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Exhibit 4.3
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ALCATEL USA, INC., Issuer,
(formerly, DSC Communications Corporation)
ALCATEL, Guarantor
and
THE BANK OF NEW YORK, Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of April 1, 1999
Supplementing the Indenture dated as of August 12, 1997, as
supplemented by the First Supplemental Indenture
dated as of September 4, 1998
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U.S.$400,000,000
7% Convertible Subordinated Notes
due August 1, 2004
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SECOND SUPPLEMENTAL INDENTURE, dated as of April 1, 1999 (this "Second
Supplemental Indenture"), between ALCATEL USA, INC., formerly DSC COMMUNICATIONS
CORPORATION, a Delaware corporation (the "Company"), ALCATEL, a French societe
anonyme ("Alcatel" or the "Guarantor"), and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of August 12, 1997 (the "Initial Indenture"),
providing for the creation and issuance by the Company of 7% Convertible
Subordinated Notes due August 1, 2004 (the "Securities" or "Security"), which
has been supplemented by the First Supplemental Indenture, dated as of September
4, 1998, between the Company and the Trustee (the "First Supplemental
Indenture", together with the Initial Indenture, the "Indenture");
WHEREAS, following the acquisition of 100% of the outstanding shares of
common stock of the Company by Alcatel through a merger in September 1998,
Alcatel provided the Guaranty, dated as of September 17, 1998, a copy of which
is attached hereto as Annex I (the "Guaranty");
WHEREAS, in addition to the modification of the conversion rights
provided for in Article Two of the First Supplemental Indenture, the parties
hereto wish to make certain further modifications to the Initial Indenture to
reflect the convertibility of the Securities into Alcatel ADSs and to reflect
the Guaranty;
WHEREAS, Section 8.1(4) of the Initial Indenture provides that the
parties hereto may execute this Second Supplemental Indenture without the
consent of Holders of Securities;
NOW, THEREFORE, the Company and the Trustee, acting for itself and the
Holders, agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Relation to Indenture
This Second Supplemental Indenture constitutes part of the Indenture
for all purposes.
SECTION 1.02. Definitions
In this Second Supplemental Indenture, unless the context otherwise
requires:
(i) terms defined in the Indenture have the same meaning when used
in this Second Supplemental Indenture unless otherwise defined
in this Second Supplemental Indenture; and
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(ii) all references to "the Second Supplemental Indenture" or "this
Second Supplemental Indenture" are to this Second Supplemental
Indenture as modified, supplemented or amended from time to
time.
ARTICLE 2
AMENDMENTS
Upon the execution hereof, without further agreement, the Indenture
shall be amended as follows:
SECTION 2.01. Substitution of "Alcatel USA, Inc." for "DSC Communications
Corporation"
At each place in the Indenture where the name "DSC Communications
Corporation" appears, such name shall be deleted and replaced with "Alcatel USA,
Inc.".
SECTION 2.02. Definition of Alcatel and Alcatel ADSs
The following definitions shall be added to Section 1.1 of the
Indenture:
(i) "Alcatel" means Alcatel, a company organized under the laws of
the Republic of France, and the parent of the Company.
(ii) "Alcatel ADSs" means the American depositary shares issued
under the depositary agreement, dated as of March 1, 1991 and
amended and restated as of March 15, 1992, as amended by
Amendment No. 1 dated as of January 3, 1997 and as further
amended and restated as of March 10, 1997, among Alcatel, The
Bank of New York, as depositary, and holders of American
depositary receipts evidencing such American depositary
shares, each representing one-fifth of one ordinary share of
Alcatel.
SECTION 2.03. Definition of Common Stock
The definition of "Common Stock" in Section 1.1 shall be deleted and
replaced in its entirety by the text below:
"Common Stock", unless otherwise stated, means the Common Stock of
Alcatel, nominal value EUR 10 per share.
SECTION 2.04. Substitution of "Alcatel" for "the Company"
At each place in the Indenture listed below, unless otherwise stated in
this Second Supplemental Indenture, the words "the Company" shall be deleted and
replaced with "Alcatel":
(i) SECTION 1.1: in the definition of "Closing Price Per Share";
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(ii) The second to last sentence of sixth paragraph of the Form of
Reverse under Section 2.2, which begins: "In addition, the
Indenture provides that in the case of certain consolidations
or mergers".
