shall be in effect, no proceedings for that
purpose shall be pending before, or threatened by, the Commission, and at the
time of closing each Agent shall have received, and at each Settlement Date with
respect to any Terms Agreement, if called for by such Terms Agreement, the Agent
which is a party thereto shall have received, a certificate, dated the time of
closing or such applicable Settlement Date and signed by a Vice President or the
Treasurer of the Company to the effect that no such stop order is in effect and,
to the knowledge of the Company, no proceedings for such purpose are pending
before, or threatened by, the Commission.
(b) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement, the Agent which is a party thereto shall have received,
from counsel for the Company opinions, satisfactory to _______________________,
your counsel, to the effect that:
(i) the Company is a corporation in good standing, duly organized
and validly existing under the laws of the State of Delaware and is authorized
by its Certificate of Incorporation to transact the business in which it is
engaged, as set forth in the Prospectus;
(ii) the Company is duly qualified to transact the business in
which it is engaged, as set forth in the Prospectus, in each state in which it
operates;
(iii) the Indenture has been duly executed and delivered pursuant
to due authorization by appropriate corporate action, is a valid and binding
agreement in accordance with its terms and has been duly qualified under the
Trust Indenture Act;
(iv) the Notes, when duly executed, registered and authenticated
pursuant to the Indenture and delivered to and paid for by the purchasers
thereof in accordance with the provisions hereof, will be legal, valid and
binding obligations of the Company in accordance with their terms;
(v) this Agreement (and, if the opinion is being given on account
of the Company having entered into a Terms Agreement, the applicable Terms
Agreement) has been duly authorized, executed and delivered on behalf of the
Company and is valid and binding on the Company, except as rights to
indemnification and contribution hereunder may be limited under applicable law;
(vi) no consent, approval, authorization or other order of any
regulatory authority (other than the order which has been entered by the
Commission) is legally required for the issuance and sale of the Notes to you
pursuant to the terms of this Agreement;
<PAGE> 6
- 6 -
(vii) except as to financial statements and schedules contained
therein, which such opinion need not pass upon, (A) each document or portion
thereof incorporated by reference in the Prospectus complied when filed with the
Commission as to form in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (B) each part of the Registration Statement filed with the
Commission, when it become effective, complied as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder, and (C) the Registration Statement and
the Prospectus, as amended or supplemented, if applicable, comply, and at the
date of this Agreement complied, as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder; and
(viii) the opinions of counsel expressed or referred to under
"Taxation" in the Prospectus are confirmed as correct.
(c) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement to the Agent which is a party thereto shall have
received, from _______________________ an opinion to the effect specified in
clauses (iii) through (v), and (vii)(B) and (C) of paragraph (b) above,
(d) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall not have
been, at the time of closing and at each Settlement Date with respect to any
Terms Agreement, any material adverse change, financial or otherwise, in the
condition of the Company from that set forth in the Registration Statement and
the Prospectus; the representations and warranties of the Company herein shall
be true at the time of closing and at each Settlement Date with respect to any
Terms Agreement; the Company shall not have failed, at or prior to the time of
closing or such applicable Settlement Date, to have performed all agreements
herein contained which should have been performed by it at or prior to such
time; and each Agent shall have received at the time of closing, and the Agent
which is a party to any Terms Agreement shall have received at each Settlement
Date with respect to any such Terms Agreement, a certificate to the foregoing
effect dated the day of the closing and signed by a Vice President or the
Treasurer of the Company.
(e) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement the Agent which is party thereto shall have received,
executed copies of a letter from Coopers & Lybrand addressed to the Company and
to each Agent, if delivered at the time of closing, or to the Company and the
applicable Agent if delivered in connection with any Terms Agreement, dated as
of the closing date or the Settlement Date, as appropriate, to the effect that
(i) they are independent public accountants as required by the Act and the
applicable published rules and regulations of the Commission thereunder; (ii)
the audited financial statements contained in or incorporated by reference in
the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the applicable
published rules and regulations of the Commission thereunder; and (iii) nothing
has come to their attention as the result of specified procedures not
constituting an audit that caused them to believe (A) that the unaudited
financial statements, if any, contained in or incorporated by reference as
aforesaid, do not so comply and are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial
<PAGE> 7
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statements contained as aforesaid, (B) that there was any change in the capital
stock or long or intermediate term debt of the Company, or any decrease in net
assets, from the date of the latest balance sheet which is contained in or
incorporated by reference in the Registration Statement as aforesaid to a date
not more then five days prior to the date of such letter or (C) that there were
any decreases, as compared with the corresponding period in the preceding year,
in total revenues, income before interest deductions or net income from the date
of the latest figures for such items contained in the Registration Statement to
the date of the latest available financial statements of the Company; provided,
that with respect to any of the items specified in clause (iii), such letter may
contain an exception for matters which the Registration statement discloses have
occurred or may occur; and provided further, that the letter may vary from the
requirements specified in this subparagraph in such manner as may be acceptable
to each Agent if delivered at the time of closing or the applicable Agent if
delivered in connection with a Terms Agreement.
In case, at the time of closing, and at each Settlement Date with
respect to any Terms Agreement, any of the conditions specified above in this
Article III shall not have been fulfilled, this Distribution Agreement may be
terminated by the Agents, if such failure occurs at the time of closing, or by
the applicable Agent, if such failure occurs at a Settlement Date with respect
to any Terms Agreement, in each case by delivering written notice of termination
to the Company. Any such termination shall be without liability of any party to
any other party.
IV.
The obligation of the Company to deliver the Notes upon payment
therefor shall be subject to the following conditions: at the time of closing,
and at such Settlement Date with respect to any Terms Agreement, the Indenture
shall be qualified under the Trust Indenture Act and no stop order suspending
the effectiveness of the Registration Statement as amended from time to time,
shall be in effect and no proceedings for the purpose shall then be pending
before, or threatened by the Commission.
In case the conditions specified above in this Article IV shall not
have been fulfilled this Agreement may be terminated by the Company by
delivering written notice of termination to the Agents if such failure occurs at
the time of closing, or to the applicable Agent, if such failure occurs at a
Settlement Date with respect to any Terms Agreement.
Any such termination shall be without liability of any party to any
other party.
V.
In further consideration of your agreements herein contained with
respect to any Notes, the Company covenants and agrees as follows:
(a) To furnish each of you, without charge, a copy of the Registration
Statement, including exhibits and materials, if any, incorporated
<PAGE> 8
- 8 -
by reference therein and, during the period mentioned in paragraph (d) below, as
many copies of the Prospectus, relating to such Notes, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request. The terms "supplement," and "amendment" or "amend"
as used in this Agreement shall include all documents filed by the Company with
the Commission subsequent to the date of the Basic Prospectus pursuant to the
Exchange Act which are deemed to be incorporated by reference in the Prospectus.
(b) To advise each of you promptly (confirming such advice in writing)
of any official request made by the Commission for an amendment to the
Registration Statement or Prospectus or for, additional information with respect
thereto and of any official notice of the institution of proceedings for, or of
the entry of, a stop order suspending the effectiveness of the Registration
Statement. The Company will use its best efforts to prevent the issuance of any
such stop order, and, if such a stop order should be entered, the Company will
make every reasonable effort to obtain the lifting or removal thereof as soon as
possible,
(c) Not to file any amendment or supplement to the Registration
Statement or the Prospectus with respect to the Notes of which you shall not
previously have been advised or which shall be disapproved by _________________,
your counsel, and not to file any document pursuant to the Exchange Act which is
deemed to be incorporated by reference in the Prospectus of which
_______________________ shall not previously have been advised.
(d) If, during such period after the first date of the public offering
of such Notes as in the opinion of _______________________, your counsel, the
Prospectus relating to such Notes is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement such
Prospectus in order to make the statements therein, in the light of the
circumstances when such Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement such Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to each of you, either
amendments or supplements to such Prospectus so that the statements in such
Prospectus as so amended or supplemented will not, in the light of the
circumstances when such Prospectus is delivered to a purchaser, be misleading or
so that such Prospectus will comply with law.
(e) To use its best efforts to qualify the Notes, or to assist in the
qualification of the Notes by or on behalf of each of you, for offer and sale
under the securities or Blue Sky laws of such states as each of you may
reasonably request, and to pay all expenses with respect thereto (including
counsel fees), provided that the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
state, or to incur or to pay any such expenses if no Notes are delivered to and
purchased by any Agent by reason of an Agent's default in making payment for the
Notes.
(f) To cause to be made generally available to its security holders as
soon as practicable an earnings statement or statements which shall meet the
requirements of Section 11(a) of the Act and Rule 158 promulgated thereunder
covering a period of twelve months which shall begin not later then the closing
date of the Company's fiscal quarter next following the "effective date" (as
defined in Rule 158 under the Act) of the registration statement with respect to
each sale of Notes.
<PAGE> 9
- 9 -
(g) To apply the proceeds from the sale of the Notes as set forth under
the heading "Use of Proceeds" appearing in the Prospectus.
(h) Each acceptance by the Company of an offer for the purchase of
Notes, and each sale of Notes to the applicable agent pursuant to a Terms
Agreement, shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to you pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or his agent, or the applicable Agent, of the Notes relating to
such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and the Prospectus as amended and
supplemented to each such time).
(i) Each time the Registration Statement or the Prospectus is amended
or supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates (excluding any change in the formula by which such
interest rate may be determined) or maturities offered on the Notes or for a
change deemed immaterial in the reasonable opinion of the Agent), or if the
Company sells Notes to an Agent pursuant to a Terms Agreement, and if so
indicated in the applicable Terms Agreement, the Company will deliver or cause
to be delivered forthwith to each Agent or, in the case of a sale of Notes
pursuant to a Terms Agreement, to the applicable Agent, a certificate of the
Company signed by a Vice President or the Treasurer of the Company, dated the
date of the effectiveness of such amendment or filing or supplement or sale, as
the case may be, in form reasonably satisfactory to such Agent, to the effect
that the statements contained in the certificates referred to in Sections III(a)
and (d) that was last furnished to the Agent (either pursuant to Sections III(a)
and (d) or pursuant to this Section V(i)) are true and correct as though made at
and as of such time (except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such time) or, in lieu of such certificates, certificates of the same tenor as
the certificates referred to in Sections III(a) and (d) relating to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificates.
(j) Each time the Registration Statement or the Prospectus is amended
or supplemented, or if so indicated in the applicable Terms Agreement, the
Company sells Notes to an Agent pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to each Agent, or, in the case of a
sale of Notes pursuant to a Terms Agreement, to the applicable Agent, a written
opinion of counsel of the Company satisfactory to such Agent; provided, however,
that such opinion need not be furnished with respect to an amendment or
supplement (i) providing solely for a change in the interest rates offered on
the Notes (other than a change in the formula by which such interest rate may be
determined) or for a change deemed immaterial in the reasonable opinion of such
Agent, or (ii) setting forth or incorporating by reference financial statements
or other information as of and for a fiscal quarter, unless, in the case of
clause (ii) above, in the reasonable judgment of such Agent, such financial
statements or other information are of such a nature that an opinion of counsel
should be furnished; provided, further that such counsel need not provide an
opinion regarding the content of such financial statements. Any such opinion
shall be dated the date of such amendment or supplement, in form satisfactory to
the Agent to whom such opinion will be delivered, and shall be of the same tenor
as the opinion referred to in Section III(b) but modified to relate to the
Registration
<PAGE> 10
- 10 -
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion. In lieu of such opinion, counsel last furnishing such an
opinion to such Agent may furnish to such Agent a letter to the effect that such
Agent may rely on such last opinion to the same extent as though it were dated
the date of such letter authorizing reliance on such last opinion (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, or if so indicated in
the applicable Terms Agreement, the Company sells Notes to an Agent pursuant to
a Terms Agreement, the Company shall cause Coopers & Lybrand, its independent
public accountants, forthwith to furnish each Agent a letter, dated the date of
the effectiveness of such amendment or the date of filing of such supplement, or
the date of such sale, as the case may be, in form satisfactory to the Agents,
of the same tenor as the letter referred to in Section III(e) with regard to the
amended or supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as amended or
supplemented to the date of such letter.
(l) Between the date of any Terms Agreement and the Settlement Date
with respect to such Terms Agreement, the Company will not, without your prior
consent, offer or sell, or enter into any agreement to sell, any debt securities
of the Company substantially similar to the Notes (other than the Notes that are
to be sold pursuant to such Terms Agreement and commercial paper in the ordinary
course of business), except as may otherwise be provided in any such Terms
Agreement.
(m) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and any applicable Terms Agreement,
including: (i) the preparation and filing of the Registration Statement and all
amendments thereto, (ii) the preparation, issuance and delivery of the Notes,
(iii) the fees and disbursements of the Company's accountants and of the Trustee
and its counsel, (iv) the qualification of the Notes under securities laws in
accordance with the provisions of Sections V(e), including filing fees and the
reasonable fees and disbursements of your counsel in connection therewith and in
connection with the preparation of any Blue Sky Memorandum and any Legal
Investment Memorandum, (v) the printing and delivery to you in quantities as
herein above stated of copies of the Registration Statement and all amendments
thereto, and of the Prospectus and any amendments or supplements thereto, (vi)
the printing and delivery to you of copies of the Indenture and any Blue Sky
Memorandum and any Legal Investment Memorandum, (vii) any fees charged by rating
agencies for the rating of the Notes, (viii) any advertising and other
out-of-pocket expenses incurred with the approval of the Company, provided,
however, that the expenses of any tombstone advertisement shall be paid by the
Agents, and (ix) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.
The Company shall also reimburse each Agent promptly upon receipt of an
invoice from such Agent for the reasonable fees of counsel for such Agent
incurred in connection with the offering and sale of the Notes (including the
reasonable fees and expenses of special counsel in any state in the event it
should become necessary to obtain opinions of such counsel as to
<PAGE> 11
- 11 -
usury or other matters of local law in order to obtain or maintain the
qualifications referred to in Section V(e) hereof).
VI.
(a) The Company agrees to indemnify and hold each Agent, and each
person, if any, who controls such Agent within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, harmless from and against any and all
losses, claims, damages and liabilities with respect to the Notes or any other
securities of the Company or its subsidiaries arising because the Registration
Statement, any preliminary prospectus used in connection with the offering of
the Notes or the Prospectus (if used within the period set forth in paragraph
(d) of Article V hereof and if used as amended or supplemented by all amendments
or supplements thereto which have been furnished to you) contained or is alleged
to have contained any untrue statement of a material fact or omitted or is
alleged to have omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, except as to losses,
claims, damages or liabilities caused by any such untrue statement or omission
or alleged untrue statement or omission made in reliance upon information
furnished to the Company herein or otherwise in writing by or on behalf of such
Agent for use in connection with the preparation of any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto, or caused by any statement in or omission from the Statement of
Eligibility and Qualification of the Trustee under the Indenture, provided that
the indemnity agreement with respect to any preliminary prospectus shall not
inure to the benefit of an Agent (or to the benefit of any person controlling
such Agent) on account of any losses, claims, damages or liabilities arising
from the sale of Notes to any person if a copy of the Prospectus (as amended or
supplemented by all amendments or supplements thereto which have been furnished
to such Agent, but without documents incorporated by reference therein or
exhibits) shall not have been sent, mailed or given to such person, if required
by the Act, at or prior to the written confirmation of the sale of such Notes to
such person.
(b) Each Agent agrees to indemnify and hold the Company, its directors,
its officers who sign the registration statement, and each person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, harmless from and against any and all losses, claims, damages and
liabilities arising because the Registration Statement or any preliminary
prospectus relating to the Notes or the Prospectus or any amendment or
supplement thereto contained or is alleged to have contained any untrue
statement of a material fact or omitted or is alleged to have omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission or alleged untrue
statement or omission was made in the Registration Statement or any such
preliminary prospectus or the Prospectus or any amendment or supplement thereto
in reliance upon information furnished to the Company herein or otherwise in
writing by or on behalf of such Agent for use in connection with the preparation
thereof.
(c) The Company and each Agent agree that upon the commencement of any
action against it, its directors, its officers who sign the registration
statement, or any person controlling it as aforesaid in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it will promptly give written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought, but
<PAGE> 12
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the omission so to notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from any liability which it
or they may have to the indemnified party or parties otherwise than on account
of such indemnity agreement. In case of such notice of any such action, the
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them. In the
event that the parties to any such action (including impleaded parties include
both the indemnifying party or parties and the indemnified party and either (i)
the indemnifying party or parties and indemnified party or parties mutually
agree or (ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in, connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
indemnified parties, which firm shall be designated in writing by the Agent who
is a party to the proceeding or, if more than one Agent is party to the
proceedings, by mutual agreement of the Agents, or controlling persons are
indemnified parties and by the Company in the case of an action in which the
Company or any of its directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by an indemnified party or parties
without prior written consent by the indemnifying party or parties to such
settlement.
(d) If the indemnification provided for in paragraph (a) or (b) above
is unavailable to an indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses claims damages or liabilities in such proportion as is
appropriate to reflect primarily the relative benefits received by the Company
on the one hand and each Agent an the other from the offering of the Notes and
also to reflect where appropriate the relative fault of the Company on the one
hand and of each Agent on the other in connection with the statements or
omissions or alleged statements or omissions which resulted in such losses
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and of each Agent shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the company or by each Agent
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Agent agree that it would not be just and equitable if contribution
pursuant to this paragraph (d) were determined by pro rata allocation or by
<PAGE> 13
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any other method of allocation which does not take account of the equitable
considerations referred to above in this paragraph (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in this paragraph (d) shall be deemed to include,
subject to the limitation set forth above in this Article VI, any legal or other
expenses reasonably incurred by such indemnified party in connection with
defending any such action or claim. Notwithstanding the provisions of this
paragraph (d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which the Notes distributed by it were
offered to the public exceeds the amount of any damages which such Agent has
been required to pay, otherwise than pursuant to this paragraph (d), by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Article VI and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination DE this Agreement or of any Terms Agreements hereunder, (it) any
investigation made by any Agent or on its behalf or any person controlling any
Agent or by or on behalf of the Company, its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
This Agreement and any Terms Agreement hereunder shall inure
to the benefit of the Company, its directors, its officers who sign the
registration statement, each Agent or in the came of any such Terms Agreement,
the applicable Agent and each controlling person referred to in Article VI
hereof and their respective successors. Nothing in this Agreement or in any
Terms Agreement hereunder is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any Terms Agreement hereunder or any
provision herein or therein contained. The term "successor" as used in this
Agreement or any Terms Agreement hereunder shall not include any purchaser, as
such purchasers of any of the Notes from an Agent.
The provisions of this Agreement relating to the solicitation
of offers to purchase Notes from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent insofar as this
Agreement relates to such Agent upon the giving of written notice of such
suspension or termination to such Agent or the Company, as the case may be, In
the event of such suspension or termination with respect to any Agent, (m) this
Agreement shall remain in full force and effect with respect to any Agent as to
which such suspension or termination has not occurred, (y) this Agreement shall
remain in full force and effect with respect to the rights and obligations of
any party which have previously accrued or which relate to Notes already issued,
agreed to be Issued or the subject of a pending offer at the time of such
suspension or termination and (z) in any event, this Agreement shall remain in
full force and effect insofar as the third paragraph of Article I (i)(a),
Article V (t), Article V (m) and Article VI are concerned.
This Agreement and any Terms Agreement may be executed in any
number of counterparts, each of which shall be an original; with the same effect
as if the signatures thereto and hereto were upon the same instrument.
<PAGE> 14
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This Agreement and any Terms Agreement hereunder shall be
governed by and construed in accordance with the laws of the State of New York.
Very truly yours,
Lucent Technologies Inc.
By_____________________________________
Name:
Title:
Accepted:
(Agent)
By____________________
Title:
(Agent)
By____________________
Title:
(Agent)
By_____________________
Title:
age 0
<PAGE> 15
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LUCENT TECHNOLOGIES INC.
Medium Term Notes, Series
TERMS AGREEMENT
________________, 19__
Lucent Technologies Inc.
Attention:
Re: Distribution Agreement dated 199_
The undersigned agrees to purchase the following principal amount
of your Medium Term Notes, Series [ ]
Specified Currency:
Principal:
Interest:
Aggregate Principal Amount. [U.S. $1 [other] Price to Public:
(Provisions relating to redemption if any:]
[Provisions relating to repayment, if any:] If Fixed-Rate]
If Fixed Rate Notes:
Interest Rate:
Maturity:
If Floating Rate Notes:(1)
Base Rate:
Initial Interest Date: Interest. Determination Date:
Interest Reset Date:
Record Date:
Interest Payment Dates: Index Maturity:
Maturity:
Maximum Interest Rate: Minimum Interest Rate: Spread:
Spread Multiplier:
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
Form of Note (Book Entry or Certificate)
Method of and Specified Funds for Payment Of Purchase
Price: [By certified or official bank check or
checks, payable to the order of the Company, in [New
York] Clearing House] [immediately available] funds
[By wire transfer to a bank
_________________________
(1) See Prospectus Supplement dated __________, 199__ for explanation of
terms.
<PAGE> 16
-16-
account specified by the Company in [next day]
[immediately available] funds]
Provisions relating to underwriter default, if any:
Other termination provisions, if any:
[The certificates referred to in Section V(i) of the
Distribution Agreement, the opinion referred to in Section V(j) of the
Distribution Agreement and the accountants letter referred to in
Section V(k) of the Distribution Agreement will be required.)
[ ]
By:______________________________
Accepted:
LUCENT TECHNOLOGIES INC.
By:
<PAGE> 17
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LUCENT TECHNOLOGIES INC.
MEDIUM TERM NOTES, SERIES [ ], ADMINISTRATIVE PROCEDURES
Medium Term Notes, Series [ ] the "Notes") are to be offered
on a continuous basis by Lucent Technologies Inc. (the "Company"). [Agents], as
agents individually an "Agent" and collectively the "Agents"), have agreed to
solicit purchases of the Notes. The Agents will not be obligated to purchase
Notes for their own accounts. The Notes are being sold pursuant to a
Distribution Agreement among the Company and each Agent dated ______ 199__ (the
"Distribution Agreement"). The Notes will rank equally with all other unsecured
and unsubordinated debt of the Company and have been registered with the
Securities and Exchange Commission (the "Commission"). _______________________
is the trustee (the "Trustee") under the Indenture covering the Notes (the
"Indenture"). __________________________________ ("Agent") has been appointed
authenticating agent, registrar and transfer agent, paying agent and calculation
agent with respect to the Notes.
Notes will bear interest at either fixed rates ("Fixed Rate
Notes") or floating rates ("Floating Rate Notes"). Each Note will be represented
by either a Global Security (as defined hereinafter) delivered to AGENT as agent
for the Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC ("a Book-Entry Vote") or a Certificated delivered to the
Holder thereof or a Person designated by such Holder (a "Certificated Note").
Only Notes denominated and payable in U.S. dollars may be issued as Book Entry
Notes. An owner of a Book-Entry Note will not be entitled to receive a
Certificated representing such a Note.
AGENT will act as Paying Agent for the payment of principal of
and premium, if any, and interest on the Notes and will perform, as paying
agent, unless otherwise specified, the other duties specified herein. Book-Entry
Notes will be issued in accordance with the administrative procedures set forth
in Parts I and II hereof, and Certificated Notes will be issued in accordance
with the administrative procedures set forth in Parts I and III hereof. Unless
otherwise defined herein, terms defined in the Indenture shall be used herein as
therein defined.
Administrative procedures and specific terms of the offerings
are explained below.
<TABLE>
<CAPTION>
PART I: Administrative Procedures for all Notes
<S> <C>
Maturities: Each Note will have a maturity from date of issue of not
less than nine months and not more than forty years.
Price to Public: Each Note will be issued at 100% of principal amount unless
otherwise specified in the applicable pricing supplement.
Acceptance of Orders: The Company will have the sole right to accept offers to
purchase Notes. Each Agent will promptly advise the
</TABLE>
<PAGE> 18
-18-
<TABLE>
<S> <C>
Company of each reasonable offer to purchase Notes
received by it, and, if the Company has not posted rates,
the proposed rate of interest on such Notes. The Company
may reject an offer in whole or in part. Each Agent may
reject, in its discretion reasonably exercised, any offer
received by it in whole or in part.
If the Company accepts an offer to purchase a Note it will
prepare a pricing supplement reflecting the terms of such
Note and will, so long as it is a participant in the SEC's
EDGAR program, electronically submit a version of such
pricing supplement complying with the rules of the SEC
relating to such program, or, if the Company is no longer
a participant in such program, arrange to have ten copies
of such pricing supplement filed with, or mailed for
filing to, the Commission, in each case no later than the
second business day following the date such offer is
accepted, and will supply a sufficient number of copies
thereof to the selling Agent and one copy to AGENT.
Procedure for The Company and the Agent will discuss from time to time
Rate Changes: the aggregate principal amount of, the issuance price of,
and the interest rates to be borne by, Notes that may be
sold as a result of the solicitation of orders by the
Agent. When a decision has been reached to change the
interest rates of Notes being sold by the Company, the
Company will promptly inform each Agent. Each Agent will
advise the Company with respect to the changed rates. See
Administrative Procedures, "Acceptance of Orders."
Suspension of The Company may instruct the Agents to suspend solicitation of
Solicitation; purchases at any time. Upon receipt of such instructions, the
Amendment or Agents will forthwith suspend solicitation until such time as
Supplement: the Company has advised it that solicitation of purchases may
be resumed.
If the Company decides to amend or supplement the
Registration
</TABLE>
<PAGE> 19
-19-
<TABLE>
<S> <C>
Statement or the Prospectus relating to the Notes, it will
promptly advise the Agents, The _______________________
and AGENT and will furnish the Agents, The
_______________________, and AGENT with the proposed
amendment or supplement in accordance with the terms of
the Distribution Agreement. The Company will file with the
Commission any supplement to the Prospectus relating to
the Notes including any supplement which provides solely
for a change in the interest rates offered on the Notes,
provide the Agents with sufficient quantities of copies of
any supplement within a reasonable time prior to the
earlier of the delivery of written confirmation of the
sale of Notes or the delivery of Notes to any purchaser
thereof, and confirm to the Agents that such supplement
has been filed with the Commission.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly
advise the Agents, The _______________________, and AGENT
whether such orders may be settled and whether copies of
the Prospectus as in effect at the time of the suspension
may be delivered in connection with the settlement of such
orders. The Company will have the sole responsibility for
such decision and for any arrangements which may be made
in the event that the Company determines that such orders
may not be settled or that copies of such Prospectus may
not be so delivered.
Delivery of Each Agent shall, for each Note order received by it,
Prospectus: deliver a copy of the Prospectus as most recently amended
or supplemented (including the pricing supplement relating
to such Note) with the earlier of the delivery of the
confirmation of sale of the Note to a purchaser or such
purchaser's agent.
