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As filed with the Securities and Exchange Commission on August 13, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LUCENT TECHNOLOGIES INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 22-3408857
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
ORGANIZATION)
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600 MOUNTAIN AVENUE
MURRAY HILL, NEW JERSEY 07974
(908) 582-8500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
PAMELA F. CRAVEN, ESQ.
VICE PRESIDENT -- LAW AND SECRETARY
LUCENT TECHNOLOGIES INC.
600 MOUNTAIN AVENUE
MURRAY HILL, NEW JERSEY 07974
(908) 582-8500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING PHONE NUMBER, OF AGENT FOR SERVICE)
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, 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 the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) REGISTRATION FEE
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Debt Securities and Warrants to
Purchase Debt Securities............. $1,800,000,000 100% $1,800,000,000 $500,400.00
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(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 $1,800,000,000, 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 $1,800,000,000.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities act of 1933.
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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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PROSPECTUS SUBJECT TO COMPLETION
DATED AUGUST 13, 1999
$1,800,000,000
LUCENT TECHNOLOGIES
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
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This Prospectus is part of a Registration Statement which Lucent has filed
with the Securities and Exchange Commission as part of a shelf registration
process. Under this process, Lucent may sell Debt Securities, Warrants, or both
in one or more offerings up to a total dollar amount of $1,800,000,000. The
purpose of this Prospectus is to provide the general terms and conditions of the
Debt Securities and Warrants that Lucent intends to issue. The specific terms
and conditions of Debt Securities or Warrants issued in any particular offering
will be provided in supplements to this Prospectus as well as any additions,
update or modifications of this Prospectus. You should read this Prospectus and
any Prospectus Supplement carefully before you make your investment decision.
-------------------------
Neither the Securities and Exchange Commission, nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus and any accompanying Prospectus
Supplement. Any representation to the contrary is a criminal offense.
-------------------------
The date of this Prospectus is August , 1999
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TABLE OF CONTENTS
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PAGE
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Description of Lucent............ 3
Where to Find Additional
Information Regarding Lucent... 3
Ratio of Earnings to Fixed
Charges........................ 4
Use of Proceeds.................. 5
Description of the Indenture and
Debt Securities................ 5
Description of the Warrants...... 11
Plan of Distribution............. 12
Legal Opinions................... 13
Experts.......................... 13
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DESCRIPTION OF LUCENT
Lucent was incorporated in Delaware in November 1995 and has its principal
executive offices at 600 Mountain Avenue, Murray Hill, New Jersey 07974
(telephone number 908-582-8500). Lucent was formed from the systems and
technology units that were formerly a part of AT&T Corp., including the research
and development capabilities of Bell Laboratories. Prior to February 1, 1996,
AT&T conducted Lucent's original business through various divisions and
subsidiaries. On February 1, 1996, AT&T began separating Lucent into a
stand-alone company by transferring to Lucent the assets and liabilities related
to its business. In April 1996, Lucent completed the initial public offering of
its common stock and on September 30, 1996, became independent of AT&T when AT&T
distributed all of its Lucent shares to its shareowners.
Lucent designs, builds, and delivers a wide range of public and private
networks, communication systems and software, data networking systems, business
telephone systems and microelectronic components. Lucent is a global leader in
the sale of public communications systems, and is a supplier of systems or
software to most of the world's largest network operators. Lucent is also a
global leader in the sale of business communications systems and in the sale of
microelectronic components for communications applications to manufacturers of
communications systems and computers. Lucent's research and development
activities are conducted through Bell Laboratories, one of the world's foremost
industrial research and development organizations.
WHERE TO FIND ADDITIONAL INFORMATION REGARDING LUCENT
Lucent files annual, quarterly, and current reports, proxy statements and
other information with the SEC. You may read and copy any reports or other
information that Lucent files with the SEC at the SEC's Public Reference Room
located at 450 Fifth Street, N.W., Washington D.C. 20549. You may also receive
copies of these documents upon payment of a duplicating fee, by writing to the
SEC's Public Reference Section. Please call the SEC at 1-800-SEC-0330 for
further information on the Public Reference Room in Washington D.C. and other
locations. Lucent's SEC filings are also available to the public through the
SEC's web site at http://www.sec.gov.
The SEC allows us to incorporate by reference the information that we file
with them into this document. This means that we can disclose important
information to you by referring you to other documents previously filed
separately with the SEC, including Lucent's annual, quarterly and current
reports. The information incorporated by reference is considered to be a part of
this document, except for any information that is modified or superseded by
information contained in this document or any other subsequently filed document.
The information incorporated by reference is an important part of this
Prospectus and the accompanying Prospectus Supplement. Any information that we
file later with the SEC, specifically, those documents filed pursuant to
sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, will
automatically update and supersede the information in this Prospectus and the
accompanying Prospectus Supplement.
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The following documents have been filed by Lucent with the SEC (File No.
1-11639) and are incorporated by reference into this Prospectus:
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LUCENT SEC FILINGS (FILE NO. 1-11639) PERIOD
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1. Annual Report on Form 10-K Fiscal Year ended September 30, 1998,
as amended by Amendment No. 1 filed on
Form 10-K/A on May 17, 1999
2. Quarterly Reports on Form 10-Q Quarters ended December 31, 1998,
March 31, 1999 and June 30, 1999
3. Current Reports on Form 8-K Filed November 19, 1998, January 8,
1999, January 15, 1999, March 5, 1999,
as amended by Amendment No. 1 filed on
Form 8-K/A on May 18, 1999, June 28,
1999 and August 2, 1999
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Copies of the above documents, along with exhibits specifically
incorporated by reference by this Prospectus or the Prospectus Supplement and
the Company's 1998 Annual Report to Shareowners, may be obtained without charge
from the Secretary's Department, Lucent Technologies Inc., 600 Mountain Avenue,
Murray Hill, New Jersey 07974 (telephone number: 908-582-8500).
No person is authorized to give any information or represent anything not
contained in this Prospectus and the accompanying Prospectus Supplement. We are
only offering the Debt Securities and Warrants in places where sales of those
securities are permitted. The information contained in this Prospectus and any
accompanying Prospectus Supplement, as well as information incorporated by
reference, is current only as of the date of that information. Lucent's
business, financial condition, results of operations and prospects may have
changed since that date.
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.
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9-month period ended June 30, 1999.......................... 9.3
12-month period ended September 30, 1998.................... 6.8
12-month period ended September 30, 1997.................... 4.8
9-month period ended September 30, 1996..................... 3.4
12-month period ended December 31, 1995..................... *
12-month period ended December 31, 1994..................... 3.3
</TABLE>
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* For the year ended December 31, 1995, the ratio of earnings to fixed charges
computation indicates that earnings were inadequate to cover fixed charges by
$1,066 million. The year ended December 31, 1995 includes pre-tax
restructuring and other charges of $2,801 million.
For purposes of determining the ratio of earnings to fixed charges,
earnings are defined as income (loss) from continuing operations before income
taxes, less interest capitalized, less undistributed earnings of less than 50%
owned affiliates and plus fixed charges. Fixed charges consist of interest
expense on all indebtedness and that portion of operating lease rental expense
that is representative of the interest factor. Certain years have been
reclassified to conform to the current period presentation.
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USE OF PROCEEDS
The Company intends to use the proceeds from the sale of the Debt
Securities and Warrants for general corporate purposes including debt repayment
and refinancing, capital expenditures and acquisitions. The specific purpose of
any individual issuance of Debt Securities or Warrants to purchase debt
securities will be described in an appropriate Prospectus Supplement. The amount
and timing of the sales of the Debt Securities and Warrants will depend on
market conditions.
DESCRIPTION OF THE INDENTURE AND DEBT SECURITIES
The Debt Securities will be issued under and controlled by an Indenture
dated as of April 1, 1996, between Lucent and The Bank of New York, as Trustee.
The following sections briefly outline the provisions of the Indenture. The
Indenture has been filed as an exhibit to the Registration Statement and you
should read it in its entirety in order to completely understand its terms and
conditions. Lucent and the Trustee, with the consent of a majority in principal
amount of the outstanding Debt Securities of each series affected, may modify or
supplement the terms of the Indenture. Any modification would result in a
Supplemental Indenture. However, no Supplemental Indenture may, without the
consent of each holder affected, change: (1) a maturity date; (2) the principal
amount; (3) any premium; (4) the interest rate; (5) the time of interest
payment; (6) the authorized currency; or (7) the percentage of outstanding Debt
Securities required for debt holder action. In addition to the Indenture, Lucent
and the Bank of New York have had, and continue to have, other customary banking
agreements and arrangements, including stock transfer agent, lending and
depository relationships.
GENERAL TERMS
The Debt Securities:
- represent direct, unsecured, unsubordinated obligations of Lucent;
- will rank equally with Lucent's other unsecured, unsubordinated debt;
- may be issued in one or more series with the same or various maturities;
- may be issued at a price of 100% of their principal amount or at a
premium or discount;
- may be issued in registered or bearer form and certificated or
uncertificated form; and
- may be represented by one or more global notes registered in the name of
a designated depository's nominee, and if so, beneficial interests in the
global note will be shown on and transfers will be made only through
records maintained by the designated depository and its participants.