(iii) SECTION 12.6(a), (b), (c) and (d) and the second mention of
"the Company" in the last paragraph of Section 12.6.
SECTION 2.05. Substitution of "Alcatel ADSs" for "Share", "Common Stock"
and "Common Stock of the Company"
At each place in the Indenture listed below, unless otherwise stated in
this Second Supplemental Indenture, the words "Share", "Common Stock", "share of
Common Stock", "Common Stock of the Company", "fully paid and non-assessable
shares of Common Stock of the Company" and words of similar import, as the
context may require, shall be deleted and replaced with "Alcatel ADS" or
"Alcatel ADSs", as the case may be, and the words "share certificate" shall be
deleted and replaced with "American Depositary Receipt evidencing American
Depositary Shares".
(i) SECTION 1.1: in the definitions of "Closing Price Per Share",
"Non-electing Shares" and "Trading Days", 1.12;
(ii) SECTIONS 2.2, 2.4;
(iii) SECTION 3.1;
(iv) SECTION 10.8;
(v) SECTIONS 12.1, 12.2, 12.3, 12.9, 12.12;
(vi) SECTION 13.15;
(vii) SECTION 14.1, 14.2, 14.3 and clause (x) of the proviso at the
end of Section 14.4(b).
SECTION 2.06. Substitution of "Alcatel ADSs deliverable" for "Shares of
Common Stock issuable"
At each place in the Indenture where reference is made to the issuance
and/or delivery of Common Stock (including, for illustrative purposes only and
without limitation, references to shares of Common Stock "issuable", "issued" or
"required to be issued and delivered") such reference shall be deleted and
replaced with a reference to the delivery of Alcatel ADSs (including for
illustrative purposes only and without limitation, references to Alcatel ADSs
"deliverable", "delivered" or "required to be delivered").
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SECTION 2.07. Notices, Etc., to Trustee and Company
(i) The heading shall be modified to read "Notices, Etc., to
Trustee, Company and Alcatel".
(ii) Section 1.5(1) shall be modified by inserting the following
text at the end of the paragraph: "facsimile no. (212)
815-5915".
(iii) Section 1.5(2) shall be deleted and replaced in its entirety
by the text below:
(2) the Company or Alcatel by the Trustee or by any Holder
of Securities shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing,
mailed, first-class postage prepaid, or telecopied and
confirmed by mail, first-class postage prepaid, or delivered
by hand or overnight courier, addressed (i) if to the Company,
to Alcatel USA, Inc. at 0000 Xxxx Xxxx, Xxxxx, Xxxxx 00000,
Attention: Treasurer; facsimile no. (000) 000-0000, or at any
other address previously furnished in writing to the Trustee
by the Company; and (ii) if to Alcatel, to Alcatel at 00,
xxx xx Xxxxxx, Xxxxx, Xxxxxx, 00000, Attention: Chief
Financial Officer; facsimile no. (331) 40.76.14.91.
SECTION 2.08. Form of Security
The first sentence of the Form of Reverse under Section 2.2, and
Annexes A, B and C, shall be modified by replacing the reference to the
Indenture, dated as of August 12, 1997, with the following text: "Indenture,
dated as of August 12, 1997 (the "Initial Indenture"), as supplemented by the
First Supplemental Indenture dated as of September 4, 1998, between the Company
and The Bank of New York (the "First Supplemental Indenture") and the Second
Supplemental Indenture dated as of April 1, 1999, between the Company, Alcatel
and The Bank of New York, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture) (the "Second Supplemental
Indenture", together with the Initial Indenture and the First Supplemental
Indenture, the "Indenture")".
SECTION 2.09. No Reserve of Common Stock to be held by the Company
Section 12.7 of the Indenture shall be deleted in its entirety and
replaced by the words "Deleted Intentionally".
