EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of April 30, 2003
("Agreement"), is made by and between LUCENT TECHNOLOGIES INC., a Delaware
corporation, having an office at 000-000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx
Xxxxxx 00000-0000 (the "Company"), and U.S. TRUST COMPANY, NATIONAL ASSOCIATION,
solely in its capacity as duly appointed and acting investment manager (the
"Manager") of a segregated account held in the LUCENT TECHNOLOGIES INC.
REPRESENTED EMPLOYEES POST-RETIREMENT HEALTH BENEFITS TRUST (the "Trust," the
Trust shall hereby being deemed as party to this Agreement) created under the
LUCENT TECHNOLOGIES INC. WELFARE BENEFITS PLAN FOR RETIRED EMPLOYEES (the
"Plan").
RECITALS
A. WHEREAS, the Company has agreed to contribute an aggregate of
46,185,131 shares of its common stock, par value $.01 per share (the
"Registrable Shares"), to the Trust (the "Contribution");
B. WHEREAS, the Registrable Securities immediately following such
Contribution will be held in a single segregated account in the Trust (the
"Segregated Account");
C. WHEREAS, pursuant to the Investment Management Agreement dated as of
April 29, 2003 (the "Investment Management Agreement") by and between Lucent
Asset Management Corporation, acting solely in its capacity as named fiduciary
of the Trust (in such capacity, "LAMCO") and the Manager, the Manager has been
appointed as a "fiduciary" of the Trust, as defined in Section 3(21) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), with the
authority to act on behalf of the Trust with respect to all assets held in the
Segregated Account;
D. WHEREAS, the Company has agreed to grant certain registration rights
with respect to the Registrable Shares held in the Segregated Account, on the
terms and subject to the conditions herein set forth;
E. WHEREAS, pursuant to the Investment Management Agreement, the Manager
has full power and authority to execute and deliver this Agreement for the
account and on behalf of the Trust, to bind the Trust and to take any actions
required or permitted to be taken by, or on behalf of, the Trust in connection
with this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual promises set
forth herein, the parties hereto hereby agree as follows:
1. REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT.
1.1 Registration Procedures and Expenses. The Company hereby agrees
that it shall:
(a) use its reasonable commercial efforts to prepare and file
with the SEC, as soon as practicable after the date of the Contribution, a
registration statement on Form S-3 covering the Registrable Shares (the
"Registration Statement"), to enable the Manager to sell the Registrable Shares
from time to time in the manner contemplated by the plan of distribution set
forth in the Registration Statement, and use its reasonable commercial efforts
to cause such Registration Statement to be declared effective as promptly as
possible after filing and to remain continuously effective until the second
anniversary of the date of the Contribution (the "Registration Period");
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus filed with the SEC pursuant to Rule 424(b) under the Securities Act,
or if no such filing is required, as included in the Registration Statement (the
"Prospectus"), as may be necessary to keep the Registration Statement effective
at all times until the end of the Registration Period;
(c) furnish the Manager with such reasonable number of copies
of the Prospectus in conformity with the requirements of the Securities Act and
such other documents as the Manager may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the Registrable
Shares by the Manager;
(d) use its reasonable commercial efforts to file documents
required of the Company for normal blue sky clearance in states specified in
writing by the Manager; provided, however, that the Company shall not be
required to qualify to do business or consent to service of process in any
jurisdiction in which it is not now so qualified or has not so consented;
(e) use its reasonable commercial efforts to cause the
Registrable Shares to be listed on NYSE in connection with the filing of the
Registration Statement under Section 1.1(a); and
(f) bear all expenses in connection with the actions
contemplated by paragraphs (a) through (e) of this Section 1.1 and the
registration of the Registrable Shares pursuant to the Registration Statement,
including fees and expenses of legal counsel to the Manager incurred in
connection with the registration and sale of the Registrable Shares, in an
aggregate amount not to exceed $12,000, but excluding underwriting discounts,
brokerage fees and commissions incurred by the Manager, the Trust or the Plan,
if any.