Unless we state otherwise in a prospectus supplement, we will not offer, sell or
deliver any bearer debt securities, including any bearer securities issued in
global form, to any United States person. By United States person we mean 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
of its political subdivisions, or an estate or trust whose income is subject to
United States federal income taxation regardless of its source.
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The Prospectus Supplement for any individual issuance of Debt Securities
will describe in detail, if applicable:
- the total principal amount of the Debt Securities;
- the percentage of the principal amount at which the Debt Securities will
be sold;
- the date(s) on which the Debt Securities will mature, or whether such
Debt Securities will be payable on demand;
- the interest rate(s) that the Debt Securities will bear and the method of
calculating the rate(s);
- the interest payment date(s);
- the terms for redemption or early repayment;
- the authorized denominations in which the Debt Securities will be issued;
- the currency in which the Debt Securities will be denominated;
- the currency in which the principal of or any premium or interest will be
payable, if different than the currency in which the Debt Securities are
denominated;
- the manner in which payments of principal of and any premium or interest
on the Debt Securities will be determined if the payment is to be based
upon one or more indexes;
- whether the Debt Securities will be issuable in registered or bearer form
or both, and whether the Debt Securities shall be certificated or
uncertificated;
- whether the Debt Securities will be represented by one or more 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;
- information regarding book-entry procedures;
- whether and under what circumstances the Company will pay additional
amounts on any Debt Securities 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 the Debt Securities
rather than pay such additional amounts; and
- any other terms, including any terms which may be required by or
advisable under United States laws and regulations and laws of other
relevant jurisdictions or advisable in connection with the marketing of
the Debt Securities.
PAYMENT AND TRANSFER
Unless we state otherwise in a Prospectus Supplement, if you have Debt
Securities in registered form, we will make principal and interest payments at
the office of the paying agent or agents that we will name in the Prospectus
Supplement or by mailing a check to you at the address we have for you in the
register. You may also exchange registered Debt Securities at the office of the
transfer agent for an equal aggregate principal amount of registered Debt
Securities of the same series having the same maturity date, interest rate and
other terms as long as the debt securities are issued in authorized
denominations.
If you have Debt Securities in bearer form, we will pay interest to you
when you present and surrender the interest coupon for that interest payment at
the office of our
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paying agent located outside the United States. Bearer securities and coupons
are transferable by delivery. Unless we describe other procedures in a
Prospectus Supplement, you will be able to transfer registered Debt Securities
at the office of the transfer agent or agents we name in the Prospectus
Supplement.
Bearer Debt Securities may be exchanged for an equal aggregate principal
amount of registered or bearer Debt Securities 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
Debt Securities with all unpaid coupons to a transfer or paying agent as
specified in the Prospectus Supplement and upon fulfillment of all other
requirements of such agent.
A Prospectus Supplement will describe the procedures for exchanging bearer
Debt Securities, if applicable. Registered Debt Securities can never be
exchanged for bearer Debt Securities.
Neither Lucent nor the Trustee will impose any service charge for any
transfer or exchange of a Debt Security, however, we may ask you to pay any
taxes or other governmental charges in connection with a transfer or exchange of
Debt Securities.
Unless we indicate otherwise in an applicable Prospectus Supplement, we
will issue Debt Securities only in denominations of $25,000 and integral
multiples of $1,000 over $25,000. If we issue Debt Securities in a foreign
currency, we will specify the authorized denominations in the Prospectus
Supplement.
If we issue original issue discount Debt Securities, we will describe the
special United States federal income tax and other considerations of a purchase
of original issue discount Debt Securities in the Prospectus Supplement.
Original issue discount Debt Securities are securities that are issued at a
substantial discount below their principal amount because they pay no interest
or pay interest that is below market rates at the time of issuance.
COVENANTS
For your benefit, we have agreed in the Indenture to restrict certain of
our activities as long as the Debt Securities are outstanding. Some of those
restrictions are described below. Because several definitions are both specific
and complex, we have provided a separate definitions section to help you to
understand certain capitalized terms in this section.
LIMITATION ON SECURED INDEBTEDNESS.
We have agreed in the Indenture that we will not, nor will we permit any
Restricted Subsidiary to, create, assume, incur or guarantee any Secured
Indebtedness unless we secure the Debt Securities to the same extent as such
Secured Indebtedness. However, we may incur Secured Indebtedness without
securing these Debt Securities if, immediately after incurring the Secured
Indebtedness, the aggregate amount of all Secured Indebtedness and the
discounted present value of all net rentals payable under leases entered into in
connection with sale and leaseback transactions described below would not exceed
15% of Consolidated Net Tangible Assets. The aggregate amount of all Secured
Indebtedness in the preceding sentence excludes Secured Indebtedness which is
secured to the same extent as the amount of Debt Securities that is being repaid
concurrently. (Section 4.03)
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
We have agreed in the Indenture that we will not, nor will we permit any
Restricted Subsidiary to, enter into any lease longer than three years,
excluding leases of newly
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acquired, improved or constructed property, covering any Principal Property of
Lucent or any Restricted Subsidiary that is sold to any other person in
connection with the 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 it became a
Restricted Subsidiary); and
(ii) the aggregate amount of all Secured Indebtedness, excluding Secured
Indebtedness which is secured to the same extent as the Debt
Securities,
does not exceed 15% of Consolidated Net Tangible Assets, or
(b) an amount equal to the greater of:
(i) the net proceeds to Lucent or a Restricted Subsidiary from such
sale; and
(ii) the discounted present value of all net rentals payable thereunder,
is used within 180 days to retire long-term debt of Lucent or a Restricted
Subsidiary. However, debt which is subordinate to the Debt Securities or
which is owed to Lucent or a Restricted Subsidiary does not qualify.
(Section 4.04)
LIMITATION ON CONSOLIDATION, MERGER, SALE OR CONVEYANCE OF ASSETS.
Lucent is permitted to consolidate with or merge into any other corporation
or convey or transfer substantially all of its properties and assets to any
other person or corporation, if the person or corporation is authorized to
acquire and operate Lucent's property. We have agreed that the successor
corporation will expressly agree to pay the principal of and any premium or any
interest on all the Debt Securities and the performance of every covenant in the
Indenture that we would otherwise have to perform. The Indenture does not
contain any covenants or provisions which would protect the holders of Debt
Securities in the event of a highly leveraged transaction. (Section 5.01)
CERTAIN DEFINITIONS.
"Secured Indebtedness" means indebtedness of Lucent or any Restricted
Subsidiary secured by any lien upon any Principal Property or the stock or
indebtedness of a Restricted Subsidiary or any conditional sale or other title
retention agreement covering any Principal Property or Restricted Subsidiary.
