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Exhibit 99.11
[Draft]
EXCHANGE AGREEMENT dated as of March , 2001,
between LUCENT TECHNOLOGIES INC., a Delaware
corporation ("Lucent"), and XXXXXX XXXXXXX & CO.
INCORPORATED, a Delaware corporation ("Investment
Bank").
WHEREAS, Lucent desires to exchange shares of Class A common
stock, $0.01 par value ("Agere Common Stock"), of Agere Systems Inc., a Delaware
corporation ("Agere"), with Investment Bank for certain debt obligations of
Lucent held by Investment Bank; and
WHEREAS, Investment Bank desires to exchange such debt
obligations of Lucent for Agere Common Stock;
NOW THEREFORE, in consideration of the representations,
warrants and agreements contained in this Agreement, the parties agree as
follows:
1. Exchange of Initial Shares for Initial Debt Obligations.
(a) Subject to the terms and conditions and in reliance upon the representations
and warranties in this Agreement, at the Closing (as defined below) (i) Lucent
will transfer and deliver to Investment Bank, and Investment Bank will accept,
the number of shares of Agere Common Stock set forth on Section A of Schedule I
and the associated rights to purchase one one-thousandth of a share of Series A
Junior Participating Preferred Stock, par value $1.00 per share, of Agere (the
"Initial Shares") and (ii) Investment Bank will transfer to Lucent, and Lucent
will accept, Lucent's debt obligations set forth on Section A of Schedule II
(the "Initial Debt Obligations").
(b) The exchange of Initial Shares for Initial Debt
Obligations (the "Closing") shall occur at the office of Cravath, Swaine &
Xxxxx, Worldwide Plaza, New York, New York (or at such other location or
locations as may be agreed upon by Investment Bank and Lucent), at 8:00 a.m.,
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New York City time, on the fourth Business Day subsequent to the date of this
Agreement (the "Closing Date"). At the Closing, Investment Bank shall deliver to
Lucent, through the facilities of The Depository Trust Company, its holdings of
the Initial Debt Obligations, and Lucent shall deliver to Investment Bank
physical certificates evidencing the Initial Shares (in such denominations and
registered in such names as Investment Bank may request not later than the
second Business Day preceding the Closing Date).
(c) As used in this Agreement, the term "Business Day" shall
mean those days on which both the New York Stock Exchange and banking
institutions located in New York City are open for trading or banking, as the
case may be, in the ordinary course of business.
2. Exchange of Additional Shares for Additional Debt
Obligations. (a) It is understood that the Underwriter (the "Underwriter")
listed on Schedule I to the Underwriting Agreement dated March , 2001 (the
"Underwriting Agreement"), among Xxxxxx Xxxxxxx & Co. Incorporated, as
Underwriter, Investment Bank, as selling stockholder, and Agere, in connection
with the purchase by the Underwriter from Investment Bank of shares of Common
Stock, will be granted an option to purchase up to additional shares of Agere
Common Stock to cover over-allotments (the "Over-Allotment Option").
(b) Lucent hereby grants to Investment Bank an option (the
"Additional Shares Option") to acquire from Lucent up to additional shares of
Agere Common Stock and the associated rights to purchase one one-thousandth of a
share of Series A Junior Participating Preferred Stock, par value $1.00 per
share, of Agere (the "Additional Shares"; and together with the Initial Shares,
the "Shares") in exchange for additional debt obligations of Lucent ("Additional
Debt Obligations"; and together with the Initial Debt Obligations, the "Debt
Obligations"). The number of Additional Shares for which the Additional Shares
Option is exercised shall equal the number of shares of Agere Common Stock
purchased by the Underwriter pursuant to the Over-Allotment Option. The
Additional Shares Option may be exercised in whole or in part at any time in one
or more instances, up to a total number of Additional Shares as described in the
previous sentence, on or before the 30th
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day after the date of this Agreement upon written or telegraphic notice by the
Investment Bank to Lucent setting forth the number of Additional Shares to be
purchased by the Underwriter pursuant to the Over-Allotment Option (the
"Additional Shares Closing") and the date of each Additional Shares Closing
(each such date, an "Additional Shares Closing Date"). At each Additional Shares
Closing (i) Lucent will transfer to Investment Bank, and Investment Bank will
accept, the number of Additional Shares specified in the relevant notice of
exercise of the Additional Shares Option and (ii) Investment Bank will transfer
to Lucent, and Lucent will accept, Additional Debt Obligations of the type
specified on Section B of Schedule II with an aggregate agreed value equal to
the Agreed Value per share of Agere Common Stock (as set forth on Section B of
Schedule I) times the number of Additional Shares described in clause (i) of
this sentence. The aggregate agreed value of the Additional Debt Obligations to
be delivered at an Additional Shares Closing Date shall be calculated using the
Agreed Value per $1 million Face Value set forth on Section B of Schedule II.