SECTION 2.10. Conversion Price
In Sections 2.2 and 12.1 of the Indenture, the Conversion Price of
"U.S.$ 49.725" shall be deleted and replaced by "U.S.$ 61.012".
SECTION 2.11. Adjustment of Conversion Price
Section 12.4 of the Indenture shall be deleted and replaced in its
entirety by the text below.
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The Conversion Price shall be subject to adjustments from time to time
as follows:
(1) In case Alcatel shall pay or make a dividend or other
distribution on any class of capital stock of Alcatel payable in shares
of Common Stock, the Conversion Price in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed for
such determination. If, after any such date fixed for determination,
any dividend or distribution is not in fact paid, the Conversion Price
shall be immediately readjusted, effective as of the date the
determination is made not to pay such dividend or distribution, to the
Conversion Price that would have been in effect if such determination
date had not been fixed. For the purposes of this paragraph (1), the
number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of Alcatel but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions
of such shares. Alcatel will not pay any dividend or make any
distribution on shares held in the treasury of Alcatel.
(2) In case Alcatel shall issue rights, options or warrants to
all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock such that the price per Alcatel ADS
would be less than the current market price per Alcatel ADS (determined
as provided in paragraph (8) of this Section 12.4) on the date fixed
for the determination of stockholders entitled to receive such rights,
options or warrants (other than any rights, options or warrants that by
their terms will also be issued to any Holder upon conversion of a
Security into Alcatel ADSs without any action required by the Company
or any other Person), the Conversion Price in effect at the opening of
business on the day following the date fixed for such determination
shall be reduced by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common
Stock so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of shares
of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day
following the date fixed for such determination. If, after any such
date fixed for determination, any such rights, options or warrants are
not in fact issued, the Conversion Price shall be immediately
readjusted, effective as of the date the determination is made not to
issue such rights, options or warrants, to the Conversion Price that
would have been in effect if such determination date had not been
fixed. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in
the treasury of Alcatel but shall include shares issuable in respect of
scrip certificates issued in lieu of
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fractions of shares of Common Stock. Alcatel will not issue any rights,
options or warrants in respect of shares of Common Stock held in the
treasury of Alcatel.
(3) In case the ratio of Alcatel ADSs to shares of Common
Stock shall be modified such that each Alcatel ADS no longer represents
one-fifth of one ordinary share of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon
which such modification becomes effective shall be proportionally
adjusted, such adjustment to become effective immediately after the
opening of business on the day following the day upon which such
modification becomes effective.
(4) In case Alcatel shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of any class of capital stock, or other property
(including securities, but excluding (i) any rights, options or
warrants referred to in paragraph (2) of this Section, (ii) any
dividend or distribution paid exclusively in cash, (iii) any dividend
or distribution referred to in paragraph (1) of this Section and (iv)
any merger or consolidation to which Section 12.11 applies), the
Conversion Price shall be adjusted so that the same shall equal the
price determined by dividing the Conversion Price in effect immediately
prior to the close of business on the date fixed for the determination
of stockholders entitled to receive such distribution by a fraction of
which the numerator shall be the current market price per Alcatel ADS
(determined as provided in paragraph (8) of this Section 12.4) on the
date fixed for such determination less the then fair market value (as
determined by the authorized officer of Alcatel, whose determination
shall be conclusive and filed with the Trustee) of the portion of the
assets, shares or evidences of indebtedness so distributed applicable
to one Alcatel ADS and the denominator shall be such current market
price per Alcatel ADS, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such
distribution. If, after any such date fixed for determination, any such
distribution is not in fact made, the Conversion Price shall be
immediately readjusted, effective as of the date the determination is
made not to make such distribution, to the Conversion Price that would
have been in effect if such determination date had not been fixed.