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Section 1.1 that the Manager shall provide such
reasonable assistance to the Company and furnish, or cause to be furnished, to
the Company in writing such information regarding the Manager, the Plan and the
Trust, the Registrable Shares to be sold, and the intended method or methods of
disposition of the Registrable Shares, as shall be required to effect the
registration of the Registrable Shares.
-2-
1.2 Transfer of Registrable Shares After Registration; Suspension.
(a) The Manager agrees that it will not offer to sell or make
any sale, assignment, pledge, hypothecation or other transfer with respect to
the Registrable Shares that would constitute a sale within the meaning of the
Securities Act except pursuant to either (i) the Registration Statement referred
to in Section 1.1 or (ii) Rule 144, and that it will promptly notify the Company
of any changes in the information set forth in the Registration Statement after
it is first filed with the SEC regarding the Manager, the Plan and the Trust or
the intended plan of distribution of the Registrable Shares to the extent
required by applicable securities laws.
(b) In addition to any suspension rights under paragraph (c)
below, the Company may, upon the happening of any event that, in the judgment of
Company's legal counsel, renders advisable the suspension of the disposition of
Registrable Shares covered by the Registration Statement or use of the
Prospectus due to pending corporate developments, public filings with the SEC or
similar events, suspend the disposition of Registrable Shares covered by the
Registration Statement or use of the Prospectus for a period of not more than
one hundred twenty (120) days on written notice to Manager (which notice will
not disclose the content of any material non-public information and will
indicate the date of the beginning and end of the intended suspension, if
known), in which case Manager shall discontinue disposition of Registrable
Shares covered by the Registration Statement or use of the Prospectus until
copies of a supplemented or amended Prospectus are distributed to the Manager or
until the Manager is advised in writing by the Company that the disposition of
Registrable Shares covered by the Registration Statement or use of the
applicable Prospectus may be resumed, provided that such right to suspend the
disposition of Registrable Shares covered by the Registration Statement or use
of the Prospectus shall not be exercised by Company for more than one hundred
fifty (150) days in any twelve-month period. The suspension and notice thereof
described in this Section 1.2(b) shall be held in strictest confidence and not
disclosed by the Company or the Manager, except as required by law.
(c) Subject to paragraph (d) below, in the event of: (i) any
request by the SEC or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information, (ii) the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(iii) the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Shares for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (iv) any event or circumstance that necessitates
the making of any changes in the Registration Statement or Prospectus, or any
document incorporated or deemed to be incorporated therein by reference, so
that, in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, then the Company shall deliver a
certificate in writing to the Manager (the "Suspension Notice") to the effect of
the foregoing (which notice will not disclose the content of any material
non-public information and will indicate the date of the beginning and end of
the intended
-3-
suspension, if known), and, upon receipt of such Suspension Notice, the Manager
will refrain from selling any Registrable Shares pursuant to the Registration
Statement (a "Suspension") until the Manager's receipt of copies of a
supplemented or amended Prospectus prepared and filed by the Company, or until
it is advised in writing by the Company that the current Prospectus may be used,
and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in any such Prospectus. In the
event of any Suspension, the Company will use its reasonable commercial efforts
to cause the use of the Prospectus so suspended to be resumed as soon as
possible after delivery of a Suspension Notice to the Manager. The Suspension
and Suspension Notice described in this Section 1.2(c) shall be held in
strictest confidence and not disclosed by the Company or Manager, except as
required by law.
(d) The Manager may sell Registrable Shares under the
Registration Statement provided that neither a Suspension nor a suspended
disposition under Section 1.2(b) hereof is then in effect, the Manager sells in
accordance with the plan of distribution in the Prospectus, and the Manager
arranges for delivery of a current Prospectus to any transferee receiving such
Registrable Shares in compliance with the prospectus delivery requirements of
the Securities Act; and provided further, that, during any one trading day,
Manager shall not sell in excess of 15% of the average daily reported trading
volume of Registrable Shares on the New York Stock Exchange for the five trading
days immediately preceding such date.