However, this definition specifically excludes all indebtedness:
- that was outstanding on February 1, 1996;
- 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;
- secured by liens on Principal Property or the stock or indebtedness of
Restricted Subsidiaries and existing at the time of acquisition of the
property, stock or indebtedness;
- owing to Lucent or any other Restricted Subsidiary;
- existing at the time a corporation becomes a Restricted Subsidiary;
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- incurred to finance the acquisition or construction of property in favor
of any country or any political subdivisions; and
- replacing, extending or renewing of any such indebtedness (to the extent
such indebtedness is not increased). (Section 1.01)
"Principal Property" means land, land improvements, buildings and
associated factory, laboratory, office and switching equipment (excluding all
products marketed by Lucent or any of its subsidiaries) constituting a
manufacturing, development, warehouse, service, office or operating facility
owned by or leased to Lucent 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 Lucent and its Restricted
Subsidiaries taken as a whole, or in which the interest of Lucent and all its
subsidiaries does not exceed 50%. (Section 1.01)
"Consolidated Net Tangible Assets" means the total assets of Lucent and its
Subsidiaries, less current liabilities and certain intangible assets (other than
product development costs). (Section 1.01)
"Restricted Subsidiary" means any Subsidiary of Lucent 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 Lucent 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 Lucent or any Restricted
Subsidiary. Additionally, this definition includes any other Subsidiary
designated by Lucent's Board of Directors as a Restricted Subsidiary. (Section
1.01)
"Subsidiary" means any corporation a majority of the voting shares of which
are at the time owned or controlled directly or indirectly, by Lucent or a
Subsidiaries. (Section 1.01)
EVENTS OF DEFAULT, NOTICE AND WAIVER
If an Event of Default under the Indenture occurs and continues, either the
Trustee or the holders of 25% in principal amount of the outstanding Debt
Securities of any series affected may declare the principal of all of the Debt
Securities of such series to be due and payable. (Section 6.01). Any individual
issuance of Debt Securities may have additional or different Events of Default
from the Events of Default described herein. The Prospectus Supplement relating
to any individual issuance will describe such additions or modifications. A
default under our other indebtedness will not be a default under the Indenture,
and a default under one series of Debt Securities under the Indenture will not
necessarily be a default under another series. Unless otherwise specified in a
Prospectus Supplement, an event of default occurs when:
- Lucent fails to pay interest due on any Debt Security for 90 days;
- Lucent fails to pay principal of or premium on any Debt Securities when
due;
- Lucent breaches any agreement under the Indenture which continues for 90
days after written notice by the Trustee or holders of 25% of the
principal amount of the Debt Securities of any affected series; or
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- Lucent takes certain legal actions relating to bankruptcy, insolvency and
reorganization. (Section 6.01)
If a default occurs, the Trustee will notify the holders of such series of
all uncured and unwaived defaults known to it within 90 days. For the purpose of
this provision, default means any event which is, or after notice or passage of
time or both would be, an Event of Default. However, if the Trustee determines
in good faith that withholding notices is in the interest of the holders of such
series it may do so except in the case of a payment default. (Section 7.05)
The Trustee, subject to its duty during an Event of Default in respect of
any series of Debt Securities to act with the required standard of care, can
refuse to perform any duty or exercise any right or power unless it received
indemnity satisfactory to it. If indemnity is provided, the Indenture provides
that the holders of a majority in principal amount of the outstanding Debt
Securities of any series may direct the time, method and place of conducting
proceedings for remedies available to the Trustee, or exercising any trust or
power conferred on the Trustee, in respect of such series. (Sections 6.06 and
7.01)
If an Event of Default for any series of Debt Securities occurs and
continues, the Trustee or the holders of at least 25% in aggregate principal
amount of the Debt Securities of the series may require us to repay the entire
principal of the Debt Securities of such series or, if the Debt Securities are
original issue discount securities, the appropriate portion of the principal,
immediately. The holders of a majority of the aggregate principal amount of the
Debt Securities of the affected series can rescind this accelerated payment
requirement or waive any past default or Event of Default or allow us to not
comply with any provision of the Indenture. However, they cannot waive a default
in payment of principal of, premium, if any, or interest on, any of the Debt
Securities of such series. (Sections 6.01 and 6.06)
The terms for any series of Debt Securities may provide that the holders of
Debt Securities of such series shall act as one class together with the holders
of Debt Securities 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
If we deposit with the Trustee sufficient cash or U.S. government
securities to pay the principal, interest, any premium and any other sums due to
the stated maturity date or a redemption date of the Debt Securities of a
particular series, then at our option, we will be discharged from our
obligations with respect to the Debt Securities of such series or we will no
longer be under any obligation to comply with certain restrictive covenants
under the Indenture, and certain Events of Default will no longer apply to us.
The sufficiency of the deposit must be certified by a nationally recognized firm
of independent public accountants. (Sections 8.01 and 8.06)
If we achieve discharge and defeasance, the holders of the Debt Securities
of the affected series will not be entitled to the benefits of the Indenture
except for registration of transfer and exchange of Debt Securities and
replacement of lost, stolen or mutilated Debt Securities. Such holders may look
only to such deposited funds or obligations for payment.
Additionally, Lucent must deliver to the Trustee an opinion of counsel to
the effect that the deposit and related defeasance would not cause the holders
of the Debt Securities to recognize income, gain or loss for Federal income tax
purposes.
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DESCRIPTION OF THE WARRANTS
The Company may issue Warrants for the purchase of Debt Securities.
Warrants may be issued independently or together with any Debt Securities
offered by any Prospectus Supplement and may be attached to or separate from
such Debt Securities. The Warrants will be issued in one or more series under a
Warrant Agreement to be entered into between Lucent and a bank or trust company,
as Warrant Agent. The details of any series of Warrants will be set forth in the
applicable Prospectus Supplement. 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 summarizes certain provisions of
the form of Warrant Agreement. You should read the form of Warrant agreement
which was filed on an exhibit to the Registration Statement.
GENERAL TERMS
The Prospectus Supplement for any individual issuance will describe in
detail, if applicable:
- The offering price and currency for which the Warrants may be purchased;
- The dates upon which the right to exercise the Warrants will commence and
expire;
- If the Warrants are not continuously exercisable, the specific date or
dates on which they can be exercised;
- Whether the Warrants will be issued in registered or bearer form or both
and whether they will be issued in certificated or uncertificated form;
- The terms of the Debt Securities which holders of Warrants can purchase
and the price to be paid to Lucent upon exercise;
- If the Debt Securities to be purchased upon will be issued in bearer
form, any applicable restrictions;
- If Warrants are issued together with a series of Debt Securities, the
name of such Debt Securities, their terms, the number of Warrants
accompanying each such Debt Security, and the date that the Warrants and
Debt Securities will become separately transferable;
- Any special United States Federal tax implications of the Warrants or
their exercise; and
- Any other specific terms of the Warrants.
Warrant Certificates may be exchanged for new Warrant Certificates of
different denominations, transferred, and exercised at the corporate trust
office of the Warrant Agent or any other office indicated in the applicable
Prospectus Supplement. Prior to the exercise of their Warrants, holders of
Warrants will not have any of the rights of holders of the Debt Securities.
EXERCISE OF WARRANTS
Warrant holders will be able to purchase the principal amount of Debt
Securities at the exercise price designated in the Prospectus Supplement
relating to the Warrants. Warrants may not be exercised after 5:00 P.M. New York
time on the expiration date. Any Warrants unexercised by that time and date will
become void. Unless otherwise
11
<PAGE> 13
set forth in the applicable Prospectus Supplement, holders of Warrants may
exercise them by delivering properly completed Warrant certificates and payment
of the exercise price to the Warrant Agent at its corporate trust office. As
soon as practicable after such delivery, we will issue and deliver to the
indicated holder the Debt Securities purchasable upon exercise. If a holder does
not exercise all the Warrants represented by a particular certificate, we will
also issue a new certificate for the remaining number of Warrants.
PLAN OF DISTRIBUTION
Lucent may sell the Debt Securities and Warrants in four ways:
- through underwriters;
- through dealers;
- through agents; and
- directly to purchasers.
If Lucent uses underwriters in an offering of securities using this
Prospectus, we will execute an underwriting agreement with one or more
underwriters. The names of those underwriters and the terms of the transaction
will be set forth in the applicable Prospectus Supplement. The underwriting
agreement will provide that the obligations of the underwriters with respect to
a sale of the offered securities are subject to specified conditions precedent
and that the underwriters will be obligated to purchase all of the offered
securities if any are purchased. Underwriters may sell those securities through
dealers. The underwriters may change the initial offering price and any
discounts or concessions allowed or re-allowed or paid to dealers. If Lucent
uses underwriters in an offering of securities using this Prospectus, the
applicable Prospectus Supplement will contain a statement regarding the
intention, if any, of the underwriters to make a market in the offered
securities. If Lucent uses a dealer in an offering of securities using this
Prospectus, we will sell the offered securities to the dealer as principal. The
dealer may then resell those securities to the public or other dealers at a
fixed price or varying prices to be determined at the time of resale. If Lucent
designates an agent or agents in an offering of securities using this
Prospectus, unless otherwise indicated in a Prospectus Supplement, that agent
will be acting on a best efforts basis for the period of its appointment.
Underwriters, dealers or agents participating in a distribution of
securities using this Prospectus may be deemed to be underwriters under the
Securities Act and any discounts and commissions received by them and any profit
realized by them on resale of the offered securities, whether received from us
or from purchasers of offered securities for whom they act as agents, will be
disclosed in the Prospectus Supplement. Pursuant to agreements that we may enter
into, underwriters, dealers or agents who participate in the distribution of
securities by use of this prospectus may be entitled to indemnification by us
against certain liabilities, including liabilities under the Securities Act, or
contribution with respect to payments that those underwriters, dealers or agents
may be required to make.
We may offer to sell securities, either at a fixed price or prices which
may be changed, at market prices prevailing at the time of sale, at prices
related to prevailing market prices or at negotiated prices.
We may authorize underwriters, and agents to solicit offers by certain
institutions to purchase securities pursuant to delayed delivery contracts
providing for payment and
12
<PAGE> 14
delivery on a future date specified in the Prospectus Supplement. Institutions
with which delayed delivery contracts may be made include commercial and savings
banks, insurance companies, educational and charitable institutions and other
institutions we may approve. The obligations of any purchaser under any delayed
delivery contract will not be subject to any conditions except that any related
sale of offered securities to underwriters shall have occurred and the purchase
by an institution of the securities covered by its delayed delivery contract
shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which that institution is subject. Any
commission paid to agents and underwriters soliciting purchases of securities
pursuant to delayed delivery contracts accepted by us will be detailed in the
Prospectus Supplement.
We may also use this Prospectus to directly solicit offers to purchase
securities. Except as set forth in the applicable Prospectus Supplement, none of
our directors, officers or employees, nor those of our bank subsidiaries will
solicit or receive a commission in connection with those direct sales. Those
persons may respond to inquiries by potential purchasers and perform ministerial
and clerical work in connection with direct sales.
LEGAL OPINIONS
The validity of the Debt Securities and Warrants offered in this
Prospectus, as well as certain other legal matters, will be passed upon by
Pamela F. Craven, Vice President-Law and Secretary, of the Company. As of August
3, 1999, Pamela F. Craven owned 1,096 shares of Lucent Common Stock and options
and Stock units for 282,400 shares of Lucent Common Stock. Cravath, Swaine &
Moore is passing upon the legality of the Debt Securities and Warrants for the
Underwriters, dealers and agents, if any.