</TABLE>
<PAGE> 20
-20-
<TABLE>
<S> <C>
Payment of The selling commission on each
Selling sale of Notes will be calculated
Commission by the applicable Agent and the
and Expenses: applicable Agent will deduct, for
its own account, the selling
commission from the proceeds of each
such sale of Notes. Each Agent will
forward, from time to time at its
discretion, an itemized statement
setting forth the aggregate amount
of out-of-pocket expenses incurred
by it in connection with the
offering and sale of the Notes,
which are reimbursable to it
pursuant to the terms of the
Distribution Agreement. The Company
will promptly remit payment to such
Agent.
Advertising: The Company will determine with each
Agent the form, substance and amount
of advertising that may be
appropriate in offering the Notes.
Advertising expenses will be paid by
the Company or reimbursed to the
Agents by the Company; provided,
however, that the expenses of any
tombstone advertisement shall be
paid by the Agents.
</TABLE>
PART II: Administrative Procedures For Book-Entry Notes
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, AGENT will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and AGENT to DTC and the Trustee dated as of the date hereof,
and a Medium Term Note Certificated Agreement between AGENT and DTC, dated as
of March 11, 1988 and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
<TABLE>
<S> <C>
Issuance: On any date of Settlement (as
defined under "Settlement" below)
for one or more Book-Entry Notes the
Company will issue a global security
in fully registered form without
coupons (a "Global Security")
representing up to $100,000,000
principal amount of all such Notes
that have the same stated maturity,
redemption or repayment provisions,
interest payment dates, interest
payment period and original issue
dates and, in the case of Fixed Rate
Notes, interest rate, or in the case
of Floating Rate Notes, initial
interest rate base rate, index
maturity, interest reset period,
interest reset dates, spread or
</TABLE>
<PAGE> 21
- 21 -
<TABLE>
<S> <C>
spread multiplier, minimum interest
rate (if any), and maximum interest
rate (if any) (collectively "Terms").
Each Global Security will be dated and
issued as of the date of its
authentication by AGENT, acting as
Authenticating Agent. No Global
security will represent (i) both Fixed
Rate and Floating Rate Book-Entry
Notes or (ii) any Certificated Note.
Identification The Company has arranged with the
Numbers: CUSIP Service Bureau of Standard
Poor's Corporation (the "CUSIP
Service Bureau") for the reservation
of a series of CUSIP numbers
(including tranche numbers), which
series consists of approximately 900
CUSIP numbers and relates to Global
Securities representing the Book-
Entry Notes. The Company has
obtained from the CUSIP Service
Bureau a written list of such series
of reserved CUSIP numbers and has
delivered to AGENT and DTC a written
list of such reserved CUSIP numbers
of such series. The Company will
assign CUSIP numbers to Global
Securities as described below under
Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers
that the Company has assigned to
Global Securities. At any time when
fewer than 100 of the reserved CUSIP
numbers of the series remain
unassigned to Global Securities, and
if it deems necessary, the Company
will reserve additional CUSIP
numbers for assignment to Global
Securities. Upon obtaining such
additional CUSIP numbers, the
Company shall deliver a list of such
additional CUSIP numbers to AGENT
and DTC.
Registration: Global Securities will be issued
only in fully registered form
without coupons. Each Global
Security will be registered in the
name of CEDE & Co., as nominee for
DTC, on the security register
maintained under the Indenture by
AGENT as Registrar and Transfer
Agent. The beneficial owner of a
Book-Entry Note (or one or more
indirect participants in DTC
designated by such owner) will
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<TABLE>
<S> <C>
designate one or more participants in
DTC (with respect to such Note, the
"Participants") to act as agent or
agents for such owner in connection
with the book-entry system maintained
by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such beneficial owner in
such Note in the account of such
Participants. The ownership interest
of such beneficial owner in such Note
will be recorded through the records
of such Participants or through the
separate records of such Participants
and one or more indirect participants
in DTC.
Transfers: Transfers of a Book-Entry Note will
be accompanied by book entries made
by DTC and, in turn, by Participants
(and in certain cases, one or more
indirect participants in DTC) acting
on behalf of beneficial transferor
and transferees of such Note.
Exchanges: AGENT may deliver to DTC and the
CUSIP Service Bureau at any time a
written notice of consolidation
specifying (i) the CUSIP numbers of
two or more Outstanding Global
Securities that represent (A) Fixed
Rate Book-Entry Notes having the
same terms and for which interest
has been paid to the same date, or
(B) Floating Rate Book-Entry Notes
having the same terms and for which
interest has been paid to the same
date, (ii) a date, occurring at
least thirty days after such written
notice is delivered and at least
thirty days before the next interest
payment date for such Book-Entry
Notes, on which such Global
Securities shall be exchanged for a
single replacement Global Security
and (iii) a new CUSIP number,
obtained from the Company, to be
assigned to such replacement Global
Security. Upon receipt of such a
notice, DTC will send to its
participants (including AGENT) a
written reorganization notice to the
effect that such exchange will occur
on such date. Prior to the
specified exchange date, AGENT will
deliver to the CUSIP Service Bureau
</TABLE>
<PAGE> 23
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<TABLE>
<S> <C>
a written notice setting forth such
exchange date and the new CUSIP
number and stating that, as of such
exchange date, the CUSIP numbers of
the Global Securities to be
exchanged will no longer be valid.
On the specified exchange date,
AGENT will exchange such Global
Securities for a single Global
Security bearing the new CUSIP
number and the CUSIP numbers of the
exchanged Global Securities will in
accordance with CUSIP Service Bureau
procedures, be canceled and not
immediately reassigned.
Notwithstanding the foregoing, if
the Global Securities to be
exchanged exceed $100,000,000 in
aggregate principal amount, one
Global Security will be authen-
ticated and issued to represent each
$100,000,000 of principal amount of
the exchanged Global Security and an
additional Global Security will be
authenticated and issued to repre-
sent any remaining principal amount
of such Global Securities (see
"Denominations" below).
Denominations: Book-Entry Notes will be issued in
principal amounts of $25,000 or any
amount in excess thereof that is an
integral multiple of $1,000. Global
Securities will be denominated in
principal amounts not in excess of
$100,000,000. If one or more Book-
Entry Notes having an aggregate
principal amount in excess of
$100,000,000 would, but for the
preceding sentence, be represented
by a single Global Security, then
one Global Security will be issued
to represent each $100,000,000
principal amount of such Book-Entry
Note or Notes and an additional
Global Security will be issued to
represent any remaining principal
amount of such Book-Entry Note or
Notes. In such a case, each of the
Global Securities representing such
Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Interest: General. Interest on each Book-
Entry Note will accrue from the
original issue date or the last date
to which interest has been paid, if
any, on the Global Security
representing such Note. Unless
</TABLE>
<PAGE> 24
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<S> <C>
otherwise specified therein, each
payment of interest on a Book-Entry
Note will include interest accrued to
but excluding the interest payment
date (provided that in the case of
Floating Rate Notes which reset
weekly, interest payments will include
interest accrued to and including the
regular record date immediately
preceding the interest payment date)
or maturity date (other than an
interest payment date occurring on the
thirty-first day of a month, in which
case such payment will include
interest accruing to and including the
thirtieth day of such month). Interest
payable at the maturity of a
Book-Entry Note will be payable to the
person to whom the principal of such
Note is payable. Standard & Poor's
Corporation will use the information
received in the pending deposit
message described under Settlement
Procedure "Co." below in order to
include the amount of any interest
payable and certain other information
regarding the related Global Security
in the appropriate weekly bond report
published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular
Record Date with respect to any
interest payment date shall be the
date fifteen calendar days immediately
preceding such interest payment date.
Fixed Rate Book-Entry Notes. Interest
payments on Fixed Rate Book-Entry
Notes will be made semiannually on
March 15 and September 15 of each year
and at maturity; provided, however,
that in the case of a Fixed Rate
Book-Entry Note issued between a
Regular Record Date and an interest
payment date or on an interest payment
date, the first interest payment will
be made on the interest payment date
following the next succeeding
Regular Record Date; provided further,
that if an interest payment date would
otherwise be a day that is not a
Business Day, such payment will be
made on the succeeding Business Day,
and no interest shall accrue on such
</TABLE>
<PAGE> 25
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<TABLE>
<S> <C>
payment for the period from and after
such interest payment date.
Floating Rate Book-Entry Notes.
Interest payment will be made on
Floating Rate Book-Entry Notes
monthly, quarterly semi-annually, or
annually. Unless otherwise agreed
upon, interest will be payable, in the
case of Floating Rate Book-Entry Notes
with a monthly interest payment
period, on the third Wednesday of each
month; with a quarterly interest
payment period, on the third Wednesday
of March, June, September and December
of each year; with a semi-annual
interest payment period on the third
Wednesday of the two months specified
pursuant to Settlement Procedure "A"
below; and with an annual interest
payment period, on the third Wednesday
of the month specified pursuant to
Settlement Procedure "Alt below;
provided, however, that if an interest
payment date for Floating Rate
Book-Entry Notes would otherwise be a
day that is not a Business Day, as
defined in such Note, with respect to
such Floating Rate Book-Entry Notes,
such payment will be made on the next
succeeding Business Day with respect
to such Floating Rate Book-Entry
Notes, and no interest shall accrue on
such payment for the period from and
after such interest payment date,
except in the case of a LIBOR Note if
such Business Day is in the next
succeeding calendar month, in which
event such payment will be made on the
immediately preceding Business Day and
interest shall accrue only to such
interest payment date; and provided,
further, that in the case of a
Floating Rate Book-Entry Note issued
between a Regular Record Date and an
interest payment date or on an
interest payment date, the first
interest payment will be made on the
interest payment date following the
next succeeding Regular Record Date.
Notice of Interest Payment and Regular
Record Dates. On the first Business
Day of March, June, September, and
December of each year, AGENT will
deliver to the
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<PAGE> 26
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<S> <C>
Company, the Trustee and DTC a written
list of Regular Record Dates and
interest payment dates that will occur
with respect to Book-Entry Notes
during the six-month period beginning
on such first Business Day.
Calculation of Fixed Rate Book-Entry Notes.
Interest: Interest on Fixed Rate Book-Entry
Notes (including interest for
partial periods) will be calculated on
the basis of a year of twelve
thirty-day months. (Examples of
interest calculations are as follows:
The period from August 15, 1991, to
February 15, 1992, equals 6 months and
0 days, or 180 days; the interest
payable equals 180/360 times the
annual rate of interest times the
principal amount of the Note. The
period from September 17, 1991, to
February 15, 1992, equals 4 months and
26 days, or 148 days; the interest
payable equals 148/360 times the
annual rate of interest times the
principal amount of the Note.)
Floating Rate Book-Entry Notes.
Interest rates on Floating Rate
Book-Entry Notes will be determined as
set forth in the form of Notes.
Interest on Floating Rate Book-Entry
Notes will be calculated on the basis
of actual days elapsed and a year of
360 days except that in the case of
Treasury Rate Notes, interest will be
calculated on the basis of the actual
number of days in the year.
Payments of Payment of Interest Only
Principal and Promptly after each Regular Record
Interest: Date, AGENT will deliver to the
Company, the Trustee and DTC a written
notice specifying by CUSIP number the
amount of interest to be paid an each
Global Security on the following
interest payment date (other than an
interest payment date coinciding with
maturity) and the total of such
amounts. DTC will confirm the amount
payable on each Global Security on
such Interest Payment Date by
reference to the appropriate (daily or
weekly) bond reports published by
Standard & Poor's Corporation. The
Company
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<PAGE> 27
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<TABLE>
<S> <C>
will pay to AGENT, as Paying Agent,
the total amount of interest due on
such Interest Payment Date (other than
at maturity), and AGENT will pay such
amount to DTC at the times and in the
manner set forth below under "Manner
of Payment".
Payments at Maturity and on Redemption
or Repayment. On or about the first
Business Day of each month, AGENT will
deliver to the Company, the Trustee
and DTC a written list of principal
and interest to be paid on each Global
Security maturing either at stated
maturity or on a redemption or
repayment date in the following month.
AGENT, the Company and DTC will
confirm the amounts of such principal
and interest payments with respect to
each such Global Security on or about
the fifth Business Day preceding the
maturity of such Global Security. The
Company will pay to AGENT, as Paying
Agent, the principal amount of such
Global Security, together with
interest due at such maturity. AGENT
will pay such amounts to DTC at the
times and in the manner set forth
below under "Manner of Payment". If
any stated maturity of a Global
Security representing Book-Entry Notes
is not a Business Day, the payment due
on such day shall be made on the next
succeeding Business Day and no
interest shall accrue on such payment
for the period from and after such
maturity. Promptly after payment to
DTC of the principal and interest due
at the maturity of such Global
Security, AGENT shall deliver such
Global Security to the Trustee which
shall cancel such Global Security in
accordance with the terms of the
Indenture and so advise the Company.
On the first Business Day of each
month, AGENT will deliver to the
Trustee a written statement indicating
the total principal amount of
outstanding Global Securities as of
the preceding Business Day.
Manner of Payment. The total amount of
any principal and interest due on
Global Securities on any interest
payment date or at maturity shall be
</TABLE>
<PAGE> 28
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<TABLE>
<S> <C>
paid by the Company to AGENT in
immediately available funds as of 9:30
A.M. (New York City time) on such
date. The Company will make such
payment on such Global Securities by
wire transfer to AGENT or by
instructing AGENT to withdraw funds
from an account maintained by the
Company at AGENT. The Company will
confirm such instructions in writing
to AGENT. Prior to 10 A.M. (New York
City time) on each maturity date,
redemption or repayment, or as soon as
possible thereafter, following receipt
of such funds from the Company, AGENT
will pay by separate wire transfer
(using Fedwire message entry
instructions in a form previously
specified by DTC) to an account at the
Federal Reserve
_______________________ previously
specified by DTC in funds available
for immediate use by DTC, each payment
of principal (together with interest
thereon) due on a Global Security on
such date. On each interest payment
date (other than at maturity),
interest payments shall be made to DTC
in funds available for immediate use
by DTC, in accordance with existing
arrangements between MT and DTC. On
each such date, DTC will pay, in
accordance with its SDFS operating
procedures then in effect, such
amounts in funds available for
immediate use to the respective
Participants in whose names the
Book-Entry Notes represented by such
Global Securities are recorded in the
book-entry system maintained by DTC.
Neither the Company (as issuer or as
Paying Agent), the Trustee nor AGENT
shall have any direct responsibility
or liability for the payment by DTC to
such Participants of the principal or
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any
taxes required under applicable law to
be withheld from any interest payment
on a Book-Entry Note will be
determined and withheld by the
Participant, indirect participant in
DTC or other person responsible for
forwarding payments and materials
</TABLE>
<PAGE> 29
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<TABLE>
<S> <C>
directly to the beneficial owner of
such Note.
Settlement: The receipt by the Company of
immediately available funds in payment
for a Book-Entry Note and the
authentication and issuance of the
Global Security representing such Note
shall constitute "Settlement" with
respect to such Note. All orders
accepted by the Company will be
settled on the fifth Business Day
pursuant to the timetable for
Settlement set forth below unless the
Company and the purchaser agree to
Settlement on another day which shall
be no earlier than the next Business
Day following the date of sale.
Settlement Settlement Procedures with regard
Procedures: to each Book-Entry Note sold by the
Company through an Agent, as agent,
shall be as follows:
A. Such Agent will advise the Company
by telephone (and will confirm in
writing on the same date) of the
following settlement information:
1. Principal amount.
2. Stated maturity.
3. In the case of a Fixed Rate
Book-Entry Note, the interest
rate or in the case of
Floating Rate Book-Entry Note,
the initial interest rate (if
known at such time), base
rate, index maturity, interest
reset period, interest reset
dates, spread or spread
multiplier (if any); minimum
interest rate (if any) and
maximum interest rate (if
any). Interest payment period
and interest payment dates.
4. Redemption provisions, if any.
5. Repayment provisions, if any.
6. Settlement date.
7. Sale Date.
8. Price.
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<PAGE> 30
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<S> <C>
9. Agent's Commission, determined
as provided in Section 1(a) of
the Distribution Agreement
between the Company and such
Agent.
10. Whether the Note is an
original issue discount note,
and if it is an original issue
discount note, the total
amount of original issue
discount ("OID"), the yield to
maturity and the initial
accrual period OID.
11. Net Proceeds to the Company.
B. The Company will assign a CUSIP
number to the Global Security
representing such Note and then advise
AGENT by telephone or electronic
transmission (confirmed in writing at
any time on the same date) of the
information set forth in settlement
Procedure "A" above, such CUSIP number
and the name of such Agent. The
Company will also notify the Agent of
such CUSIP number by telephone as soon
as practicable. Each such communi-
cation by the Company shall constitute
a representation and warranty by the
Company to the Trustee and AGENT and
each Agent that (i) such Note is then,
and at the time of issuance and sale
thereof will be, duly authorized for
issuance and sale by the Company, (ii)
such Note, and the Global Security
representing such Note, will conform
with the terms of the Indenture
pursuant to which such Note and Global
Security are issued and (iii) upon
authentication and delivery of such
Global Security, the aggregate initial
offering price of all securities
issued under the Indenture will not
exceed [___________] or the equivalent
thereof in one or more currencies
(except for securities represented by,
authenticated and delivered in
exchange for or in lieu of securities
pursuant to Sections 2.08 and 2.09 of
the Indenture).
C. AGENT will enter a pending deposit
message through DTC's Participant
Terminal System, providing the
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<PAGE> 31
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<S> <C>
following settlement information to
DTC, such Agent, Standard & Poor's
Corporation and Interactive Data
Corporation:
1. The information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating
Rate Book-Entry Note.
3. Initial interest payment date
for such Note, number of days
by which such date succeeds
the related Regular Record
Date, and if known, the amount
of interest payable on such
Interest Payment Date.
4. The interest payment period.
5. CUSIP number of the Global
Security representing such
Note.
6. The Participant account
numbers maintained by DTC on
behalf of the Agents and
AGENT.
D. AGENT will complete such Note, stamp
the appropriate legend as instructed
by the Company in accordance with
DTC procedures, if not already set
forth thereon, and authenticate the
Global Security representing such
Note.
E. DTC will credit such Note to AGENT's
participant account at DTC,
F. AGENT will enter an SDFS deliver
order through DTC's Participant
Terminal System instructing DTC to
(i) debit such Note to AGENT's
participant account and credit such
Note to such Agent's participant
account and (ii) debit such Agent's
settlement account and credit
AGENT's settlement account for an
amount equal to the price of such
Note less such Agent's commission.
The entry of such a deliver order
shall constitute a representation
and warranty by AGENT to DTC that
(a) the Global Security representing
such Book-Entry Note has been issued
and authenticated and (b) AGENT is
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<PAGE> 32
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<S> <C>
holding such Global Security
pursuant to the Medium Term Note
Certificated Agreement between AGENT
and DTC.
G. Such Agent will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to such Agent's participant
account and credit such Note to the
participant accounts of the
Participants with respect to such
Note and (ii) to debit the
settlement account of such
Participant and credit the
settlement account of such Agent for
an amount equal to the price of such
Note.
H. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures "F" and "G"
will be settled in accordance with
SDFS operating procedures in effect
on the settlement date.
I. AGENT, upon confirming receipt of
such funds, will credit or wire
transfer to the account of the
Company maintained at AGENT, Account
Number 140025920, New York, New
York, in funds available for
immediate use in the amount
transferred to AGENT in accordance
with Settlement Procedure "F".
J. The Agent will confirm the purchase
of such Note to the purchaser either
by transmitting to the Participants
with respect to such Note a
confirmation order or orders through
DTC's institutional delivery system
or by mailing a written confirmation
to such purchaser.
Settlement For orders of Book-Entry Notes
Procedures solicited by an Agent, as agent,
Timetable: and accepted by the Company for
Settlement on the first Business Day
after the sale date, Settlement
Procedures "A" through "J" set forth
above shall be completed as soon as
possible but no later than the
respective times (New York City
time) set forth below:
Settlement Time
Procedure: A 11:00 A.M. on the sale date
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<PAGE> 33
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B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more then one Business Day
after the sale date, Settlement Procedures "A", "B",
and "C" shall be completed as soon as practicable but
no later than 11:00 A.M. to 12 Noon and 2:00 P.M.,
respectively on the first Business Day after the sale
date. If the initial interest rate for a Floating Rate
Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12 Noon
and 2:00 P.M., respectively, on the second Business day
following the trade date. Settlement Procedure "H" is
subject to extension in accordance with any extension
of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on
the settlement date.
If Settlement of a Book-Entry Note is rescheduled or
cancelled, by no later than 2:00 P.M. on the Business
Day preceding the settlement date, the Company will
instruct AGENT to deliver to DTC, through DTC's
Participant Terminal System, a cancellation message to
such effect, (AGENT will enter such message by no later
than 2:00 P.M. on such Business Day.)
Failure to If AGENT fails to enter an SDFS deliver order with
Settle: respect to a Book-Entry Note pursuant to Settlement
Procedure "F", AGENT may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable a
withdrawal message instructing OTC to debit such Note
to AGENT's participant account. DTC will process the
withdrawal message, provided that AGENT's participant
account contains a principal amount of the Global
Security representing
<PAGE> 34
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such Note that is at least equal to the principal
amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Security, AGENT will mark such
Global Security "cancelled" and make appropriate
entries in AGENT's records.
The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned.
If a withdrawal message is processed with respect to
less than the entire principal amount of a Global
Security, AGENT will exchange such Global Security for
two Global Securities, one of which shall represent the
principal amount of such Global Security to which the
withdrawal message relates and shall be cancelled
immediately after issuance and the other of which shall
represent the remaining principal amount previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser) such Participants and, in
turn, the Agent for such Note may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures "F" and "G", respectively. Thereafter, the
Company will return to AGENT the funds transferred in
accordance with Settlement Procedure "I" and will
instruct AGENT to deliver the withdrawal message and
take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its
<PAGE> 35
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SDFS operating procedures then in effect. In the event
of a failure to settle with respect to less than the
entire principal amount of Global Security, AGENT will
provide, in accordance with Settlement Procedures "D",
for the authentication and issuance of a Global
Security representing the remaining principal amount to
have been represented by such Global Security and will
make appropriate entries in its records.
PART III: Administrative Procedures For Certificated Notes
Currencies: Certificated Notes will be denominated in U.S. dollars
or in such other currency or currency unit as specified
in the Prospectus (the "Specified Currency").
Denominations: The denomination of any Certificated Note will be a
minimum of $25,000 or any amount in excess thereof
which is a multiple of $1,000, or the equivalent, as
determined, and as specified by the appropriate agent,
pursuant to the provisions of the Indenture, of U.S.
$25,000 (rounded down to a multiple of 1,000 units of
such Specified Currency) and any amount in excess
thereof which is a multiple of 1,000 units of such
Specified Currency.
Registration: Certificated Notes will be issued in fully registered
form,
Interest Payments: Each Certificated Note which is a Fixed Rate Note, will
bear interest from the date of issue at the annual rate
stated on the face thereof, payable semi-annually on
March 15 and September 15 of each year, and at maturity
subject to certain exceptions, and each Certificated
Note which is a Floating Rate Note will bear interest
as determined in the manner set forth on the face
thereof, payable on the date or dates set forth on the
face thereof and will have the record dates as set
forth in the Note.
Interest will be payable to the person in whose name
the Certificated Note is registered at the close of
business on the record date
<PAGE> 36
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next preceding the interest payment date; provided,
however, that (i) interest payable at maturity (whether
or not the maturity date is an interest payment date)
will be payable to this person to whom principal shall
be payable, and (ii) the first payment of interest on
any Certificated Note originally issued between a
record date and an interest payment date will be
payable to the person to whom such Certificated Note
shall have been issued.
The date of issue of each Certificated Note will be
the date of its authentication by AGENT, as
Authenticating Agent, as provided in the Indenture.
The date of authentication of each Certificated Note
will be the settlement date. Except as otherwise agreed
to, interest (including payments for partial periods)
on Fixed Rate Certificated Notes will be calculated on
the basis of a 360-day year of twelve 30-day months and
interest on Floating Rate Certificated Notes will be
determined by the Company and the Purchaser thereof in
accordance with the provisions of the Prospectus,
Except as otherwise set forth in the Prospectus. all
interest payments (excluding interest payments made on
a date of maturity) will be made by check and mailed to
the person entitled thereto as provided above.
On the fifth business day immediately preceding each
interest payment date, AGENT will advise the Company
and the Trustee of the aggregate amount of interest to
be paid on the Certificated Notes therefore issued on
such interest payment date and the currency or currency
units in which such interest payments are to be made.
AGENT will provide monthly to the Company's Treasury
Department a list of the principal and interest to the
extent ascertainable to be paid on the Notes maturing
in the next succeeding month.
Settlement: The receipt of immediately available funds by the
Company in payment for a Certificated Note and the
<PAGE> 37
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authentication and issuance of such
Certificated Note shall, with respect to such
Certificated Note, constitute "Settlement".
All orders accepted by the Company will be
settled on the next business day pursuant to
the timetable for Settlement set forth below
unless the Company and the purchaser agree to
Settlement on a later date; provided, however,
that in the case of a delayed Settlement the
Company will notify at least 24 hours prior to
the time of Settlement.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by an Agent shall be as
follows:
A. Such Agent will advise the Company by
telephone or facsimile of the following
settlement information:
1. Exact name in which Certificated Note is
to be registered.
2. Exact address of the registered owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
registered owner.
4. Principal amount of the Certificated
Note.
5. Currency or currency unit.
6. Interest rate.
7. Base Rate.
8. Index maturity.
9. Initial interest rate.
10. Interest Reset Period.
11. Interest Reset Dates.
12. Interest Payment Periods.
13. Interest Payment Dates.
14. Redemption Provisions, if any.
<PAGE> 38
-38-
15. Repayment Provisions, if any.
16. Whether the Note is an original issue
discount note and if it is an original
issue note, the total amount of original
issue discount ("OID"), the yield to
maturity and the initial accrual period
OID.
17. Maximum interest rate.
18. Minimum interest rate.
19. Spread or spread multiplier.
20. Date of Certificated Note.
21. Settlement date.
22. Maturity date.
23. Agent's commission.
24. Net proceeding to the Company.
25. Minimum denominations including the U.S.
dollar equivalent thereof if denominated
in other than U.S. dollars.
26. Calculation Agent.
27. All other items to be specified in any
Note.
B. The Company will provide AGENT with the
information listed in A (which, if provided
orally, will be promptly confirmed in
writing).
C. AGENT will complete and distribute the
preprinted 4-ply Certificated Note packet
containing the following documents in forms
approved by the Company, the Agents and the
Trustee:
1. Note with customer confirmation.
2. Stub 1 - For Agent.
3. Stub 2 - For Company.
4. Stub 3 - For
-----------------------.
<PAGE> 39
-39-
D. AGENT will deliver the Certificated Note (with
the confirmation) and stub 1 to the Agent or
the Agent's agent.
