Contract
Exhibit
4.1.3
SUPPLEMENTAL INDENTURE, dated as
of ,
2006 (the “Supplemental Indenture”), among
LUCENT TECHNOLOGIES INC., a Delaware corporation (the
“Company”), and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company and the Trustee have entered into that
Indenture, dated as of June 4, 2003 (as supplemented by the
First Supplement (as defined below), the
“Indenture”), which provided for the issuance
of one or more series of securities (the
“Securities”);
WHEREAS, the Company and the Trustee have entered into that
First Supplemental Indenture, dated as of June 4, 2003 (the
“First Supplement”), which provided for the
issuance of the Company’s
23/4%
Series A Convertible Senior Debentures due 2023 (the
“Series A Debentures”) and the
Company’s
23/4%
Series B Convertible Senior Debentures due 2025 (the
“Series B Debentures”, and together with
the Series A Debentures, the “Debentures”);
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as
of April 2, 2006 (the “Merger Agreement”),
by and among the Company, Alcatel, a societe anonyme organized
under the laws of the Republic of France
(“Alcatel”), and Aura Merger Sub, Inc., a
Delaware corporation and a direct, wholly owned subsidiary of
Alcatel (“Merger Sub”), Merger Sub will be
merged with and into the Company, with the Company continuing as
the surviving corporation (the “Merger”);
WHEREAS, the Board of Directors of Alcatel has determined it to
be in the best interest of Alcatel to guarantee the principal
of, premium, if any, interest on, and all other monetary
obligations arising under the Debentures upon consummation of
the Merger;
WHEREAS, the Company desires to execute and deliver this
Supplemental Indenture to (i) amend the Indenture to
provide that the reports and other information required to be
provided by the Company and in respect of the Company may
instead be provided only with respect to Alcatel effective upon
Alcatel’s execution of the aforementioned guaranty and
(ii) add certain defined terms and related text in the
Indenture (collectively, the “Proposed
Amendments”);
WHEREAS, the Board of Directors of the Company has determined
that it be in the best interest of the Company to make the
Proposed Amendments;
WHEREAS, Section 9.02 of the Indenture provides that the
Company and the Trustee may amend or supplement the Indenture or
the Securities with the written consent of the Holders of at
least a majority in principal amount of the Securities of each
Series then outstanding (the “Required
Consent”);
WHEREAS, the Company has obtained the Required Consent; and
WHEREAS, pursuant to Section 9.02 of the Indenture, the
Company and the Trustee are authorized to execute and deliver
this Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the premises and
other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound
hereby, it is hereby agreed between the Company and the Trustee,
for the equal and proportionate benefit of the respective
Holders from time to time, as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definition
of Terms. Capitalized terms used and not
otherwise defined herein have the respective meanings assigned
to such terms in the Indenture.
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ARTICLE II
AMENDMENTS
Section 2.1. Section 1.01
of the Indenture is amended to include the following definitions
in their proper alphabetical location:
“Beneficial Owner” has the meaning assigned to
such term in
Rule 13d-3
and
Rule 13d-5
under the Exchange Act, except that in calculating the
beneficial ownership of any particular “person,” as
such term is used in Section 13(d)(3) of the Exchange Act,
such “person” shall be deemed to have beneficial
ownership of all securities that such “person” has the
right to acquire, whether such right is currently exercisable or
is exercisable only upon the occurrence of a subsequent
condition.
“Parent” means any person (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act and the
regulations thereunder) who is or becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the total voting
stock or total common equity of the Company.
“Parent Guaranty” means a guaranty by a
Parent (whether or not subordinated to the Parent’s senior
debt) of all obligations of the Company under the Indenture and
any outstanding Debentures.
Section 2.2. Section 4.02
of the Indenture is amended by inserting the following text as a
new paragraph at the end of Section 4.02:
Notwithstanding the foregoing, if the Parent executes and
delivers a Parent Guaranty, the Parent may furnish to the
Holders copies of its annual report and the information,
documents and other reports (without including the condensed
consolidating footnote contemplated by
Rule 3-10
of
Regulation S-X
promulgated under the Securities Act) that Parent is required to
file pursuant to Sections 13 and 15(d) of the Exchange Act
in lieu of those required to be furnished or filed by the Company. At
such time as the Parent Guaranty is released or terminated,
the Parent that issued such terminated or released Parent Guaranty shall no longer be obligated to provide the reports and
information provided for in this paragraph and shall be released
from any other obligations under this Supplemental Indenture.
ARTICLE III
ACCEPTANCE
OF SUPPLEMENTAL INDENTURE
Section 3.1. Acceptance. The
Trustee hereby accepts this Supplemental Indenture and agrees to
perform the same under the terms and conditions set forth in the
Indenture.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Effectiveness
of the Supplemental Indenture. This
Supplemental Indenture shall be effective on the date hereof but
shall not be operative until (i) the effective date of the
Merger and (ii) upon execution of the Parent Guaranty by
Alcatel.
Section 4.2. Termination
of Merger Agreement. If the Merger Agreement
shall be terminated prior to the consummation of the Merger,
this Supplemental Indenture shall be null and void and of no
force or effect
Section 4.3. Effect
of Supplemental Indenture. Upon the execution
and delivery of this Supplemental Indenture by the Company and
the Trustee, the Indenture shall be supplemented and amended in
accordance herewith, and this Supplemental Indenture shall form
a part of the Indenture for all purposes, and every holder of
Debentures heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby.
Section 4.4. Indenture
Remains in Full Force and Effect. Except as
supplemented or amended hereby, all provisions in the Indenture
shall remain in full force and effect.
Section 4.5. Incorporation
of Indenture. All the provisions of this
Supplemental Indenture shall be deemed to be incorporated in,
and made a part of, the Indenture; and the Indenture, as
supplemented and amended by this Supplemental Indenture, shall
be read, taken and construed as one and the same instrument.
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Section 4.6. Headings. The
headings of the Articles and Sections of this Supplemental
Indenture are inserted for convenience of reference and shall
not be deemed to be a part thereof.
Section 4.7. Counterparts. This
Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same instrument.
Section 4.8. Conflict
with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with
any provision of the Trust Indenture Act that is required under
the Trust Indenture Act to be part of and govern any provision
of this Supplemental Indenture, such provision of the Trust
Indenture Act shall control. If any provision of this
Supplemental Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded,
the provision of the Trust Indenture Act shall be deemed to
apply to the Indenture as so modified or to be excluded by this
Supplemental Indenture, as the case may be.
Section 4.9. Successors
and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company and Alcatel shall
bind their respective successors and assigns, whether so
expressed or not.
Section 4.10. Separability
Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby.
Section 4.11. Benefits
of Supplemental Indenture, Etc. Nothing in
this Supplemental Indenture, express or implied, shall give to
any Person, other than the parties hereto and thereto and their
successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture, the
Indenture or the Debentures.
Section 4.12. Recitals. The
recitals contained herein are made by the Company and the
Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture.
Section 4.13. Certain
Duties and Responsibilities of the
Trustee. In entering into this Supplemental
Indenture, the Trustee shall be entitled to the benefit of every
provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether
or not elsewhere herein so provided.
Section 4.14. No
Security Interest Created. Nothing in this
Supplemental Indenture, express or implied, shall be construed
to constitute a security interest under the Uniform Commercial
Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction in which property of the Company and
its Subsidiaries is located.
Section 4.15. Governing
Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws
provisions thereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as
of the date and year first written above.
LUCENT TECHNOLOGIES INC.
By: _
_
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By: _
_
Name:
Title:
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