(c) Each Additional Shares Closing shall occur at the office
of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date
specified in the notice of exercise of the Additional Shares Option, which shall
be within three Business Days after exercise of the Additional Shares Option or
such other time period as may be agreed upon by Investment Bank and Lucent.
3. Registration of Shares, etc. (a) Agere has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(No. 333-51594) on Form S-1, including a prospectus relating to Agere Common
Stock to be sold by Agere and the shares of Agere Common Stock to be acquired by
Investment Bank under this Agreement and sold by Investment Bank in the initial
public offering currently contemplated by Agere (the "Initial Public Offering").
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(b) If Investment Bank is unable to sell all of the Shares it
acquires pursuant to Section 1 or 2 in the Initial Public Offering, then Lucent
shall cause Agere to enter into a registration rights agreement with Investment
Bank containing substantially the following provisions:
(i) Upon written request by Investment Bank, Agere shall use
its reasonable best efforts to file as promptly as practicable (but in
no event more than 90 days after so required or requested pursuant to
this Section 3) with the Commission, and thereafter shall use its
reasonable best efforts to cause to be declared effective, a
registration statement on an appropriate form under the Securities Act
of 1933, as amended, (the "Securities Act") relating to the resale of
the Shares by Investment Bank (the "Registration Statement").
(ii)Investment Bank shall have the right to submit one written
request to file a Registration Statement during the period from 45 days
following the date of this Agreement until one year from the date of
this Agreement; and Investment Bank shall have the right to submit a
written request to file an additional Registration Statement following
the one year anniversary of this Agreement during a period ending on
the earlier of (i) two years from the Closing Date or such shorter
period that will terminate when all the Shares have been sold and (ii)
the date on which the Securities become eligible for resale without
volume restrictions pursuant to Rule 144 under the Securities Act.
(iii) Agere may refuse to file a Registration Statement for a
period not to exceed 60 days in any three-month period or for three
periods not to exceed an aggregate of 120 days in any twelve-month
period (each, a "Suspension Period") for valid business reasons, to be
determined by Agere in its sole reasonable judgment (not including
avoidance of its obligations under such registration rights agreement),
including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate
developments and similar events. Agere shall provide notice to the
Investment Bank of a Suspension Period.
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(iv) Agere shall use its reasonable best efforts to cause (i)
a Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto to comply in all
material respects with the Securities Act and the rules and regulations
of the Commission thereunder, (ii) a Registration Statement and any
amendment thereto (in either case, other than with respect to
information included therein in reliance upon or in conformity with
written information furnished to Agere by or on behalf of Investment
Bank specifically for use therein (the "Investment Bank's
Information")) not to contain an 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 (iii) any
prospectus forming part of any Registration Statement, and any
supplement to such prospectus (in either case, other than with respect
to Investment Bank's Information), not to include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(v) In connection with a Registration Statement, Agere shall
enter into an indemnification agreement with Investment Bank in which
Agere will provide the same indemnification and contribution to
Investment Bank for the information contained in the Registration
Statement as Agere provided to the Underwriters in the Underwriting
Agreement, and Investment Bank will provide the same indemnification
and contribution to Agere for Investment Bank's Information as
Investment Bank provided in the Underwriting Agreement.
4. Representations and Warranties. (a) Lucent hereby
represents and warrants to Investment Bank that:
(i) Lucent is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Lucent
has all requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. This Agreement has
been duly executed and delivered by
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Lucent and constitutes a legal, valid and binding obligation of Lucent,
enforceable against Lucent in accordance with its terms.
(ii) No consent, approval, license, permit, order or
authorization of, or registration, declaration or filing with, any
Federal, state, local or foreign government or any court of competent
jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign (a "Governmental
Entity") or nongovernmental third party is required to be obtained or
made by or with respect to Lucent in connection with the execution,
delivery and performance of this Agreement except as have been
previously obtained or made.