E. The Agent will make payment to the Company in
immediately available funds equal to the
principal amount of the Certificated Note less
any applicable commission or discount.
F. The Agent or the Agent's agent will deliver
the Certificated Note (with confirmation) to
the customer against payment in immediately
available funds.
G. The Agent or the Agent's agent will obtain the
acknowledgment of receipt of the Certificated
Note by the customer through completion of
stub 1.
H. AGENT will send by first class mail stub 2 to
the Company. Periodically, AGENT will also
send to the Company and the Trustee a
statement setting forth the principal amount
of the Certificated Notes outstanding as of
that date after giving effect to such
transaction and all other orders of which the
Company has advised AGENT but which have not
yet been settled.
Settlement For offers accepted by the Company, Settlement
Procedures Procedures "A" through "H" set forth above
Timetable: shall be completed on or before the respective
times to the extent possible (New York City
time) set forth below:
Settlement Procedures: Time
A (1-3) 11:00 A.M. on day prior to settlement.
A (4-20) 5:00 P.M. on day of order
B 1:00 P.M. on day prior to settlement.
C-D 12:00 P.M. on day of settlement
E-F 3:00 P.M. on day of settlement
G-H 4:30 P.M. on day of settlement
Fails: For orders received by an Agent, in the event
that a purchaser shall fail to accept delivery
of and make payment for a Certificated Note,
<PAGE> 40
-40-
such Agent will notify AGENT, and the Company,
by telephone, confirmed in writing, and return
the Certificated Note to AGENT. Upon receipt
of the Certificated Note by AGENT, the Company
will immediately credit an account designated
by such Agent in an amount of immediately
available funds equal to the amount previously
credited in respect of the Note. Such credits
will be made on the settlement date if
possible, and in any event not later than the
business day following the settlement date.
The Agent shall deliver such Certificated Note
to AGENT as soon as practicable. If such fail
shall have occurred for any reason other than
the failure of the Agent to provide the
necessary information to the Company as
described above for Settlement or to provide a
confirmation to the purchaser within a
reasonable period of time an described above,
the Company will reimburse the Agent on an
equitable basis for its loss of the use of
funds during the period when such funds were
credited to the account of the Company.
Immediately upon receipt of the Certificated
Note in respect of which the fail occurred,
AGENT will make appropriate entries in their
records and AGENT will deliver such
Certificated notes to the Trustee for
cancellation in accordance with the Indenture.
Maturity: At maturity, the principal amount of each
Certificated Note together with any accrued,
but unpaid, interest will be payable in
immediately available funds provided that the
paying agent receives the Certificated Note,
and appropriate information in time to make
payments in such funds in accordance with its
normal procedures. Certificated Notes
presented to AGENT shall be delivered by AGENT
to the Trustee which shall cancel such Notes
in accordance with the Indenture.
Manner of Payment: The total amount of any principal and interest
due on Certificated Notes on any interest
payment date or at maturity shall be paid by
the
<PAGE> 41
-41-
Company to AGENT in immediately available
funds as of 9:30 A.M. (New York City time) on
such date. The Company will make such payment
on such Certificated Notes by wire transfer to
AGENT or by instructing AGENT to withdraw
funds from an account maintained by the
Company at AGENT. The Company will confirm
such instructions in writing to AGENT.
Authenticity The Agents will have no obligation or
of Signatures: liability to the Company or AGENT in respect
of the authenticity of the signature of any
officer, employee or agent of the Company or
AGENT on any Certificated Note.
Calculation of Interest: The provisions set forth under "Calculation of
Interest" in Part II of these Administrative
Procedures shall apply mutatis mutandi with
respect to Certificated Notes.
<PAGE> 1
Exhibit 1C
LUCENT TECHNOLOGIES INC.
Euro-Medium Term Notes, Series ___
FORM OF INTERNATIONAL DISTRIBUTION AGREEMENT
______________, 199_
[Name of Agents]
[Address]
Ladies and Gentlemen:
Lucent Technologies Inc., a Delaware corporation (the "Company"),
proposes to issue and sell from time to time up to U.S. $________ (or the
equivalent thereof in other currencies or currency units) aggregate principal
amount of its Euro-Medium Term Notes, Series ___ (the "Notes"), as such amount
shall be reduced by the aggregate principal amount issued and sold in the United
States in a concurrent offering of its Medium Term Notes, Series ____ (the
"Series ___ Notes") and the aggregate principal amount of any other debt
securities and the aggregate purchase price of any warrants issued by the
Company inside or outside of the United States pursuant to a certain
registration statement, discussed in Section II hereof, or otherwise. The Notes
are to be issued and sold under an Indenture dated as ________________, 1996
(the "Indenture"), between the Company and __________________ as trustee (the
"Trustee"). The Notes, which will be issued in bearer form, including temporary
and permanent global form, shall be issued in the currency or currency unit (the
"Specified Currency") and shall have the maturity ranges, annual interest rate
(whether fixed or floating), redemption provisions, repayment provisions and
other terms as set forth in the Prospectus referred to below as it may be
supplemented from time to time, including any pricing supplement ("Pricing
Supplement").
<PAGE> 2
2
I.
Subject to the terms and conditions stated herein and subject to
the reservation by the Company of the right to sell Notes (a) directly to
investors on its own behalf or (b) through other agents, dealers or
underwriters, the Company hereby (i) appoints [AGENTS] (individually an "Agent"
and collectively the "Agents") to act as its agents to solicit orders for, and
to sell, all or part of the Notes during a period beginning on the date hereof
and ending when the Notes have been sold, or such other time as the Company may
specify to you in writing, and (ii) agrees that whenever the Company determines
to sell Notes directly to either of you as principal for resale to others it
will enter into a Terms Agreement relating to such sale in accordance with the
provisions of Section I(b) hereof.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent, severally and not jointly, will use its reasonable best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. As soon as practicable, but in any
event not later than one business day in the location of each Agent concerned
after receipt of notice from the Company, the Agents will suspend solicitation
of offers to purchase Notes from the Company until such time as the Company has
advised them that such solicitation may be resumed.
Unless otherwise agreed between the Company and the Agents, the
Company agrees to pay each Agent, as consideration for soliciting the sale of
any Notes, a commission in the form of a discount equal to the following
percentage of the principal amount of each Note sold by such Agent:
<TABLE>
<CAPTION>
TERM COMMISSION RATE
---- ---------------
<S> <C>
[From 9 months to 1 year .125%
More than 1 year to 18 months .150%
More than 18 months to 2 years .200%
More than 2 years to 3 years .250%
More than 3 years to 4 years .350%
More than 4 years to 5 years .450%
More than 5 years to 6 years .500%
More than 6 years to 7 years .550%
More than 7 years to 10 years .600%
More than 10 years to 15 years .625%
More than 15 years to 20 years .700%
More than 20 years to 30 years .750%]
</TABLE>
Each agent is authorized to solicit offers to purchase Notes only in principal
amounts of at least U.S. $25,000 or any amount in excess thereof that is a whole
multiple of U.S. $5,000 or, if denominated in a Specified Currency other than
U.S. dollars, then the equivalent, at the noon buying rate in New York City for
cable transfers of such Specified Currency as certified for customs practices by
the Federal Reserve Bank of New York or, in the case of European Currency Units
at the rate of exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of the European
Communities, or any successor publication, in either case on the Business Day
(as defined in Exhibit B hereto) immediately preceding the trade date for such
Notes, of U.S. $25,000
<PAGE> 3
3
(rounded down to an integral multiple of 100 units of such Specified Currency)
and any larger amount that is an integral multiple of 1000 units of such
Specified Currency. Each Agent shall communicate to the Company, orally or in
writing, each reasonable offer received by it to purchase Notes. The Company
shall have the sole right to accept offers to purchase Notes and may reject any
such offer in whole or in part. Each Agent shall have the right to reject, in
its discretion reasonably exercised, any offer received by it to purchase the
Notes in whole or in part, and any such rejection shall not be deemed a breach
of its agreements contained herein.
(b) Purchases as Principal. Each sale of Notes to an Agent, as
principal, shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which shall be substantially in the form of Exhibit A hereto and which may take
the form of an exchange of any standard form of written telecommunication
between such Agent and the Company) is herein referred to as a "Terms
Agreement". An Agent's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
price to be paid to the Company for such Notes, the currency or currency unit in
which such Notes shall be denominated on which interest is to be paid and in
which the redemption or repayment price, if any, is to be paid, the rate at
which interest will be paid on the Notes, whether such rate of interest shall be
fixed or floating and the time and place of delivery of any payment for such
Notes (the "Settlement Date"). Such Terms Agreement shall also specify any
requirements for opinions of counsel, certificates of the Company and letters
from Coopers & Lybrand pursuant to Section III hereof and may also contain
additional provisions relating to defaults by underwriters and other provisions
relating to termination as may be agreed at the time between the Company and the
applicable Agent.
(c) Offers and Sales of Notes.
(i) Each Agent represents, warrants, covenants and agrees:
(A) that except to the extent permitted under U.S.
Treasury Regulations Section 1.163-5(c)(2)(i)(D) (the "D
Rules"), (1) it has not offered or sold, and during the
restricted period will not offer or sell, Notes to a person
who is within the United States or its possessions or to a
United States person and (2) it has not delivered and will
not deliver within the United States or its possessions
definitive Notes that are sold during the restricted period;
(B) that it has in effect and throughout the
restricted period will have in effect procedures reasonably
designed to ensure that its employees or agents who are
directly engaged in selling Notes are aware that such Notes
may not be offered or sold during the restricted period to a
person who is within the United States or its possessions or
to a United States person, except as permitted by the D
Rules;
(C) if it is a United States person, that it is
acquiring the Notes for purposes of resale in connection with
their original issuance and if it retains Notes for its own
account, it will only do so in accordance with the
requirements of U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(D) with respect to each of its affiliates that
acquires from it Notes for the purpose of offering or selling
such Notes during the restricted period, it either (1)
repeats and confirms the representations
<PAGE> 4
4
and agreements contained in clauses (A), (B) and (C) on its
behalf or (2) agrees that it will obtain from such affiliate
for the benefit of the Company the representations and
agreements contained in clauses (A), (B) and (C);
(E) that it has not entered and will not enter into
any contractual arrangement with respect to the distribution
or delivery of the Notes, except with its affiliates or with
the prior written consent of the Company.
Terms used in this paragraph (c)(i) have the meanings given them by
the U.S. Internal Revenue Code and regulations thereunder, including the D
Rules.
(ii) Each Agent represents and agrees that (A) it has not
offered or sold, and will not, for as long as Part III of the Companies
Act 1985 remains in force in relation to the Notes, offer or sell in
the United Kingdom, by means of any document, any Notes other than to
persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent (except in circumstances
which do not constitute an offer to the public within the meaning of
the Companies Act 1985); (B) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect
to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; (C) it has only issued or passed on and
will only issue or pass on to any person in the United Kingdom any
document received by it in connection with the issue of the Notes if
that person is of a kind described in Article 9(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1988;
and (D) once the provisions of Part V of the Financial Services Act
1986 comes into force in relation to the Notes, it will not, directly
or indirectly issue or cause to be issued in the United Kingdom any
advertisement offering the Notes in circumstances which would require
(for the avoidance of any contravention of those provisions) a
prospectus to have been delivered to the Registrar of Companies in
England and Wales.
(iii) Each Agent agrees that it will (A) comply with all laws
and regulations existing on the date hereof in each jurisdiction in
which it shall offer or sell any Notes; (B) use its reasonable best
efforts to comply with any changes in applicable laws and regulations,
or in the interpretation thereof, and any additional laws and
regulations which may become effective in such jurisdictions after the
date hereof; and (C) not offer or sell any Notes in any jurisdiction
where it has knowledge or, in the exercise of reasonable care, should
have knowledge that such action would not be in compliance with the
applicable laws thereof. Each Agent understands that no action has been
taken to permit a public offering in any jurisdiction outside the
United States where action would be required for such purpose. Each
Agent agrees not to cause any advertisement of the Notes to be
published in any newspaper or periodical or posted in any public place
and not to issue any circular relating to the Notes other than the
Prospectus, except in any such case with the express consent of the
Company.
(iv) Each Agent confirms and represents that it is a dealer
actually engaged in the investment banking or securities business and
that it is either (A) a member in good standing of the United States
National Association of Securities Dealers, Inc. (the "NASD") who
agrees to comply with the Rules of Fair Practice of the NASD, or (B) a
dealer with its principal place of business located outside the United
States and not eligible for membership in the NASD. Each Agent hereby
agrees to comply with the provisions of Section 24 of Article III of
the Rules of Fair Practice of the NASD and the NASD's interpretation
with respect to free-riding and withholding, and if such Agent is a
foreign dealer and not a member of the NASD, it also agrees to comply,
as
<PAGE> 5
5
though it were a member of the NASD, with the provisions of Sections 24
and 36 of Article III of such Rules of Fair Practice, and to comply
with Section 25 of Article III thereof as that Section applies to
non-member foreign dealers.
(v) To the extent permitted by applicable law and subject to
paragraphs (ii) and (iii) above, each Agent is authorized to distribute
copies of the Prospectus and each amendment or supplement thereto to
potential investors in, and purchasers of, Notes and to deliver, or
cause to be delivered, copies of the Prospectus and each amendment or
supplement thereto to the Luxembourg Stock Exchange, whether or not
delivery of the Prospectus or any such amendment or supplement is
required by any law, regulation or agreement to be so delivered.
(vi) In connection with the distribution of the Notes by an
Agent, such Agent, may over-allot and effect transactions in the Notes
in any over-the-counter market or otherwise, with a view to stabilizing
or maintaining the market prices of the Notes at levels other than
those which might otherwise prevail in the open market, but in such
event and in relation thereto each Agent will act for itself and not
the Company and any loss resulting from over-allotment and
stabilization will be borne, and any profit arising therefrom will be
beneficially retained, by it.
(vii) Each Agent agrees to indemnify and hold harmless the
Company, the other Agent and each person controlling the Company or
such other Agent from and against any and all losses, claims, damages
or liabilities arising from any breach by such Agent of any of the
foregoing provisions of this Article 1(c).
(d) Procedures. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Euro-Medium Term Notes, Series ___ Administrative Procedures (attached
hereto as Exhibit B) (the "Procedures"), as amended from time to time. The
Procedures may be amended only by written agreement of the Company and the
Agents. The Company will furnish a copy of the Procedures as from time to time
in effect to the Trustee, each authenticating agent and each paying agent
designated pursuant to the Indenture and the common depositary as designated by
the Company (the "Depositary") for Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear"), and Centrale
de Livraison de Valeurs Mobilieres S.A. ("CEDEL").
(e) Delivery. The documents required to be delivered by Section III
of this Agreement shall be delivered on the date hereof or at such other time as
you and the Company may agree upon in writing (each a "time of closing").
(f) Series Notes. The Company agrees to notify each Agent of sales
by the Company of its Series _____ Notes.
II.
The Company represents and warrants to each Agent that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. ____)
including a prospectus relating to notes and warrants of the Company,
including the Notes, which has become effective under the Securities
Act of 1933 (the "Act"), and has filed or will file with, or has
delivered or will deliver for filing to, the Commission a prospectus
supplement specifically relating to the Notes pursuant to
<PAGE> 6
6
Rule 424 under the Act. The term "Registration Statement" means such
registration statement as amended to the date hereof, together with
such prospectus supplement, as amended to the date hereof. The term
"Basic Prospectus" means the prospectus, as amended, included in the
Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement or supplements
specifically relating to the Notes, as filed with, or delivered for
filing to, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means any preliminary prospectus supplement specifically
relating to the Notes together with the Basic Prospectus. As used
herein, Registration Statement, Basic Prospectus, Prospectus, and
preliminary prospectus shall include in each case the material, if any,
incorporated by reference therein.
(b) (i) Each part of the Registration Statement relating to
the Notes, filed with the Commission pursuant to the Act, when such
part became effective, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) each Prospectus, if any, relating to any Notes, filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects
with the Act and the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the applicable rules and regulations of the Commission
thereunder, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and the Trust Indenture Act and the
applicable rules and, regulations of the Commission thereunder and (iv)
the Registration Statement and the Prospectus do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon written
information furnished to the Company by or on behalf of any Agent
specifically for inclusion therein or as to any statements in or
omissions from the Statement of Eligibility and Qualification of the
Trustee under the Indenture.
(c) Each document or portion thereof incorporated by
reference in the Prospectus complied when filed with the Commission in
all material respects with the provisions of the Securities Exchange
Act of 1934 (the "Exchange Act"), together with the applicable
instructions, rules and regulations of the Commission thereunder, and
each document, if any, hereafter filed under the Exchange Act and so
incorporated by reference in the Prospectus will comply when so filed
in all material respects with the requirements of such Exchange Act,
instructions, rules and regulations.
(d) The accountants who have certified or shall certify the
financial statements filed and to be filed with the Commission as parts
of the Registration Statement and the Prospectus are public or
certified accountants, independent with respect to the Company, as
required by the Act and the rules and regulations of the Commission
thereunder.
(e) Neither the issuance or sale of the Notes nor the
consummation of any other of the transactions contemplated in this
Agreement nor the fulfillment of the terms of this Agreement will
result in a breach of any of the terms and provisions of, or constitute
a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which it
is bound, or the Company's Certificate of Incorporation or By-Laws, or,
to the best of its knowledge, any order, rule or regulation applicable
to the Company of any court, federal or state regulatory body,
<PAGE> 7
7
administrative agency or other governmental body having jurisdiction
over the Company or its properties.
III.
The obligations of each Agent hereunder are subject to the
following conditions:
(a) At the time of closing and at each Settlement Date with
respect to any Terms Agreement, the Indenture shall be qualified under
the Trust Indenture Act and no stop order suspending the effectiveness
of the Registration Statement as amended from time to time shall be in
effect, no proceedings for that purpose shall be pending before, or
threatened by, the Commission, and at the time of closing each Agent
shall have received, and at each Settlement Date with respect to any
Terms Agreement, if called for by such Terms Agreement, the Agent which
is a party thereto shall have received, a certificate, dated the time
of closing or such applicable Settlement Date and signed by a Vice
President or the Treasurer of the Company to the effect that no such
stop order is in effect and, to the knowledge of the Company, no
proceedings for such purpose are pending before, or threatened by, the
Commission.
(b) At or prior to the time of closing each Agent shall
have received, and at each Settlement Date with respect to any Terms
Agreement if called for by such Terms Agreement, the Agent which is a
party thereto shall have received, from counsel for the Company an
opinion, satisfactory to ___________________________, your counsel, to
the effect that:
(i) the Company is a corporation in good standing, duly
organized and validly existing under the laws of the State of Delaware
and is authorized by its Certificate of Incorporation to transact the
business in which it is engaged, as set forth in the Prospectus;
(ii) the Company is duly qualified to transact the business
in which it is engaged, as set forth in the Prospectus, in each state
in which it operates;
(iii) the Indenture has been duly executed and delivered
pursuant to due authorization by appropriate corporate action, is a
valid and binding agreement in accordance with its terms and has been
duly qualified under the Trust Indenture Act;
(iv) the Notes, when duly executed and authenticated pursuant
to the Indenture and delivered to and paid for by the purchasers
thereof in accordance with the provisions hereof, will be legal, valid
and binding obligations of the Company in accordance with their terms;
(v) this Agreement (and, if the opinion is being given on
account of the Company having entered into a Terms Agreement, the
applicable Terms Agreement) has been duly authorized, executed and
delivered on behalf of the Company and is valid and binding on the
Company except as rights to indemnification and contribution hereunder
may be limited under applicable law;
(vi) no consent, approval, authorization or other order of
any regulatory authority (other than the order which has been entered
by the Commission) is legally required for the issuance and sale of the
Notes to you pursuant to the terms of this Agreement except such as may
be required by the Luxembourg
<PAGE> 8
8
Stock Exchange or under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this Agreement
and such other approvals (specified in such opinion) as have been
obtained;
(vii) except as to financial statements and schedules
contained therein, which such opinion need not pass upon, (A) each
document or portion thereof incorporated by reference in the Prospectus
complied when filed with the Commission as to form in all material
respects with the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (B) each part of
the Registration Statement filed with the Commission, when it became
effective, complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder, and (C) the Registration Statement and the
Prospectus as amended or supplemented, if applicable, comply and at the
date of this Agreement complied, as to form in all material respects
with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder; and
(viii) the opinions of counsel expressed or referred to under
"Taxation" in the Prospectus are confirmed as correct.
(c) At or prior to the time of closing each Agent shall
have received, and at each Settlement Date with respect to any Term
Agreement, if called for by such Terms Agreement, the Agent which is a
party thereto shall have received, from ___________________________ an
opinion to the effect specified in clauses (iii) through (v), and
(vii)(B) and (C) of paragraph (b) above.
(d) Except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there shall not have been, at the time of closing and at
each Settlement Date with respect to any Terms Agreement, any material
adverse change, financial or otherwise, in the condition of the Company
from that set forth in the Registration Statement and the Prospectus;
the representations and warranties of the Company herein shall be true
at the time of closing and at each Settlement Date with respect to any
Terms Agreement; the Company shall not have failed, at or prior to the
time of closing or such applicable Settlement Date, to have performed
all agreements herein contained which should have been performed by it
at or prior to such time; and each Agent shall have received at the
time of closing, and the Agent which is a party to any Terms Agreement
shall have received at each Settlement Date with respect to any such
Terms Agreement, a certificate to the foregoing effect dated the day of
the closing and signed by a Vice President or the Treasurer of the
Company.
(e) At or prior to the time of closing each Agent shall
have received, and at each Settlement Date with respect to any Terms
Agreement, if called for by such Terms Agreement the Agent which is
party thereto shall have received, executed copies of a letter from
Coopers & Lybrand addressed to the Company and to each Agent, if
delivered at the time of closing, or to the Company and the applicable
Agent if delivered in connection with any Terms Agreement, to the
effect that (i) they are independent public accountants as required by
the Act and the applicable published rules and regulations of the
Commission thereunder; (ii) the audited financial statements contained
in or incorporated by reference in the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act and the applicable published rules and
regulations of the Commission thereunder; and (iii) nothing has come to
their attention as the result of specified procedures not constituting
an audit that caused them to believe (A) that the unaudited financial
statements, if any, contained in or incorporated by refer-
<PAGE> 9
9
ence as aforesaid, do not so comply and are not fairly presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements contained as aforesaid, (B) that there was any change in the
capital stock or long or intermediate term debt of the Company, or any
decrease in net assets, from the date of the latest balance sheet which
is contained in or incorporated by reference in the Registration
Statement as aforesaid to a date not more than five days prior to the
date of such letter, or (C) that there were any decreases, as compared
with the corresponding period in the preceding year, in total revenues,
income before interest deductions or net income from the date of the
latest figures for such items contained in the Registration Statement
to the date of the latest available financial statements of the
Company; provided, that with respect to any of the items specified in
clause (iii), such letter may contain an exception for matters which
the Registration Statement discloses have occurred or may occur; and
provided further, that the letter may vary from the requirements
specified in this subparagraph in such manner as may be acceptable to
each Agent if delivered at the time of closing or the applicable Agent
if delivered in connection with a Terms Agreement.
In case, at the time of closing, and at each Settlement Date
with respect to any Terms Agreement, any of the condition specified above in
this Article III shall not have been fulfilled, this Agreement may be terminated
by the Agents if such failure occurs at the time of closing, or by the
applicable agent, if such failure occurs at a Settlement Date with respect to
any Terms Agreement, in each case by delivering written notice of termination to
the Company. Any such termination shall be without liability of any party to any
other party except as may be provided in Section VI.
(f) To the extent provided in Section V(e), the Notes shall have
been listed on the Luxembourg Stock Exchange.
IV.
The obligation of the Company to deliver the Notes upon payment
therefor shall be subject to the following conditions: at the time of closing,
and at each Settlement Date with respect to any Terms Agreement, the Indenture
shall be qualified under the Trust Indenture Act and no stop order suspending
the effectiveness of the Registration Statement, as amended from time to time,
shall be in effect and no proceedings for the purpose shall then be pending
before, or threatened by, the Commission.
In case the conditions specified above in this Article IV shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Agents, if such failure occurs
at the time of closing, or to the applicable Agent, if such failure occurs at a
Settlement Date with respect to any Terms Agreement.
Any such termination shall be without liability of any party to any
other party.
V.
In further consideration of your agreements herein contained with
respect to any Notes, the Company covenants and agrees as follows:
<PAGE> 10
10
(a) To furnish each of you, without charge, as many copies
of the Registration Statement, including exhibits and materials, if
any, incorporated by reference therein and, during the period mentioned
in paragraph (d) below, as many copies of the Prospectus, relating to
such Notes, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents filed by the Company with the Commission
subsequent to the date of the Basic Prospectus, pursuant to the
Exchange Act which are deemed to be incorporated by reference in the
Prospectus.
(b) To advise each of you promptly (confirming such advice
in writing) of any official request made by the Commission for an
amendment to the Registration Statement or Prospectus or for additional
information with respect thereto and of any official notice of the
institution of proceedings for, or of the entry of, a stop order
suspending the effectiveness of the Registration Statement. The Company
will use its best efforts to prevent the issuance of any such stop
order, and, if such a stop order should be entered, the Company will
make every reasonable effort to obtain the lifting or removal thereof
as soon as possible.
(c) Not to file any amendment or supplement to the
Registration Statement or the Prospectus with respect to the Notes of
which you shall not previously have been advised or which shall be
disapproved by ___________________________, your counsel, and not to
file any document pursuant to the Exchange Act which is deemed to be
incorporated by reference in the Prospectus of which
___________________________ shall not previously have been advised.
(d) If, during such period after the first date of the
public offering of such Notes as in the opinion of
___________________________, your counsel, the Prospectus relating to
such Notes is required by law to be delivered, any event shall occur as
a result of which it is necessary to amend or supplement such
Prospectus in order to make the statements therein, in the light of the
circumstances when such Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement such
Prospectus to comply with law, forthwith to prepare and furnish, at its
own expense, to each of you, either amendments or supplements to such
Prospectus so that the statements in such Prospectus as so amended or
supplemented will not, in the light of the circumstances when such
Prospectus is delivered to a purchaser, be misleading or so that such
Prospectus will comply with law.
(e) With respect to the Notes to be offered or sold
hereunder through or to such Agent, to use its best efforts to have the
Notes approved, by the date on which solicitation of offers to purchase
Notes or on which any Terms Agreement is to be executed, for listing on
the Luxembourg Stock Exchange subject only to notice of issuance and to
delivery to such Exchange of Prospectuses as amended or supplemented to
reflect the terms of each issuance of Notes, to cause such listing to
be continued during the term of such Notes and to furnish to such
Exchange all documents, information and undertakings that may be
reasonably necessary in order to effect or continue such listing;
provided, however, that if the Company can no longer reasonably
maintain such listing on the Luxembourg Stock Exchange, it will use its
best efforts to obtain and maintain the quotation for, or listing of,
the Notes on such other stock exchange or exchanges as the Company may
decide, with the approval of the Agents.