EXPERTS
The consolidated balance sheets of Lucent as of September 30, 1998 and 1997
and the related consolidated statements of income, changes in shareowners'
equity and cash flows for each of the two years in the period ended September
30, 1998 and for the nine month period ended September 30, 1996, included in
Lucent's Current Report on Form 8-K filed August 2, 1999 have been incorporated
by reference in this prospectus in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants given on the authority of
that firm as experts in accounting and auditing.
13
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses in connection with
the sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates
except the Securities and Exchange Commission registration fees and the New York
Stock Exchange listing fee.
<TABLE>
<CAPTION>
TO BE PAID
BY THE REGISTRANT
-----------------
<S> <C>
SEC Registration Fee........................... $500,400
Rating Agency Fees............................. $ 50,000*
Fees and Expenses of the Trustee............... $ 15,000*
Blue Sky Fees and Expenses..................... $ 5,000*
Printing and Distributing Prospectus and
Miscellaneous Material....................... $150,000*
Accounting Fees and Expenses................... $ 15,000*
Legal Fees and Expenses........................ $ 50,000*
Miscellaneous.................................. $ 14,600*
--------
Total.......................................... $800,000*
========
</TABLE>
- ---------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant's Certificate of Incorporation provides that a director of
the registrant shall not be personally liable to the registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except, if required by the Delaware General Corporation Law, for liability (1)
for any breach of the director's duty of loyalty to the registrant or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of
the Delaware General Corporation Law, which concerns unlawful payments of
dividends, stock purchases or redemptions or (4) for any transaction from which
the director derived an improper personal benefit. Neither the amendment nor
repeal of such provision shall 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.
While the registrant's Certificate of Incorporation provides directors with
protection from awards for monetary damages for breach of their duty of care, it
does not eliminate such duty. Accordingly, the registrant's Certificate of
Incorporation will have no effect on the availability of equitable remedies such
as an injunction or rescission based on a director's breach of his or her duty
of care.
The registrant's Certificate of Incorporation provides that each person who
was or is made a party to or is threatened to be made a party to or is involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a
II-1
<PAGE> 16
"proceeding"), 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
registrant or is or was serving at the request of the registrant 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, shall be
indemnified and held harmless by the registrant to the fullest extent authorized
by the Delaware General Corporation Law, 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 registrant to provide broader indemnification rights than
said law permitted the registrant 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 registrant pay the expenses incurred in defending any such proceeding
in advance of its final disposition, subject to the provisions of the Delaware
General Corporation Law. Such rights are not exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of the
registrant's Certificate of Incorporation or By-laws, 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 registrant thereunder in respect of
any occurrence or matter arising prior to any such repeal or modification.
The registrant's Certificate of Incorporation also specifically authorizes
the registrant to maintain insurance and to grant similar indemnification rights
to employees or agents of the registrant. The directors and officers of the
registrant are covered by insurance policies indemnifying them against certain
liabilities, including certain liabilities arising under the Securities Act of
1933, which might be incurred by them in such capacities.
ITEM 16. EXHIBITS.
See exhibit index.
ITEM 17. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, 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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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 the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
II-2
<PAGE> 17
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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 the
registration statement 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.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, 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 Securities 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, officer, or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person 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 Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Murray Hill, State of New Jersey on August 13, 1999.
LUCENT TECHNOLOGIES INC.
By: /s/ JAMES S. LUSK
---------------------------------------
Name: James S. Lusk
Title: Vice President and Controller
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>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman of the Board and Chief August 13, 1999
- ------------------------------------------ Executive Officer
Richard A. McGinn
* Executive Vice President and Chief August 13, 1999
- ------------------------------------------ Financial Officer (Principal Financial
Donald K. Peterson Officer)
/s/ JAMES S. LUSK Vice President and Controller August 13, 1999
- ------------------------------------------ (Principal Accounting Officer)
James S. Lusk
* Director August 13, 1999
- ------------------------------------------
Paul A. Allaire
* Director August 13, 1999
- ------------------------------------------
Carla A. Hills
* Director August 13, 1999
- ------------------------------------------
Drew Lewis
* Director August 13, 1999
- ------------------------------------------
Paul H. O'Neill
* Director August 13, 1999
- ------------------------------------------
Donald S. Perkins
* Director August 13, 1999
- ------------------------------------------
Franklin Thomas
</TABLE>
II-4
<PAGE> 19
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director August 13, 1999
- ------------------------------------------
Henry B. Schacht
* Director August 13, 1999
- ------------------------------------------
John A. Young
</TABLE>
James S. Lusk, by signing his name hereto, does hereby sign and execute
this Registration Statement on behalf of each of the above-name officers and
directors of Lucent Technologies Inc. pursuant to powers of attorney executed by
each such officer and director and filed with the Securities and Exchange
Commission as an Exhibit to this Registration Statement.
August 13, 1999
/s/ JAMES S. LUSK
- ------------------------------
James S. Lusk
Attorney-in-fact
II-5
<PAGE> 20
INDEX TO EXHIBITS
The exhibits identified in parenthesis below, on file with the SEC, are
incorporated herein as exhibits hereto.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
Exhibit 1.1 Form of Underwriting Agreement (Exhibit 1A to Registration
Statement No. 333-01223 on Form S-3)
Exhibit 1.2 Form of Distribution Agreement (Exhibit 1B to Registration
Statement No. 333-01223 on Form S-3)
Exhibit 1.3 Form of International Distribution Agreement (Exhibit 1C to
Registration Statement No. 333-01223 on Form S-3)
Exhibit 4.1 Indenture dated as of April 1, 1996 between Lucent and the
Bank of New York as Trustee
Exhibit 4.2 Form of Permanent Global Registered Fixed Rate Note (Exhibit
4B of Registration Statement No. 333-01223 on Form S-3)
Exhibit 4.3 Form of Definitive Registered Fixed Rate Note (Exhibit 4C of
Registration Statement No. 333-01223 on Form S-3)
Exhibit 4.4 Form of Temporary Global Bearer Fixed Rate Note (Exhibit 4D
of Registration Statement No. 333-01223 on Form S-3)
Exhibit 4.5 Form of Permanent Global Bearer Fixed Rate Note (Exhibit 4E
of Registration Statement No. 333-01223 on Form S-3)
Exhibit 4.6 Form of Definitive Bearer Fixed Rate Note (Exhibit 4F of
Registration Statement No. 333-01223)
Exhibit 4.7 Form of Warrant Agreement (Exhibit 4G of Registration
Statement No. 333-01223 on Form S-3)
Exhibit 4.8 Form of Medium Term Global Floating Rate Note, Registered
Securities (Exhibit 4H of Registration Statement No.
333-01223 on Form S-3)
Exhibit 4.9 Form of Medium Term Definitive Floating Rate Note,
Registered Security (Exhibit 4I of Registration Statement
No. 333-01223 on Form S-3)
Exhibit 5.1 Opinion of Pamela F. Craven, Vice President - Law and
Secretary of the Registrant as to the legality of the
securities being registered
Exhibit 12 Computation of Earnings to Fixed Charges
Exhibit 23.1 Consent of PricewaterhouseCoopers LLP
Exhibit 23.2 Consent of Pamela F. Craven, Vice President - Law and
Secretary of the Registrant (contained in Exhibit 5.1)
Exhibit 24 Powers of Attorney
Exhibit 25 Statement of Eligibility of the Trustee (Form T-1)
Exhibit 27 Financial Data Schedule
</TABLE>
II-6
<PAGE> 1
Exhibit 4.1
LUCENT TECHNOLOGIES INC.
AND
THE BANK OF NEW YORK
TRUSTEE
----------
INDENTURE
DATED AS OF APRIL 1, 1996
----------
SECURITIES
<PAGE> 2
Reconciliation and tie between Indenture dated as of April 1, 1996 and the Trust
Indenture Act of 1939. This reconciliation section does not constitute part of
the Indenture.
<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939 Section Section
- --------------- -------
<S> <C>
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
</TABLE>
<PAGE> 3
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES...................................................................................... 1
RECITALS OF THE COMPANY: 1
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............................................................. 1
Attributable Debt................................................. 1
Authorized Newspaper.............................................. 1
Board of Directors................................................ 1
Board Resolution.................................................. 2
Company........................................................... 2
Company Order..................................................... 2
Consolidated Net Tangible Assets.................................. 2
Default........................................................... 2
Depositary........................................................ 2
Funded Debt....................................................... 2
Global Security................................................... 2
Holder or Securityholder.......................................... 2
Indebtedness...................................................... 2
Indenture......................................................... 2
Lien.............................................................. 3
Officer........................................................... 3
Officers' Certificate............................................. 3
Opinion of Counsel................................................ 3
Original Issue Discount Security.................................. 3
Principal......................................................... 3
Principal Property................................................ 4
Registered Security............................................... 4
Responsible Officer............................................... 4
Restricted Securities............................................. 4
Restricted Subsidiary............................................. 4
Sale and Leaseback Transaction.................................... 4
SEC............................................................... 4
Secured Indebtedness.............................................. 5
Series or Series of Securities.................................... 6
Securities........................................................ 6
Subsidiary........................................................ 6
TIA............................................................... 6
</TABLE>
- -----------------
* The Table of Contents is not part of the Indenture.
i
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1. (Continued)
Trust Indenture Act of 1939................................................................... 6
Trustee....................................................................................... 6
U.S. Government Obligations................................................................... 6
U.S. Person................................................................................... 7
Unregistered Security......................................................................... 7
Voting Shares................................................................................. 7
Yield to Maturity............................................................................. 7
Section 1.02. Other Definitions............................................................... 7
Section 1.03. Incorporation by Reference of Trust Indenture Act............................... 7
Section 1.04. Rules of Construction........................................................... 8
ARTICLE 2.