(iii) Neither the exchange of the Initial Shares or the
Additional Shares nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms hereof will result
in a breach of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which Lucent is a party or by which it is
bound, or Lucent's Certificate of Incorporation or By-Laws, or, to the
best of its knowledge, any order, rule or regulation applicable to
Lucent of any court, federal or state regulatory body, administrative
agency or other governmental body having jurisdiction over Lucent or
its properties.
(iv) Lucent has good and valid title to the Shares. Prior to
the Closing, Lucent will have good and valid title to the Shares, free
and clear of any liens, claims, equities, encumbrances, security
interests, options, charges or restrictions of any kind (collectively
"Liens"). Upon delivery to Investment Bank at the Closing or an
Additional Shares Closing, as the case may be, of certificates
representing the Shares to be exchanged, duly endorsed by Lucent for
transfer to Investment Bank, and upon Lucent's exchange for the agreed
upon Debt Obligations, good and valid title to such Shares will pass to
Investment Bank, free and clear of any Liens, other than those arising
from acts of Investment Bank. Other than this Agreement, the Shares are
not subject to any voting trust
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agreement or other contract, agreement, arrangement, commitment or
understanding, including any such agreement, arrangement, commitment or
understanding restricting or otherwise relating to the voting, dividend
rights or disposition of the Shares.
(v) When the Shares are transferred to Investment Bank at the
Closing or an Additional Shares Closing, as the case may be, in
exchange for the Debt Obligations, (i) the Shares will have been duly
and validly authorized and issued, and fully paid and non-assessable
and (ii) the Shares will have been approved for listing on the New York
Stock Exchange.
(vi) Lucent has made its own independent inquiry as to the
legal, tax and accounting aspects of the transactions contemplated by
this Agreement and any related transactions, and Lucent has not relied
on Investment Bank, Investment Bank's legal counsel or Investment
Bank's accounting advisors for legal, tax or accounting advice in
connection with the transactions contemplated by this Agreement or any
related transactions.
(b) Investment Bank hereby represents and warrants to Lucent
that:
(i) Investment Bank is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
Investment Bank has all requisite corporate power and authority to
enter into this Agreement and to perform its obligations hereunder.
This Agreement has been duly executed and delivered by Lucent and
constitutes a legal, valid and binding obligation of Investment Bank,
enforceable against Investment Bank in accordance with its terms.
(ii) No consent, approval, license, permit, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity or nongovernmental third party is required to be
obtained or made by or with respect to Investment Bank in connection
with the execution, delivery and performance of this Agreement except
as have been previously obtained or made.
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(iii) Neither the exchange of the Initial Debt Obligations or
the Additional Debt Obligations nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof will result in a breach of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust
or other agreement or instrument to which Investment Bank is a party or
by which it is bound, or Investment Bank's Certificate of Incorporation
or By-Laws, or, to the best of its knowledge, any order, rule or
regulation applicable to Investment Bank of any court, federal or state
regulatory body, administrative agency or other governmental body
having jurisdiction over Investment Bank or its properties.
(iv) Investment Bank has good and valid title to the Debt
Obligations, free and clear of any Liens. Upon delivery to Lucent at
the Closing or an Additional Shares Closing, as the case may be, of the
Debt Obligations to be exchanged, for transfer to Lucent, and upon the
Investment Bank's exchange for the agreed upon Shares, good and valid
title to the Debt Obligations will pass to Lucent, free and clear of
any Liens, other than those arising from acts of Lucent. Other than
this Agreement, the Debt Obligations are not subject to any contract,
agreement, arrangement, commitment or understanding, including any such
agreement, arrangement, commitment or understanding restricting or
otherwise relating to the disposition of the Debt Obligations.
(v) Investment Bank has made its own independent inquiry as to
the legal, tax and accounting aspects of the transactions contemplated
by this Agreement and any related transactions, and Investment Bank has
not relied on Lucent, Lucent's legal counsel or Lucent's accounting
advisors for legal, tax or accounting advice in connection with the
transactions contemplated by this Agreement or any related
transactions.
(vi) Investment Bank is a qualified institutional buyer as
defined in Rule 144A under the Securities Act.