(f) To cause to be made generally available to its security
holders as soon as practicable an earnings statement or statements
which shall meet the
<PAGE> 11
11
requirements of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder covering a period of twelve months which
shall begin not later than the day of the Company's fiscal quarter next
following the effective date (as defined in Rule 158 under the Act) of
the Registration Statement with respect to each sale of Notes.
(g) To apply the proceeds from the sale of the Notes as set
forth under the heading "Use of Proceeds" appearing in the Prospectus.
(h) Each acceptance by the Company of an offer for the
purchase of Notes, and each sale of Notes to the applicable Agent
pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to you
pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations
and warranties will be true and correct at the time of delivery to the
purchaser or his agent, or the applicable Agent, of the Notes relating
to such acceptance or sale, as the case may be, as though made at and
as of each such time (and it is understood that such representations
and warranties shall relate to the Registration Statement and the
Prospectus as amended and supplemented to each such time).
(i) Each time the Registration Statement or the Prospectus
is amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates (excluding any
change in the formula by which such interest rate may be determined) or
maturities offered on the Notes or for a change deemed immaterial in
the reasonable opinion of the Agent), or if the Company sells Notes to
an Agent pursuant to a Terms Agreement, and if so indicated in the
applicable Terms Agreement, the Company will deliver or cause to be
delivered forthwith to each Agent or, in the case of a sale of Notes
pursuant to a Terms Agreement, to the applicable Agent, a certificate
of the Company signed by the President, Vice President or the Treasurer
of the Company, dated the date of the effectiveness of such amendment
or filing or supplement or sale, as the case may be, in form reasonably
satisfactory to such Agent, to the effect that the statements contained
in the certificates referred to in Sections III(a) and (d) that was
last furnished to the Agent (either pursuant to Sections III(a) and (d)
or pursuant to this Section V(i)) are true and correct, as though made
at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificates,
certificates of the same tenor as the certificates referred to in
Sections III(a) and (d) relating to the Registration Statement and the
Prospectus, as amended and supplemented to the time of delivery of such
certificates.
(j) Each time the Registration Statement or the Prospectus
is amended or supplemented, or if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms
Agreement, the Company shall furnish or cause to be furnished forthwith
to each Agent, or, in the case of a sale of Notes pursuant to a Terms
Agreement, to the applicable Agent, a written opinion of counsel of the
Company satisfactory to such Agent; provided, however, that such
opinion need not be furnished with respect to an amendment or
supplement (i) providing solely for a change in the interest rates
offered on the Notes (other than a change in the formula by which such
interest rate may be determined) or for a change deemed immaterial in
the reasonable opinion of such Agent, or (ii) setting forth or
incorporating by reference financial statements or other information as
of and for a fiscal quarter, unless, in the case of clause (ii) above,
in the reasonable judgment of such Agent, such financial statements or
other information are of such a na-
<PAGE> 12
12
ture that an opinion of counsel should be furnished; provided, further
that such counsel need not provide an opinion regarding the content of
such financial statements. Any such opinion shall be dated the date of
such amendment or supplement, in form satisfactory to the Agent to whom
such opinion will be delivered, and shall be of the same tenor as the
opinion referred to in Section III(b) but modified to relate to the
Registration Statement and the Prospectus, as amended and supplemented
to the time of delivery of such opinion. In lieu of such opinion,
counsel last furnishing such an opinion to such Agent may furnish to
such Agent a letter to the effect that such Agent may rely on such last
opinion to the same extent as though it were dated the date of such
letter authorizing reliance on such last opinion (except that
statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such letter authorizing reliance).
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or
supplemental financial information or such amended or supplemental
information is incorporated by reference in the Registration Statement
or the Prospectus, or if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms
Agreement, the Company shall cause Coopers & Lybrand, its independent
public accountants, forthwith to furnish each Agent a letter, dated the
date of the effectiveness of such amendment or the date of filing of
such supplement, or the date of such sale, as the case may be, in form
satisfactory to the Agents of the same tenor as the letter referred to
in Section III(e) with regard to the amended or supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date of
such letter.
(l) Between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will
not, without your prior consent, offer or sell, or enter into any
agreement to sell, any debt securities of the Company substantially
similar to the Notes (other than Notes that are to be sold pursuant to
such Terms Agreement, the Series [ ] Notes, and commercial paper in the
ordinary course of business), except as may otherwise be provided in
any such Terms Agreement.
(m) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and any applicable
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and all amendments thereto, (ii) the
preparation, issuance and delivery of the Notes (including any
temporary global Notes or permanent global Notes), (iii) the fees and
disbursements of the Company accountants and of the Trustee and its
counsel, (iv) the qualification of the Notes under securities laws and
the listing of the Notes on the Luxembourg Stock Exchange, including
filing fees of the Luxembourg Stock Exchange or the Luxembourg Monetary
Institute, fees of the Listing Agent and the reasonable fees and
disbursements of your counsel in connection therewith, (v) the printing
and delivery to you in quantities as herein above stated of copies of
the Registration Statement and all amendments thereto, and of the
Prospectus and any amendments or supplements thereto, (vi) the printing
and delivery to you of copies of the Indentures, (vii) any fees charged
by rating agencies for the rating of the Notes, (viii) any advertising
and other out-of-pocket expenses incurred with the approval of the
Company, provided, however, that the expenses of any tombstone
advertisement shall be paid by the Agents, (ix) the fees and expenses,
if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) any fees charged by
rating agencies for the rating of the Notes.
<PAGE> 13
13
The Company shall also reimburse each Agent promptly upon
receipt of an invoice from such Agent for the reasonable fees of counsel for
such Agent incurred in connection with the offering and sale of the Notes; and
further that the Company will indemnify and hold harmless each Agent from any
documentary, stamp or similar issue tax and any related interest or penalties on
the issue, sale to the Agent or delivery of the Notes (including any temporary
global Notes or permanent global Notes) pursuant to this Agreement or on the
execution and delivery of this Agreement or any Terms Agreement which are or may
be due in the United Kingdom or the United States.
VI.
(a) The Company agrees to indemnify and hold each Agent, and each
person, if any, who controls such Agent within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, harmless from and against any and all
losses, claims, damages and liabilities with respect to the Notes or any other
securities of the Company or its subsidiaries arising because the Registration
Statement, any preliminary prospectus used in connection with the offering of
the Notes or the Prospectus (if used within the period set forth in paragraph
(d) of Article V hereof and if used as amended or supplemented by all amendments
or supplements thereto which have been furnished to you) contained or is alleged
to have contained any untrue statement of a material fact or omitted or is
alleged to have omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, except as to losses,
claims, damages or liabilities caused by any such untrue statement or omission
or alleged untrue statement or omission made in reliance upon information
furnished to the Company herein or otherwise in writing by or an behalf of such
Agent for use in connection with the preparation of any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto or caused by any statement in or omission from the Statement of
Eligibility and Qualification of the Trustee under the Indenture, provided that
the indemnity agreement with respect to any preliminary prospectus shall not
inure to the benefit of an Agent (or to the benefit of any person controlling
such Agent) on account of any losses, claims, damages or liabilities arising
from the sale of Notes to any person if a copy of the Prospectus (as amended or
supplemented by all amendments or supplements thereto which have been furnished
to such Agent, but without documents incorporated by reference therein or
exhibits) shall not have been sent, mailed or given to such person, if required
by the Act, at or prior to the written confirmation of the sale of such Notes to
such person.
(b) Each Agent agrees to indemnify and hold the Company, its
directors, its officers who sign the registration statement, and each person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, harmless from and against any and all losses, claims,
damages and liabilities arising because the Registration Statement or any
preliminary prospectus relating to the Notes or the Prospectus or any amendment
or supplement thereto contained or is alleged to have contained any untrue
statement of a material fact or omitted or is alleged to have omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission or alleged untrue
statement or omission was made in the Registration Statement or any such
preliminary prospectus or the Prospectus or any amendment or supplement thereto
in reliance upon information furnished to the Company herein or otherwise in
writing by or on behalf of such Agent for use in connection with the preparation
thereof.
(c) The Company and each Agent agree that upon the commencement of
any action against it, its directors, its officers who sign the Registration
Statement, or any person controlling it as aforesaid in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it will promptly give writ-
<PAGE> 14
14
ten notice of the commencement thereof to the party or parties against whom
indemnity shall be sought, but the omission so to notify such indemnifying party
or parties of any ouch action shall not relieve such indemnifying party or
parties from any liability which it or they may have to the indemnified party or
parties otherwise than an account of such indemnity agreement. In case of such
notice of any such action, such party or parties shall be so entitled to
participate at its or their own expense in the defense of such actions or, if it
or they so elect, to assume the defense of such action, and in the latter event
such defense shall be conducted by counsel chosen by such indemnifying party or
parties and satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional counsel retained by them; but if
the indemnifying party or parties shall not elect to assume the defense of such
action, such indemnifying party or parties will reimburse such indemnified party
or parties for the reasonable fees and expenses of any counsel retained by them.
In the event that the parties to any such action (including impleaded parties)
include both the indemnifying party and the indemnified party and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree,
or (ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the some counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
indemnified parties, which firm shall be designated in writing by the Agent who
is a party to the proceeding or, if more than one Agent is party to the
proceedings, by mutual agreement of the Agents, or controlling persons are
indemnified parties and by the Company in the case of an action in which the
Company or any of its directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by an indemnified party or parties
without prior written consent by the indemnifying party or parties to such
settlement.
(d) If the indemnification provided for in paragraph (a) or (b)
above is unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect, primarily, the relative benefits received by the Company
on the one hand and each Agent on the other from the offering of the Notes and
also to reflect where appropriate the relative fault of the Company on the one
hand and of each Agent on the other in connection with the statements or
omissions or alleged statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and of each Agent shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by each Agent
and the parties' relative intent, knowledge, access to Information and
opportunity to correct or prevent such statement or omission. The Company and
each Agent agree that it would not be just and equitable if contribution
pursuant to this paragraph (d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this paragraph (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in this paragraph (d) shall
<PAGE> 15
15
be deemed to include, subject to the limitation set forth above in this Article
VI, any legal or other expenses reasonably incurred by such indemnified party in
connection with defending any such action or claim. Notwithstanding the
provisions of this paragraph (d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
distributed by it were offered to the public exceeds the amount of any damages
which such Agent has been required to pay, otherwise than pursuant to this
paragraph (d), by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Article VI and in Article I(c)(vii) and the representations, warranties and
agreements of the Company and the Agents in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement or of any Terms Agreement hereunder, (ii) any investigation made by
any Agent or on its behalf or any person controlling any Agent or by or on
behalf of the Company, its directors or officers or any person controlling the
Company, and (iii) acceptance of and payment for any of the Notes.
This Agreement and any Terms Agreement hereunder shall inure to the
benefit of the Company, its directors, its officers who sign the Registration
Statement, each Agent, or in the case of any such Terms Agreement, the
applicable Agent and each controlling person referred to in Article VI hereof
and their respective successors. Nothing in this Agreement or in any Terms
Agreement hereunder is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any Terms Agreement hereunder or any
provision herein or therein contained. The term "successor" as used in this
Agreement or any Terms Agreement hereunder shall not include any purchaser, as
such purchaser, of any of the Notes from an Agent.
The provisions of this Agreement relating to the solicitation of
offers to purchase Notes from the Company may be suspended or terminated at any
time by the Company as to any Agent or by any Agent insofar as this Agreement
relates to such Agent upon the giving of written notice of such suspension or
termination to such Agent or the Company, as the case may be. In the event of
such suspension or termination with respect to any Agent, (x) this Agreement
shall remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Notes already issued, agreed to
be issued or the subject of a pending offer at the time of such suspension or
termination, and (z) in any event, this Agreement shall remain in full force and
effect insofar as the third paragraph of Article I(a), Article V(f), Article
V(m) and Article VI are concerned.
This Agreement and any Terms Agreement may be executed in any
number of counterparts, each of which shall be an original; with the same effect
as if the signatures thereto and hereto were upon the same instrument.
<PAGE> 16
16
This Agreement and any Terms Agreement hereunder shall be governed
by and construed in accordance with the laws of the State of New York.
Very truly yours,
Lucent Technologies Inc.
By
------------------------------------------
Name:
Title:
Accepted:
[AGENT]
By
-----------------------------
Title:
[AGENT]
By
-----------------------------
Title:
<PAGE> 17
EXHIBIT A
PAGE 1 OF 2
LUCENT TECHNOLOGIES INC.
Euro-Medium Term Notes, Series ___
TERMS AGREEMENT
____________, 199_
Lucent Technologies Inc.
Attention:
Re: International Distribution Agreement dated ____, 199_
The undersigned agrees to purchase the following principal amount
of your Euro-Medium Term Notes, Series ___:
Specified Currency:
Principal:
Interest:
Aggregate Principal Amount. [U.S. $] [other]
Price to Public:
IF FIXED RATE NOTES:
Interest Rate:
Maturity:
IF FLOATING RATE NOTES:*
Base Rate:
Initial Interest Rate:
Interest Determination Date:
Interest Reset Date:
Interest Payment Dates:
Index Maturity:
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
___________
* See Prospectus Supplement dated ____________, 199_ for explanation of terms.
<PAGE> 18
EXHIBIT A
PAGE 2 OF 2
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the
order of the Company, in [New York] Clearing House]
[immediately available] funds [By wire transfer to a bank
account specified by the Company in [next day] [immediately
available] funds] Provisions relating to underwriter default,
if any: Other termination provisions, if any:
[The certificates referred to in Sections III(a) and (d) of the
International Distribution Agreement, the opinion referred to in Sections III(b)
and (c) of the International Distribution Agreement and the accountants letter
referred to in Section III(e) of the International Distribution Agreement will
be required.]
[ ]
By:
-----------------------
Accepted:
Lucent Technologies Inc.
By:
-------------------
<PAGE> 19
EXHIBIT A
PAGE 1 OF 2
LUCENT TECHNOLOGIES INC.
Euro-Medium Term Notes, Series ___
TERMS AGREEMENT
___________, 199_
Lucent Technologies Inc.
Attention:
Re: International Distribution Agreement dated _______, 199_
The undersigned agrees to purchase the following principal amount
of your Euro-Medium Term Notes, Series ___:
Specified Currency:
Principal:
Interest:
Aggregate Principal Amount. [U.S. $] [other]
Price to Public:
IF FIXED RATE NOTES:
Interest Rate:
Maturity:
IF FLOATING RATE NOTES:*
Base Rate:
Initial Interest Rate:
Interest Determination Date:
Interest Reset Date:
Interest Payment Dates:
Index Maturity:
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
___________
* See Prospectus Supplement dated ____________, 199_ for explanation of terms.
<PAGE> 20
EXHIBIT A
PAGE 2 OF 2
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the
order of the Company, in [New York] Clearing House]
[immediately available] funds
[By wire transfer to a bank account specified by the Company
in [next day] [immediately available] funds]
Provisions relating to underwriter default, if any:
Other termination provisions, if any:
[The certificates referred to in Sections III(a) and (d) of the
International Distribution Agreement, the opinion referred to in Sections III(b)
and (c) of the International Distribution Agreement and the accountants letter
referred to in Section III(e) of the International Distribution Agreement will
be required.]
[ ]
By:
Accepted:
Lucent Technologies Inc.
By:
<PAGE> 21
EXHIBIT B
PAGE 1 OF 11
Lucent Technologies Inc.
Euro-Medium Term Notes Series Administrative Procedures
Euro-Medium Term Notes, Series ___ (the "Notes") are to be offered
on a continuous basis by Lucent Technologies Inc. (the "Company"). [AGENTS] as
agents (individually an "Agent" and collectively the "Agents"), have agreed to
use reasonable best efforts to solicit purchases of the Notes. The Agents will
not be obligated to purchase Notes for their own accounts. The Notes are being
sold pursuant to an International Distribution Agreement among the Company and
each Agent dated __________, 199__ (the "Distribution Agreement"). The Notes
will rank equally with all other unsecured and unsubordinated debt of the
Company and have been registered with the Securities and Exchange Commission
(the "Commission"). ___________________________ (the "Trustee") is the trustee
under the Indenture covering the Notes (the "Indenture").
The Trustee will appoint _____________, London Branch as an
authenticating agent (the "Authenticating Agent") for the Notes and the Company
will appoint __________, London Branch as the Paying Agent for the Notes in
London and Banque Generale du Luxembourg, S.A. in Luxembourg as the Paying Agent
for Notes in Luxembourg (individually a "Paying Agent"). Morgan Guaranty Trust
Company, London or Chase Manhattan Bank, London will be the common depositary
(the "Depositary") for the temporary global Notes and the permanent global Notes
on behalf of the operator of the Euroclear System ("Euroclear"), and CEDEL S.A.
("CEDEL") and Kredietbank, S.A. Luxembourgeoise as the listing agent (the
"Listing Agent") for the Notes. The Listing Agent will coordinate with the
Trustee, the Paying Agents and the Agents on a regular basis for purpose of
providing the Luxembourg Stock Exchange such information regarding the Notes
issued and outstanding as such Exchange may require.
In the case of purchase of Notes by [AGENTS] as principal, the
relevant terms and settlement details related thereto, including the Settlement
Date referred to in Section 1(b) of the Distribution Agreement, will be set
forth in a Terms Agreement entered into between [AGENTS] and the Company
pursuant to the Distribution Agreement.
Administrative and record-keeping responsibilities will be handled
for the Company by its Treasury Department. The Company will advise each Agent
in writing of those persons handling administrative responsibilities
("Designated Persons") with whom such agent is to communicate regarding offers
to purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offerings are
explained below.
Maturities: Each Note will have a maturity from date of
issue of not less than nine months and not
more than thirty years.
Price to Public: Each Note will be issued at 100% of principal
amount unless otherwise specified in the
applicable Pricing Supplement.
Form of Definitive Note: The definitive Notes will be issued in bearer
form with interest coupons attached.
Currencies: The Notes, and any coupons appertaining
thereto, will be denominated in U.S. dollars
or in such other currency or currency unit as
specified in the applicable Pricing
Supplement (the "Specified Currency").
<PAGE> 22
EXHIBIT B
Page 2 of 11
Denominations: Definitive Notes will be issued in
denominations of U.S. $5,000 and any integral
multiple thereof, or, for Notes not
denominated in U.S. dollars, the equivalent
in the Specified Currency of U.S. $5,000
(rounded down to an integral multiple of 100
units of the Specified Currency) and any
larger amount that is an integral multiple of
1,000 units of such Specified Currency. Any
purchaser of Notes must purchase at least
U.S. $25,000 aggregate principal amount of
Notes at any one time, or, for Notes not
denominated in U.S. dollars, the equivalent
in the Specified Currency of U.S. $25,000
(rounded down to an integral multiple of 100
units of the Specified Currency) which
requirement the Agent will be responsible for
carrying out.
Notes: All Notes will initially be represented by
temporary global Notes. Each temporary global
Note will be exchangeable into a permanent
global Note on the date (the "Exchange Date")
which is 40 days after completion of the
distribution of the Notes evidenced by such
temporary global Note as determined by the
applicable Agent and notified to the Trustee,
the Company, Euroclear and CEDEL by the
applicable Agent, but only upon delivery to
the Trustee of a certificate or certificates
(each a "Clearing System Certificate") signed
by Euroclear or CEDEL, as the case may be, in
the form set forth in Appendix 1 hereto with
respect to the Notes being exchanged, dated
no earlier than the Exchange Date for such
Note, such Clearing System Certificate to be
based on a certificate or certificates (each
a "Final Certification Certificate") in the
form set forth in Appendix 2 hereto with
respect to each of such Notes, received by
Euroclear or Cedel, as the case may be, which
Final Certification Certificates must be
dated no earlier than 15 days before the
Exchange Date and shall be signed by the
account holders appearing in its records as
entitled to such Notes. The permanent global
Note will be exchangeable for definitive
Notes, as described below. Any permanent
global Note will be so exchangeable
commencing on the date which is 30 days after
Euroclear or CEDEL on behalf of the
beneficial owners of the Notes first requests
the Trustee or its agent, the Authenticating
Agent, to exchange all or a portion of such
permanent global Note for definitive Notes.
Each temporary global Note will be held by
the Depositary pending exchange for a
permanent global Note, and each permanent
global Note will be held by the Depositary
pending exchange if necessary for definitive
Notes as provided below.
Interest Payments: Each Note which is a Fixed Rate Note, as
defined in the Prospectus will bear interest
from the date of issue at the annual rate
stated on the face thereof, payable annually
on April 15 of each year, and at ma-
<PAGE> 23
EXHIBIT B
PAGE 3 of 11
turity or upon earlier redemption or
repayment and each Note which is a Floating
Rate Note as defined in the Prospectus, will
bear interest as determined in the manner set
forth on the face thereof, payable on the
date or dates set forth on the face thereof.
The date of issue of each Note will be the
date of its authentication as provided in the
Indenture. The date of authentication of each
Note will be the Settlement Date. Except as
otherwise agreed to, interest (including
payments for partial periods) on Fixed Rate
Notes will be calculated on the basis of a
360-day year of twelve 30-day months and
interest on Floating Rate Notes will be
determined by the Company and the purchaser
thereof in accordance with the provisions of
the Prospectus.
Interest on definitive Notes will be payable
on each Interest Payment Date and at maturity
or upon earlier redemption or repayment upon
presentation of the applicable coupon; except
as otherwise described in the Prospectus,
each such presentation of a coupon, and each
such payment of interest prior to maturity,
shall occur at a paying agent outside the
United States. Such payment will be made by
check, or, if requested in writing by the
bearer of the coupon, by transfer to an
account maintained by the payee with a bank
located outside the United States.
In the case of interest payable on any
temporary global Note or permanent global
Note, interest will be paid to Euroclear and
CEDEL for credit to the accounts of the
beneficial owners, provided, however, that
interest in respect of any interest payment
date on a temporary global Note which has not
been exchanged for a permanent global Note as
provided above shall not be paid until the
occurrence of the earlier of (1) the exchange
of such temporary global Note for a permanent
global Note in accordance with the procedures
set forth above and (2) in the case of an
interest payment date occurring between the
original issue date for such Note and the
Exchange Date, delivery by Euroclear or
CEDEL, as the case may be, to the Trustee of
a Clearing System Certificate dated no
earlier than such interest payment date, such
Clearing System Certificate to be based on a
Final Certification Certificate or
Certificates with respect to such Notes
received by Euroclear or Cedel, an the case
may be, which Final Certification
Certificate(s) must be dated no earlier than
15 days prior to such interest payment date
and shall be signed by the account holders
appearing in its records as entitled to such
Notes.
<PAGE> 24
EXHIBIT B
PAGE 4 of 11
On the fifth Business Day (as defined below)
immediately preceding each Interest Payment
Date, the Trustee will advise the Company of
the aggregate amount of interest to be paid
on the Notes theretofore issued on such
Interest Payment Date and the currencies or
currency units in which such interest
payments are to be made.
The Trustee will provide monthly to the
Company's Treasury Department a list of the
principal and interest to be paid on the
Notes maturing in the next succeeding month.
Subject to the Indenture, the Trustee will
assume responsibility for withholding taxes
on interest paid as required by law.
Procedures for Posting: If the Company decides to "post" rates, the
Company and the Agents will discuss from time
to time the rates of interest per annum to be
borne by and the maturity of Notes that may
be sold as a result of the solicitation of
offers by the Agents. Once a decision has
been reached to set initially the posted
rates or to change already posted rates, the
Company will promptly advise the Agents to
suspend solicitation of offers until the
initial or changed "posted" rates have been
established.
"Posting" rates shall mean establishing a
fixed set of interest rates, or methods of
determining such rates, and maturities for an
offering period.
Acceptance of Orders: Unless otherwise agreed, the Company will
have the sole right to accept offers to
purchase Notes. Each Agent will promptly
advise the Company of offers to purchase
Notes received by it, and, if the Company has
not posted rates, the proposed rate of
interest on such Notes. The Company may
reject an order in whole or in part. Each
Agent may reject, in its discretion
reasonably exercised, any order received by
it in whole or in part.
<PAGE> 25
EXHIBIT B
PAGE 5 of 11
Preparation of
Pricing Supplement: If the Company accepts an offer to purchase a
Note it will prepare a Pricing Supplement
reflecting the terms of such Note and will,
so long as it is a participant in the
Commission's EDGAR program, electronically
submit a version of such Pricing Supplement
complying with the rules of the Commission
relating to such program, or, if the Company
is no longer a participant in such program,
arrange to have ten copies of such Pricing
Supplement filed with, or mailed for filing
to, the Commission, in each case no later
than the second Business Day following the
date such offer is accepted, and will supply
a sufficient number of copies thereof to the
selling Agent and one copy to the Trustee.
The Company will ensure that copies of the
Prospectus Supplement with such Pricing
Supplement will be delivered to the Listing
Agent for delivery to the Luxembourg Stock
Exchange.
The Agent will cause a Prospectus Supplement
with such Pricing Supplement to be delivered
to the purchaser of the Note.
Confirmation: For each offer to purchase a Note solicited
by any Agent and accepted by the Company,
such Agent will issue a written confirmation
to the purchaser, with a copy to the
Company's Treasury Department.
Determination
of Settlement Date: Unless special arrangements have been made,
all offers solicited by the Agents and
accepted by the Company will be settled on
the seventh calendar day next succeeding the
date of acceptance, except that, if the
seventh calendar day next succeeding the date
of acceptance shall not be a Business Day
then settlement shall occur on the next
succeeding calendar day which is a Business
Day. The day of settlement is referred to
herein as the "Settlement Date".
Details for Settlement: The applicable Agent must communicate the
following information (the "Sale
Information") from the purchaser to a
designated person at the Company by telephone
(confirmed in writing), facsimile
transmission or other acceptable means:
(1) The applicable Agent's account number
at Euroclear or CEDEL
(2) Principal Amount of the Note
(3) Specified Currency
(4) Interest Rate or Original Issue
Discount
(5) Issue Price
(6) Trade Date
(7) Settlement Date
<PAGE> 26
EXHIBIT B
PAGE 6 of 11
(8) Maturity Date
(9) Net proceeds to the Company
(10) Denomination
(11) Presenting Agent's Commission
(12) Base Rate
(13) Initial Interest Rate
(14) Interest Determination Dates
(15) Interest Reset Period
(16) Interest Reset Dates
(17) Interest Payment Periods and Dates
(18) Spread or Spread Multiplier
(19) Index Maturity
(20) Maximum Interest Rate
(21) Minimum Interest Rate
(22) Calculation Agent
(23) Redemption Provisions, if any
(24) Repayment Provisions, if any
(25) Exchange Date
(26) All other items specified in any
particular Note
After receiving the Sale Information from the
Agent, and, after recording the Sale
Information and any necessary calculations,
the Company will communicate such Sale
Information by telephone (confirmed in
writing), facsimile transmission or other
acceptable means (which may include a
facsimile transmission of the Pricing
Supplement), to the Trustee, its agent, the
Authenticating Agent, the Listing Agent and
the Depositary. The Authenticating Agent will
communicate the Sale Information to the
Listing Agent, Euroclear and CEDEL. The
Authenticating Agent will request Euroclear
and CEDEL for a security code number.
