EXHIBIT 4.8
[THE BANK OF NEW YORK LOGO]
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PREFERRED STOCK TRANSFER AGENCY AGREEMENT
between
LUCENT TECHNOLOGIES INC.
and
THE BANK OF NEW YORK COMPANY, INC.
Dated as of August 6, 2001
ACCOUNT NUMBER(S) ___________________________
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PREFERRED STOCK TRANSFER AGENCY AGREEMENT
AGREEMENT, made as of August 6, 2001, by and between LUCENT TECHNOLOGIES
INC., a Delaware corporation (the "COMPANY"), and THE BANK OF NEW YORK COMPANY,
INC., a New York trust company (the "BANK").
B A C K G R O U N D:
A. Pursuant to a Stock Transfer Agency Agreement dated as of September
6, 1996 (the "STOCK TRANSFER AGENCY AGREEMENT"), by and between the
Company and the Bank, the Bank currently performs transfer agency
and other securities-related services for the Company.
B. The Company has authorized and issued 1,885,000 shares of its 8.00%
Redeemable Convertible Preferred Stock, par value $1.00 per share
(the "PREFERRED STOCK"), initial liquidation preference $1,000 per
share, governed by a Certificate of Designations of the Company,
filed with the Secretary of State of the State of Delaware on August
6, 2001 (the "CERTIFICATE OF DESIGNATIONS").
C. Pursuant to the Certificate of Designations, the Company has the
option to pay all or any part of a dividend on the shares of
Preferred Stock by delivering to the transfer agent for the
Preferred Stock shares of common stock, par value $0.01 per share
(the "COMMON STOCK"), of the Company, to be sold for cash to pay
dividends to the Holders of the Preferred Stock. The Company is also
entitled in certain other circumstances to make payments on the
Preferred stock through such mechanism.
D. The Company and the Bank desire to set forth the terms pursuant to
which the Company will effect any such dividend or other payments by
delivering shares of Common Stock to the Bank to be sold for cash to
pay dividends to Holders of Preferred Stock.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual premises hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which each of the
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parties hereby acknowledges, the Company and the Bank hereby covenant and agree
as follows:
1. APPOINTMENT. The Company hereby appoints the Bank as its transfer
agent, registrar, paying agent and conversion agent to perform the services
described herein and in the Stock Transfer Agency Agreement (the "SERVICES").
The Bank agrees in carrying out the duties specified in paragraph 2 below that,
although the Company shall pay the Bank's fees and expenses, the Bank is the
agent for the Holders of shares of Preferred Stock and not for the Company for
purposes of selling shares of Common Stock delivered to the Bank in satisfaction
of the Company's obligation with respect to any payment due with respect to the
Preferred Stock.
2. STOCK ISSUANCE.
(a) In the event the Company desires to pay all or any part of a
dividend or other payment on the Preferred Stock with shares of Common
Stock, prior to the applicable payment date, the Company will deliver to
the Bank a number of shares, which when sold by the Bank, will result in
net cash proceeds sufficient (together with any cash payments made by the
Company to the Bank for such purpose) to permit the Bank to pay the
applicable payment in cash to the Holders of shares of Preferred Stock,
together with instructions ("INSTRUCTIONS") for the Bank to effect the
such sales in accordance with this Agreement, which Instructions shall
indicate the applicable payment date, the aggregate payment to be made on
such date and any specific instructions regarding the manner of sale of
the shares of Common Stock.
(b) Upon receipt of such shares of Common Stock and the related
Instructions, the Bank shall, not later than the business day following
such receipt, take such action as is specified in the Instructions.
(c) The Company and the Bank agree to the following procedures with
respect to any sale of Common Stock delivered by the Company to the Bank
in connection with any payment on the Preferred Stock. Notwithstanding
Section 1 above and Section 3 below, the Company may include with the
instructions referred to in this Section 2 or, at any other time give the
Bank notice of, restrictions with respect to the sale of the Common Stock
by the Bank including, without limitation, maximum and minimum sale
prices, limit instructions, sale scheduling, sale blackout periods,
commissions and brokerage fees. The Company may amend or
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revoke an Instruction at any time by notice to the Bank. The Bank agrees
to conduct sales of Common Stock delivered to it, in accordance with the
terms of the this Agreement and any applicable Instruction and amendments
thereto.
(d) Subject to any existing Instruction:
i) sales may be effected on any United States national or
regional securities exchange or market on which such Common Stock is
then listed or admitted for trading; and
ii) the Bank may engage qualified brokers or other agents to
effect such sales.
(e) Sales made pursuant to any Instructions may be made through one
or more brokers (which may be affiliated with the Bank), which may receive
customary compensation in the form of fees or commissions. Not later than
the business day following the date on which any sale of shares of Common
Stock is made pursuant to any Instructions, the Bank shall give the
Company written notice of the price at which each such share is sold and
any brokerage fee or commission paid in connection with such sale.
(f) The Bank is hereby authorized to issue that number of shares of
Common Stock sold pursuant to this Agreement in such denominations and
registered in such names as the Bank shall determine in accordance with
such sales. Prior to or on the settlement date for each sale of shares of
Common Stock, the Bank will amend the Company's Common Stock register and
deliver new shares of Common Stock to the Depository in book-entry form
under the Full FAST program of the Depository.
(g) On or prior to the applicable dividend payment date, the Bank
shall make payment of all cash proceeds, net of any brokers' fees or
commissions, from such sales to the Holders of record of Preferred Stock
as of the relevant record date by mailing a check to each Holder, payable
to such Holder, to the address of record or dividend mailing address, with
respect to such Holder's pro rata share of such net cash proceeds.
