Exhibit 4.4
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LUCENT TECHNOLOGIES INC.
AND
THE BANK OF NEW YORK,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of November 30, 2006
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7.75% Convertible Subordinated Debentures Due 2017
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Supplement to Indenture Dated as of March 19, 2002
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FIRST 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 March 19, 2002 (the "Indenture"), under which the 7.75% Convertible
Subordinated Debentures due 2017 (the "Debentures") of the Company were issued;
WHEREAS, pursuant to the terms of the Indenture, 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 societe
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 E2.00 per share, of Alcatel (an "Alcatel
Ordinary Share");
WHEREAS, the Merger constitutes a Fundamental Change pursuant to the terms
of Section 16.05(a)(v) of the Indenture;
WHEREAS, pursuant to Section 16.05(a)(v) of the Indenture, 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
Article 16 of the Indenture;
WHEREAS, Section 12.01 of the Indenture provides that the Company and the
Trustee may amend or supplement the Indenture without the consent of any holder
of Debentures to, among other things (i) make provision with respect to the
conversion rights of the holders of Debentures pursuant to the requirements of
Section 16.05(a)(v) of the Indenture and (ii) make
other provisions in regard to matters or questions arising under the Indenture
that shall not materially adversely affect the interests of the holders of the
Debentures;
WHEREAS, the amendments contemplated herein make provision with respect to
the conversion rights of holders of Debentures pursuant to the requirements of
Section 16.05(a)(v) of the Indenture and other changes that do not and will not
materially adversely affect the interests of the holders of Debentures;
WHEREAS, the Company has complied with all conditions precedent provided
for in the Indenture relating to this Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture pursuant to the terms of Section 12.01(a) of the
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
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
Section 2.1 Conversion Privilege. Pursuant to Section 16.05 of the
Indenture, 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) 40.3306 ADSs per $1,000 principal amount of 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"),
subject to further adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in Article 16 of the Indenture (as
so adjusted, the "Conversion Consideration").
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 Indenture 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 16.05(a)(v) of the Indenture.
(b) Subject to the other provisions of this Supplemental Indenture, all
references in the Indenture to the Company shall be deemed to be references to
Alcatel Lucent to the extent necessary to give effect to Section 16.05(a)(v) of
the Indenture.
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
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
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.
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