Euroclear and CEDEL will assign a security
code number which the Authenticating Agent
will obtain and provide to the Agent.
Settlement: The Company will give to the Trustee, and to
its agent, the Authenticating Agent, such
instructions as have been agreed upon and as
will enable then to take the steps to be
taken by them, as described below, by the
times required below.
For each settlement, the following shall
occur:
<PAGE> 27
EXHIBIT B
PAGE 7 of 11
(a) Prior to the Settlement Date, the
Trustee or the Authenticating Agent will
promptly complete the temporary global
Note in accordance with instructions
from the Company to reflect the terms
agreed upon between the purchaser and
the Company. The Authenticating Agent
will authenticate such temporary global
Note and will deliver such temporary
global Note to the Depositary one
Business Day prior to the Settlement
Date;
(b) Upon receipt of the temporary global
Note, the Depositary will confirm
receipt of the temporary global Note to
Euroclear and CEDEL;
(c) On the Settlement Date, the Depositary
credits the temporary global Note to the
account of ___________, London Branch as
Issuing Agent (the "Issuing Agent") at
Euroclear or CEDEL. Interests in the
temporary global Note will be credited
to the accounts of investors against
payment via book entry at Euroclear or
CEDEL in accordance with instructions
received from the Issuing Agent.
If payment to the Issuer is to be made
in U.S. dollars, Canadian dollars, ECU
or Belgian Francs, the Issuing Agent
will give payment instructions in favor
of the Issuer to Euroclear or CEDEL by
4:00 P.M. on the day prior to the
Settlement Date.
If payment to the Issuer is to be made
in a currency other than U.S. Dollars,
Canadian Dollars, ECU or Belgian Francs,
the Issuing Agent will give payment
instructions in favor of the Issuer to
Euroclear or CEDEL prior to 10:00 A.M.
on the day prior to the Settlement Date.
On or before settlement, the Listing Agent
will notify the Company and the applicable
Agent of the effective date of the listing of
such Notes.
Delivery of
Definitive Notes: Prior to the first Settlement Date for any
Notes, the Company will deliver to the
Authenticating Agent duly executed temporary
global Notes in blank, and 40 days
thereafter, permanent global Notes in blank
in the quantities requested by the Trustee
If at any time the holder of any permanent
global Note requests Euroclear or CEDEL to
exchange all or a portion of such permanent
global Note for definitive Notes, Euroclear
or CEDEL will inform the Trustee of such
request and the Trustee will promptly
transmit such request to the Company. The
Company shall arrange for the printing of
such definitive Notes.
<PAGE> 28
EXHIBIT B
PAGE 8 of 11
The Company will as soon as practicable
deliver to the Authenticating Agent via the
Trustee definitive Notes to be delivered in
exchange for all or a portion of such
permanent global Note.
On or prior to the applicable Exchange Date,
the Authenticating Agent will authenticate
the definitive Notes and hold them for
delivery.
Fails: In the event that a purchaser shall fail to
make payment for its interest in a Note on
the Settlement Date, the Agent will forthwith
notify the Trustee, the Authenticating Agent
and the Company's Treasury Department by
telephone (confirmed in writing) or by
facsimile transmission. The Authenticating
Agent will promptly notify the Depositary and
Euroclear and CEDEL. The Agent will
immediately cause the temporary global Note
representing the Note in respect of which the
failure occurred to be returned to the
Authenticating Agent. If funds have been
advanced for the purchase of such portion of
the temporary global Note, the Company will,
immediately upon receipt by the
Authenticating Agent of the temporary global
Note, credit the account of or return such
funds to the applicable Agent for that
portion of the temporary global Note that
relates to the sale credited to the account
of Euroclear or CEDEL on behalf of the
purchaser. Such credits or returns will be
made on the Settlement Date if possible and,
in any event, not later than the Business Day
following the Settlement Date. If such
failure shall have occurred for any reason
other than default by the applicable Agent in
the performance of its obligations under the
Distribution Agreement, the Company will
reimburse the applicable Agent on an
equitable basis for its loss of the use of
the funds during the period when they were
credited to the account of the Company.
Immediately upon receipt of the temporary
global Note representing the Note in respect
of which the failure occurred, the
Authenticating Agent will (i) if the
temporary global Note represents only the
Note in respect of which the failure occurred
cancel the Note, make appropriate entries in
its records and, unless otherwise instructed
by the Company, destroy the certificate, and
(ii) if the temporary global Note represents
a Note or Notes in addition to the Note in
respect of which the failure occurred, reduce
the amount of such temporary global Note by
the amount of the Note in respect of which
the failure occurred.
Principal Payments: At maturity or upon redemption or repayment,
the principal amount of each definitive Note
together with any accrued, but unpaid,
interest will be payable in immediately
available funds provided that the Paying
Agent receives the Note, and appropriate
information in time to make payments in such
funds in accordance with its normal
procedures. Notes presented to the paying
<PAGE> 29
EXHIBIT B
PAGE 9 of 11
agent or the Trustee will be canceled and
disposed of by the Trustee.
Procedure for Rate Changes: When a decision has been reached to change
the interest rates of Notes being sold by the
Company, the Company will promptly inform
each Agent. Each Agent will advise the
Company with respect to the changed rates.
See Administrative Procedures, "Acceptance of
Orders."
Suspension of Solicitation;
Amendment or Supplement: The Company may instruct the Agents to
suspend solicitation of purchases at any
time. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation
until such time as the Company has advised
them that solicitation of purchases may be
resumed.
If the Company decides to amend or supplement
the Registration Statement or the Prospectus
relating to the Notes, it will promptly
advise the Agents and the Trustee and will
furnish the Agents and the Trustee with the
proposed amendment or supplement in
accordance with the terms of the Distribution
Agreement. The Company will file with the
Commission any supplement to the Prospectus
relating to the Notes including any
supplement which provides solely for a change
in the interest rates offered on the Notes,
provide the Agents with sufficient quantities
of copies of any supplement within a
reasonable time prior to the earlier of the
delivery of written confirmation of the sale
of Notes or the delivery of Notes to any
purchaser thereof, and confirm to the Agents
that such supplement has been filed with the
Commission.
In the event that at the time the Company
suspends solicitation of purchases there
shall be any orders outstanding for
settlement, the Company will promptly advise
the Agents and the Trustee whether such
orders may be settled and whether copies of
the Prospectus as in effect at the time of
the suspension may be delivered in connection
with the settlement of such orders. The
Company will have the sole responsibility for
such decision and for any arrangements which
may be made in the event that the Company
determines that such orders may not be
settled or that copies of such Prospectus may
not be so delivered.
Delivery of Prospectus: Each Agent shall, for each Note order
received by it, deliver a copy of the
Prospectus as most recently amended or
supplemented (including the Pricing
Supplement relating to such Note) with the
earlier of the delivery of the confirmation
of sale of the Note to a purchaser or such
purchaser's agent (as permitted by applicable
law). Each Agent is also authorized to
distribute to other offerees and purchasers,
and to deliver, or cause to be delivered, to
the Luxembourg Stock Exchange, copies of the
Prospectus, as amended or supplemented at the
time of delivery thereof and copies of the
Company's latest Annual Report on Form
<PAGE> 30
EXHIBIT B
PAGE 10 of 11
10-K ("Form 10-K") and all other reports
filed with the Commission since the and of
the fiscal year covered by such Form 10-K.
Authenticity of Signatures: The Agents will have no obligation or
liability to the Company or the Trustee
in respect of the authenticity of the
signature of any officer, employee or agent
of the Company or the Trustee on any Note.
Payment of Selling
Commission and Expenses: The selling commission on each sale of Notes
will be calculated by the applicable Agent
and the applicable Agent will deduct, for its
own account, the selling commission from the
proceeds of each such sale of Notes. Each
Agent will forward, from time to time at its
discretion, an itemized statement setting
forth the aggregate amount of out-of-pocket
expenses incurred by it in connection with
the offering and sale of the Notes, which are
reimbursable to it pursuant to the terms of
the Distribution Agreement. The Company will
promptly remit payment to such Agent.
Advertising: The Company will determine with each Agent
the form, substance and amount of advertising
that may be appropriate in offering the
Notes. Advertising expenses will be paid by
the Company or reimbursed to the Agents by
the Company; provided however that the
expenses of any "Tombstone" advertisement
shall be paid by the Agents.
Notice of Issuance to
Luxembourg Stock Exchange: The Listing Agent will provide such
information to the Luxembourg Stock Exchange
and will inform the Company and the Selling
Agent by telex of the effectiveness of the
listing of such Notes by the close of
business on the related Settlement Date.
To the extent required by the Luxembourg
Stock Exchange, each Agent will provide the
Listing Agent with secondary market
information regarding Notes and the Listing
Agent will provide such information to the
Luxembourg Stock Exchange.
The Listing Agent will, or a regular basis,
provide the Luxembourg Stock Exchange with
such information regarding Notes issued and
outstanding as such Exchange may require.
Business Day: Any day which is not a Saturday or Sunday and
which is neither a legal holiday nor a day on
which banking institutions are authorized or
obligated by law to close in the City of New
York, London, or Brussels, Belgium, or, with
respect to Notes denominated in a Specified
Currency other then U.S. dollars, the capital
city of the country of the Specified
Currency.
<PAGE> 31
APPENDIX 1
PAGE 1 OF 2
Form of Certificate to be Given
by the Euroclear Operator or CEDEL S.A.
CERTIFICATE
Lucent Technologies Inc.
Euro-Medium Term Notes, Series ____
Represented by Temporary Global Note No. ___
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in Appendix 2 to Exhibit B of the International
Distribution Agreement relating to the Notes,* as of the date hereof, [U.S. $
_________] principal amount of the above-captioned Notes (i) is 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) is 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 institutions 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 we 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) is 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 the United
States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) 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 or it possessions.
Any such certification by electronic transmission satisfies the requirements set
forth in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(ii). We will
retain all certifications from our Member organizations for the period specified
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(i)(C).
We further certify (i) that we are not making available herewith for
exchange (or, if relevant collection of any interest) any portion of the
Temporary Global Note excepted in such certifications and (ii) that as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certifi-
<PAGE> 32
APPENDIX 1
PAGE 2 OF 2
cation is or would be relevant, we irrevocably authorize you to produce this
certification to any interested party in such proceedings.
Yours faithfully,
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
(Brussels Office), as
Operator of the
Euroclear System]
or
[CEDEL S.A.]
Dated:____________, 19__**
Insert (1) Exchange
_________________
** To be dated no earlier than ______. Insert (1) Exchange Date if
certificate submitted in connection with exchange of the Temporary
Global Security for interests in a Permanent Global Securities or (2)
Interest Payment Date if certificate submitted in connection with the
payment of interest occurring prior to the Exchange Date.
<PAGE> 33
APPENDIX 2
FORM OF CERTIFICATE TO BE PROVIDED TO THE
EUROCLEAR OPERATOR OR TO CEDEL S.A.
CERTIFICATE
Lucent Technologies Inc.
Euro-Medium Term Notes, Series
Represented by Temporary Global Note No.
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Notes held by you for our account (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 person(s) that (a)
are foreign branches of a United States financial institution (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 financial institutions and who hold the Notes
through such United States financial institution(s) on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you 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 in
addition if the owner of the Note is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is to further certify that the financial institution
has not acquired the Notes for purposes of resale directly or indirectly to the
United States person or to a person within a United States or its possessions.
As used in this paragraph, "United States" means the United States of America
(including the States and the District of Columbia), and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
[Exchange Date/interest payment date*] relating to such Notes if the above
statement in not correct on such [Exchange Date/interest payment date* ] and in
the absence of any such notification it may be assumed that this certification
applies as of such date.
This certificate excepts and does not relate to [U.S. $ ____] of such
interest in the above Notes in respect of which we are not able to certify and
as to which we understand [exchange and delivery of definitive
Securities/payment to us of any interest accrued on such amount*] cannot be made
until we do so certify.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
___________________
* Insert applicable part of bracketed language.
<PAGE> 34
- 2 -
** Dated:___________________, 19___
By: _________________________________________________
As, or as agent for, the beneficial owner(s)
of the Notes to which this Certificate relates.
___________________
** To be dated no earlier than (1) the fifteenth day prior to the Exchange
Date or (2) if certificate in being delivered in connection with the
payment of interest in respect of an interest payment date occurring
prior to the Exchange Date, the fifteenth day prior to the interest
payment date.
<PAGE> 1
EXHIBIT 4A
LUCENT TECHNOLOGIES INC.
AND
[-----------------------]
TRUSTEE
------------
INDENTURE
DATED AS OF [_______________,1996]
------------
SECURITIES
<PAGE> 2
Reconciliation and tie between Indenture dated as of [_________, 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
- --------------------------------------------------------------------------------
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
<PAGE> 3
TABLE OF CONTENTS*
Page
----
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
- -------------
* The Table of Contents is not part of the Indenture.
i
<PAGE> 4
Page
----
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
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
-ii-
<PAGE> 5
Page
----
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
-iii-
<PAGE> 6
Page
----
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
-iv-
<PAGE> 7
Page
----
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
-v-
<PAGE> 8
INDENTURE dated as of [_______________,1996], between Lucent
Technologies Inc., a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Company"), and [_______________________], as
trustee, a corporation duly organized and validly existing under the laws of the
State of [_______________] (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.
<PAGE> 9
-2-
"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
<PAGE> 10
-3-
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
<PAGE> 11
-4-
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, 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
<PAGE> 12
-5-
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
-6-
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
-7-
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
-8-
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
<PAGE> 16
-9-
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
-10-
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
<PAGE> 18
-11-
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
-12-
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
<PAGE> 20
-13-
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";
<PAGE> 21
-14-
(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;
<PAGE> 22
-15-
(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
<PAGE> 23
-16-
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
-17-
(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
-19-
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
-20-
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
-21-
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
-22-
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
-23-
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
-25-
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
-27-
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
-29-
(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.
[_______________________]
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
-30-
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
-31-
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
-34-
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
-37-
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
-40-
(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
<PAGE> 48
-41-
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.
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 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 if before
or after the time for such compliance the holders of a majority in aggregate
principal amount of the Securities of all Series (acting as one class) 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 all affected Series (acting as one
class) 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 all affected 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 all affected Series (acting as one class)
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 any 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 all affected 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 any affected Series have been issued or in the Securities of any
affected 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 all affected Series (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 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 all affected Series and the
principal of (and premium, if any, on) any and all Securities of all affected
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 any 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 all affected Series,
other than the
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nonpayment of the principal of the Securities of such 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 all affected 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 all affected Series (acting as one class) 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 all
affected 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 all Series affected (voting as one 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. Except for any Series where there has been a
declaration of the maturity of the Securities of such Series as provided in
Section 6.01, the Holders of a majority in aggregate principal amount of the
Securities of all affected Series at the time outstanding may on behalf of the
holders of all the Securities of all such Series (acting as one class) waive
any past default hereunder with respect to all 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 any such Series. In the case of
any such waiver, the Company, the Trustee and the holders of the Securities of
all 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, 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, holding in the
aggregate more than ten percent in principal amount of the Securities of all
affected Series outstanding (treated as one class), 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 the 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 and 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; and
(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.
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). 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 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 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 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 all Series affected by such
supplemental indenture (voting as one 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 all such Series. The Holders of a majority
in principal amount of the outstanding Securities of all Series affected by such
waiver (voting as one 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 Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the applicable provisions of the Indenture. The Trustee need not
sign any supplemental indenture that adversely affects its rights, duties,
obligations and 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:
[_______________________]
_______________________
_______________________
Attention:_______________________
_______________________
Facsimile Number: (___) ___-____]
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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.
<PAGE> 112
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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.
<PAGE> 114
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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.
[ Trustee ] 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 [ Trustee ] has caused this Indenture to be signed
and acknowledged by one of its Vice Presidents, and its corporate seal to be
affixed hereunto and the same to be attested by its Secretary or
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one of its Assistant Secretaries. 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_________________________
Vice President and
Treasurer
(SEAL)
Attest
_____________________________
Assistant Secretary
[ Trustee ]
By_________________________
Assistant Vice President
(SEAL)
Attest:
_____________________________
Assistant Vice President
<PAGE> 117
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STATE OF [_____________])
) SS.:
COUNTY OF [_____________])
On the________day of___________, 19___, before me personally
came_________________, to me known, who, being by me duly sworn, did depose and
say the he resides at_______________, that he is the Vice President and
Treasurer of [Lucent Technologies Inc.], one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
STATE OF [_____________])
) SS.:
COUNTY OF [_____________])
On the______ day of___________ , 19___ , before me personally
came___________, to me known, who, being by me duly sworn, did depose and say
the he resides at______________, that he is a ___________________ of
__________________, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
<PAGE> 1
Exhibit 4B
[Form of Permanent Global Registered Fixed Rate Note]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO. ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF CEDE & CO., HAS AN INTEREST HEREIN.
LUCENT TECHNOLOGIES INC.
[Title of Series]
REGISTERED CUSIP NO.______________________
No.________________________
Original Issue Date: Initial Optional Redemption Date:
Issue Price: Optional Redemption Price:
Interest Rate: Annual Redemption Price Reduction:
Maturity Date: Optional Repayment Date(s):
Principal Amount:
Lucent Technologies Inc., a Delaware corporation (herein referred to as
the "Company"), for value received, hereby promises to pay to
_________________________ or registered assigns the principal sum of
_______________ DOLLARS on the Maturity Date shown above and to pay interest
thereon at the rate per annum shown above until the principal hereof is paid or
made available for payment.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth in this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to herein.
<PAGE> 2
REVERSE OF SECURITY
The Company will pay interest semiannually on ____________ and
__________________ (each an "Interest Payment Date") commencing with the
Interest Payment Date immediately following the Original Issue Date shown above
(except as provided below) and on the Maturity Date shown above. Interest on
this Note will accrue from the most recent Interest Payment Date to which
interest has been paid or duly provided for or if no interest has been paid or
duly provided for from the Original Issue Date shown above. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a year of twelve 30-day months. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will as provided in the Indenture
referred to below be paid to the person in whose name this Note is registered at
the close of business on _______________________ or _____________________
(whether or not a Business Day), as the case may be, (each a "Record Date") next
preceding such Interest Payment Date; provided, however, that interest payable
on the Maturity Date (whether or not such date is an Interest Payment Date)
shall be payable to the person to whom principal shall be payable, and, if the
Original Issue Date of this Note is between a Record Date and the corresponding
Interest Payment Date, the first payment of interest will be made on the
Interest Payment Date following the next succeeding Record Date to the person in
whose name this Note is registered at the close of business on such Record Date.
Payment of the principal of and interest on this Note will be made at the office
or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, State of New York, in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest other than interest due at the Maturity Date
shown above may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register.
"Business Day" means any day, other than a Saturday or a Sunday, and
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York.
This note is one of a duly authorized issue of Securities of the
Company (herein referred to as the ("Securities"), issued and to be issued in
one or more series under and pursuant to an Indenture dated as of __________,
1996 (herein referred to as the "Indenture"), duly executed and delivered by the
Company to ____________________, Trustee (herein referred to as the "Trustee"),
to which Indenture and all indentures supplemental thereto reference is hereby
made for description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holder (the words
"Holders" or "Holder" meaning the registered holders or registered holder) of
the Securities. This note is one of the series of Securities designated as
[Title of Series] (herein referred to as "Notes").
Unless the face of this Note indicates that an Optional Redemption
Price is applicable to this Note, this Note may not be redeemed prior to the
Maturity Date. 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) (subject to reduction as hereinafter
provided), together in each case with accrued interest to the date fixed for
redemption, provided that if the face of this Note indicates that
<PAGE> 3
- 2 -
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 redemption
shall be mailed to the registered holders of the Notes designated for redemption
at their last registered address not less than thirty nor more than sixty days
prior to the date fixed for redemption, all as provided in the Indenture. In the
event of redemption of this Note in part only, a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the name of the
holder hereof upon the presentation and cancellation hereof.
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 the Maturity Date. If an Optional Repayment Date or Dates is
indicated on the face of this Note, this Note may be subject to repayment at the
option of the holder 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 will be repayable 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, together with interest
hereon payable to the date of repayment. 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 to be repaid, the certificate
number or description of the tenor and terms of this Note, a statement that the
option to elect repayment 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.
Upon due presentment for registration of transfer of this Note
at the above-mentioned office or agency of the Company a new Note or Notes
having the same maturity, interest rate, redemption provisions, repayment
provisions and Original Issue Date of authorized denominations, for a like
aggregate principal amount will be issued to the transferee as provided in the
Indenture. No service charge shall be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
The Company, the Trustee, and any agent of the Company or the
Trustee may deem and treat the Holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon) for the purpose of receiving payment of or on
account of the principal hereof and subject to the provisions above, interest
hereon, and for all other purposes and neither the Company nor the Trustee nor
any such agent shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note or for any claim based hereon, or otherwise in
<PAGE> 4
- 3 -
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against (any incorporator, shareholder, officer or
director as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or of any successor
corporation whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
This Note shall be deemed to be a contract made under the laws
of the State of New York and for all purposes shall be governed by and construed
in accordance with the laws of said State.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT-......................Custodian......................
(Cust) (Minor)
Under Uniform Gifts to Minor Act.......................................
State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Dated:
------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within NOTE in every particular without
alteration or enlargement or any change whatsoever.
<PAGE> 6
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 name and address of he 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 4C
[Form of Definitive Registered Fixed Rate Note]
No. R -
LUCENT TECHNOLOGIES INC.
(Title of Series]
Original Issue Date: Initial Optional Redemption Date:
Issue Price: Optional Redemption Price:
Interest Rate: Annual Redemption Price Reduction:
Maturity Date: Optional Repayment Date(s):
Principal Amount:
Lucent Technologies Inc., a Delaware corporation (herein referred to as
the "Company"), for value received, hereby promises to pay to _______________ or
registered assigns, the principal sum of __________ dollars on the Maturity Date
shown above and to pay interest thereon at the rate per annum shown above until
the principal hereof is paid or made available for payment. The Company will pay
interest semiannually on __________ and __________ (each an "Interest Payment
Date"), commencing with the Interest Payment Date immediately following the
Original Issue Date shown above (except as provided below), and on the Maturity
Date shown above. Interest on this Note will accrue from the most recent
interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from the Original Issue Date
shown above. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a year of twelve 30-day months. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture referred to below, be paid to the person in
whose name this Note is registered at the close of business on __________ or
__________ (whether or not a Business Day), as the case may be (each a "Record
Date") next preceding such Interest Payment Date; provided, however, that
interest payable on the Maturity Date (whether or not such date is an Interest
Payment Date) shall be payable to the person to whom principal shall be payable,
and, if the Original Issue Date of this Note is between a Record Date and the
corresponding Interest Payment Date, the first payment of interest on this Note
shall be made on the Interest Payment Date following the next succeeding Record
Date to the person to whom this Note is registered at the close of business on
such Record Date. Payment of the principal of and interest on this Note will be
made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, State of New York in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts; provided, however, that,
at the option of the Company payment of interest other than interest due at the
Maturity Date shown above may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
"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 are authorized
or required by law or regulation to close in The City of New York.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
<PAGE> 2
- 2 -
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Lucent Technologies Inc. has caused this Note to be
duly executed under its corporate seal.
LUCENT TECHNOLOGIES INC.
By:
---------------------------------
------------------------------------
Vice President and Treasurer
Attest:
------------------------------------
Secretary
DATED:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned Indenture.
- --------------------,
As Trustee,
By
- --------------------------------
Authorized Signatory
<PAGE> 3
- 2 -
REVERSE OF SECURITY
This note is one of a duly authorized issue of Securities of the
Company (herein referred to as the "Securities"), issued and to be issued in one
or more series under and pursuant to an indenture dated as of _________________,
1996 (herein referred to as the "Indenture"), duly executed and delivered by the
Company to _______________ Trustee (herein referred to as the "Trustee"), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holder (the words
"Holders" or "Holder" meaning the registered holders or registered holder) of
the Securities. This note is one of the series of Securities designated as
(Title of Series) (herein referred to as "Notes").
In case an Event of Default with respect to the Notes, as defined in
the Indenture, shall have occurred and be continuing, the principal hereof may
be declared, and upon such declaration, shall become due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of majority in principal amount of the outstanding
Securities of each series affected by any such amendment or modification (with
each series voting as one class). The Indenture also contains provisions
permitting the Holders of not less than a majority in principal amount of the
outstanding Securities of each series affected thereby (with each series voting
as one class), on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture. The
Indenture also provides that, regarding the Securities of any series, the
Holders of not less than a majority in principal amount of the outstanding
Securities of such series may waive certain past defaults and their consequences
on behalf of the Holders of all Securities of such series. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
The Indenture contains provisions setting forth certain conditions to
the institution of proceedings by Holders of Securities with respect to the
Indenture or for any remedy under the Indenture.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and Interest on this Note at
the place, at the respective times, at the rate and in the coin or currency
herein prescribed.
The Notes are issuable as registered Notes without coupons in denominations of
US $ __________ or any amount in excess thereof which is a multiple of US
<PAGE> 4
- 3 -
$l,000. At the office or agency of the Company referred to on the face hereof
and in the manner and subject to the limitations provided in the Indentures
Notes may be exchanged without a service charge for a like aggregate principal
amount of Notes having the same maturity, interest rate, redemption provisions,
repayment provisions and Original Issue Date of other authorized denominations.
Unless the face of this Note indicates that an Optional Redemption
Price is applicable to this Note, this Note may not be redeemed prior to the
Maturity Date. 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) (subject to reduction as hereinafter
provided), together in each case with accrued interest to the date fixed for
redemption; 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 redemption shall be mailed to the
registered holders of the Notes designated for redemption it their last
registered address not less than thirty nor more than sixty days prior to the
date fixed for redemption, all as provided in the Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the presentation and cancellation hereof.
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 the Maturity Date. If an Optional Repayment Date or Dates is
indicated on the face of this Note, this Note may be subject to repayment at the
option of the holder 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 will be repayable 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, together with interest
hereon payable to the date of repayment. 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 or description of the tenor and terms
of this Note, a statement that the option to elect repayment 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 of hereof,
will be received by the Trustee not later than the fifth Business Day after the
date of such telegram, telex, facsimile
<PAGE> 5
- 4 -
transmission or letter, and this Note and form duly completed must be received
by the Trustee by such fifth Business Day.