THE SECURITIES.
Section 2.01. Issuable in Series.............................................................. 8
Section 2.02. Establishment of Terms and Form of Series of Securities......................... 8
Section 2.03. Execution, Authentication and Delivery.......................................... 10
Section 2.04. Registrar and Paying Agent...................................................... 12
Section 2.05. Payment on Securities........................................................... 12
Section 2.06. Paying Agent to Hold Money in Trust............................................. 13
Section 2.07. Securityholder Lists; Ownership of Securities................................... 13
Section 2.08. Transfer and Exchange........................................................... 13
Section 2.09. Replacement Securities.......................................................... 14
Section 2.10. Outstanding Securities.......................................................... 14
Section 2.11. Temporary Securities; Global Securities......................................... 15
Section 2.12. Cancellation.................................................................... 16
Section 2.13. Defaulted Interest.............................................................. 16
Section 2.14. CUSIP Numbers................................................................... 16
ARTICLE 3.
REDEMPTION.
Section 3.01. Notice to Trustee............................................................... 17
Section 3.02. Selection of Securities to be Redeemed.......................................... 17
Section 3.03. Notice of Redemption............................................................ 17
Section 3.04. Effect of Notice of Redemption.................................................. 18
Section 3.05. Deposit of Redemption Price..................................................... 18
Section 3.06. Mandatory and Optional Sinking Funds............................................ 18
ARTICLE 4.
COVENANTS.
Section 4.01. Payment of Securities........................................................... 20
Section 4.02. Reports by the Company.......................................................... 20
Section 4.03. Limitations on Liens............................................................ 21
Section 4.04. Limitations and Sales on Leasebacks............................................. 21
Section 4.05. Waiver of Covenants............................................................. 22
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01. Consolidation, Merger, Sale or Conveyance....................................... 22
Section 5.02. Assumption and Substitution..................................................... 22
Section 5.03. Opinion of Counsel.............................................................. 23
ARTICLE 6.
DEFAULTS AND REMEDIES.
Section 6.01. Events of Default; Acceleration of Maturity; Waiver of Default.................. 23
Section 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt................... 25
Section 6.03. Application of Proceeds......................................................... 26
Section 6.04. Limitation on Suits by Securityholders.......................................... 27
Section 6.05. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default 27
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 6.06. Control by Securityholders; Waiver of Defaults.................................. 28
Section 6.07. Right of Court to Require Filing of Undertaking to Pay Costs.................... 28
ARTICLE 7.
TRUSTEE.
Section 7.01. Duties of Trustee............................................................... 29
Section 7.02. Rights of Trustee............................................................... 29
Section 7.03. Individual Rights of Trustee.................................................... 30
Section 7.04. Trustee Disclaimer.............................................................. 30
Section 7.05. Notice of Default............................................................... 30
Section 7.06. Reports by Trustee to Holders................................................... 31
Section 7.07. Compensation and Indemnity...................................................... 31
Section 7.08. Replacement of Trustee.......................................................... 31
Section 7.09. Successor Trustee, Agents by Merger, etc........................................ 33
Section 7.10. Eligibility; Disqualification................................................... 33
Section 7.11. Preferential Collection of Claims Against Company............................... 33
ARTICLE 8.
DISCHARGE OF INDENTURE.
Section 8.01. Satisfaction and Discharge of Indenture......................................... 33
Section 8.02. Defeasance upon Deposit of Monies or U.S. Government Obligations................ 34
Section 8.03. Application of Monies Deposited................................................. 35
Section 8.04. Repayment of Monies Held........................................................ 35
Section 8.05. Return of Monies Unclaimed for Two Years........................................ 35
Section 8.06. Indemnity for Government Obligations............................................ 35
ARTICLE 9.
AMENDMENTS AND WAIVERS.
Section 9.01. Without Consent of Holders...................................................... 36
Section 9.02. With Consent of Holders......................................................... 36
Section 9.03. Compliance with Trust Indenture Act............................................. 37
Section 9.04. Revocation and Effect of Consents............................................... 37
Section 9.05. Notation on or Exchange of Securities........................................... 37
Section 9.06. Trustee Protected............................................................... 37
ARTICLE 10.
MISCELLANEOUS.
Section 10.01. Trust Indenture Act Controls................................................... 37
Section 10.02. Notices........................................................................ 37
Section 10.03. Communication by Holders with Other Holders.................................... 38
Section 10.04. Certificate and Opinion as to Conditions Precedent............................. 39
Section 10.05. Statements Required in Certificate or Opinion.................................. 39
Section 10.06. Legal Holidays................................................................. 39
Section 10.07. Governing Law.................................................................. 39
Section 10.08. No Adverse Interpretation of Other Agreements.................................. 39
Section 10.09. No Recourse Against Others..................................................... 39
Section 10.10. When Treasury Securities Disregarded........................................... 40
Section 10.11. Rules by Trustee, Paying Agent, Registrar...................................... 40
Section 10.12. Execution in Counterparts...................................................... 40
Section 10.13. Securities in a Foreign Currency............................................... 40
Section 10.14. Judgment Currency.............................................................. 41
SIGNATURES AND SEALS.......................................................................... 42
ACKNOWLEDGMENTS............................................................................... 43
</TABLE>
iii
<PAGE> 6
INDENTURE dated as of April 1, 1996, between Lucent Technologies Inc., a
corporation duly organized and validly existing under the laws of the State of
Delaware (the "Company"), and The Bank of New York, as trustee, a corporation
duly organized and validly existing under the laws of the State of New York (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness ("Securities") as herein provided.
All things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.01. DEFINITIONS.
"Affiliate" means any person directly or indirectly controlling or controlled
by, or under direct or indirect common control with, the Company.
"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 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.
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"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 liabilities as shown on such balance sheet and (b) Intangible
Assets. "Intangible Assets" means the value (net of any applicable reserves), as
shown on or reflected in such balance sheet, of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii) organization costs;
and (iii) deferred charges (other than prepaid items such as insurance, taxes,
interest, commissions, rents and similar items and tangible assets being
amortized); but in no event shall the term "Intangible Assets" include product
development cost.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, (i) with respect to Global Securities of any Series which
are offered for sale solely outside of the United States, a common depositary
for Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euro-clear System, and CEDEL S.A., and (ii) with respect to Global
Securities of any Series which are offered for sale in the United States, a
clearing agency registered under the Securities Exchange Act of 1934, or any
successor thereto, which shall in either case be designated by the Company
pursuant to either Section 2.02 or 2.11.
"Funded Debt" means any Indebtedness maturing by its terms more than one year
from the date of the determination thereof, including any Indebtedness renewable
or extendible at the 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 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
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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 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 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 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
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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 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 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 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:
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(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 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";
(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;
(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 replaced, extended or renewed (plus
improvements on or to any such Principal Property); provided
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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 (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.
"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.
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"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.
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Event of Default".............................. 6.01
"Legal Holiday"................................. 10.06
"Paying Agent".................................. 2.04
"Registrar"..................................... 2.04
</TABLE>
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 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.
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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 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.
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 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;
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(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 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 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 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
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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.
(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, 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
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
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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.
(f) The Trustee may appoint an authenticating agent to authenticate
Securities. The fees and expenses of any authenticating agent shall be paid by
the Company. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
(g) The form of the Trustee's Certificate of Authentication to appear on the
Securities shall read as follows:
This is one of the Securities described in the within-mentioned Indenture.
THE BANK OF NEW YORK
As Trustee,
By__________________________
Authorized Signatory
(h) If an authenticating agent has been appointed pursuant to Section 2.03(f)
the form of the Authenticating Agent's Certificate of Authentication to appear
on the Securities shall read as follows:
This is one of the Securities described in the within-mentioned Indenture.
