Exhibit 4.3
WARRANT CONVERSION AGREEMENT
WARRANT CONVERSION AGREEMENT (this "AGREEMENT"), dated as of November 30,
2006, by and among The Bank of New York, a New York banking corporation, as
Warrant Agent (the "WARRANT AGENT"), Lucent Technologies Inc., a Delaware
corporation ("LUCENT"), and Alcatel, a societe anonyme organized under the laws
of the Republic of France ("ALCATEL").
WITNESSETH
WHEREAS, Lucent and the Warrant Agent entered into a Warrant Agreement
dated as of December 10, 2004 (the "WARRANT AGREEMENT"), pursuant to which the
Warrant Agent has agreed to act on behalf of Lucent in connection with Warrants
issued by Lucent (the "WARRANTS"),
WHEREAS, pursuant to the Warrant Agreement, each Warrant entitles the
holder thereof to purchase one Lucent Share (as defined below) at an exercise
price of $2.75 per share (the "EXERCISE PRICE"),
WHEREAS, in the event of a Reorganization of Lucent (as such term is
defined in the Warrant Agreement), the Warrant Agreement provides that the
holders of Warrants not exercised, terminated or otherwise expired (the
"HOLDERS") shall receive, upon exercise of the Warrants and payment of the
Exercise Price, the kind and amount of shares of stock and other securities and
property receivable by a Lucent stockholder for the number of Lucent Shares into
which such Warrants might have been exercised immediately prior to such
Reorganization,
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of April 2,
2006 (the "MERGER Agreement"), by and among Lucent, Alcatel, and Aura Merger
Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Alcatel,
Lucent and Alcatel will combine their businesses through a merger of Aura Merger
Sub, Inc. with and into Lucent (the "MERGER"), the Merger being a Reorganization
under the Warrant Agreement,
WHEREAS, at the effective time of the Merger (the "EFFECTIVE TIME"), by
virtue of the Merger and without any action on the part of any Lucent
stockholder, each Lucent Share issued and outstanding immediately prior to the
Effective Time will be converted into a right to receive 0.1952 (the "EXCHANGE
RATIO") of an ADS (as defined below),
WHEREAS, the Warrant Agreement will remain in full force and effect at and
after the Effective Time, and
WHEREAS, pursuant to Section 4.04 of the Warrant Agreement, Alcatel and
Lucent desire to enter into an agreement with the Warrant Agent to confirm the
Holders' rights under the Warrant Agreement.
NOW THEREFORE, THIS AGREEMENT WITNESSETH:
For in and in consideration of the premises and agreements set forth
herein, the parties hereto, intending to be legally bound, hereby agree as
follows for the benefit of the other parties and for the equal benefit of the
Holders:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For the purpose of this Agreement:
"ADS" means an American Depository Share of Alcatel representing one (1)
Alcatel Ordinary Share.
"ALCATEL ORDINARY SHARE" means an ordinary share, nominal value E2.00 per
share, of Alcatel.
"EXCHANGE AGENT" means the Bank of New York, as appointed by Alcatel
pursuant to an Exchange Agency Agreement dated on or about November 30, 2006, by
and among Alcatel and the Bank of New York.
"LUCENT SHARE" means a share of common stock, par value $0.01 per share,
of Lucent.
Section 1.02 Rules of construction.
(a) Except as otherwise expressly provided or unless the
context otherwise requires, all capitalized terms shall have the meanings
assigned to them in the Warrant Agreement.
(b) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such term.
(c) References to Sections and Articles herein are references
to the Sections and Articles of this Agreement.
(d) The headings of the Sections and Articles of this
Agreement are inserted for reference purposes only. They shall not be deemed a
part thereof and shall not affect in any way the meaning or interpretation of
this Agreement.
ARTICLE II
CONVERSION OF WARRANTS
Section 2.01 Exchange Ratio. Upon exercise of the Warrants and
payment of the Exercise Price at any time from and after the Effective Time up
to and including the Expiration Date, Holders will receive for each Warrant
exercised 0.1952 of an ADS and a cash payment in lieu of any fractional ADS (as
set forth in Section 2.02 herein).