Upon due presentment for registration of transfer of this Note at the
above-mentioned office or agency of the Company, a new Note or Notes having the
same maturity interest rate, redemption provisions, repayment provisions and
Original Issue Date of authorized denominations, for a like aggregate principal
amount, will be issued to the transferee as provided in the Indenture. No
service charge shall be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto.
The Company, the Trustee, and any agent of the Company or the Trustee
may deem and treat the Holder hereof as the absolute owner hereof (whether or
not this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon) for the purpose of receiving payment of or on account of
the principal hereof and, subject to the provisions on the fact hereof, interest
hereon, and for all other purposes, and neither the Company nor the Trustee nor
any such agent shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any Indenture supplemental
thereto, against any incorporator shareholder, officer or director as such,
past, present or future, of the Company or of any successor corporations, either
directly or through the Company or of any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
This Note shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be governed by and construed in
accordance with the laws of said State.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ....................Custodian........................
(Cust) (Minor)
Under Uniform Gifts to Minor Act ......................................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfers) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Dated:
-------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
<PAGE> 7
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 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 4D
[FORM OF FACE OF TEMPORARY GLOBAL BEARER FIXED RATE NOTE]
LUCENT TECHNOLOGIES INC.
EURO-MEDIUM TERM NOTES, SERIES
----
TEMPORARY GLOBAL NOTE NO.
----
THIS NOTE IS A TEMPORARY GLOBAL NOTE, WITHOUT COUPONS, EXCHANGEABLE FOR
A PERMANENT GLOBAL NOTE, WITHOUT COUPONS, AT THE PRINCIPAL CORPORATE TRUST
OFFICE OF THE TRUSTEE LOCATED OUTSIDE OF THE UNITED STATES ON OR AFTER 40 DAYS
FROM THE ISSUE DATE HEREOF UPON PRESENTATION OF THE CERTIFICATION PROVIDED FOR
HEREIN. THE RIGHTS ATTACHING TO THIS TEMPORARY GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR A PERMANENT GLOBAL NOTE, ARE AS
SPECIFIED HEREIN AND IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL
NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO
THE PROVISIONS HEREOF.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE, THIS
TEMPORARY GLOBAL NOTE MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO
ANOTHER NOMINEE OF THE DEPOSITARY OR TO A SUCCESSOR OF THE DEPOSITARY OR TO A
NOMINEE OF SUCH SUCCESSOR NOMINEE.
Principal Amount: Initial Optional Redemption Date:
----------------
U.S. $ Optional Redemption Price:
------------ -----------------------
Interest Rate: Annual Redemption Price Reduction:
-------------- ---------------
Issue Price: Optional Repayment Date(s):
---------------- ----------------------
Original Issue Date:
--------
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 initial Maximum Total OID per $1,000 of
Accrual Period per $1,000 of initial initial principal amount:
principal amount (computed under the
---------
method):
- --------------------------------------------------------------------------------
This Temporary Global Note is a temporary global 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"), of
the Principal Amount specified above (or such lesser amount as shall be the
outstanding principal amount hereof after deduction of the aggregate principal
amount of interests in a permanent global note issued in exchange for a portion
or portions hereof as set forth on Schedule A hereto) (such principal amount as
so adjusted referred to herein as the "Principal Amount"), with the Original
Issue Date specified above (the "Original Issue Date") and the Maturity Date
specified above (the "Maturity Date") and
<PAGE> 2
- 2 -
bearing interest at the per annum Interest Rate specified above (the "Interest
Rate"), issued pursuant to an Indenture dated as of _______________, 1996 (the
"Indenture"), between the Company and ______________________, as trustee (the
"Trustee"). Unless the context otherwise requires, the terms used herein shall
have the meanings specified in the Indenture and in the terms and conditions set
forth herein.
Subject to the provisions hereof, the Company, for value received,
hereby promises to pay to the holder, upon presentation and surrender hereof,
the Principal Amount on the Maturity Date, or if such day is not a Business Day,
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, on April 15 of each year, commencing on the April
15 immediately succeeding 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 on the Maturity Date
(each an "Interest Payment Date"), but only after the exchange of interests in
this Temporary Global Note for interests in a Permanent Global Note, as provided
herein and in the Indenture, and, in the case of interest due on or before the
40th day following the Original Issue Date hereof, upon delivery to the Trustee
of a certificate (a "Clearing System Certificate") signed by Morgan Guaranty
Trust Company of New York, Brussels Office, as operator of the Euro-clear System
("Euro-clear"), or CEDEL S.A. ("CEDEL"), as the case may be, dated no earlier
than such interest payment date to the effect that, based solely on
certifications it has received in writing, by tested telex or by electronic
transmission from member organizations appearing in its records as being
entitled to a portion of the principal amount hereof, the Notes represented by
this Temporary Global 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 institutions 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 or its possessions.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such payments 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 are authorized or required by law or
regulation to close in The City of New York, the City of London or Brussels,
Belgium.
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
holder 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.
This Temporary Global Note or portions thereof will be exchangeable for
the Permanent Global Note referred to below on or after the 40th day (the
"Exchange Date") after the Original Issue Date, provided that Final
Certification (as defined below) has occurred, and the interest of the
beneficial owners herein will thereafter be represented by interests in a
Permanent Global Note, without interest coupons, having the same terms as this
Temporary Global Note, which Permanent Global Note shall be deposited with a
common depositary in London for Euro-clear and CEDEL for credit to the account
designated by or on behalf of the beneficial owner thereof. "Final
Certification" means the delivery to the Trustee of 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
<PAGE> 3
- 3 -
certifications it has received in writing, by tested telex or by electronic
transmission from member organizations appearing in its records as being
entitled to a portion of the principal amount hereof, the Notes represented by
this Temporary Global 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 institutions 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 or its possessions. Upon
exchange of any portion of this Temporary Global Note for interests in a
Permanent Global Note, the Trustee shall endorse Schedule A hereto to reflect
the reduction of the Principal Amount of this Temporary Global Note by an amount
equal to the aggregate principal amount of interests in such Permanent Global
Note, whereupon the Principal Amount hereof shall be reduced for all purposes by
the amount so exchanged and noted. Except as otherwise provided herein or in the
Indenture, until exchanged in full for a Permanent Global Note, this Temporary
Global Note shall in all respects be subject to and entitled to the same
benefits and conditions under the Indenture as the duly authenticated and
delivered Permanent Global Note.
This Temporary Global Note shall not be valid or become obligatory
until the certificate of authentication hereon shall have been duly signed by
the Trustee acting in accordance with the Indenture.
This Temporary Global Note 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 Temporary
Global Note to be duly executed under its seal.
Dated: , 19 LUCENT TECHNOLOGIES INC.
--------------------- ---
[SEAL]
Attest
By
- -------------------------------------- ---------------------------------
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
Date of Authentication , as Trustee
--------------------------
By
- --------------------------------- ------------------------------------
<PAGE> 4
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Authorized Signatory
<PAGE> 5
SCHEDULE A
INTEREST PAYMENTS AND EXCHANGE
FOR A PERMANENT GLOBAL NOTE
The following exchanges of a part of this Temporary Global Note for all
or a portion of a Permanent Global Note and the following payments of interest
in respect of this Temporary Global Note have been made:
<TABLE>
<CAPTION>
Principal Amount Notation Made by
Date of Exchange Principal Amount Outstanding After or on behalf of
or Payment Interest Paid Exchanged Exchange Trustee
---------------- ------------- ---------------- ----------------- ----------------
<S> <C> <C> <C> <C>
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
---------------- ------------- ---------------- ----------------- ----------------
</TABLE>
<PAGE> 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 institutions 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 or 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.
<PAGE> 7
- 2 -
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.
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.
<PAGE> 8
- 3 -
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),
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 or 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
<PAGE> 9
- 4 -
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.
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 deduction 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 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;
<PAGE> 10
- 5 -
(b) any estate, inheritance, gift sales, transfer, personal property,
interest equalization, franchise, excise or similar tax, assessment or
other governmental charge;
(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
of 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 fact 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
- 6 -
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
- 7 -
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 in 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 4E
[FORM OF FACE OF PERMANENT GLOBAL BEARER FIXED RATE NOTE]
LUCENT TECHNOLOGIES INC.
EURO-MEDIUM TERM NOTES, SERIES __
PERMANENT GLOBAL NOTE NO. __
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.
THIS NOTE IS A PERMANENT GLOBAL NOTE, WITHOUT COUPONS, EXCHANGEABLE FOR
DEFINITIVE NOTES, WITH COUPONS, IF APPLICABLE, AT THE CORPORATE TRUST OFFICE OF
THE TRUSTEE OUTSIDE OF THE UNITED STATES UPON 30 DAYS NOTICE TO THE TRUSTEE. THE
RIGHTS ATTACHING TO THIS PERMANENT GLOBAL NOTE, ARE THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED HEREIN
AND IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS PERMANENT GLOBAL
NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO
THE PROVISIONS HEREOF.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE, THIS
PERMANENT GLOBAL NOTE MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO
ANOTHER NOMINEE OF THE DEPOSITARY OR TO A SUCCESSOR OF THE DEPOSITARY OR TO A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Principal Amount: Initial Optional Redemption Date:
--------------
U.S. $ Optional Redemption Price:
------------ ---------------------
Interest Rate: Annual Redemption Price Reduction:
----------------- -------------
Issue Price: Optional Repayment Date(s):
------------------- --------------------
Original Issue Date:
-----------
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 initial Accrual Maximum Total OID per $1,000
period per $1,000 of initial principal amount of initial principal amount:
(computed under the
----------------------
method):
- --------------------------------------------------------------------------------
<PAGE> 2
2
This Permanent Global Note is a permanent global 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"), of the Principal Amount specified above (or such lesser amount
as shall be the outstanding principal amount hereof after deduction of the
aggregate principal amount of definitive Notes issued in exchange for a portion
or portions hereof as set forth on Schedule A hereto) (such principal amount as
so adjusted referred to herein as the "Principal Amount"), with the Issue Price
specified above ("Issue Price"), the Original Issue Date specified above (the
"Original Issue Date") and the Maturity Date specified above (the "Maturity
Date") and bearing interest at the per annum Interest Rate specified above (the
"Interest Rate"), issued pursuant to an Indenture dated as of _______ __, 1996
(the "Indenture"), between the Company and ___________________, as trustee (the
"Trustee"). Unless the context otherwise requires, the terms used herein shall
have the meanings specified in the Indenture and in the terms and conditions set
forth herein.
Subject to the provisions hereof, the Company for value received,
hereby promises to pay to the holder, upon presentation and surrender hereof,
the Principal Amount on the Maturity Date, or if such day is not a Business Day,
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, on April 15 of each year, commencing on the April
15 immediately succeeding 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 on the Maturity Date
(each an "Interest Payment Date"). Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such payments 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 that is not a Saturday or Sunday, and that
is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York,
the City of London or Brussels, Belgium.
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
holder 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.
This Permanent Global Note is exchangeable in whole or from time to
time in part for a definitive Note or Notes, with coupons, if applicable,
attached, having the same terms as this Permanent Global Note, upon 30 days'
notice of the Trustee given through Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euro-clear System, or Centrale de Livraison
de Valeurs Mobilieres, S.A. Upon exchange of any portion of this Permanent
Global Note for a definitive Note or Notes, the Trustee shall endorse Schedule A
of this Permanent Global Note to reflect the reduction of its Principal Amount
by an amount equal to the aggregate principal amount of such Definitive Note or
Notes, whereupon the Principal Amount hereof shall be reduced for all purposes
by the amount so exchanged and noted. Except as otherwise provided herein or in
the Indenture, until exchanged in full for a Definitive Note or Notes, this
Permanent Global Note shall in all respects be subject to and entitled to the
same benefits and conditions under the Indenture as the duly authenticated and
delivered Definitive Note or Notes.
This Permanent Global Note shall not be valid or become obligatory
until the certificate of authentication hereon shall have been duly signed by
the Trustee acting in accordance with the Indenture.
<PAGE> 3
3
This Permanent Global Note 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 Permanent
Global Note to be duly executed under its corporate seal.
Dated: _________________, 19___ LUCENT TECHNOLOGIES INC.
[SEAL]
Attest
__________________________ BY: _______________________________
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
_______________________________
as Trustee
Date of Authentication:
By:
_______________________________ ________________________________
Authorized Signatory
<PAGE> 4
4
SCHEDULE A
EXCHANGE FOR DEFINITIVE NOTES
The following exchanges of a part of this Permanent Global Note for one
or more definitive Notes have been made:
<TABLE>
<CAPTION>
Principal
Principal Amount Notation Made
Amount Outstanding by or on behalf
Date of Exchange Exchanged After Exchange of Trustee
---------------- --------- -------------- ---------------
<S> <C> <C> <C>
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
---------------- --------- -------------- ---------------
</TABLE>
<PAGE> 5
3
[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 canceled
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 writings 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 institutions 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 or its possessions.
If this Note is a Permanent Global Note, upon 30 days' notice to the
Trustees 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 than 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> 6
4
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 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 to 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> 7
5
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 or 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> 8
6
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 deduction 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;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payment on any Note or coupon;
<PAGE> 9
7
(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
of 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 fact 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> 10
8
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> 11
9
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> 12
10
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 or 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 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
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_____________________________
as Trustee
Date of Authentication:
________________________ By:__________________________
Authorized Signatory
<PAGE> 4
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[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.
AMERICAN TELEPHONE AND
TELEGRAPH COMPANY
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
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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
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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
- 9 -
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
- 10 -
(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
- 11 -
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 4G
LUCENT TECHNOLOGIES INC.
and
[NAME OF WARRANT AGENT],
Warrant Agent
-------------------
[FORM OF] WARRANT AGREEMENT
Dated as of , 199_
<PAGE> 2
TABLE OF CONTENTS*
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 1.01 Issuance of Warrants......................... 2
SECTION 1.02 Execution and Delivery of
Warrant Certificates....................... 3
SECTION 1.03 Issuance of Warrant Certificates............. 5
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01 Warrant Price................................ 6
SECTION 2.02 Duration of Warrants......................... 7
SECTION 2.03 Exercise of Warrants......................... 7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as a Holder of Warrant
Notes Conferred by Warrant or
Warrant Certificates....................... 9
SECTION 3.02 Lost, Stolen, Mutilated or
Destroyed Warrant Certificates............. 10
SECTION 3.03 Holder of Warrant Certificate
May Enforce Rights......................... 11
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATE
SECTION 4.01 Exchange and Transfer of Warrant
Certificates............................... 12
SECTION 4.02 Treatment of Holders of Warrant
Certificates............................... 14
</TABLE>
- ------------------------
* This table of contents shall not, for any purpose, be deemed to be part of
the Warrant Agreement.
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 4.03 Cancellation of Warrant
Certificates............................... 15
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent................................ 15
SECTION 5.02 Conditions of Warrant Agent's
Obligations................................ 16
SECTION 5.03 Resignation and Appoint of
Successor.................................. 19
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Amendment.................................... 22
SECTION 6.02 Notice and Demands to the
Company and Warrant Agent.................. 22
SECTION 6.03 Addresses.................................... 22
SECTION 6.04 Notices to Holders of Warrants............... 23
SECTION 6.05 Applicable Law............................... 24
SECTION 6.06 Delivery of Prospectus....................... 24
SECTION 6.07 Obtaining of Governmental
Approvals.................................. 25
SECTION 6.08 Persons Having Rights Under
Warrant Agreement......................... 25
SECTION 6.09 Headings..................................... 25
SECTION 6.10 Counterparts................................. 25
SECTION 6.11 Inspection of Agreement...................... 26
EXHIBIT A Form of Warrant Certificate
[EXHIBIT B Form of Certificate for Delivery
of Bearer Warrant Notes]
</TABLE>
- ii -
<PAGE> 4
FORM OF WARRANT AGREEMENT*
WARRANT AGREEMENT dated as ___________________ of between
Lucent Technologies Inc., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
and as Warrant Agent (the "Warrant Agent").
WHEREAS the Company has entered into an Indenture dated as of
______________,1996 (the "Indenture"), with ______________________, as
Trustee (the Trustee, which term includes any successor trustee under the
Indenture), providing for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Notes"), to
be issued in one or more series; and
WHEREAS, the Company proposes to sell [title of Notes being
offered] (the "Offered Notes") with warrant certificates evidencing one or more
warrants (the "Warrants" or, individually a "Warrant") representing the right to
purchase up to an aggregate principal amount of _________________ of [title of
Notes purchasable through exercise of Warrants] (the "Warrant Notes"), such
Warrant certificates and other warrant certificates issued pursuant to this
Agreement being herein called the "Warrant Certificates"**; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
- ------------------------
* The provisions of this Form will be completed or modified as appropriate to
reflect the terms of the Warrants. Offered Notes and the Warrant Notes and
the designation of the Warrant Agent. Monetary amounts may be in U.S.
dollars, in foreign denominated currency or in units based on or relating
to currencies (including European Currency Units (ECU)).
** If the Warrants are to be uncertificated, the provisions of this Form will
be modified as appropriate to reflect the terms of exercise and transfer of
uncertificated Warrants and other matters relating to the use of the
specified systems for uncertificated Warrants.
<PAGE> 5
2
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance Of Warrants. Warrants shall be
initially issued in connection with the issuance of the Offered Notes [but shall
be separately transferable on and after ________________, 199_ (the "Detachable
Date")] [and shall not be separately transferable] and each Warrant Certificate
shall evidence one or more Warrants. Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase a Warrant Note in the principal amount of ___________________. Warrant
Certificates shall be initially issued in units with the Offered Notes and each
Warrant Certificate included in such a unit shall evidence Warrants for each
_____________ principal amount of Offered Notes included in such unit.
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Warrant Certificates, whenever issued, shall be in [bearer] [or] [registered]
form [or both] substantially in the form set forth in Exhibit A hereto, shall be
dated _______________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution therefore to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may be listed, or to conform to usage. The Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board of
Directors, its Vice-Chairman of the Board of Directors, its President, one of
its Vice Presidents, or its Treasurer, or an Assistant Treasurer under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the
Warrant Certificates. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature or the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and delivered by the
Warrant Agent, such Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by such persons as, at the actual date-of the execution of
such Warrant Certificate, shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such person was not such
officer.
<PAGE> 6
3
[If bearer Warrants -- The term "holder" or "holder of a
Warrant Certificate" as used herein shall mean [If Offered Notes with Warrants
which are not immediately detachable -- prior to the Detachable Date, the
registered owner of the Offered Note to which such Warrant Certificate was
initially attached (or the bearer if the Offered Note is a bearer Note), and
after such Detachable Date] the bearer of such Warrant Certificate].]
[If registered Warrants -- The term "holder" or "holder of a
Warrant Certificate" as used herein shall mean any person in whose name at the
time any Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose [If Offered Notes with Warrants which are
not immediately detachable -- or, prior to the Detachable Date, upon the
register of the Offered Notes. The Company will, or will cause the register of
the Offered Notes to, make available at all times to the Warrant Agent such
information as to holders of the Offered Notes with Warrants as may be necessary
to keep the Warrant Agent's records up to date].]
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding __________________ of Warrant Notes (except as provided in Section
2.03(c), 3.02 and 4.01) may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall upon receipt of Warrant Certificates duly
executed on behalf of the Company, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to ________________ aggregate
principal amount of Warrant Notes and shall deliver such Warrant Certificates to
or upon the order of the Company. Subsequent to such original issuance of the
Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate
only if the Warrant Certificate is issued in exchange or substitution for one or
more previously countersigned Warrant Certificates [If registered Warrants -- or
in connection with their transfer], as hereinafter provided or as provided in
Section 2.03(c).
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from and
including ______________, 199_ to and including [ _____________, 199_] the
exercise price of each Warrant will be [% of the principal amount of the Warrant
Notes] [ ] plus [accrued amortization of the original issue discount] [accrued
interest] from the most recent preceding . [During the period
from _____________, 199_, to and including ______________, 199_, the exercise
price of each Warrant will be [ % of the principal amount of the Warrant Notes]
[ ] plus [accrued amortization of the original issue discount] [accrued
interest] from the most recently preceding ]. [In each case,
the original issue discount will be amortized at a % annual rate, computed
on an annual basis using a 360-day year consisting of twelve 30-day months.]
Such purchase price of Warrant Notes is referred to in this Agreement as the
"Warrant Price". [The original issue discount for each principal
amount of Warrant Notes is .]
SECTION 2.02. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after the [date
thereof][ , 199__] and at or before 5:00 p.m. New York time
on , 199__, or such later date as may be selected by the
Company, in a written statement to the Warrant Agent and with notice to the
holders of Warrants (such date of
<PAGE> 7
4
expiration is herein referred to as the "Expiration Date"). Each Warrant not
exercised at or before 5:00 p.m. New York time on the Expiration Date shall
become void, and all rights of the holder of the Warrant Certificate evidencing
such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants.
(a) During the period specified in Section 2.02 any whole
number of Warrants may be exercised [, subject to Section 2.03(c),] by delivery
to the Warrant Agent of the Warrant Certificate evidencing such Warrant, with
the form of election to purchase Warrant Notes set forth on the reverse side of
the Warrant Certificate properly completed and duly executed, and by paying in
full, [in lawful money of the United States of America,] [in cash or by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds], the Warrant Price for
each Warrant exercised to the Warrant Agent, such delivery and payment to be
made at the corporate trust office of the Warrant Agent [or at ].
The date on which the duly completed and executed Warrant Certificate and
payment in full of the Warrant Price is received by the Warrant Agent shall be
deemed to be the date on which the Warrant is exercised. The Warrant Agent shall
deposit all funds received by it in payment of the Warrant Price in an account
of the Company maintained with it and shall advise the Company by telephone at
the end of each day on which a [payment] [wire transfer] for the exercise of
Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee, of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Notes to which
such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company or the Trustee
shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant,
the Company shall issue, pursuant to the Indenture, in authorized denominations
to or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Notes to which such holder is entitled, [in fully
registered form, registered in such name or names] [or] [in bearer form] as may
be directed by such holder[; provided, however, the Company shall deliver
Warrant Notes in bearer form only outside the United States and only upon
delivery from the person entitled to physical delivery of such Warrant Notes of
an executed certification substantially in the form of Exhibit B hereto.] If
less than all of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issuance of the Warrant Notes and the Company shall
not be required to issue or deliver any Warrant Note unless and until the person
requesting the issuance thereof shall have paid to the Company the amount of
such tax or governmental charge or shall have established to the satisfaction of
the Company that such tax or other governmental charge has been paid or that no
such tax or other governmental charge is payable.
<PAGE> 8
5
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as a Holder of Warrant Notes Conferred
by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Notes, including, without limitation, the right to receive the payment
of principal of, premium, if any, or interest on Warrant Notes or to enforce any
of the covenants in the Indenture.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and an indemnity reasonably satisfactory
to it and, in the case of mutilation, upon surrender of such Warrant Certificate
to the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser or holder in due course, the Company may (or, in the case
of mutilation, shall) execute, and in such event an authorized officer of the
Warrant Agent shall manually countersign and deliver, in exchange for or in lieu
of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this section are exclusive and shall
preclude (to the extent lawful) any and all other rights and remedies
notwithstanding any law or statute existing or hereinafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Notes or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATE
SECTION 4.01. Exchange and Transfer of Warrant Certificates.
[If offered Notes with Warrants which are immediately detachable -- Upon] [If
Offered Notes with Warrants which are not immediately detachable --Prior to the
Detachable Date a Warrant Certificate may be exchanged or transferred only
<PAGE> 9
6
together with the Offered Note to which the Warrant Certificate was initially
attached, and only for the purpose of effecting or in conjunction with an
exchange or transfer of such Offered Note. Prior to the Detachable Date, each
transfer of the Offered Note [on the register of the Offered Notes; shall
operate also to transfer the related Warrant Certificates. After the Detachable
Date upon] surrender at the corporate trust office of the Warrant Agent [or
___], Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants [If registered
Warrants -- or the transfer may be registered in whole or in part]; provided
that such other Warrant Certificates evidence a like number of Warrants as the
Warrant Certificates so surrendered. [If registered and bearer Warrants (subject
to any limitations imposed with respect to such exchanges) -- [After the
Detachable Date, upon] [Upon] surrender at the corporate trust office of the
Warrant Agent [or ___] Warrant Certificates in bearer form may be exchanged for
Warrant Certificates in registered form evidencing a like number of Warrants.]
[If registered Warrants -- The Warrant Agent shall keep, at its corporate trust
office [and at ___], books in which, subject to such reasonable regulations as
it may prescribe, it shall register Warrant Certificates and exchanges and
transfers to outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office [or
______________] for exchange [or registration of transfer], properly endorsed or
accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent. No service charge shall be made for any exchange or registration
of transfer] of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange [or registration of
transfer]. Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any
exchange [or registration of transfer] which will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant [or a number of full
Warrants and a fraction of a Warrant]. All Warrant Certificates issued upon any
exchange [or registration of transfer] of Warrant Certificates shall be the
valid obligations of the Company evidencing the same obligations, and entitled
to the some benefits under this Agreement, as the Warrant Certificate
surrendered for such exchange [or registration of transfer].
SECTION 4.02. Treatment of Holders Warrant Certificates. [If
Offered Notes with bearer Warrants which are not immediately detachable
- ---Subject to Section 4.01, each] [If Offered Notes with bearer Warrants which
are immediately detachable -- Each] Warrant Certificate shall be transferable by
delivery and shall be deemed negotiable and the bearer of each Warrant
Certificate may be treated by the Company, the Warrant Agent and all other
persons dealing with such bearer as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.] [If registered
Warrant -- Every holder of a Warrant Certificate, by accepting the same,
consents and agrees with the Company, the Warrant Agent and with every
subsequent holder of such Warrant Certificate that until the transfer of the
Warrant Certificate is registered on the books of the Warrant Agent [or the
register of the Offered Notes prior to the Detachable Date], the Company and the
Warrant Agent [or the registrar of the Offered Notes prior to the Detachable
Date] may treat such registered holder as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.]
<PAGE> 10
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SECTION 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange [, registration of transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the Company,
be delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
_______________ hereby accepts such appointment. The Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred,
without negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its action as Warrant Agent hereunder, as well as the
costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the advice of such 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 the advice of such counsel.
<PAGE> 11
8
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing suffered
by it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Warrant Notes or other obligations of
the Company as freely as if it were not the Warrant Agent hereunder. Nothing in
this Warrant Agreement shall be deemed to prevent the Warrant Agent from acting
as Trustee under the Indenture.
(f) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates.
(g) No Liability for Interest. The Warrant Agent shall
have no liability for interest on any monies at any time received by it pursuant
to any of the provisions of this Agreement or of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the payment
of which within a reasonable time is not, in its reasonable opinion, assured to
it. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility in
case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of the
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02 hereof,
to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders
from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrant Certificates are no longer
exercisable.