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5. Conditions. (a) The obligations of Investment Bank to
exchange the Debt Obligations for the Shares at the Closing or an Additional
Shares Closing, as the case may be, shall be subject the satisfaction of the
following conditions:
(i) Lucent shall have furnished to Investment Bank an opinion
of Cravath, Swaine & Xxxxx, dated the Closing Date or an Additional
Shares Closing Date, as the case may be, to the effect as agreed upon
between Lucent and Investment Bank;
(ii) No statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or
other order enacted, entered, promulgated, enforced or issued by any
Governmental Entity or other legal restraint or prohibition shall be in
effect preventing the consummation of the transactions contemplated to
occur at the Closing or an Additional Shares Closing, as the case may
be; and
(iii) Lucent shall have furnished to Investment Bank a
certificate of Lucent, signed by a Vice President or Treasurer of
Lucent, dated the Closing Date or an Additional Shares Closing Date, as
the case may be, to the effect that the signers of such certificate
have carefully examined this Agreement and that the representations and
warranties of Lucent in this Agreement are true and correct in all
material respects on and as of the Closing Date or an Additional Shares
Closing Date, as the case may be, with the same effect as if made on
the Closing Date or an Additional Shares Closing Date, as the case may
be, and Lucent has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date or an Additional Shares Closing Date, as the case may
be.
(iv) The pledge of the Shares under the Guarantee and
Collateral Agreement made by Lucent and certain of its Subsidiaries in
favor of the Chase Manhattan Bank, as Collateral Agent, dated as of
February 22, 2001, shall have been released.
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(b) The obligations of Lucent to exchange the Shares for the
Debt Obligations at the Closing or an Additional Shares Closing, as the case may
be, shall be subject the satisfaction of the following conditions:
(i) Investment Bank shall have furnished to Lucent an opinion
of Xxxxx Xxxx & Xxxxxxxx, counsel for Investment Bank, dated the
Closing Date or an Additional Shares Closing Date, as the case may be,
to the effect as agreed upon between Investment Bank and Lucent;
(ii) No statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or
other order enacted, entered, promulgated, enforced or issued by any
Governmental Entity or other legal restraint or prohibition shall be in
effect preventing the consummation of the transactions contemplated to
occur at the Closing or an Additional Shares Closing, as the case may
be; and
(iii) Investment Bank shall have furnished to Lucent a
certificate of Investment Bank, signed by an authorized officer, to the
effect that the representations and warranties of Investment Bank in
this Agreement are true and correct in all material respects on and as
of the Closing Date or an Additional Shares Closing Date, as the case
may be, with the same effect as if made on the Closing Date or an
Additional Shares Closing Date, as the case may be, and Investment Bank
has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date or an Additional Shares Closing Date, as the case may be.
6. Relationship of Parties. All acquisitions of Debt
Obligations by Investment Bank, all exchanges of Debt Obligations for Shares by
Investment Bank pursuant to this Agreement, all distributions by Investment Bank
of the Shares and all other acts or omissions of Investment Bank in connection
with this Agreement, are for Investment Bank's own account and not for the
account of Lucent. No principal-agent relationship is, or is intended to be
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created between Lucent and Investment Bank by any of the provisions of this
Agreement.
7. Representations to Survive. The respective agreements,
representations, warranties and other statements of Lucent or its officers and
of Investment Bank or its officers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of Investment Bank, Lucent or any of their respective
officers and will survive the exchange of the Debt Obligations for the Shares.
8. Notices. All communications hereunder will be in writing
and, if sent to Investment Bank, will be mailed, delivered or faxed and
confirmed to it, at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax (212) [ ]
attention: [ ]; or, if sent to Lucent, will be mailed, delivered or
telegraphed and confirmed to it, at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000, fax (908) [ ] attention: [ ].
9. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and no other
person will have any right or obligation hereunder.
10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
11. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first written above.
LUCENT TECHNOLOGIES INC.,
by
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Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED,
by
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Name:
Title:
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SCHEDULE I
A. Initial Shares to be delivered by Lucent at Closing
[ ] shares of Agere Common Stock
B. Agreed Value per share for purposes of the Additional Shares Option
$[ ] per share of Agere Common Stock
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SCHEDULE II
A. Initial Debt Obligations
Agreed Value per
$1 million Face Aggregate
Initial Debt Obligations Value Face Amount Agreed Value
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Total
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B. Additional Debt Obligations
Agreed Value per $1 million
Additional Debt Obligations Face Value
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