As Authenticating Agent,
By__________________________
Authorized Officer
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SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall maintain in the Borough of Manhattan, State of New York, an
office or agency where Registered Securities may be presented for registration
of transfer or for exchange ("Registrar") and an office or agency where (subject
to Sections 2.05 and 2.08) Securities may be presented for payment or for
exchange ("Paying Agent"). With respect to any Series of Securities issued in
whole or in part as Unregistered Securities, the Company shall maintain one or
more Paying Agents located outside the United States and its possessions and
shall maintain such Paying Agents for a period of two years after the principal
of such Unregistered Securities has become due and payable. During any period
thereafter for which it is necessary in order to conform to United States tax
law or regulations, the Company will maintain a Paying Agent outside the United
States and its possessions to which the Unregistered Securities or coupons
appertaining thereto may be presented for payment and will provide the necessary
funds therefor to such Paying Agent upon reasonable notice. The Registrar shall
keep a register with respect to each Series of Securities issued in whole or in
part as Registered Securities and to their transfer and exchange. The Company
may appoint one or more co-Registrars and one or more additional Paying Agents
for each Series of Securities and the Company may terminate the appointment of
any co-Registrar or Paying Agent at any time upon written notice. The term
"Registrar" includes any co-Registrar, except that any co-Registrar shall not
keep the register. The term "Paying Agent" includes any additional Paying 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 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
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would not cause such Unregistered Security to be 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 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 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.
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Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered 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.
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 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.
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(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 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.
(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
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."
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(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
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 coupons surrendered to them, for registration of transfer, or
for exchange or payment. The Trustee shall cancel all Securities and coupons
surrendered for registration of transfer, or for exchange, payment or
cancellation and may dispose of cancelled Securities in accordance with its
standard procedures. The Company may not issue new Securities to replace
Securities of such Series that it has paid or delivered to the Trustee for
cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults on a payment of interest on a Series of Securities,
it shall pay the defaulted interest as provided in such Securities or in any
lawful manner not inconsistent with the requirements of any securities exchange
on which such Securities may be listed and acceptable to the Trustee.
SECTION 2.14. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers, and, if so,
"CUSIP" numbers may but are not required to be used in notices of redemption as
a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities. Any such redemption shall not be affected by any defect in or
omission of such CUSIP numbers. The Company will promptly notify the Trustee of
any change in the CUSIP numbers.
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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
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 first-class mail to each Holder of
Registered Securities that are to be redeemed.
(b) If Unregistered Securities are to be redeemed, notice of redemption shall
be published in an Authorized Newspaper in The City of New York, and if such
Securities to be redeemed are listed on the London Stock Exchange, London, and,
if such Securities to be redeemed are listed on the Luxembourg Stock Exchange,
Luxembourg, once in each of four successive calendar weeks, the first
publication to be not less than 30 nor more than 90 days before the redemption
date.
(c) All notices shall identify the Series of Securities (which may but are
not required to include CUSIP numbers) to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a Series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) the Securities of the Series called for redemption and that all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price;
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(6) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date; and
(7) if the redemption is for a mandatory or optional sinking fund payment.
At the Company's request, the Trustee shall give the notice of redemption in
the Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed or published, Securities of a Series
called for redemption become due and payable on the redemption date. Upon
surrender to the Paying Agent of such Securities together with all unmatured
coupons, if any, appertaining thereto, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date, but regular
installments of interest due on or prior to the redemption date will be payable,
in the case of Unregistered Securities, to the bearers of the coupons for such
interest upon surrender thereof, and, in the case of Registered Securities, to
the Holders of such Securities of record at the close of business on the
relevant record dates.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the Trustee
money sufficient to pay the redemption price of and (unless the redemption date
shall be an interest 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 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
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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 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
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
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
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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, 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 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 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
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(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 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 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 the Company or any Restricted Subsidiaries) within 180 days after
the consummation of such Sale and Leaseback Transaction.
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SECTION 4.05. WAIVER OF COVENANTS.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 4.03 and 4.04 hereof with respect to the
Securities of any Series if before or after the time for such compliance the
holders of a majority in aggregate principal amount of the Securities of such
Series at the time outstanding treating all such Series as a class shall, by
action of such Securityholders in accordance with this Indenture, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect (x) any
other Series of Securities or (y) such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE 5.
SUCCESSOR CORPORATION.
SECTION 5.01. CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
Nothing contained in this Indenture or in any of the Securities of any Series
shall prevent any consolidation of the Company with, or merger of the Company
into, any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers to which the Company or its
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 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.
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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 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 days after the date on which
written notice of such failure (specified as a "Notice of Default"),
requiring the Company to remedy the same, shall have been given to the
Company by the Trustee or to the Company and the Trustee by Holders of at
least twenty-five percent in aggregate principal amount of the Securities
of such Series at the time outstanding; or
(d)a court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company in an
involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and
such decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or
(e)the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment or taking possession by a
receiver, 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
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(f)any other Event of Default provided in the applicable resolution of the
Board of Directors or in the supplemental indenture under which such
Series of Securities is issued, as the case may be, as contemplated by
Section 2.02.
then and in each and every such case, unless the principal of all the Securities
of that Series shall have already become due and payable, either the Trustee or
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of that Series then outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the principal (or, if the Securities of that Series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that Series) of all the Securities of that Series to be due and
payable immediately, and upon any such declaration the same (or, in the case of
Original Issue Discount Securities, such specified amount) shall become and
shall be immediately due and payable, anything in this Indenture, in any
supplemental indenture under which the Securities of that Series have been
issued or in the Securities of that Series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after the principal of the Securities of that Series (or, if the
Securities of that Series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that Series) shall
have been so declared and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay, or shall deposit with the Trustee a sum
sufficient to pay, all matured installments of interest upon all the Securities
of that Series and the principal of (and premium, if any, on) any and all
Securities of that Series which shall have become due otherwise than by
declaration, with interest upon such principal (and premium, if any) and (to the
extent that payment of such interest is enforceable under applicable law) upon
any overdue installments of interest at the same rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of that Series, to the date of such payment or deposit, and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith,
and if any and all defaults under this Indenture with respect to the Securities
of that Series, other than the nonpayment of the principal of the Securities of
that Series which shall have become due by declaration, shall have been remedied
- -- then and in every such case the Holders of a majority in aggregate principal
amount of the Securities of that Series then outstanding by written notice to
the Company and to the Trustee may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission or annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, 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.
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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 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 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 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.
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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 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 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 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
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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 Securities of such Series then outstanding shall have made written
request upon the Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended and being expressly covenanted by the taker and holder
of every Security or coupon with every other taker and holder and the Trustee
that no one or more holders of Securities of any Series or coupons appertaining
thereto shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any other holder of Securities or coupons, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of the applicable Series
and coupons, if any, appertaining thereto. For the protection and enforcement of
the provisions of this Section 6.04, each and every Securityholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision in this Indenture or any provision of any
Security, the right of any Holder of any 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
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.
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The holders of a majority in aggregate principal amount of the Securities of
each Series affected (with each Series voting as a separate class) at the time
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such Series by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture and
provided further that (subject to the provisions of Section 7.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all Series so affected not joining in
the giving of said direction, it being understood that (subject to Section 7.01)
the Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such holders. Nothing in this Indenture
shall impair the right of the Trustee in its discretion to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
or directions by Securityholders. Prior to the declaration of the maturity of
the Securities of any Series as provided in Section 6.01, the Holders of a
majority in aggregate principal amount of the Securities of such Series at the
time outstanding may on behalf of the holders of all the Securities of such
Series waive any past default hereunder with respect to such Series and its
consequences, except a default in the payment of the principal of (or premium,
if any) or interest on any of the Securities of such Series. In the case of any
such waiver, the Company, the Trustee and the holders of the Securities of such
Series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 6.07. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each Holder of any Security or
coupon appertaining thereto, by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 6.07
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders of any Series, holding in the
aggregate more than ten percent in principal amount of the Securities of such
Series outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the due date expressed in such Security.
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ARTICLE 7.
TRUSTEE.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise its rights and powers under this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically set
forth in this Indenture and no implied 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.
(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;
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(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 a copy thereof certified by a Secretary or an Assistant Secretary
of the Company;
(c) the Trustee may consult with counsel of its selection, and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such written advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(f) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate; and
(g) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Sections 7.10 and
7.11.
SECTION 7.04. TRUSTEE DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities. It shall not be accountable for the Company's use
of the proceeds from the Securities or for moneys paid over to the Company
pursuant to the Indenture, and it shall not be responsible for any statement in
the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULT.
If a Default occurs and is continuing with respect to the Securities of any
Series and if it is known to the Trustee, the Trustee shall mail to each Holder
of a Security of that Series entitled to receive reports pursuant to Section
4.02(c) (and, if Unregistered Securities of that Series are outstanding, shall
cause to be published at least once in an Authorized Newspaper in The City of
New York, and if such Securities are listed on the London Stock Exchange,
London, and, if such Securities are listed on The Luxembourg Stock Exchange,
Luxembourg) notice of the Default within 90 days after it occurs. Except in the
case of a Default in payment of the principal of or interest on the Securities
of any Series, the Trustee may withhold the notice if and so long as its Board
of Directors, the executive Committee, or a Trust Committee of directors or
Responsible Officers in good faith determines that withholding such notice is in
the interests of Securityholders of that Series.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder entitled
to receive reports pursuant to Section 4.02(c) a brief report dated as of such
date that complies with TIA Section 313(a) if such report is required by such
TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b).