<PAGE> 12
9
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 5.02(a) shall continue to the
extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a petition seeking relief under the Federal
Bankruptcy Code, as now constituted or hereafter amended, or under any other
applicable Federal or state bankruptcy law or similar law or make an assignment
for the benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under any other applicable Federal or state bankruptcy or
similar law, or if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed thereunder
shall execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and hereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that it
shall be qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
<PAGE> 13
10
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not adversely affect the interests of the holders of the
Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
______________, Attention: _______________, and any communication from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to Lucent Technologies Inc., Attention: ______________,[ADDRESS] (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company).
SECTION 6.04. Notices to Holders of Warrants. Any notice to
holders of Warrants which by any provisions of this Warrant Agreement is
required or permitted to be given shall be given [If registered Warrants -- by
first class mail postage prepaid at such holder's address as appears on the
books of the Warrant Agent [or on the register of the Offered Notes prior to the
Detachable Date]] [If bearer Warrants -- by publication in an Authorized
Newspaper in New York City and London [, and so long as the Warrants are listed
on the Luxembourg Stock Exchange and the Luxembourg Stock Exchange so requires,
in Luxembourg.] As used herein, the term "Authorized Newspaper" means
a newspaper customarily published on each business day in morning editions,
whether or not it shall be published in Saturday, Sunday or holiday editions,
such as the Wall Street Journal (Eastern edition) in New York City, the
Financial Times (London edition) in London and the Luxemburger Wort in
Luxembourg. If by reason of the temporary or permanent suspension of publication
of any newspaper or by reason of any other cause, it shall be impossible to make
publication of such notices in an Authorized Newspaper as herein required, then
such publication or other notice in lieu thereof as shall be made by the Warrant
Agent shall constitute sufficient publication of such notice, if such
publication or other notice shall, so far as may be possible, approximate the
terms and conditions of the publication in lieu of which it is given. The
Warrant Agent shall promptly furnish to the Company a copy of each notice so
published.]
SECTION 6.05. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
agreements made and to be performed therein.
SECTION 6.06. Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus with an accompanying
<PAGE> 14
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prospectus supplement relating to the Warrant Notes, and the Warrant Agent
agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to
the holder of the Warrant Certificate evidencing such Warrant, prior to or
concurrently with the delivery of the Warrant Notes issued upon such exercise, a
copy of such prospectus and prospectus supplement.
SECTION 6.07. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Note under the Securities Act of 1933), which may be or
become requisite in connection with the issuance, sale, transfer and delivery of
the Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrant Notes issued upon exercise of the Warrants
or upon the expiration of the period during which the Warrants are exercisable.
SECTION 6.08. Persons Having Rights Under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent (and, subject to this Agreement, their successors and assigns) and
the holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement.
SECTION 6.09. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.10. Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.11. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by one of their respective authorized officers as of the
day and year first above written.
LUCENT TECHNOLOGIES INC.
By______________________________________
Title:
[NAME OF WARRANT AGENT],
as Warrant Agent
By______________________________________
Title:
<PAGE> 15
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face of Warrant Certificate]
[Form of Legend if Notes with Warrants which are not immediately detachable:
Prior to ____________, 19__, this Warrant Certificate cannot be transferred or
exchanged unless attached to a [Title of Offered Notes].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
LUCENT TECHNOLOGIES INC.
WARRANTS TO PURCHASE
[Title of Warrant Notes]
VOID AFTER 5 P.M. NEW YORK TIME ON _______, 19__
No.
This certifies that [the bearer is the] [ ___________________
or registered assigns is the registered] owner of the above indicated number of
Warrants, each Warrant entitling such [bearer] [registered owner] to purchase,
at any time [after 5 P.M. New York time on _____________, 19__ and] on or before
5 P.M. New York time on _____________, 19__ (or such later date as may be
selected by the Company with notice to the holder thereof as provided in the
Warrant Agreement (as hereinafter defined)), $_________ principal amount of
[Title of Warrant Notes] (the "Warrant Notes"), of Lucent Technologies Inc., a
Delaware corporation (Lucent Technologies Inc. and any successor corporation
under the Indenture hereinafter defined being hereinafter referred to as the
"Company"), to be issued under the Indenture (as hereinafter defined) on the
following basis: during the period from and including _____________, 19__, to
and including _______________, 19__, the exercise price of each Warrant will by
[__% of the principal amount of the Warrant Notes] [$___] plus [accrued
amortization of the original issue discount] [accrued interest] from the most
recently preceding _____________; during the period from _________________,
19__, to and including _____________, 19__, the exercise price of each Warrant
will be __% of the principal amount of the Warrant Notes] [$______] plus
[accrued amortization of the original issue discount] [accrued interest] from
the most recently preceding _____________; [in each case, the original issue
discount will be amortized at a ___% annual rate, computed on an annual basis,
using a 360-day year consisting of twelve 30-day months] (the "Warrant Price").
[The original issue discount for each $________ principal amount of Warrant
Notes is $__________.] The holder may exercise the Warrants evidenced hereby by
delivery to the Warrant Agent (as hereinafter defined) or this Warrant
Certificate, with the form of election to purchase on the reverse hereof
properly completed and duly executed and by paying in full [in lawful money of
the United States of America,] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] [in
immediately available funds,] the Warrant Price for each Warrant exercised to
the Warrant Agent, such delivery and payment to be made at the corporate trust
office of [name of Warrant Agent], or its successor as warrant agent (the
"Warrant Agent"), [or
<PAGE> 16
2
_____________________] currently at the address specified on the reverse hereof,
and upon compliance with and subject to the conditions set forth herein and in
the Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Notes [in registered form in
denominations of $_____________ and any integral multiples thereof] [in bearer
form in the denomination of $___________] [or both]. Upon any exercise of less
than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of 19__ (the "Warrant Agreement") between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at __________________].
The Warrant Notes to be issued and delivered upon the exercise
of the Warrants evidenced by this Warrant Certificate will be issued under and
in accordance with an Indenture dated as of ___________ (the "Indenture"),
between the Company and ______________________, as Trustee (___________________
and any successor to such Trustee being hereinafter referred to as the
"Trustee"), and will be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture and the form of the Warrant Notes are on file
at the corporate trust office of the Trustee [and at ______________].
[If Offered Notes with bearer Warrants which are not
immediately detachable -- Prior to ____________, 19__, this Warrant Certificate
may be exchanged or transferred only together with the [Title of Offered Notes]
(the "Offered Notes") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Notes. After such date, this] [If Offered Notes with
bearer Warrants which are immediately detachable -- This] Warrant Certificate,
and all rights hereunder, may be transferred by delivery and the Company and the
Warrant Agent may treat the bearer hereof as the owner for all purposes.]
[If Offered Notes with registered Warrants which are not
immediately detachable -- Prior to ________________ 19__, this Warrant
Certificate may be exchanged or transferred only together with the [Title of
Offered Notes] (the "Offered Notes") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Notes. After such date, this] [If
Offered Notes with registered Warrants which are immediately detachable --
Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or _________] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.]
[If Offered Notes with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Notes with bearer Warrants which are immediately detachable --
After] countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the
<PAGE> 17
3
corporate trust office of the Warrant Agent for Warrant Certificates,
representing the same aggregate number of Warrants, [in registered form] [in
bearer form] [its either registered or bearer form].
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Notes, including, without
limitation, the right to receive payments of principal of, or premium, if any,
or interest, if any, on the Warrant Notes or to enforce any of the covenants of
the Indenture.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of , 19__.
LUCENT TECHNOLOGIES INC.
By
----------------------
Title:
[Name of Warrant Agent]
By
---------------------
Title:
<PAGE> 18
4
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder must pay
[in cash or by certified check or official bank check or by bank wire transfer]
[by bank wire transfer] [in immediately available funds] the Warrant Price in
full for Warrants exercised to [insert name of Warrant Agent] Corporate Trust
Department, [insert address of Warrant Agent], Attn. _________________ [or
_________________] which [payment] [wire transfer] must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, the
holder must complete the information required below and present this Warrant
Certificate in person or by mail (registered mail is recommended) to the Warrant
Agent at the addresses set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent together with such
[payment] [wire transfer]. [If the undersigned is requesting delivery of Warrant
Notes in bearer form, the person entitled to physical delivery of such Warrant
Notes will be required to deliver a certificate (copies of which may be obtained
from the Warrant Agent [or ________________] certifying that such Warrant Notes
are not being acquired by or on behalf of a U.S. person or for resale to a U.S.
person unless such U.S. person is a qualified financial institution as defined
under United States tax laws and regulations.]
<PAGE> 19
5
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by this Warrant Certificate, to purchase $__________
principal amount of the [Title of Warrant Notes] (the "Warrant Notes") of Lucent
Technologies Inc. and represents that he has tendered payment for such Warrant
Notes [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds] to the order of Lucent Technologies Inc. c/o [insert name and address of
Warrant Agent], in the amount of $________ in accordance with the terms hereof.
The undersigned requests that said principal amount of Warrant Notes be in
[bearer form in the authorized denominations] [fully registered form in the
authorized denominations, registered in such names aid delivered] all as
specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned, unless otherwise specified ;n the instructions
below.
Dated:___________________________ Name_____________________________
(Please Print)
_________________________________ Address__________________________
(Insert Social Security or
other Identifying Number of
Holder) __________________________
Signature________________________
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at ___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
By mail at ___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
[Instructions as to form and delivery of Warrant Notes and, if
applicable, Warrant Certificates evidencing unexercised Warrants -- complete as
appropriate.]
<PAGE> 20
6
[If Registered Warrant]
Assignment
(Form of Assignment To Be Executed If Holder Desires
To Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and transfers
unto
Please insert social security or other
identifying number
------------------------------------
- ----------------------------------- ------------------------------------
(Please print name and
address including zip code)
- ----------------------------------- ------------------------------------
of the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
---------------------------------------
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York, Midwest or Pacific Stock
Exchange.)
Signature Guaranteed:
- ----------------------------
<PAGE> 21
EXHIBIT B
FORM OF CERTIFICATE FOR DELIVERY OF BEARER WARRANT NOTES
LUCENT TECHNOLOGIES INC.
[Title of Warrant Notes]
To: Lucent Technologies Inc.
c/o ______________________,
as Trustee
This certificate is submitted in connection with the
undersigned's request that you deliver to us $_________ principal amount of
[Title of Warrant Notes] (the "Warrant Notes") in bearer form upon exercise of
Warrants.
The undersigned hereby certifies that as of the date hereof
(the date of delivery to the undersigned of the Warrant Notes), the Warrant
Notes which are to be delivered to the undersigned in bearer form are not being
acquired, directly or indirectly, by or on behalf of a U.S. person, or for offer
to resell or for resale to a U.S. person or any person inside the U.S. or, if
any beneficial owner of the Warrant Notes is a U.S. person such U.S. person is a
financial institution (as defined below) or acquiring through a financial
institution. If the undersigned is a clearing organization, the undersigned
represents that this certificate is based on statements provided to it by its
member organizations. If the undersigned is a dealer, the undersigned agrees to
obtain a similar certificate from each person entitled to delivery of any of the
Warrant Notes in bearer form purchased from it.
Notwithstanding the foregoing, if the undersigned has actual
knowledge that the information contained in such certificate is false, the
undersigned will not deliver a Warrant Note in bearer form to the person who
signed such certificate notwithstanding the delivery of such certificate to the
undersigned. The undersigned will be deemed to have actual knowledge that the
beneficial owner is a U.S. person for this purpose if the undersigned has a
United States address for the beneficial owner of the Security and does not have
documentary evidence that the beneficial owner is not a U.S. person. As used
herein, "United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction; "U.S. person" means any citizen or resident of the
United States, a corporation, partnership or other entity created or organized
under the laws of the United States or 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; "financial institution" means a branch
located outside the United States of a financial institution as defined in
Section 1.165-12(c)(1)(v) of the Treasury Department Regulations purchasing for
its own account or for the account of a customer that agrees in writing to
comply with Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986 and the regulations thereunder and that is not purchasing for offer to
resell or for resale in the United States; and a "clearing organization" means
an entity which is in the business of holding obligations for member
organizations and transferring obligations among such members by credit or debit
to the account of a member without the necessity of physical delivery of the
obligation.
<PAGE> 22
2
We understand that this certificate is required in connection
with United States tax laws and regulations. We irrevocably authorize you to
produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate.
----------------------------
(Signature)
----------------------------
(Please print name)
Dated:
Address:
- B2 -
<PAGE> 1
Exhibit 4H
FORM OF FACE OF MEDIUM TERM GLOBAL
FLOATING RATE NOTE, REGISTERED SECURITY
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK NEW
YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE
DESCRIBED HEREIN. 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.
REGISTERED
No. FLR- CUSIP NO.
------------ ------------
LUCENT TECHNOLOGIES INC.
Medium Term Note, Series A
(FLOATING RATE)
Principal Amount:
Specified Currency:
Initial Interest Rate: Base Rate:
Original Issue Date: Maturity Date:
Index Maturity: Spread (plus or minus):
Interest Payment Period: Spread Multiplier: %
Interest Reset Period: Maximum Interest Rate:
Interest Payment Dates: Minimum Interest Rate:
Initial Interest Reset Date: Calculation Dates:
Reset Dates: Interest
Interest Determination Dates: Calculation Agent:
Initial Optional Redemption Date: Optional
Annual Redemption Price Reduction: Redemption Price: %
Optional Repayment Date(s):
Other Terms:
<PAGE> 2
Lucent Technologies Inc., a corporation duly organized and
existing under the Laws of the State of Delaware (herein referred to as the
"Company"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the Principal Amount stated above, on the Maturity Date set
forth above (except to the extent redeemed or repaid prior to the Maturity Date
set forth above), and to pay interest thereon from the Original Issue Date set
forth above, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for on the Interest Payment Dates set forth above and
on the Maturity Date (or any redemption or repayment date), commencing on the
first Interest Payment Date following the Original Issue Date at the rate per
annum equal to the Initial Interest Rate stated above until the Initial Interest
Reset Date stated above and thereafter at the rate per annum determined in
accordance with the provisions on the reverse hereof under the heading or
headings "Determination of Commercial Paper Rates," "Determination of LIBOR" and
"Determination of Treasury Rates," depending on the Base Rate specified above,
until the principal hereof is paid or made available for payment, provided,
however, that if the Original Issue Date shown above occurs between a Record
Date, as defined on the reverse hereof, and an Interest Payment Date, interest
payments will commence on the succeeding Interest Payment Date and provided,
further that if an Interest Payment Date or the Maturity Date or redemption or
repayment date for any Note would otherwise be a day that is not a Business Day,
as defined on the reverse hereof, such Interest Payment Date, Maturity Date or
redemption or repayment date will be postponed to the next day that is a
Business Day, except that if the rate of interest on this Note shall be
determined in accordance with the provisions of the heading "Determination of
LIBOR" below, and such Business Day is in the next succeeding calendar month,
such Interest Payment Date, Maturity Date or redemption or repayment date will
be the immediately preceding Business Day. The interest payable on any Interest
Payment Date will, subject to certain exceptions provided in the Indenture, be
paid to the person in whose name this Note is registered at the close of
business on each Record Date, as defined on the reverse hereof; provided,
however, that interest payable on the Maturity Date (or any redemption or
repayment date) will be payable to the person to whom the principal herein shall
be payable.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE
SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to any benefits under the
Indenture referred to on the reverse hereof, or be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
executed by _______________________, as Authentication Agent under the Indenture
referred to on the reverse hereof.
<PAGE> 3
IN WITNESS WHEREOF Lucent Technologies Inc. has caused this
instrument to be duly executed under its corporate seal.
Dated: LUCENT TECHNOLOGIES INC.
By:________________________________________
Name:
Title:
Attest
___________________________________________
Name:
Title:
Dated:
AUTHENTICATING AGENT'S
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned Indenture.
_______________________,
As Authentication Agent
By:________________________
Authorized Signatory
<PAGE> 4
FORM OF REVERSE OF GLOBAL SECURITY
This Note is one of a duly authorized issue of securities of the
Company (herein referred to as the "Securities") issued and to be issued in one
or more series under and pursuant to an indenture dated as of
__________________, 1996 (the "Indenture"), between the Company and
_______________________, as Trustee (the "Trustee"), to which Indenture and all
other indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities of the
Trustee, the Company and the Holders of the Securities, and the terms upon which
the Securities are to be authenticated and delivered. This Note is one of a
series of Securities designated as the Medium Term Notes, Series [__] (herein
referred to as the "Notes").
Payments of principal and interest due at the Maturity Date or
upon redemption or repayment, if applicable, will be made in immediately
available funds upon surrender of this Note, and interest payable at the
Maturity Date or upon redemption or repayment, if applicable, will be payable to
the person to whom principal is payable. Payment of the principal of and
premium, if any, and interest on this Note will be made in the Specified
Currency indicated above. In the case of Notes denominated in and on which
principal and premium, if any, and interest is payable in U.S. dollars, payment
of the principal of premium, if any, and interest on this Note will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, State of New York; provided, however, that
at the option of the Company payment of interest other than interest due at the
Maturity Date shown above or upon redemption or repayment may be made by check
mailed to the address of the person entitled thereto as such address shall
appear in the security register. Interest on Notes payable in a Specified
Currency other than U.S. dollars will be paid by mailing a check or draft in the
Specified Currency (subject to certain exceptions) drawn on an account at a bank
outside of the United States. Principal and premium, if any, on Notes payable in
a Specified Currency other than U.S. dollars will be made, at the option of the
Company, either outside the United States in the jurisdiction of the Specified
Currency or at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York, State of New York.
Unless the face of this Note indicates that an Optional Redemption
Price is applicable to this Note, this Note may not be redeemed at the option of
the Company prior to the Maturity Date. 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) (subject to
reduction as hereinafter provided), together in each case with accrued interest
to the date fixed for redemption; 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
redemption shall be mailed to the registered Holders of the Notes designated for
redemption at their last registered address not less than thirty nor more than
sixty days prior to the date fixed for redemption, all as provided in the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the presentation and cancellation hereof. If less
than all Notes with like tenor and terms are to be redeemed, the Notes to
<PAGE> 5
be redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
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 the Maturity Date. If an Optional Repayment Date or Dates is
indicated on the face of this Note, this Note may be subject to repayment at the
option of the Holder 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 will be repayable in whole or in part in increments of U.S. $1,000, or if
this Note is denominated in a Specified Currency other than U.S. dollars, in
increments of 1,000 units of such Specified Currency, (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, together with interest accrued hereon
payable to the date of repayment. 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 to
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 or description of the tenor and terms of this
Note, a statement that the option to elect repayment 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.
Exercise of such repayment option by the Holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a New Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof, provided that the principal amount
of the Note remaining outstanding after repayment is an authorized denomination.
Commencing with the initial Interest Reset Date specified in the
face hereof following the Original Issue Date, the rate at which interest on
this Note is payable shall be reset weekly, monthly, quarterly, semi-annually or
annually as shown on the face hereof under "Interest Reset Period," (the first
day of each Interest Reset Period being an "Interest Reset Date") provided,
however, that (i) the interest rate in effect from the Original Issue Date to
the Initial Interest Reset Date specified on the face hereof will be the Initial
Interest Rate and (ii) the interest rate in effect hereon for the 10 days
immediately prior to maturity, redemption or repayment, if applicable, shall be
that in effect on the 10th day preceding the maturity, redemption or repayment,
if applicable. Each such adjusted rate shall be applicable on and after the
Interest Reset Date to which it relates but not including the next succeeding
Interest Reset Date or until maturity, redemption or repayment, as the case may
be. If any Interest Reset Date specified on the face hereof would otherwise be a
day that is not a Business Day, such Interest Reset Date shall be postponed to
the next day that is a Business Day, except that if (i) the rate of interest on
this Note shall be determined in accordance with the provisions of the heading
"Determination of LIBOR" below, and (ii) such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the next preceding
Business Day. Subject to applicable provisions of
<PAGE> 6
law and except as specified herein, on each Interest Reset Date, the rate of
interest on this Note shall be the rate determined in accordance with the
provisions of the applicable heading below.
Determination of Commercial Paper Rates. If the Base Rate on this
Note is the Commercial Paper Rate (a "Commercial Paper Rate Note"), the interest
rate with respect to this Note shall equal the Commercial Paper Rate (calculated
as described below) plus or minus the Spread, if any, specified on the face
hereof or multiplied by the Spread Multiplier, if any, specified on the face
hereof. The Commercial Paper Rate for each Interest Reset Date shall be
determined on the Calculation Date (as defined below) by the Calculation Agent
as of the second Business Day prior to each Interest Reset Date (a "Commercial
Paper Interest Determination Date") and shall be the Money Market yield (as
defined below) on such Commercial Paper Interest Determination Date of the rate
for commercial paper having the Index Maturity designated on the face hereof, as
such rate is published by the Board of Governors of the Federal Reserve System
in "statistical release H.15(519), Selected Interest Rates" ("H.15(519)"), or
any successor publication, under the heading "Commercial Paper." In the event
such rate is not published prior to 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Commercial Paper Interest Determination
Date, then the Commercial Paper Rate shall be the Money Market Yield (calculated
as described below) on such Commercial Paper Interest Determination Date of the
rate for Commercial Paper of the specified Index Maturity as published by the
Federal Reserve Bank of New York in its daily statistical release, "Composite
3:30 P.M. Quotations for U.S. Government Securities" ("Composite Quotations")
under the heading "C Paper." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not yet published in either H.15(519) (or any
successor publication) or Composite Quotations, then the Commercial Paper Rate
shall be the Money Market yield of the arithmetic mean (each as rounded to the
nearest one hundred-thousandth of a percentage point) of the offered rates as of
11:10 A.M., New York City time, on such Commercial Paper Interest Determination
Date of three Leading dealers of commercial paper in The City of New York
selected by the Calculation Agent for commercial paper of the Index Maturity
designated on the face hereof, placed for an industrial issuer whose bond rating
is "AA," or the equivalent from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting offered rates as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the rate of interest in effect on such
Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded to the nearest one hundred-thousandth of a percentage point) calculated
in accordance with the following formula:
Money Market Yield = D x 360 x 100
-----------
360-(D x M)
where "D" refers to the applicable per annum rate for the commercial paper
quoted on a bank discount basis and expressed as a decimal, and "M" refers to
the actual number of days in the Index Maturity.
Determination of LIBOR. If the Base Rate on this Note is LIBOR (a
"LIBOR Note") the interest rate payable with respect to this Note shall be equal
to LIBOR (calculated as described below) plus or minus the Spread, if any,
specified on the face hereof or multiplied by the Spread Multiplier, if any,
specified on the face hereof. LIBOR shall be calculated as follows:
<PAGE> 7
(i) On the second London Banking Day prior to the Interest Reset
Date (a "LIBOR Determination Date"), the Calculation Agent
will determine the arithmetic mean of the offered rates for
deposits in United States dollars for the period of the
Index Maturity which appear on the Reuters Screen LIBOR Page
at approximately 11:00 A.M., London time, on such LIBOR
Determination Date. "Reuters Screen LIBOR Page" means the
display designated as Page "LIBO" on the Reuters Monitor
Money Rate Service (or such other page as may replace the
LIBO page on the service for the purpose of displaying
London interbank offered rates of major banks).
(ii) If fewer than two offered rates appear on the Reuters Screen
LIBO Page, the Calculation Agent WILL request the principal
London offices of each of four major banks in the London
interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotations
for deposits in United States dollars for the period of the
Index Maturity to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on such LIBOR
Determination Date and in a principal amount equal to an
amount of not less than U.S. $1 million that is
representative of a single transaction in such market at
such time. If at least two such quotations are provided,
LIBOR will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR in respect of
that LIBOR Determination Date will be the arithmetic mean of
rates quoted by three major banks in The City of New York
selected by the Calculation Agent (after consultation with
the Company) at approximately 11:00 A.M., New York City
time, on such LIBOR Determination Date for Loans in U.S.
dollars to leading European banks, for the period of the
Index Maturity and in a principal amount equal to an amount
of not less than U.S. $1 million that is representative for
a single transaction in such market at such time; provided,
however, that if fewer than three banks selected as
aforesaid by the calculation Agent are quoting rates as
mentioned in this sentence, the rate of interest in effect
for the applicable period will be the rate of interest in
effect on such LIBOR Determination Date.
As used herein, "London Banking Day" means any day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market.
Determination of Treasury Rates. If the Base Rate on this Note is
the Treasury Rate (a "Treasury Rate Note") the interest payable with respect to
this Note shall equal the Treasury Rate (calculated as described below) plus or
minus the Spread, if any, specified on the face hereof, or multiplied by the
Spread Multiplier, if any, specified on the face hereof. The Treasury Rate with
respect to an Interest Reset Date shall equal the rate for the auction held on
the Treasury Rate Determination Date (as defined below) pertaining to such
Interest Reset Date of direct obligations of the United States ("Treasury
bills") having the Index Maturity specified above as published in H.15(519)
under the heading "U.S. Government Securities-Treasury Bills-auction average
(investment)" or any successor publication, or, if not so published by 9:00
A.M., New York City time, on the Calculation Date (defined below) pertaining to
such Treasury Rate Determination Date, the auction average rate (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as applicable) and
<PAGE> 8
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury. In the event that the results of the auction of Treasury Bills
having the Index Maturity specified above are not published or reported as
provided above by 3:00 P.M., New York City time, on such Calculation Date or if
no such auction is held on such Treasury Rate Determination Date, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable. and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Determination Date, of three leading primary United States
government securities dealers selected by the Calculation Agent for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity specialty
above; provided, however, that if the dealers selected as affected said by the
Calculation Agent are not quoting bid rates as mentioned in this sentence, the
Treasury Rate for such Interest Reset Date will be the Treasury Rate in effect
on such Interest Reset Date.
The "Treasury Rate Determination Date" pertaining to an Interest
Reset Date will be the day of the week in which such Interest Reset Date falls
on which Treasury bills would normally be auctioned. Treasury bills are normally
sold at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is normally held on the following Tuesday, except that
such auction may be held on the preceding Friday. If, as a result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Treasury Rate Determination Date pertaining to the Interest Reset Date occurring
in the next succeeding week.
Notwithstanding the foregoing, the interest rate hereon shall not
be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. The Calculation Agent shall
calculate the interest rate on this Note in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event be
higher than the maximum rate permitted by New York Law as the same may be
modified by United States Law of general applicability.
The Calculation Agent will, upon the request of the holder of this
Note, provide to such holder the interest rate hereon then in effect and, if
determined, the interest rate which will become effective as a result of a
determination rate with respect to the most recent Interest Determination Date.
The Calculation Date, if applicable, pertaining to any Commercial
Paper Interest Determination Date or Treasury Rate Determination Date (an
"Interest Determination Date") shall be the date(s) specified on the face hereof
or, if no such date is specified, the 10th Business Day after such Interest
Determination Date.