(5) In case Alcatel shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a merger or consolidation to which Section
12.11 applies or as part of a distribution referred to in paragraph (4)
of this Section) in an aggregate amount that, combined together with
(I) the aggregate amount of any other cash distributions to all holders
of its Common Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution and in respect of
which no adjustment pursuant to this paragraph (5) has been made and
(II) the aggregate of any cash plus the fair market value (as
determined by the authorized officer of Alcatel, whose determination
shall be conclusive) of consideration payable in respect of any tender
offer by Alcatel or any of its subsidiaries for all or any portion of
the Alcatel ADSs concluded within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment
pursuant to paragraph (6) of this Section 12.4 has been made (the
"combined cash and tender amount") exceeds 12.5% of the product of the
current market price per Alcatel ADS (determined as
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provided in paragraph (8) of this Section 12.4) on the date for the
determination of holders of shares of Common Stock entitled to receive
such distribution times the number of Alcatel ADSs which would have to
be issued to reflect all shares of Common Stock outstanding on such
date (the "aggregate current market price"), then, and in each such
case, immediately after the close of business on such date for
determination, the Conversion Price shall be adjusted so that the same
shall equal the price determined by dividing the Conversion Price in
effect immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution
by a fraction (i) the numerator of which shall be equal to the current
market price per Alcatel ADS (determined as provided in paragraph (8)
of this Section) on the date fixed for such determination less an
amount equal to the quotient of (x) the excess of such combined cash
and tender amount over such aggregate current market price divided by
(y) the number of Alcatel ADSs which would have to be issued to reflect
all shares of Common Stock outstanding on such date for determination
and (ii) the denominator of which shall be equal to the current market
price per Alcatel ADS (determined as provided in paragraph (8) of this
Section 12.4) on such date for determination.
(6) In case a tender offer made by Alcatel or any Subsidiary
for all or any portion of the Common Stock shall expire and such tender
offer (as amended upon the expiration thereof) shall require the
payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market
value (as determined by the authorized officer of Alcatel, whose
determination shall be conclusive) that combined together with (I) the
aggregate of the cash plus the fair market value (as determined by the
authorized officer of Alcatel, whose determination shall be
conclusive), as of the expiration of such tender offer, of
consideration payable in respect of any other tender offer by Alcatel
or any Subsidiary for all or any portion of the Common Stock expiring
within the 12 months preceding the expiration of such tender offer and
in respect of which no adjustment pursuant to this paragraph (6) has
been made and (II) the aggregate amount of any cash distributions to
all holders of Alcatel's Common Stock within 12 months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to paragraph (5) of this Section has been made (the "combined
tender and cash amount") exceeds 12.5% of the product of the current
market price per Alcatel ADS (determined as provided in paragraph (8)
of this Section 12.4) as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender offer (as it may
be amended) times the number of Alcatel ADSs which would have to be
issued to reflect all shares of Common Stock outstanding (including any
tendered shares) as of the Expiration Time, then, and in each such
case, immediately prior to the opening of business on the day after the
date of the Expiration Time, the Conversion Price shall be adjusted so
that the same shall equal the price determined by dividing the
Conversion Price immediately prior to close of business on the date of
the Expiration Time by a fraction (i) the numerator of which shall be
equal to (A) the product of (I) the current market price per Alcatel
ADS (determined as provided in paragraph (8) of this Section 12.4) on
the date of the Expiration Time multiplied by (II) the number of
Alcatel ADSs which would have to be issued to reflect all shares of
Common Stock outstanding (including any tendered shares) on the
Expiration Time less (B) the combined tender and cash amount, and (ii)
the denominator of which shall be equal to the product of (A) the
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current market price per Alcatel ADS (determined as provided in
paragraph (8) of this Section 12.4) as of the Expiration Time
multiplied by (B) the number of Alcatel ADSs which would have to be
issued to reflect all shares of Common Stock outstanding (including any
tendered shares) as of the Expiration Time less the number of Alcatel
ADSs which would have to be issued to represent all shares of Common
Stock validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted up to any such maximum, being referred to as
the "Purchased Shares").
(7) The reclassification of Common Stock into securities other
than Common Stock (other than a reclassification upon a consolidation
or merger to which Section 12.11 applies) shall be deemed to involve
(a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution"
and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section), and (b) a subdivision or combination,
as the case may be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of shares of
Common Stock outstanding immediately thereafter (and the effective date
of such reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
paragraph (3) of this Section 12.4).
