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Exhibit 1A
LUCENT TECHNOLOGIES INC.
FORM OF UNDERWRITING AGREEMENT
( , 199 )
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New York, New York
(Representative of the Several Underwriters)
As Representative of the Several Underwriters
c/o
Dear Sirs:
The undersigned, Lucent Technologies Inc. (the "Company"), hereby
confirms its agreement with the several Underwriters, named in Schedule I
hereof, as follows:
1. Underwriters and Representative. The term "Underwriters" as used
herein shall mean the several persons, firms and corporations named in Schedule
I hereof, and the term "Underwriter" shall mean any one of such persons, firms
or corporations. The terms "Underwriters," persons" "firms" and "corporations"
as used herein shall include the singular of such terms as well as the plural.
The term "Representative" shall mean the representative to whom this Agreement
is addressed, who, by signing this Agreement, represents that it has been
authorized by each Underwriter to execute this Agreement on behalf of such
Underwriter and to act for such Underwriter in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint.
2. Description of Notes. The Company proposes to issue ________________
principal amount of its ______________ (the "Notes") under an Indenture dated as
of _____________, 1996 (the "Indenture") between the Company and ______________,
Trustee (the "Trustee"). The Notes are more fully described in the Registration
Statement hereinafter mentioned.
3. Representations and Warranties of the Company. The Company
represents and warrants to the several Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement No.__________
including a prospectus relating to notes of the Company including the
Notes, which has become effective under the Securities Act of 1933 (the
"Act"), and has filed or will file with, or has delivered or will
deliver for filing to, the Commission a prospectus supplement
specifically relating to the Notes pursuant to Rule 424 under the Act.
The term "Registration Statement" means the Registration Statement as
amended to the date hereof together with such prospectus supplement.
The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically
relating to
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the Notes, as filed with, or delivered for filing to, the Commission
pursuant to Rule 424. The term "preliminary prospectus" means any
preliminary prospectus supplement specifically relating to the Notes
together with the Basic Prospectus. As used herein, Registration
Statement, Basic Prospectus, Prospectus, and preliminary prospectus
shall include in each case the material, if any, incorporated by
reference therein.
(b)(i) Each part of the Registration Statement (including the
material incorporated by reference therein) when such part became
effective, did not contain any 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 (ii) each
preliminary prospectus, if any, relating to any Notes, filed pursuant
to Rule 424 under the Act, complied when so filed in all material
respects with the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the applicable rules and regulations of the
Commission thereunder, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the Trust Indenture
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Registration Statement and the Prospectus do
not and, as amended or supplemented, if applicable, will not contain
any 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; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration
Statement, any preliminary prospectus or the Prospectus in reliance
upon written information furnished to the Company by or on behalf of
any Underwriter specifically for inclusion therein or as to any
statements in or omissions from the Statement of Eligibility and
Qualification of the Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference in
the Prospectus complied when filed with the Commission in all material
respects with the provisions of the Securities Exchange Act of 1934
(the "Exchange Act"), together with the applicable instructions, rules
and regulations of the Commission thereunder, and each document, if
any, hereafter filed under the Exchange Act and so incorporated by
reference in the Prospectus will comply when so filed in all material
respects with the requirements of such Exchange Act and such applicable
instructions, rules and regulations.
(d) The accountants who have certified or shall certify the
financial statement filed and to be filed with the Commission as parts
of the Registration Statement and the Prospectus are public or
certified accountants, independent with respect to the Company, as
required by the Act and the rules and regulations of the Commission
thereunder.
(e) Neither the issuance or sale of the Notes 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 the
Company is a party or by which it is bound,
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or the Company's Certificate of Incorporation or By-Laws, or, to the
beat of its knowledge, any order, rule or regulation applicable to the
Company of any court, federal or state regulatory body, administrative
agency or other governmental body having jurisdiction over the Company
or its properties.
4. Purchase and Sale of Notes. On the basis of the representations and
warranties and on the terms and subject to the conditions herein set forth, each
of the Underwriters agrees to purchase from the Company, severally and not
jointly, and on the terms and subject to the conditions herein set forth the
Company agrees to sell to each of the Underwriters, severally and not jointly,
the principal amount of Notes set forth opposite its name in Schedule I hereof,
less the respective amounts of Contract Notes, if any, allocated to each of the
Underwriters as provided below, at ____ % of the principal amount thereof,
together with accrued interest, if any, thereon from ________, 199_ to and
including the date of any, thereon from payment and delivery.
Notes to be purchased by the Underwriters are hereinafter called
Underwriters' Notes, and Notes to be purchased pursuant to delayed delivery
contracts substantially in the form attached hereto as Schedule II with such
changes as may be approved by the Company (the "Delayed Delivery Contracts") are
hereinafter called Contract Notes.