(e) In the event of a sale of Registrable Shares by the
Manager, the Manager must also deliver to the Company's transfer agent, with a
copy to the Company, a certificate of subsequent sale reasonably satisfactory to
the Company, so that ownership of the Registrable Shares may be properly
transferred.
1.3 Indemnification. For the purpose of this Section 1.3, the term
"Registration Statement" shall include any preliminary or final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statement referred to in Section 1.1.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each of the Trust and the Manager (including, for
purposes of this Section 1.3, the officers, directors, employees and agents of
the Trust and the Manager), and each person, if any, who controls the Trust and
the Manager within the meaning of the Securities Act, against any losses,
claims, damages, liabilities or expenses, joint or several, to which the Trust
and the Manager or such controlling person may become subject, under the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act") , or any other federal or state statutory law or regulation, or at common
law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company, which consent shall not be
unreasonably withheld or delayed), only to the extent such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, as
amended as of the time the Registration Statement was declared effective by the
SEC, the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state in any of them a
material fact required to be stated therein or necessary to make the statements
in any of them, in light of the circumstances under which they were made, not
misleading, and will reimburse the Trust and the Manager and each such
controlling person for any
-4-
legal and other expenses as such expenses are reasonably incurred by the Trust
and the Manager or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon (i) an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement of the
Registration Statement or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the Manager
or the Trust, (ii) the failure of Manager to comply with the covenants and
agreements contained in this Agreement respecting the sale of the Registrable
Shares, or (iii) any untrue statement or omission of a material fact required to
make such statement not misleading in any Prospectus that is corrected in any
subsequent Prospectus that was delivered to the Manager before the pertinent
sale or sales by the Manager.
(b) Indemnification by the Trust and the Manager. To the
extent permitted by applicable law, the Trust and the Manager will severally
(and not jointly) indemnify and hold harmless the Company, LAMCO, each of the
Company's directors, each of the Company's officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Manager, which consent shall not be unreasonably withheld or
delayed) only to the extent such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of or
are based upon (i) any failure on the part of the Manager to comply with the
covenants and agreements contained in this Agreement respecting the sale of the
Registrable Shares, or (ii) any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement to the Registration Statement or Prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of Manager or
the Trust; provided, however, that neither the Manager nor the Trust shall be
liable for any such untrue or alleged untrue statement or omission or alleged
omission of which the Manager or the Trust has delivered to the Company in
writing a correction before the occurrence of the transaction from which such
loss was incurred, and the Manager and/or the Trust, depending upon whether the
Manager or the Trust is responsible for such misstatement or omission, will
reimburse the Company, each of its directors, each of its officers who signed
the Registration Statement or controlling person for any legal and other
expenses as such expenses are reasonably incurred by the Company, each of its
directors, each of its officers who signed the Registration Statement or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. In no event shall the liability of (i) the Trust under this Section 1.3
be greater than the amount of the net proceeds received by the Trust upon the
sale of the Registrable Shares giving rise to such indemnification
-5-
obligation, or (ii) the Manager under this Section 1.3 be greater than the
aggregate fees received by the Manager pursuant to the Investment Management
Agreement.
(c) Indemnification Procedure.
(i) Promptly after receipt by an indemnified party under
this Section 1.3 of written notice of the threat or commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party under this Section 1.3, promptly notify the indemnifying
party in writing of the claim; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party under the indemnity agreement contained in this Section 1.3 or
otherwise, to the extent it is not prejudiced as a result of such failure.
(ii) In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with all other
indemnifying parties similarly notified, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; provided, however, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be a conflict between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it or other indemnified parties that are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 1.3 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless:
(1) the indemnified party shall have employed such
counsel in connection with the assumption of legal defenses in accordance with
the provision to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (other than local counsel), approved by such indemnifying party
representing all of the indemnified parties who are parties to such action); or
(2) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
action.
In each of such case, the reasonable fees and expenses of counsel shall be at
the expense of the indemnifying party.