(b) At the time that it mails such a report to Securityholders, the Trustee
shall file a copy of that report with the SEC and with each stock exchange on
which the Securities are listed. The Company shall provide written notice to the
Trustee when the Securities of any Series are listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time such compensation
for its services as is agreed upon in writing between the Company and the
Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it in
connection with the performance of its duties under this Indenture. Such
expenses shall include the reasonable compensation and expenses of the Trustee's
agents and counsel.
(b) The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel provided that the Trustee shall pay the fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(d) or (e) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Federal or state bankruptcy, insolvency or related law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of any Series by so
notifying the Company. The Holders 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.
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(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.
(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 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.
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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 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 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 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
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expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
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 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;
(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 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.
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All moneys deposited with the Trustee pursuant to Section 8.01 or 8.02 shall
be held in trust and applied by it to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent), to the
Holders of the particular Securities of such Series and of coupons appertaining
thereto for the payment or redemption of which such moneys have been deposited
with the Trustee, of all sums due, and to become due thereon for principal (and
premium, if any) and interest.
SECTION 8.04. REPAYMENT OF MONEYS HELD.
In connection with the satisfaction and discharge of this Indenture with
respect to the Securities of any Series, all moneys then held by any Paying
Agent under the provisions of this Indenture with respect to such Series of
Securities shall, upon written demand of the Company, be repaid to it or paid to
the Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
SECTION 8.05. RETURN OF MONEYS UNCLAIMED FOR TWO YEARS.
Any moneys deposited with or paid to the Trustee or any Paying Agent pursuant
to any provision of this Indenture for payment of the principal of (and premium,
if any,) or interest on the Securities of any Series and any coupon appertaining
thereto and not applied but remaining unclaimed for two years after the date
upon which the principal of (and premium, if any) or interest on such Securities
or coupons, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee or such Paying Agent on written demand; and
the Holder of any of the Securities of such Series or coupons appertaining
thereto shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect and all liability of the Trustee or any Paying
Agent with respect to such moneys shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment (a) in
respect of Registered Securities of any Series, shall at the expense of the
Company, mail by first-class mail to holders of such Securities at their address
as they shall appear on the Security register, addresses as they shall appear on
the Security register, and (b) in respect of Unregistered Securities of any
Series, shall at the expense of the Issuer cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and if
the Securities of such Series are listed 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.
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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 shall adversely affect the rights of any Securityholder; or
(2) to comply with Article 5; or
(3) to secure the Securities pursuant to Section 4.03; or
(4) to provide for uncertificated Securities in addition to or in place of
certificated Securities; or
(5) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as provided in Section 2.02, to
establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any Series of Securities, or
to add to the rights of the Holders of any Series of Securities, or to
surrender any right or power conferred on the Company.
SECTION 9.02. WITH CONSENT OF HOLDERS.
(a)With the written consent of the Holders of a majority in principal amount
of the outstanding Securities of each Series affected by such supplemental
indenture (with each Series voting as a class), the Company and the Trustee may
enter into a supplemental indenture to add any provisions to or to change or
eliminate any provisions of this Indenture or of any supplemental indenture or
to modify, in each case in any manner not covered by Section 9.01, the rights of
the Securityholders of each such Series. The Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such waiver
(with each Series voting as a class), by notice to the Trustee, may waive
compliance by the Company with any provision of this Indenture, any supplemental
indenture or the Securities of any such Series, provided, however, without the
consent of each Securityholder affected, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on any
Security;
(3) change the principal of or change the fixed maturity of any Security;
(4) waive a Default in the payment of the principal of or interest on any
Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change in Sections 6.06 (third sentence), 6.04 (last
paragraph), or the proviso in the last sentence of Section 9.02(a).
(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
36
<PAGE> 42
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 Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment, direction or waiver
becomes effective. After an amendment or waiver becomes effective, it shall bind
every Securityholder of each Series affected by such amendment or waiver.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may, at the direction of the Company, place an appropriate
notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue
and the Trustee shall authenticate new Securities of that Series that reflect
the amendment or waiver.
SECTION 9.06. TRUSTEE PROTECTED.
The Trustee may require an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such supplemental indenture complies with the
applicable provisions of this Indenture. The Trustee need not sign any
supplemental indenture that adversely affects its rights, duties, obligations or
standard of care hereunder.
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):
37
<PAGE> 43
if to the Company to:
Lucent Technologies Inc.
600 Mountain Avenue
Murray Hill, NJ 07974
Attention: Vice President and Treasurer
Facsimile Number: (908) 582-5670
if to the Trustee to:
The Bank of New York
101 Barclay Street
Floor 21W
New York, NY 10286
Attention: Corporate Trust Trustee
Administration
Facsimile Number: (212) 815-5915
(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.
(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.
38
<PAGE> 44
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
(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.
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 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.
39
<PAGE> 45
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.
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 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.
40
<PAGE> 46
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 enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due not previously
tendered or recovered under this Indenture. For purposes of the foregoing, "New
York Banking Day" means any day except a Saturday, Sunday or a legal holiday in
The City of New York or a day on which banking institutions in The City of New
York are authorized by law or required by executive order to close.
The Bank of New York hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
41
<PAGE> 47
IN WITNESS WHEREOF, LUCENT TECHNOLOGIES INC. has caused this Indenture to be
signed and acknowledged by its Chairman of the Board, any Vice Chairman, its
Chief Executive Officer, its President, its Chief Financial Officer, or its Vice
President and Treasurer, and its corporate seal to be affixed hereunto and the
same to be attested by its Secretary or by one of its Assistant Secretaries; and
The Bank of New York has caused this Indenture to be signed and acknowledged by
one of its Assistant Vice Presidents, and its corporate seal to be affixed
hereunto and the same to be attested by one of its Assistant Vice Presidents.
Executed and delivered in The City of New York, State of New York, as of the day
and year first written above.
LUCENT TECHNOLOGIES INC.
By_________________________
Name: Florence L. Walsh
Title: Vice President and Treasurer
(SEAL)
Attest
_________________________________
Name: Barbara K. Herbert
Title: Assistant Secretary
THE BANK OF NEW YORK
By_________________________
Name: Mary LaGumina
Title: Assistant Vice President
(SEAL)
Attest:
Name: Robert Patterson
Title: Assistant Vice President
42
<PAGE> 48
STATE OF NEW JERSEY )
) SS.:
COUNTY OF UNION )
On the ___ day of July, 1996, before me personally came Florence L. Walsh, to
me known, who, being by me duly sworn, did depose and say that she resides at
Franklin Lakes, New Jersey, that she is the Vice President and Treasurer of
Lucent Technologies Inc., one of the corporations described in and which
executed the above instrument; that she 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 she signed her name thereto by like authority.
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the ___ day of July, 1996, before me personally came Mary LaGumina, to me
known, who, being by me duly sworn, did depose and say that she resides at
Bayside, New York, that she is an Assistant Vice President of The Bank of New
York, one of the corporations described in and which executed the above
instrument; that she 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
she signed her name thereto by like authority.
43
<PAGE> 1
Exhibit 5.1
August 13, 1999
Lucent Technologies Inc.
600 Mountain Avenue
Murray Hill, NJ 07974
Dear Sirs:
With reference to the registration statement on Form S-3 (the
"Registration Statement") that Lucent Technologies Inc. (the "Company") has
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to $1,800,000,000 of the Company's debt securities
(the "Debt Securities") to be issued under an indenture dated as of April 1,
1996 (the "Indenture"), between the Company and The Bank of New York, Trustee,
and warrants to purchase Debt Securities, (the "Warrants"), I am of the opinion
that:
1. the Company is a duly organized and validly existing corporation
under the laws of the State of Delaware;
2. the execution and delivery of the Indenture and the issuance of the
Debt Securities and Warrants has been duly authorized by appropriate
corporate action;
3. the Indenture is a valid and binding agreement of the Company in
accordance with its terms, and the Debt Securities, when duly
executed and authenticated in accordance with the terms of the
Indenture and delivered in accordance with the provisions of either
an underwriting, distribution or international distribution
agreement, substantially in the forms filed as exhibits to the
Registration Statement, will be legally issued and binding
obligations of the Company in accordance with their terms, in each
case subject to bankruptcy, insolvency, reorganization and other
laws of general
<PAGE> 2
applicability relating to or affecting the enforcement of creditors
rights and to general equity principles;
4. when the Warrants have been duly authorized and duly executed by the
Company and countersigned as provided in the relevant Warrant
Agreement and when duly paid for and delivered pursuant to a sale in
the manner described in the Registration Statement, including the
prospectus and any prospectus supplement relating to such sale, such
Warrants will be duly authorized and will be valid and binding
obligations of the Company in accordance with, and subject to, their
terms of the relevant Warrant Agreement, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors rights and to
general equity principles; and
5. the Company meets all the requirements for filing the Registration
Statement.