(8) For the purpose of any computation under paragraphs (2),
(4), (5) or (6) of this Section 12.4, the current market price per
Alcatel ADS on any date shall be calculated by the Company and be
deemed to be the average of the daily Closing Prices Per Alcatel ADS
for the five consecutive Trading Days selected by the Company
commencing not more than 10 Trading Days before, and ending not later
than, the earlier of the day in question and the day before the "ex"
date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex date", when
used with respect to any issuance or distribution, means the first date
on which the Alcatel ADSs trade in a regular way in the applicable
securities market or on the applicable securities exchange without the
right to receive such issuance or distribution.
(9) No adjustment in the Conversion Price shall be required
unless such adjustment (plus any adjustments not previously made by
reason of this paragraph (9)) would require an increase or decrease of
at least one percent in such rate; provided, however, that any
adjustments which by reason of this paragraph (9) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article shall be
made to the nearest cent or to the nearest one-hundredth of an Alcatel
ADS or share, as the case may be.
(10) The Company may make such reductions in the Conversion
Price, for the remaining term of the Securities or any shorter term, in
addition to those required by paragraphs (1), (2), (3), (4), (5) and
(6) of this Section 12.4, as it considers to be advisable in order to
avoid or diminish any income tax to any holders of Alcatel ADSs
resulting from any dividend or distribution of stock or issuance of
rights or warrants to purchase
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or subscribe for stock or from any event treated as such for income tax
purposes. The Company shall have the power to resolve any ambiguity or
correct any error in this paragraph (10) and its actions in so doing
shall, absent manifest error, be final and conclusive.
SECTION 2.12. Covenant as to Alcatel ADSs
Section 12.9 of the Indenture shall be deleted and replaced in its
entirety by the text below.
The Company agrees that all Alcatel ADSs which may be
delivered upon conversion of Securities will have been duly purchased
on the open market and, except as provided in Section 12.8, the Company
will pay all taxes, liens and charges with respect to the delivery
thereof.
SECTION 2.13. Provision in Case of Consolidation, Merger or Sale of Assets
Section 12.11 of the Indenture shall be deleted and replaced in its
entirety by the text below.
In case of any consolidation or merger of Alcatel with or into
any other Person, any merger of another Person with or into Alcatel
(other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common
Stock of Alcatel) or any conveyance, sale, transfer or lease of all or
substantially all of the assets of Alcatel, the Person formed by such
consolidation or resulting from such merger or which acquires such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 12.1, to convert
such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, conveyance,
sale, transfer or lease by a holder of the number of Alcatel ADSs into
which such Security might have been converted immediately prior to such
consolidation, merger, conveyance, sale, transfer or lease, assuming
such holder of Alcatel ADSs (i) is not a Person with which Alcatel
consolidated or merged with or into or which merger into or with
Alcatel or to which such conveyance, sale, transfer or lease was made,
as the case may be ("Constituent Person"), or an Affiliate of a
Constituent Person and (ii) failed to exercise his rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer
or lease (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, conveyance,
sale, transfer or lease is not the same for each Alcatel ADS held
immediately prior to such consolidation, merger, conveyance, sale,
transfer or lease by others than a Constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have
been exercised ("Non-electing Alcatel ADSs"), then for the purpose of
this Section 12.11 the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, sale,
transfer or lease by the holders of each Non- electing Alcatel ADS
shall be deemed to be the kind and amount so receivable per share
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by a plurality of the Non-electing Alcatel ADSs), and further assuming,
if such consolidation, merger, conveyance, transfer, sale or lease
occurs prior to the 90th day following the last original issue date of
the Securities, that the Security was convertible at the time of such
occurrence at the Conversion Rate specified in Section 12.1 as adjusted
from the issue date of such Security to such time as provided in this
Article Twelve. Such supplemental indenture shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section 12.11 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases.
Notice of the execution of such a supplemental indenture shall be given
by the Company to the Holder of each Security as provided in Section
1.6 promptly upon such execution.