(d) Contribution. If the indemnification provided for in this
Section 1.3 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to herein, then the indemnifying party, in lieu
-6-
of indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 1.3(c)
hereof, any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 1.3(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 1.3(d), in no event shall (i) the
Trust be required to contribute any amount in excess of the amount of net
proceeds received by the Trust upon the sale of the Registrable Shares, or (ii)
the Manager be required to contribute any amount in excess of the aggregate fees
received by the Manager pursuant to the Investment Management Agreement. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
or entity who was not guilty of such fraudulent misrepresentation.
(e) Surviving Obligations. The obligations of the Company and
the Manager under this Section 1.3 shall survive the completion of the
disposition of the Registrable Shares under this Section 1, and otherwise.
1.4 Rule 144 Information. For such period as the Trust or the Plan
holds any Registrable Shares received pursuant to the Contribution, the Company
shall use its best efforts to file all reports required to be filed by it under
the Securities Act, the Exchange Act, and the rules and regulations thereunder,
and shall use its best efforts to take such further action to the extent
required to enable the Manager to sell the Registrable Shares pursuant to Rule
144 under the Securities Act (as such rule may be amended from time to time).
2. Miscellaneous.
2.1 Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Delaware,
irrespective of the choice of laws principles of the State of Delaware, as to
all matters, including matters of validity, construction, effect,
enforceability, performance and remedies.
2.2 Force Majeure. Neither party will have any liability for damages
or delay due to fire, explosion, lightning, pest damage, power failure or
surges, strikes or labor disputes, water or flood, acts of God, the elements,
war, civil disturbances, acts of civil or military authorities or the
-7-
public enemy, acts or omissions of communications or other carriers, or any
other cause beyond a party's reasonable control (other than that which arises
from the gross negligence or willful misconduct of such party), whether or not
similar to the foregoing, that prevent such party from materially performing its
obligations hereunder.
2.3 Entire Agreement; Modification; Waivers. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiation, commitments and
writings with respect to the matters discussed herein. This Agreement may not be
altered, modified or amended except by a written instrument signed by all
affected parties. The failure of any party to require the performance or
satisfaction of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent subsequent enforcement
of such term or obligation or be deemed a waiver of any subsequent breach.
2.4 Severability. The provisions of this Agreement are severable,
and in the event that any one or more provisions are deemed illegal or
unenforceable the remaining provisions shall remain in full force and effect
unless the deletion of such provision shall cause this Agreement to become
materially adverse to either party, in which event the parties shall use
reasonable commercial efforts to arrive at an accommodation that best preserves
for the parties the benefits and obligations of the offending provision.
2.5 Notices. Except as otherwise expressly provided, any notice,
request, demand or other communication permitted or required to be given under
this Agreement shall be in writing, shall be sent by one of the following means
to the Company or Manager at the addresses set forth below (or to such other
address as shall be designated hereunder by notice to the other parties and
persons receiving copies, effective upon actual receipt), and shall be deemed
conclusively to have been given: (a) on the first business day following the day
timely deposited with Federal Express (or other equivalent national overnight
courier) or United States Express Mail, with the cost of delivery prepaid or for
the account of the sender; (b) on the fifth business day following the day duly
sent by certified or registered United States mail, postage prepaid and return
receipt requested; or (c) when otherwise actually received by the addressee on a
business day (or on the next business day if received after the close of normal
business hours or on any non-business day).
If to the Company:
Lucent Technologies Inc.
000-000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Treasury Director, Capital Markets
With a copy to:
Lucent Technologies Inc.
000-000 Xxxxxxxx Xxxxxx
-0-
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Managing Corporate Counsel, Corporate & Securities
If to Manager:
U.S. Trust Company, National Association
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
With a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
2.6 Title and Headings. Titles and headings to sections herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
2.7 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
-9-
IN WITNESS WHEREOF, each of the Manager and the Company has caused this
Agreement to be duly executed on its behalf by its duly authorized officer as of
the date first written above.
LUCENT TECHNOLOGIES INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President & Treasurer
U.S. TRUST COMPANY, NATIONAL ASSOCIATION, solely
in its capacity as duly appointed and acting
investment manager of a segregated account held
in the Lucent Technologies Inc. Represented
Employees Postretirement Health Benefits Trust
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
-10-