"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 are
authorized or required by law or regulation to close in The City of New York and
(i) with respect to Notes denominated in a Specified Currency other than U.S.
dollars or European Currency Units, in the capital city of the country of the
Specified Currency; (ii) with respect to Notes denominated in European Currency
Units, in Brussels. Belgium or (iii) with respect to Notes determined in
accordance with the provisions of the heading "Determination of LIBOR" above, in
the City of London.
The "Record Date" with respect to any Interest Payment Date shall
be the date 15 calendar days prior to such Interest Payment Date, whether or
<PAGE> 9
not such Interest Payment Date shall be a Business Days provided, that if the
Maturity Date of this Note is an Interest Payment Date, the Record Date shall be
the Maturity Date.
Interest payments for this Note will include interest accrued to
but excluding the Interest Payment Date; provided, that, if the Interest Reset
Dates with respect to this Note are weekly, interest payable on any Interest
Payment Date, other than interest payable on any date on which principal hereof
is payable, will include interest accrued to and including the Record Date
immediately preceding such Interest Payment Date. Accrued interest hereon from
the Original Issue Date or from the last date to which interest hereon has been
paid, as the case may be, shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor shall
be computed by adding the interest factors calculated for each day from the
Original Issue Date or from the last date to which interest shall have been
paid, as the case may be, to the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal rounded upward to the
nearest one hundred-thousandth of a percentage point with five one-millionths of
a percentage point being rounded upward) for each such day shall be computed by
dividing the interest rate (expressed as a decimal, rounded upward to the
nearest one hundred-thousandth of a percentage point with five one-millionths of
a percentage point being rounded upward) applicable to such day by 360, in the
case of Notes determined in accordance with the provisions of the headings
"Determination of LIBOR" and "Determination of Commercial Paper Rates," or by
the actual number of days in the year in the case of Notes determined in
accordance with the provisions of the heading "Determination of Treasury Rates."
In case an Event of Default with respect to the Notes, as defined
in the indenture, shall have occurred and be continuing the principal hereof may
be declared and, upon such declaration, shall become due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as herein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in the principal amount of the outstanding
Securities of each series affected by any such amendment or modification (with
each series voting as a separate class). The Indenture also contains provisions
permitting the holders of not less than a majority in principal amount of the
outstanding Securities of series affected thereby (with each series voting as a
separate class), on behalf of the holders of all Securities of such series to
waive compliance by the Company with certain provisions of the Indenture. The
Indenture also provides that regarding the Securities of any series, the Holders
of not less than a majority in principal amount of the outstanding Securities of
such series may waive certain past defaults and their consequences on behalf of
the Holders of all Securities of such series. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in Lieu hereof whether or not notation
of such consent or waiver is made upon this Note.
The Indenture contains provisions setting forth certain conditions
to the institution of proceedings by Holders of Securities with respect to the
Indenture or for any remedy under the Indenture.
<PAGE> 10
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the place, at the respective times, at the rates and in
the coin of currency herein prescribed.
The Notes are issuable as registered Notes without coupons. Notes
denominated in U.S. dollars are issuable only in denominations of U.S. $25,000
or any amount in excess thereof which is an integral multiple of U.S. $1,000.
Notes denominated. In a Specified Currency other than U.S. dollars are issuable
only in denominations of the equivalent of U.S. $25,000, or any amount in excess
thereof which is an integral multiple of 1,000 units of such Specified Currency,
as determined by reference to the noon dollar buying rate in New York City for
cable transfers of such specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance, provided, however, in the case of European
Currency Units, the Market Exchange Rate shall be the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities, or
any successor publication on the Business Day immediately preceding the date of
issuance. Notes are issuable at the office or agency of the Company referred to
above and in the manner and subject to the limitations provided in the
Indenture. Notes may be exchanged without a service charge for a like aggregate
principal amount of Notes of other authorized denominations having the same
maturity, interest rate, optional redemption provisions and original issue date.
If the principal of, premium, if any, or interest on, this Note is
payable in a Specified Currency other than U.S. dollars and such Specified
Currency is not available to the Company for making payments hereon due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, then the Company will be entitled to satisfy its obligations to the
Holder of this Note by making such payments in U.S. dollars on the basis of the
Market Exchange Rate on the date of such payment or, if the Market Exchange Rate
is not available on such date, as of the most recent Record Date. Any payments
made under such circumstances in U.S. dollars where the required payment is in a
Specified Currency other than U.S. dollars will not constitute an Event of
Default.
Upon due presentment for registration of transfer of this Note at
the above-mentioned office or agency of the Company, a new Note or Notes having
the same maturity, interest rate, optional redemption provisions and original
issue date of authorized denominations, for a like aggregate principal amount,
will be issued to the transferee as provided in the Indenture. No service charge
shall be made for any such transfer, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that assay be
imposed in relation thereto.
The Company, the Trustee, and any agent of the Company or the
Trustee may deem and treat the holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon) for the purpose of receiving payment of or on
account of the principal hereof and, subject to the provisions on the face
hereof, interest hereon, and for all other purposes, and neither the Company nor
the Trustee nor any such agent shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
the premium, if any, or interest on this Note, or for any claim based hereon, or
<PAGE> 11
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporation, shareholder, officer
or director as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or of any successor
corporation, whether by virtue of any constitution, statute or rule of Law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
This Note shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be governed by and construed in
accordance with the laws of said State.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable Laws or regulations:
TEN COM-as tenants in common
TENANT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT-..........................Custodian.....................
(Cust) (Minor)
Under Uniform Gifts to Minor Act..........................................
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE!
- ----------------------------------------------------------------
- ----------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE!
- ----------------------------------------------------------------
----------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Company, with full power of substitution in the premises.
Dated:
- --------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
<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 name and address of the undersigned)
If less that the entire Principal Amount of the within Note is to
be repaid, specify the portion thereof (which shall be in authorized increments)
which the Holder elects to have repaid: and specify the portion 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 paid):
- --------------------------
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 4I
FORM OF FACE OF MEDIUM TERM DEFINITIVE
FLOATING RATE NOTE REGISTERED SECURITY
REGISTERED
No. FLR-___ CUSIP NO._______
LUCENT TECHNOLOGIES INC.
Medium Term Note, Series __
(FLOATING RATE)
Principal Amount:
Specified Currency:
Initial Interest Rate: Base Rate:
Original Issue Date: Maturity Date:
Index Maturity: Spread (plus or minus):
Interest Payment Period: Spread Multiplier: %
Interest Reset Period: Maximum Interest Rate:
Interest Payment Dates: Minimum Interest Rate:
Initial Interest Reset Date: Calculation Dates: Interest
Reset Dates: Calculation Agent:
Interest Determination Dates: Optional
Initial Optional Redemption Date: Redemption Price: %
Annual Redemption Price Reduction:
Optional Repayment Date(s):
Other Terms:
-1-
<PAGE> 2
Lucent Technologies Inc., a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received hereby promises to pay to ___________ or registered assigns, the
Principal Amount stated above, on the Maturity Date set forth above (except to
the extent redeemed or repaid prior to the Maturity Date set forth above), and
to pay interest thereon from the Original Issue Date set forth above, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for on the Interest Payment Dates set forth above on the Maturity Date
(or any redemption or repayment date), commencing on the first Interest Payment
Date following the Original Issue Date at the rate per annum equal to the
Initial Interest Rate stated above until the Initial Interest Reset Date stated
above and thereafter at the rate per annum determined in accordance with the
provisions on the reverse hereof under the heading or headings "Determination of
Commercial Paper Rates," "Determination of LIBOR" and "Determination of Treasury
Rates," depending on the Base Rate specified above, until the principal hereof
is paid or made available for payment, provided, however, that if the Original
Issue Date shown above occurs between a Record Date, as defined on the reverse
hereof, and an Interest Payment Date, interest payments will commence on the
succeeding Interest Payment Date and provided, further that if an Interest
Payment Date or the Maturity Date or redemption or repayment date for any Note
would otherwise be a day that is not a Business Day, as defined on the reverse
hereof, such Interest Payment Date, Maturity Date or redemption or repayment
date will be postponed to the next day that is a Business Day, except that if
the rate of interest on this mote shall be determined in accordance with the
provisions of the heading "Determination of LIBOR" below, and such Business Day
is the next succeeding calendar month, such Interest Payment Date, Maturity Date
or redemption or repayment date will be the immediately Preceding Business Day.
The interest payable on any Interest Payment Date will, subject to certain
exceptions provided in the Indenture, be paid to the person in whose name this
Note is registered at the close of business on each Record Date, as defined on
the reverse hereof; provided, however, that interest payable on the Maturity
Date (or any redemption or repayment date) will be payable to the person to whom
the principal hereof shall be payable.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF. SUCH FURTHER REVISIONS SHALL HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to any benefits under the Indenture
referred to on the reverse hereof, or be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been executed
by ___________, as Authentication Agent under the Indenture referred to on the
reverse hereof.
-2-
<PAGE> 3
IN WITNESS WHEREOF Lucent Technologies Inc. has caused this instrument to
be duly executed under its corporate seal.
Dated: LUCENT TECHNOLOGIES INC.
By:
---------------------------
Name:
Title:
Attest
------------------------------
Name:
Title:
Dated:
AUTHENTICATING AGENT'S
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
described in the within-
mentioned Indenture.
- ---------------------,
As Authentication Agent
By:
--------------------------
Authorized Signatory
-3-
<PAGE> 4
FORM OF REVERSE OF DEFINITIVE SECURITY
This Note is one of a duly authorized issue of Securities of the
Company (herein referred to as the "Securities") issued and to be issued in one
or more series under and pursuant to an indenture dated as of ________, 1996
(the "Indenture"), between the Company and _________, as Trustee (the
"Trustee"), to which Indenture and all other indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities of the Trustee, the Company and the Holders
of the Securities, and the terms upon which the Securities are to be
authenticated and delivered. This Note is one of a series of Securities
designated as the Medium Term Notes, Series __ (herein referred to as the
"Notes").
Payments of principal and interest due at the Maturity Date or upon
redemption or repayment, if applicable, will be made in immediately available
funds upon surrender of this Note, and interest Payable at the Maturity Date or
upon redemption or repayment, if applicable, will be payable to the person to
whom principal is payable. Payment of the principal of and premium, if any, and
interest on this Note will be made in the Specified Currency indicated above.
In the case of Notes denominated in and on which principal and premium, if any,
and interest is payable in US dollars, payment of the principal of, premium, if
any, and interest on this Note will be made at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, State of New York; provided, however, that at the option of the Company
payment of interest other than interest due at the Maturity Date shown above or
upon redemption or repayment may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the security register.
Interest on Notes payable in a Specified Currency other than US dollars will be
paid by mailing a check or draft in the Specified Currency (subject to certain
exceptions) drawn on an account at a bank outside of the United States.
Principal and premium, if any, on Notes payable in a Specified Currency other
than US Dollars will be made, at the option of the Company, either outside of
the United States in the jurisdiction of the Specified Currency or at the office
or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, State of New York.
Unless the face of this Note indicates that an Optional Redemption
Price is applicable to this Note, this Note may not be redeemed at the option of
the Company prior to the Maturity Date. If the face of this Note indicates that
an Optional Redemption Price is applicable to this Note, then this Note may not
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)
(subject to reduction as hereinafter provided), together in each case with
accrued interest to the date fixed for redemption; 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
redemption shall be mailed to the registered Holders of the Notes designated for
redemption at their last registered address not less than thirty nor more than
sixty days prior to the date fixed for redemption, all as provided in the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the presentation and cancellation hereof. If
less than all Notes with like tenor and terms are to be re-
-4-
<PAGE> 5
deemed, the Notes to be redeemed shall be selected by the Trustee by such method
as the Trustee shall deem fair and appropriate.
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 the Maturity Date. If an Optional Repayment Date or Dates is
indicated on the face of this Note, this Note may be subject to repayment at the
option of the Holder 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 will be repayable in whole or in part in increments of U.S. $1,000, or if
this Note is denominated in a Specified Currency other than U.S. dollars, in
increments of 1,000 units of such Specified Currency (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, together with interest accrued hereon
payable to the date of repayment. 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 or description of the tenor and terms of this
Note, a statement that the option to elect repayment 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.
Exercise of such repayment option by the Holder hereof shall be irrevocable. In
the event of repayment of this Note in part only a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof, provided that the principal amount
of the Note remaining outstanding after repayment is an authorized denomination.
Commencing with the Initial Interest Reset Date specified on
the face hereof following the Original Issue Date, the rate at which interest on
this Note is payable shall be reset weekly, monthly, quarterly, semiannually or
annually as shown on the face hereof under "Interest Reset Period" (the first
day of each Interest Reset Period being an "Interest Reset Date"), provided,
however, that (i) the interest rate in effect from the Original Issue Date to
the Initial Interest Reset Date specified on the face hereof will be the Initial
Interest Rate and (ii) the interest rate in effect hereon for the 10 days
immediately prior to maturity, redemption or repayment, if applicable, shall be
that in effect on the 10th day preceding the maturity, redemption or repayment,
if applicable. Each such adjusted rate shall be applicable on and after the
Interest Reset Date to which it relates but not including the next succeeding
Interest Reset Date or until maturity, redemption or repayment, as the case may
be. If any Interest Reset Date specified on the face hereof would otherwise be a
day that is not a Business Day, such Interest Reset Date shall be postponed to
the next day that is a Business Day, except that if (i) the rate of interest on
this Note shall be determined in accordance with the provisions of the heading
"Determination of LIBOR" below, and (ii) such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the next preceding
-5-
<PAGE> 6
Business Day. Subject to applicable provisions of law and except as specified
herein, on each Interest Reset Date, the rate of interest on this Note shall be
the rate determined in accordance with the provisions of the applicable heading
below.
Determination of Commercial Paper Rates. If the Base Rate on this Note
is the Commercial Paper Rate (a "Commercial Paper Rate Note"), the interest rate
with respect to this Note shall equal the Commercial Paper Rate (calculated as
described below) plus or minus the Spread, if any, specified on the face hereof
or multiplied by the Spread Multiplier, if any, specified on the face hereof.
The Commercial Paper Rate for each Interest Reset Date shall be determined on
the Calculation Date (as defined below) by the Calculation Agent as of the
second Business Day prior to each Interest Reset Date (a "Commercial Paper
Interest Determination Date") and shall be the Money Market Yield (as defined
below) on such Commercial Paper Interest Determination Date of the rate for
commercial paper having the Index Maturity designated on the face hereof, as
such rate is published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates" ("H.15(519)"), or
any successor publication, under the heading "Commercial Paper." In the event
such rate is not published prior to 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Commercial Paper Interest Determination
Date, then the Commercial Paper Rate shall be the Money Market Yield (calculated
as described below) on such Commercial Paper Interest Determination Date of the
rate for Commercial Paper of the specified Index Maturity as published by the
Federal Reserve Bank of New York in its daily statistical release, "Composite
3:30 P.M. Quotations for U.S. Government Securities" ("Composite Quotations")
under the heading "Commercial Paper." If by 3:00 P.M., New York City time, on
such Calculation Date such rate is not yet published in either H.15(519) (or any
successor publication) or Composite Quotations, then the Commercial Paper Rate
shall be the Money Market Yield of the arithmetic mean (each as rounded to the
nearest one hundred-thousandth of a percentage point) of the offered rates as of
11:00 A.M., New York City time, on such Commercial Paper Interest Determination
Date of three leading dealers of commercial paper in The City of New York
selected by the Calculation Agent for commercial paper of the Index Maturity
designated on the face hereof, placed for an industrial issuer whose bond rating
is "AA," or the equivalent from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting offered rates as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the rate of interest in effect on such
Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded to the nearest one hundred-thousandth of a percentage point) calculated
in accordance with the following formula:
D x 360
Money Market Yield = ----------------- x 100
360-(D x M)
where "D" refers to the applicable per annum rate for the commercial paper
quoted on a bank discount basis and expressed as a decimal, and "M" refers to
the actual number of days in the Index Maturity.
Determination of LIBOR. If the Base Rate on this Note is LIBOR (a
"LIBOR Note") the interest rate payable with respect to this Note shall be equal
to LIBOR (calculated as described below) plus or minus the Spread, if
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<PAGE> 7
any, specified on the face hereof or multiplied by the Spread Multiplier, if
any, specified on the face hereof. LIBOR shall be calculated as follows:
(i) On the second London Banking Day prior to the Interest Reset
Date (a "LIBOR Determination Date"), the Calculation Agent
will determine the arithmetic mean of the offered rates for
deposits in United States dollars for the period of the Index
Maturity which appear on the Reuters Screen LIBO Page at
approximately 11:00 A.M., London time, on such LIBOR
Determination Date. "Reuters Screen LIBO Page" means the display
designated as Page "LIBO" on the Reuters Monitor Money Rate
Service (or such other page as may replace the LIBO page on the
service for the purpose of displaying London interbank offered
rates of major banks).
(ii) If fewer than two offered rates appear on the Reuters Screen
LIBO Page, the Calculation Agent will request the principal
London offices of each of four major banks in the London
interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotations for
deposits in United States dollars for the period of the Index
Maturity to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR
Determination Date and in a principal amount equal to an amount
of not less than U.S. $1 million that is representative of a
single transaction in such market at such time. If at least two
such quotations are provided, LIBOR will be the arithmetic mean
of such quotations. If fewer than two quotations are provided,
LIBOR in respect of that LIBOR Determination Date will be the
arithmetic mean of rates quoted by three major banks in The City
of New York selected by the Calculation Agent (after consultation
with the Company) at approximately 11:00 A.M., New York City
time, on such LIBOR Determination Date for loans in U.S. dollars
to leading European banks, for the period of the Index Maturity
and in a principal amount equal to an amount of not less than
U.S. $1 million that is representative for a single transaction
in such market at such time; provided, however, that if fewer
than three banks selected as aforesaid by the Calculation Agent
are quoting rates as mentioned in this sentence, the rate of
interest in effect for the applicable period will be the rate of
interest in effect on such LIBOR Determination Date.
As used herein, "London Banking Day" means any day on which dealing in
deposits in U.S. dollars are transacted in the London interbank market.
Determination of Treasury Rates. If the Base Rate on this Note is the
Treasury Rate (a "Treasury Rate Note") the interest payable with respect to this
Note shall equal the Treasury Rate (calculated as described below) plus or minus
the Spread, if any, specified on the face hereof, or multiplied by the Spread
Multiplier, if any, specified on the face hereof. The Treasury Rate with respect
to an Interest Reset Date shall equal the rate for the auction held on the
Treasury Rate Determination Date (as defined below) pertaining to such Interest
Reset Date of direct obligations of the United States ("Treasury Bills") having
the Index Maturity specified above as published in H.15(519) under the heading
"U.S. Government Securities-Treasury Bills auction average (investment)" or any
successor publication, or, if not so published by 9:00
-7-
<PAGE> 8
A.M., New York City time, on the Calculation Date (defined below) pertaining to
such Treasury Rate Determination Date, the auction average rate (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury. In the event that the results of the auction of Treasury Bills
having the Index Maturity specified above are not published or reported as
provided above by 3:00 P.M., New York City time, on such Calculation Date or if
no such auction is held on such Treasury Rate Determination Date, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Determination Date, of three leading primary United States
government securities dealers selected by the Calculation Agent for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity specified
above; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting bid rates as mentioned in this sentence, the
Treasury Rate for such Interest Reset Date will be the Treasury Rate in effect
on such Interest Reset Date.
The "Treasury Rate Determination Date" pertaining to the Interest Reset
Date will be the day of the week in which such Interest Reset Date falls on
which Treasury Bills would normally be auctioned. Treasury Bills are normally
sold at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is normally held on the following Tuesday, except that
such auction may be held on the preceding Friday. If, as a result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Treasury Rate Determination Date pertaining to the Interest Reset Date occurring
in the next succeeding week.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. The Calculation Agent shall
calculate the interest rate on this Note in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event be
higher than the maximum rate permitted by New York law as the same may be
modified by United States law of general applicability.
The Calculation Agent will, upon the request of the Holder of this
Note, provide to such Holder the interest rate hereon then in effect and, if
determined, the interest rate which will become effective as a result of a
determination rate with respect to the most recent Interest Determination Date.
The Calculation Date, if applicable, pertaining to any Commercial Paper
Interest Determination Date or Treasury Rate Determination Date (an "Interest
Determination Date") shall be the date(s) specified on the face hereof or, if no
such date is specified, the 10th Business Day after such Interest Determination
Date.
"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 are
authorized or required by law or regulation to close in The City of New York and
(i) with respect to Notes denominated in a Specified Currency other than U.S.
dollars or European Currency Units, in the capital city of the country of the
Specified Currency; (ii) with respect to Notes denominated in European Currency
Units, in Brussels, Belgium or (iii) with respect to Notes determined in
accordance with the provisions of the heading "Determination of LIBOR" above, in
the City of London.
-8-
<PAGE> 9
The "Record Date" with respect to any Interest Payment Date
shall be the date 15 calendar days prior to such Interest Payment Date, whether
or not such Interest Payment Date shall be a Business Day, provided, that if the
Maturity Date of this Note is an Interest Payment Date, the Record Date shall be
the Maturity Date.
Interest Payments for this Note will include interest accrued
to but excluding the Interest Payment Date; provided, that, if the Interest
Reset Dates with respect to this Note are weekly, interest payable on any
Interest Payment Date, other than interest payable of any date on which
principal hereof is payable, will include interest accrued to and including the
Record Date immediately preceding such Interest Payment Date. Accrued interest
hereon from the Original Issue Date or from the last date to which interest
hereon has been paid, as the case may be, shall be an amount calculated by
multiplying the face amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factors calculated for
each day from the Original Issue Date or from the last date to which interest
shall have been paid, as the case may be, to the date for which accrued interest
is being calculated. The interest factor (expressed as a decimal rounded upward
to the nearest one hundred-thousandth of a percentage point with five
one-millionths of a percentage point being rounded upward) for each such day
shall be computed by dividing the interest rate (expressed as a decimal, rounded
upward to the nearest one hundred-thousandth of a percentage point with five
one-millionths of a percentage point being rounded upward) applicable to such
day by 360, in the case of Notes determined in accordance with the provisions of
the headings "Determination of LIBOR" and "Determination of Commercial Paper
Rates," or by the actual number of days in the year in the case of Notes
determined in accordance with the provisions of the heading "Determination of
Treasury Rates."
In case an Event of Default with respect to the Notes, as
defined in the Indenture, shall have occurred and be continuing the principal
hereof may be declared and, upon such declaration, shall become due and payable,
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture permits, with certain exceptions as herein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in the principal amount of
the outstanding Securities of each series affected by any such amendment or
modification (with each series voting as a separate class). The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the outstanding Securities of series affected thereby (with
each series voting as a separate class), on behalf of the Holders of all
Securities of such series to waive compliance by the Company with certain
provisions of the Indenture. The Indenture also provides that regarding the
Securities of any series, the Holders of not less than a majority in principal
amount of the outstanding Securities of such series may waive certain past
defaults and their consequences on behalf of the Holders of all Securities of
such series. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
The Indenture contains provisions setting forth certain
conditions to the institution of proceedings by Holders of Securities with
respect to the Indenture or for any remedy under the Indenture.
-9-
<PAGE> 10
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or the obligation of the Company, which is absolute
and to pay the principal of (and premium, if any) and interest on this Note at
the place, at the respective times, at the rates and in the coin or currency
herein prescribed.
The Notes are issuable as registered Notes without coupons. Notes
denominated in US dollars are issuable only in denominations of US $25,000 or
any amount in excess thereof which is an integral multiple of US $1,000. Notes
denominated in a Specified Currency other than US dollars are issuable only in
denominations of the equivalent of US $25,000, or any amount in excess thereof
which is an integral multiple of 1,000 units of such Specified Currency, as
determined by reference to the noon dollar buying rate in New York City for
cable transfers of such Specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance; provided, however, in the case of European
Currency Units, the Market Exchange Rate shall be the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities, or
any successor publication on the Business Day, immediately preceding the date of
issuance. Notes are issuable at the office or agency of the Company referred to
above and in the manner and subject to the limitations provided in the
Indenture. Notes may be exchanged without a service charge for a like aggregate
principal amount of Notes of other authorized denominations having the same
maturity, interest rate, optional redemption provisions and original issue date.
If the principal of, premium, if any, or interest on, this Note is
payable in a Specified Currency other than US dollars and such Specified
Currency is not available to the Company for making payments hereon due to the
imposition of exchange controls or other circumstances beyond the control of
the Company, then the Company will be entitled to satisfy its obligations to
the Holder of this Note by making such payments in US dollars on the basis of
the Market Exchange Rate on the date of such payment or, if the Market Exchange
Rate is not available on such date, as of the most recent Record Date. Any
payment made under such circumstances in US dollars where the required payment
is in a Specified Currency other than US dollars will not constitute an Event
of Default.
Upon due presentment for registration of transfer of this Note at the
above-mentioned office or agency of the Company, a new Note or Notes having the
some maturity, interest rate, original redemption provisions and original issue
date of authorized denominations, for a like aggregate principal amount, will be
issued to the transferee as provided in the Indenture. No service charge shall
be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or rather governmental charge that may be imposed in
relation thereto.
The Company, the Trustee, and any agent of the Company or the Trustee may
deem and treat the Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon) for the purpose of receiving payment of or on account of
the principal hereof and, subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Company nor the
Trustee nor any such agent shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
premium, if any, or interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
-10-
<PAGE> 11
indenture supplemental thereto, against any incorporated, shareholder, officer
or director as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or of any successor
corporation, whether by virtue of any Constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
This Note shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be governed by and construed in
accordance with the laws of said State.
All terms used in this Note which are defined in the indenture shall
have the the meaning assigned to them in the Indenture.
-11-
<PAGE> 12
ABBREVIATIONS
The following abbreviations when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT _______ Custodian __________
(Cust) (Minor)
Under Uniform Gifts to Minor Act _____________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________
_____________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE
_____________________________________________________
_____________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Dated: _______________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
-12-
<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 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 in authorized increments) 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, on 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
-13-
<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 (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
March 12, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Consolidated Balance Sheet of Lucent Technologies Inc. at December 31, 1995 and
the Consolidated Statement of Operations for the year ended December 31, 1995
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 448
<SECURITIES> 0
<RECEIVABLES> 5,602
<ALLOWANCES> 248
<INVENTORY> 3,222
<CURRENT-ASSETS> 10,679
<PP&E> 11,037
<DEPRECIATION> 6,699
<TOTAL-ASSETS> 19,722
<CURRENT-LIABILITIES> 11,063
<BONDS> 172
0
0
<COMMON> 0
<OTHER-SE> 1,434
<TOTAL-LIABILITY-AND-EQUITY> 19,722
<SALES> 21,413
<TOTAL-REVENUES> 21,413
<CGS> 12,945
<TOTAL-COSTS> 22,413
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 302
<INCOME-PRETAX> (1,138)
<INCOME-TAX> (271)
<INCOME-CONTINUING> (867)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (867)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