Neither the Trustee nor any Conversion Agent shall be under
any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property or
cash receivable by Holders of Securities upon the conversion of their
Securities after any such consolidation, merger, conveyance, transfer,
sale or lease or to any such adjustment, but may accept as conclusive
evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto,
which the Company shall cause to be furnished to the Trustee upon
request.
SECTION 2.14. Conditions to the Company's Election to Pay the Repurchase
Price in Alcatel ADSs
Section 14.2(d) of the Indenture shall be deleted and replaced in its
entirety by the text below.
14.2. (d) All Alcatel ADSs which may be delivered upon
repurchase of Securities will be purchased by the Company on the open
market.
SECTION 2.15. Certain Definitions
(i) Section 14.4(b)(i) shall be modified by inserting the words
"or Alcatel" directly after the last three mentions of "the
Company";
(ii) Section 14.4(b)(ii) shall be modified by replacing the words
"Common Stock" with "common stock of the Company";
(iii) The proviso at the end of Section 14.4(b) of the Indenture
shall be modified by inserting the following text at the
beginning of clause (y): "in the event that the Change of
Control is effected through the acquisition of the Common
Stock of Alcatel,".
SECTION 2.16. Guaranty
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The text below shall be inserted immediately following Section 15.5 of
the Indenture.
ARTICLE 16
THE GUARANTY
SECTION 16.1. Guaranty.
Alcatel has, pursuant to the Guaranty dated as of September
17, 1998, a copy of which is attached hereto as Annex I, fully and
unconditionally guaranteed the due and punctual payment of the
principal of, premium, if any, and interest (including Liquidated
Damages) on the Securities. In case of a failure of the Company to pay
or cause to be paid punctually any such amounts in accordance with the
terms of this Indenture, Alcatel hereby agrees, upon written notice
from the Trustee, to pay or cause to be paid punctually any such
amounts when and as the same become due and payable in accordance with
the Guaranty.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Ratification of Indenture
Except as expressly modified or amended by this Second Supplemental
Indenture, the Indenture continues in full force and effect and is in all
respects confirmed and preserved.
SECTION 3.02. Headings
Headings of the Articles and Sections in this Second Supplemental
Indenture are for convenience of reference only and do no affect interpretation.
SECTION 3.03. Severability Clause
In case any provision in this Second 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 3.04. Benefits of Supplemental Indenture: Binding Effect
Nothing in this Second Supplemental Indenture, express or implied,
shall give any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit of any legal or
equitable right, remedy, or claim under this Second Supplemental Indenture. This
Second Supplemental Indenture shall be binding upon the successors of the
Company and the Trustee and on each Holder.
SECTION 3.05. Governing Law
This Second Supplemental Indenture shall be governed by, and construed
in accordance with, the laws of the State of New York.
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SECTION 3.06. Counterparts
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
ALCATEL USA, INC.
By: /s/ Xxxxxx X. Xxxxx
__________________________________
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President, General
Counsel and Secretary
Attest:
/s/ Xxxxxxxxxxx X. Xxxx
___________________________________
Name: Xxxxxxxxxxx X. Xxxx
Title: Assistant Secretary
THE BANK OF NEW YORK, Trustee
By /s/ Van X. Xxxxx
___________________________________
Name: Van X. Xxxxx
Title: Assistant Vice-President
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STATE OF TEXAS)
):ss.:
COUNTY OF COLIN )
On the 8th of January 1999, before me personally came Xxxxxx X. Xxxxx,
to me known, who, being by me duly sworn, did depose and say that he is the
Sr. Vice President, General Counsel and Secy of Alcatel USA, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/ Xxxxxx X. Xxxxxxxx
_______________________________________
Xxxxxx X. Xxxxxxxx
Notary Public
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As Guarantor,
ALCATEL
By: /s/ Xxxx-Xxxxxx Halbron
___________________________________
Name: Xxxx-Xxxxxx Halbron
Title: Senior Executive Vice President
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Annex I
GUARANTY, dated as of September 17, 1998, made by Alcatel, a corporation
organized under the laws of the Republic of France (the "Guarantor"), in favor
of DSC Communications Corporation, a Delaware corporation ("DSC").
