LUCENT TECHNOLOGIES INC. AND THE BANK OF NEW YORK, as Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of November 30, 2006 Supplement to Indenture Dated as of June 4, 2003
Exhibit 4.1.3
LUCENT TECHNOLOGIES INC.
AND
THE BANK OF NEW YORK,
as Trustee
Dated as of November 30, 2006
Supplement to Indenture Dated as of June 4, 2003
SECOND SUPPLEMENTAL INDENTURE, dated as of November 30, 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 2 3/4% Series A Convertible Senior Debentures due 2023 (the “Series A Debentures”) and the
Company’s 2 3/4% Series B Convertible Senior Debentures due 2025 (the “Series B Debentures”,
and together with the Series B Debentures, the “Debentures”);
WHEREAS, pursuant to the terms of the First Supplement, the Debentures were convertible into
shares of common stock, par value $0.01, of the Company (“Common Stock”);
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 société anonyme organized under
the laws of the Republic of France (“Alcatel”), and Aura Merger Sub, Inc., a Delaware
corporation and a 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, Alcatel will be renamed “Alcatel Lucent” upon effectiveness of the Merger;
WHEREAS, as a result of the Merger, each share of Common Stock outstanding immediately prior
to the effective time of the Merger (the “Effective Time”) shall, except as provided in
Section 1.02(a)(i) of the Merger Agreement with respect to shares of Common Stock held by the
Company as treasury stock or held by Alcatel or Merger Sub immediately prior to the Effective Time,
be converted into the right to receive 0.1952 of an ADS (as defined in the Merger Agreement, an
“ADS”), and cash in lieu of fractional ADSs pursuant to Section 1.06 of the Merger
Agreement;
WHEREAS, each ADS is an American Depository Share of Alcatel representing one (1) ordinary
share, nominal value €2.00 per share, of Alcatel (an “Alcatel Ordinary Share”);
WHEREAS, the Merger constitutes a Conversion Rate Fundamental Change (as defined in the First
Supplement) pursuant to the terms of Section 1.10(f)(v) of the First Supplement;
WHEREAS, pursuant to Section 1.10(f)(v) of the First Supplement, as a result of the Merger,
the Company is required to execute and deliver to the Trustee a supplemental
indenture providing (i) that the Debentures shall be convertible into the ADSs and cash in
lieu of fractional ADSs and (ii) for adjustments which shall be as nearly equivalent as practicable
to the adjustments provided for in Section 1.10 of the First Supplement;
WHEREAS, Section 9.01 of the Indenture provides that the Company and the Trustee may amend or
supplement the Indenture or the Securities without the Consent of any Holder to make any change
that does not adversely affect the rights of any Holder;
WHEREAS, the amendments contemplated herein do not and will not adversely affect the rights of
any Holders; and
WHEREAS, the Company has complied with all conditions precedent provided for in the Indenture
relating to 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 of Debentures from time to time, as follows:
ARTICLE I
DEFINITIONS
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.
ARTICLE II
CONCERNING THE MERGER
CONCERNING THE MERGER
Section 2.1. Conversion Privilege. Pursuant to Section 1.10 of the First Supplement,
from and after the Effective Time, any right of a Holder to convert Debentures into Common Stock
shall be changed into the right to convert such Debentures into (i) 58.4431 ADSs per $1,000
principal amount of Debentures for Series A Debentures and 62.5641 ADSs per $1,000 principal amount
of Debentures for Series B Debentures (the “Stock Consideration”), and (ii) in lieu of any
fractional ADSs otherwise receivable pursuant to clause (i) hereof, cash in lieu of such fractional
ADSs in an amount that would have been paid in lieu of such amount of fractional ADSs pursuant to
Section 1.06 of the Merger Agreement (the “Cash Consideration”, and together with the Stock
Consideration, the “Conversion Consideration”), subject to further adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for in Section 1.10 of
the First Supplement.
Section 2.2. References to the Company and to Common Stock.
(a) Subject to the other provisions of this Supplemental Indenture, all references in the
First Supplement to Common Stock shall be deemed to be references to the Conversion Consideration,
ADSs or Alcatel Ordinary Shares, to the extent necessary to give effect to Section 1.10(f)(v) of
the First Supplement.
(b) Subject to the other provisions of this Supplemental Indenture, all
references in the First Supplement to the Company shall be deemed to be references to Alcatel
Lucent to the extent necessary to give effect to Section 1.10(f)(v) of the First Supplement.
Section 2.3. Reservation of Shares. The Company hereby (i) agrees to cause (A)
Alcatel Lucent to reserve and keep available out of its authorized but unissued capital stock,
solely for the purpose of issuance upon conversion of Debentures as provided in this Supplemental
Indenture, a number of shares of Alcatel Ordinary Shares sufficient to issue the Stock
Consideration upon conversion of all outstanding Debentures (B) to be issued and delivered in
accordance with this Supplemental Indenture, the Stock Consideration and the Cash Consideration
upon conversion of any Debenture and (ii) warrants that all ADSs and the underlying Alcatel
Ordinary Shares that may be issued upon the conversion of any Debenture, when so issued, shall be
duly authorized, validly issued, fully paid and, with respect to the ADSs, nonassessable.
ARTICLE III
ACCEPTANCE OF SUPPLEMENTAL INDENTURE
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
MISCELLANEOUS
Section 4.1. Effectiveness of the Supplemental Indenture. This Supplemental Indenture
shall be effective as of the Effective Time.
Section 4.2. 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 4.3. 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 4.4. 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.
Section 4.5. 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 4.6. 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 4.7. 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 4.8. Successors and Assigns. All covenants and agreements in this
Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed
or not.
Section 4.9 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 4.10 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 4.11 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 4.12 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, and the Trustee shall not be under any
responsibility to determine the correctness of any provisions contained in this Supplemental
Indenture relating either to the kind or amount of shares of stock or securities or property
(including cash) receivable by holders of Debentures upon the conversion of their Debentures or to
any adjustment to be made with respect thereto.
Section 4.13 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 4.14 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]
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. |
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| By: | Xxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxxx | |||
| Title: | Chief Financial Officer | |||
| THE BANK OF NEW YORK, as Trustee |
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| By: | Xxxxx Xxxxxxxxx-Xxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx-Xxxxxx | |||
| Title: | Vice President | |||