3. EXCLUSIVE BENEFIT OF THE HOLDERS. All shares of Common Stock delivered
by the Company to the Bank pursuant to this Agreement, and the net cash proceeds
from the sale of such shares, shall be held by the Bank for the exclusive
benefit of the Holders of the Preferred Stock.
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4. ISSUANCE OF COMMON STOCK AND PAYMENT OF DIVIDENDS. The issuance and
delivery of certificates evidencing any such shares of Common Stock to the Bank
and the payment of any amounts to Holders of the Preferred Stock, shall be
effected in accordance with the Stock Transfer Agency Agreement and this
Agreement.
5. FEES AND EXPENSES. In consideration for the Bank's provision of the
Services, the Company agrees to pay fees and reimburse the Bank for the
reasonable expenses pursuant to the terms of the Stock Transfer Agency
Agreement.
6. HOLDERS' RIGHT TO DELIVER AN ELECTION NOTICE.
(a) If a Holder of Preferred Stock, as of a particular Dividend
Payment Record Date, delivers an irrevocable notice (the "ELECTION
NOTICE") to the Bank, on or before that Dividend Payment Record Date,
requesting the Bank not to sell shares of Common Stock held on behalf of
that Holder to provide cash to pay all or a portion of the dividends
payable to such Holder, the Bank will deliver to or for the account of
such Holder on the Dividend Payment Date, shares of Common Stock having a
value equal to the cash dividends otherwise payable to such Holder based
on the average of the Sale Prices of Common Stock over the five Trading
Day period ending on the third Business Day prior to the applicable
Dividend Payment Date. Those shares of Common Stock will be treated as
restricted securities, will bear a legend to that effect and will be
issued in physical certificated form.
In lieu of issuing fractional shares of Common Stock, the Company
will deliver scrip that will entitle the Holder to receive a full share of
Common Stock upon surrender of such scrip aggregating a full share.
Promptly after each Dividend Payment Record Date, the Bank shall
provide the Company with details of the aggregate number of shares of
Preferred Stock held by Holders who have delivered an Election Notice.
(b) The Company will notify the Bank of the aggregate amount of any
dividend or other payment and whether it will pay this amount in cash, by
delivering shares of Common Stock or through a combination thereof not
later than 5 Business Days prior to the applicable payment date.
7. INDEMNIFICATION. In acting hereunder, each of the parties and their
subsidiaries, affiliates, officers, directors and employees shall be entitled to
all rights, benefits, protections and indemnities accorded to it in the Stock
Transfer Agency Agreement.
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8. TERMINATION. Either of the parties may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than 180 days after the date of receipt of
such notice.
Prior to termination, the Bank agrees to provide its full cooperation in
the orderly transition of the Services to the Company or the Company's
designated agent including, but not limited to, packing and preparing for
shipment any materials or goods to be transferred; provision of reports, files
and similar media necessary for the continuation of such services; and assisting
with the implementation and operation of transitional arrangements with respect
to the Services.
9. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
"BANK" has the meaning specified in the preamble to this Agreement.
"BUSINESS DAY" means any day other than a Saturday, Sunday or U.S.
Federal holiday or day on which the Bank is not open for business.
"COMMON STOCK" has the meaning specified in the preamble to this
Agreement.
"COMPANY" has the meaning specified in the preamble to this
Agreement.
"DEPOSITORY" means The Depository Trust Company or its nominee and
their respective successors.
"DIVIDEND PAYMENT DATE" means February 1 and August 1 of each year,
beginning on February 1, 2002.
"DIVIDEND PAYMENT RECORD DATE" means January 1 and July 1 of each
year.
"ELECTION NOTICE" has the meaning specified in Section 6(a).
"HOLDER" means the person in whose name the Preferred Stock is
registered in the stock register of the Company.
"PREFERRED STOCK" has the meaning specified in the preamble to this
Agreement.
"SALE PRICE" of the Common Stock on any Trading Day means the
closing sale price per share (or if no closing sale
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price is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and average ask prices) on such
Trading Day as reported in composite transactions for the principal United
States securities exchange on which the Common Stock is traded or, if the Common
Stock is not listed on a United States national or regional securities exchange,
as reported by The Nasdaq National Market.
"SERVICES" has the meaning specified in Section 1 of this Agreement.
"STOCK TRANSFER AGENCY AGREEMENT" has the meaning specified in the
Preamble to this Agreement.
"TRADING DAY" means each day on which the securities exchange or
quotation system which is used to determine the Sale Price is open for trading
or quotation.
10. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
if to the Company:
Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax No. (000) 000-0000
Attention: Treasurer and Assistant Treasurer
with a copy to:
Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax No. (000) 000 0000
Attention: General Counsel
(a) if to the Bank:
The Bank of New York Company, Inc
000 Xxxxxxx Xxxxxx (00X)
Xxx Xxxx, XX 00000
Attention:
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; three business days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
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11. NO THIRD PARTY BENEFICIARIES. Subject to sections 5(c) and 7, the
provisions of this Agreement are intended to benefit only the parties and no
rights shall be granted to any other person by virtue of this Agreement.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each of the parties.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. AMENDMENT. This Agreement may not be amended or modified in any manner
except by a written agreement duly authorized and executed by both parties.
15. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized as of
the day and year first above written.
LUCENT TECHNOLOGIES INC.
by /s/ Xxxxx X. XxXxxxx
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Name: Xxxxx X. XxXxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK COMPANY, INC.
by /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
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