WITNESSETH
WHEREAS, The Bank of New York (the "Trustee"), and DSC are parties to the
Indenture, dated as of August 12, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Indenture"), providing for the creation and
issuance by DSC of 7% Convertible Subordinated Notes due August 1, 2004 (the
"Securities").
WHEREAS, DSC has entered into an Agreement and Plan of Merger, dated as of June
3, 1998, as amended, with the Guarantor and Net Acquisition, Inc., a Delaware
corporation and direct subsidiary of Alcatel ("Newco") pursuant to which Newco
will be merged with and into DSC, and DSC will continue as the surviving
corporation and wholly owned subsidiary of the Guarantor;
NOW, THEREFORE, in consideration of the agreements herein, the Guarantor hereby
agrees with DSC as follows:
SECTION 1. DEFINITIONS. Reference is hereby made to the Indenture for a
statement of the terms thereof. All terms used in this Guaranty which are
defined therein and not otherwise defined herein shall have the same meanings
herein as set forth herein.
SECTION 2. GUARANTY. The Guarantor shall fully and unconditionally guarantee the
due and punctual payment of the principal of, premium, if any, and interest
(including Liquidated Damages) on the Securities (the "Obligations").
SECTION 3. GUARANTOR'S OBLIGATIONS. This guaranty is a continuing guaranty and
shall remain in full force and effect until such date on which all of the
Obligations shall have been satisfied in full.
SECTION 4. SUBROGATION. The Guarantor hereby agrees it will not exercise any
rights which it may acquire by way of subrogation, reimbursement, exoneration,
contribution and/or indemnity hereunder, by operation of law or otherwise, by
any payment made by it hereunder or otherwise, until the Obligations shall have
been satisfied in full.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and
warrants as follows:
(a) The Guarantor (i) a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation as set forth on
the first page hereof, (ii) is qualified to do business, and is in good
standing, in the Republic of France, and (iii) has all requisite power and
authority to execute, deliver and perform this Guaranty.
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(b) The execution, delivery and performance by the Guarantor of this Guaranty
(i) have been duly authorized by all the necessary corporate action, (ii) do not
and will not contravene its by-laws or any applicable law or any material
contractual restriction binding on or otherwise affecting the Guarantor or any
of its properties, and (iii) do not and will result in or require the creation
of any lien upon or with respect to any of its properties, and (iv) do not and
will not result in any suspension, revocation, impairment, forfeiture or
nonrenewal of any permit, license, authorization or approval applicable to its
operations or any of its properties except where such suspension, revocation,
impairment, forfeiture or nonrenewal is not reasonably likely to have a material
adverse effect upon the business, operations, properties, assets, prospects or
condition (financial or otherwise) of the Guarantor.
(c) No authorization, approval or other action by, and no notice to or filing
with, any governmental authority or other regulatory body is required in
connection with the due execution, delivery and performance by the Guarantor of
this Guaranty.
(d) This Guaranty is a legal, valid and binding obligation of the Guarantor in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect affecting generally
enforcement of creditors' rights and by general principles of equity.
(e) There is no pending or, to the best knowledge of the Guarantor, threatened
action, suit or proceeding against the Guarantor is subject, before any court or
other governmental authority or any arbitrator (i) which challenges the validity
or enforceability of this Guaranty, or (ii) in which there is a reasonable
possibility of an adverse decision which may have a material adverse effect upon
the business, operations, properties, assets, prospects or condition (financial
or otherwise) of the Guarantor.
SECTION 6. NOTICES, ETC. All notices and other communications provided for
hereunder shall be in writing and shall be mailed (by certified mail, postage
prepaid and return receipt requested), telecopied, telegraphed, teletexed or
delivered, if to the Guarantor, to it at its address at 00 xxx Xx Xxxxxx, Xxxxx,
Xxxxxx 00000; if to DSC, to it at its address set forth in the Indenture, or, to
such other address as shall be designated by any party in a written notice to
the other party hereto complying as to delivery with the terms of this Section
6.
SECTION 7. GOVERNING LAW. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed by an
officer thereunto duly authorized, as of the date first above written.
ALCATEL
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chairman & Chief
Executive Officer
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