In connection with my rendering this opinion, I have reviewed (i) the
Indenture and the Warrants; (ii) the Registration Statement; (iii) certain
resolutions adopted or to be adopted by the Board of Directors of the Company;
and (iv) such other documents, records and papers as I have deemed necessary or
appropriate in order to give the opinions set forth herein. I am familiar with
the proceedings heretofore taken, by the Company in connection with the
authorization, registration, issuance and sale of the Debt Securities and
Warrants. I have, with your consent, relied as to factual matters on
certificates or other documents furnished by the Company or its officers and by
governmental authorities and upon such other documents and data that I have
deemed appropriate. I have assumed the authenticity of all documents submitted
to us as copies.
I am not a member of the Bar of any jurisdiction other than the State of
New Jersey, and with your consent, I am opining herein as to the effect of the
subject transaction only of the General Corporation Law of the State of
Delaware, and I express no opinion with respect to the applicability thereto, or
the effect thereon, of any other laws or the laws of any other jurisdiction.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the filing of the Registration Statement.
I also consent to the making of
<PAGE> 3
the statement with respect to me in the related prospectus under the heading
"Legal Matters". In giving such consent, I do not
hereby admit that I am in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933.
Very truly yours,
Pamela F. Craven
Vice President-Law and Secretary
<PAGE> 1
Exhibit 12
Lucent Technologies Inc.
Computation of Ratio of Earnings to Fixed Charges
(Dollars in Millions)
(Unaudited)
<TABLE>
<CAPTION>
For the Nine
Months Ended
June 30, 1999
<S> <C>
Income Before Income Taxes........................... $ 3,962
Less Interest Capitalized during
the Period........................................... 16
Less Undistributed Earnings of Less than 50%
Owned Affiliates..................................... 2
Add Fixed Charges...................................... 473
Total Earnings ........................................ $ 4,417
Fixed Charges
Total Interest Expense Including Capitalized Interest.. $ 340
Interest Portion of Rental Expense..................... 133
Total Fixed Charges................................ $ 473
Ratio of Earnings to Fixed Charges..................... 9.3
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3, of our report dated June 24, 1999, except for the seventh
and eighth paragraphs of Note 15 as to which the date is July 15, 1999 and July
19, 1999, respectively, relating to the consolidated financial statements and
financial statement schedule at September 30, 1998 and 1997 and for each of the
two years in the period ended September 30, 1998 and for the nine-month period
ended September 30, 1996, which appears in the Current Report on Form 8-K dated
August 2, 1999. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
New York, New York
August 12, 1998
II-7
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 12th day of July, 1999.
By: /s/ Paul A. Allaire
_______________________
Paul A. Allaire
Director
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ Carla A. Hills
_______________________
Carla A. Hills
Director
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ Drew Lewis
_______________________
Drew Lewis
Director
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ Richard A. McGinn
_______________________
Richard A. McGinn
Chairman of the Board and
Chief Executive Officer
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ Paul H. O'Neill
_______________________
Paul H. O'Neill
Director
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 9th day of July, 1999.
By: /s/ Donald S. Perkins
_______________________
Donald S. Perkins
Director
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ Henry B. Schacht
_______________________
Henry B. Schacht
Director
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ Franklin A. Thomas
_______________________
Franklin A. Thomas
Director
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson and James S. Lusk and each of them, as attorneys for and in the
name, place and stead of the undersigned, and in the capacity of the undersigned
as a director and/or officer of the Company, to execute and file such
registration statements with respect to the above-described Securities and
thereafter to execute and file any amended registration statement or statements
with respect thereto or amendments or supplements to any of the foregoing,
hereby giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents and
purposes, as the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said attorneys may or
shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ John A. Young
_______________________
John A. Young
Director
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints James
S. Lusk as attorney for and in the name, place and stead of the undersigned, and
in the capacity of the undersigned as a director and/or officer of the Company,
to execute and file such registration statements with respect to the
above-described Securities and thereafter to execute and file any amended
registration statement or statements with respect thereto or amendments or
supplements to any of the foregoing, hereby giving and granting to said attorney
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as the undersigned might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorney may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ Donald K. Peterson
_______________________
Donald K. Peterson
Executive Vice President and
Chief Financial Officer
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Lucent Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Company"), proposes to file with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a registration statement or registration statements, with respect to up
to $1,800,000,000 of Debt Securities and Warrants to purchase Debt Securities
(the "Securities") to be offered by the Company and any registration statement
relating thereto filed under the provisions of Rule 462(b) under the Act; and
WHEREAS, the undersigned is a director and/or officer of the Company,
as indicated below his or her signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints Donald
K. Peterson as attorney for and in the name, place and stead of the undersigned,
and in the capacity of the undersigned as a director and/or officer of the
Company, to execute and file such registration statements with respect to the
above-described Securities and thereafter to execute and file any amended
registration statement or statements with respect thereto or amendments or
supplements to any of the foregoing, hereby giving and granting to said attorney
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as the undersigned might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorney may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 7th day of July, 1999.
By: /s/ James S. Lusk
_______________________
James S. Lusk
Vice President and Controller
<PAGE> 1
Exhibit 25
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
LUCENT TECHNOLOGIES INC.
(Exact name of obligor as specified in its charter)
Delaware 22-3408857
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 Mountain Avenue
Murray Hill, New Jersey 07974
(Address of principal executive offices) (Zip code)
Debt Securities
(Title of the indenture securities)
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
Name Address
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R.229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
-----------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE> 4
(..continued)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and coin ............ $ 4,508,742
Interest-bearing balances ..................................... 4,425,071
Securities:
Held-to-maturity securities ................................... 836,304
Available-for-sale securities ................................. 4,047,851
Federal funds sold and Securities purchased under
agreements to resell .......................................... 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned
income ......................................... 39,349,679
LESS: Allowance for loan and
lease losses ................................... 603,025
LESS: Allocated transfer risk
reserve ........................................ 15,906
Loans and leases, net of unearned income,
allowance, and reserve ...................................... 38,730,748
Trading Assets ................................................... 1,571,372
Premises and fixed assets (including capitalized
leases) ....................................................... 685,674
Other real estate owned .......................................... 10,331
Investments in unconsolidated subsidiaries and
associated companies .......................................... 182,449
Customers' liability to this bank on acceptances
outstanding ................................................... 1,184,822
Intangible assets ................................................ 1,129,636
Other assets ..................................................... 2,632,309
Total assets ..................................................... $ 61,688,578
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C>
LIABILITIES
Deposits:
In domestic offices ........................................... $ 25,731,036
Noninterest-bearing ............................ 10,252,589
Interest-bearing ............................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ...................................... 18,756,302
Noninterest-bearing ............................ 111,386
Interest-bearing ............................... 18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase ...................................... 3,276,362
Demand notes issued to the U.S.Treasury .......................... 230,671
Trading liabilities .............................................. 1,554,493
Other borrowed money:
With remaining maturity of one year or less ................... 1,154,502
With remaining maturity of more than one year
through three years ......................................... 465
With remaining maturity of more than three years .............. 31,080
Bank's liability on acceptances executed and
outstanding ................................................... 1,185,364
Subordinated notes and debentures ................................ 1,308,000
Other liabilities ................................................ 2,743,590
Total liabilities ................................................ 55,971,865
EQUITY CAPITAL
Common stock ..................................................... 1,135,284
Surplus .......................................................... 764,443
Undivided profits and capital reserves ........................... 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities ................................. 44,106
Cumulative foreign currency translation adjustments .............. (34,817)
Total equity capital ............................................. 5,716,713
Total liabilities and equity capital ............................. $ 61,688,578
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
<PAGE> 6
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Directors
Thomas A. Reyni
Alan R. Griffith
Gerald L. Hassell
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED BALANCE SHEET OF LUCENT AT JUNE 30, 1999 AND THE UNAUDITED
CONSOLIDATED STATEMENT OF INCOME FOR THE NINE MONTH PERIOD ENDED JUNE 30, 1999
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. THE
FINANCIAL DATA SCHEDULE REFLECTS THE TWO-FOR-ONE SPLIT OF LUCENT'S COMMON STOCK
WHICH BECAME EFFECTIVE ON APRIL 1, 1999.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-START> OCT-01-1998
<PERIOD-END> JUN-30-1999
<CASH> 1,495
<SECURITIES> 0
<RECEIVABLES> 9,879
<ALLOWANCES> 393
<INVENTORY> 5,179
<CURRENT-ASSETS> 20,810
<PP&E> 13,531
<DEPRECIATION> 7,274
<TOTAL-ASSETS> 37,156
<CURRENT-LIABILITIES> 11,956
<BONDS> 3,712
0
0
<COMMON> 30
<OTHER-SE> 12,373
<TOTAL-LIABILITY-AND-EQUITY> 37,156
<SALES> 27,728
<TOTAL-REVENUES> 27,728
<CGS> 13,910
<TOTAL-COSTS> 13,910
<OTHER-EXPENSES> 3,647
<LOSS-PROVISION> 45
<INTEREST-EXPENSE> 292
<INCOME-PRETAX> 3,962
<INCOME-TAX> 1,452
<INCOME-CONTINUING> 2,510
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 1,308
<NET-INCOME> 3,818
<EPS-BASIC> 1.26
<EPS-DILUTED> 1.22
</TABLE>