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Section 2.02 Fractional ADS. Holders otherwise entitled to receive
fractional ADSs upon exercise of Warrants will receive from the Warrant Agent
the proceeds of the sale or sales by the Exchange Agent on the New York Stock
Exchange of the aggregate of fractional ADSs to which Holders would otherwise be
entitled to, in the manner provided in the Exchange Agency Agreement.
Section 2.03 Issuance and delivery of ADS. Pursuant to Section
1.04(d) of the Merger Agreement, at the Effective Time, Alcatel will make
available for issuance or delivery such number of ADSs that may be issued or
delivered upon exercise of the Warrants outstanding immediately prior to the
Effective Time.
Section 2.04 Adjustment and Notice Provisions. Pursuant to Section
4.04(a) of the Warrant Agreement, Alcatel and the Warrant Agent agree that the
provisions of Article IV of the Warrant Agreement shall apply to Alcatel and the
ADSs, as nearly equivalent as may be practicable, as if Alcatel were the
"Company" and the ADSs were the "Common Stock" thereunder, and that such
provisions shall no longer apply to Lucent and the Common Stock.
ARTICLE III
MISCELLANEOUS
Section 3.01 Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
Section 3.02 Jurisdiction. All actions and proceedings arising out
of this Agreement or any of the transactions contemplated hereby, shall be
brought in the United States District Court for the Southern District of New
York or in a New York State Court in the County of New York. In connection with
any such action or proceeding, the parties hereto consent to the jurisdiction
of, and venue in, such court.
Section 3.03 Waiver of Jury Trial. Each of the parties hereto
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of this Agreement or the transactions contemplated
hereby.
Section 3.04 Benefits of the Agreement. No provision in this
Agreement is intended or shall be construed to confer upon any person other than
the parties hereto and the Holders, any right, remedy or claim under or by
reason of this Agreement or any part hereof.
Section 3.05 Severability. The provisions of this Agreement are
severable. If any term, clause or provision is held invalid, illegal or
unenforceable, the remainder of the terms, clauses or provisions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
Section 3.06 Entire Agreement. This Agreement and the Warrant
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereto and thereto and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to such
subject matter.
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Section 3.07 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.
Section 3.08 Counterparts. This Agreement may be signed in any
number of counterparts (including by facsimile), each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
Section 3.09 Amendments. This Agreement may be amended by the
parties hereto without the consent of any Holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein or adding or changing any other provisions with respect to
matters or questions arising under this Agreement as the parties hereto may deem
necessary or desirable; provided, however, that such action shall not adversely
affect the rights of any of the Holders. Any amendment or supplement to this
Agreement that adversely affects the interests of the Holders shall require the
written consent of the Holders of a majority of the then outstanding Warrants.
The consent of each Holder affected shall be required for any amendment pursuant
to which the number of ADSs issuable upon exercise of the Warrants would be
decreased.
Section 3.10 Notices. All notices, requests or communications under
this Agreement shall be in writing (including facsimile or similar writing) and
shall be given as follows:
If to Alcatel:
Alcatel
00, xxx Xx Xxxxxx
00000 Xxxxx, Xxxxxx
Facsimile No.: x00 0 00 00 00 00
Attn: Xxxxxx Xxxxxx-Xxxxxxx
General Counsel
with a copy to:
Xxx Xxxx Xxxxxxxx
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
If to Lucent:
Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000 0000
Attn: Xxxxxxx Xxxxxxxxx, Xx., Esq.
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Senior Vice President, General Counsel and Corporate
Secretary
with a copy to:
Xxxxx X. Xxxx
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
If to the Warrant Agent:
The Bank of New York
ADR Administration Department
000 Xxxxxxx Xx. 00X
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxx
with a copy to:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. Each such notice, request
or other communication shall be effective (i) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section and
the appropriate facsimile confirmation is received, or (ii) if given by any
other means, when delivered at the address specified in this Section.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
ALCATEL
By: /s/ Xxxx-Xxxxxx Beaufret
------------------------------------
Name: Xxxx-Xxxxxx Beaufret
Title: Chief Financial Officer
LUCENT TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
THE BANK OF NEW YORK, as Warrant Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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