The Company hereby authorizes the Underwriters to solicit from
institutional investors of the type described in the preliminary prospectus
under the heading "Delayed Delivery Arrangements" offers to purchase Contract
Notes on [____] at the initial public offering price thereof plus accrued
interest, if any, from [____], pursuant to Delayed Delivery Contracts. Delayed
Delivery Contracts are to be solicited from and made only with institutional
investors of the type so described. Each Delayed Delivery Contract shall be for
a minimum of $ principal amount of Notes. Each purchaser shall be
approved by the Company and shall furnish such evidence as may be satisfactory
to the Company of the authority of the person executing such Delayed Delivery
Contract on behalf of the purchaser, and the aggregate principal amount of all
Contract Notes shall not be more than $ unless the Company otherwise
agrees. The Company will pay to the Representative for the accounts of the
several Underwriters a commission equal to ____________ of 1% of the aggregate
principal amount of Contract Notes. Such payment shall be made at the time of
closing by crediting the same against the purchase price of the Underwriters'
Notes payable to the Company pursuant to the first paragraph of this Section 4.
Upon the submission by the Representative from time to time to the Company of
Delayed Delivery Contracts executed by institutional investors of the type
described In the preliminary prospectus, the Company shall within two full
business days thereafter, notify the Representatives of its approval or
disapproval of such Delayed Delivery Contracts. The Underwriters will not have
any responsibility in respect of the validity or performance of any of the
Delayed Delivery Contracts.
The principal amount of Notes to be purchased by each Underwriter as
set forth in Schedule I hereto shall be reduced by an amount which shall bear
the same proportion to the total principal amount of Contract Notes as the
principal amount of Notes set forth opposite the name of such Underwriter bears
to the aggregate principal amount set forth in Schedule I hereto, except to the
extent that you determine that such reduction shall be otherwise that in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Notes to be purchased by all Underwriters shall be
[$ ], the aggregate principal amount set forth in Schedule I hereto, less
the aggregate principal amount of Contract Notes.
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The terms of the public offering of the Notes are as set forth in the
Prospectus.
5. Closing. Delivery of, and payment of the purchase price for, the
Notes which the Underwriters severally agree to purchase shall be made at the
office of ____________________, __________________, New York, New York, at 10:00
a.m.(1) on __________ 199_ or at such other place or time on the same or such
other day as shall be agreed upon by the Company and the Representative. The
time and date for such payment and delivery are herein referred to as the "time
of closing". At the time of closing, the Company will deliver the Underwriters'
Notes, registered in such names and in such authorized denominations as the
Representative shall have specified not less than two business days prior to the
day of closing, against payment therefor as provided in section 6 hereof, to the
Representative for the respective accounts of the Underwriters.
The Company agrees to make the Underwriters' Notes available to the
Representative for examination on behalf of the Underwriters at the office of
_____________________, ____________________, New York, New York, not later then
2:00 p.m. on the business day next preceding the day of closing.
If for any reason (other than termination of this Agreement in
accordance with the provisions of section 8, 9 or 10 hereof), one or more of the
Underwriters shall fail or refuse to pay for the Underwriters' Notes it has or
they have agreed to purchase (any such Underwriter being hereinafter referred to
as a "defaulting Underwriter"), and the aggregate principal amount of the
Underwriters' Notes which such defaulting Underwriter or Underwriters but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Notes, the remaining Underwriters shall be obligated severally in
the proportion which the amounts of Notes set forth opposite their names in
Schedule I of this Agreement bear to the aggregate principal amount of
Underwriters' Notes set forth opposite the names of all such non-defaulting
Underwriters (or in such other proportion as the Representative shall specify)
to purchase the Underwriters' Notes which the defaulting Underwriter or
Underwriters agreed but failed or refused to purchase; provided that in no event
shall the principal amount of Notes that any Underwriter is obligated to
purchase be increased pursuant to the provisions of this paragraph by more than
one-ninth of the principal amount of Notes set forth opposite its name in
Schedule I without the written consent of such Underwriter. In the event that
any defaulting Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Notes the aggregate principal amount of which is more then
one-tenth of the aggregate principal amount of the Notes, and if arrangements
satisfactory to the Representative and the Company for the purchase of all such
Notes are not made within two business days after such default, this Agreement
will terminate without liability on the part of any of the non-defaulting
Underwriters or of the Company. In the event that the non-defaulting
Underwriters agree to purchase, in accordance with this paragraph, all the
Underwriters' Notes which the defaulting Underwriter or Underwriters fail or
refuse to purchase, the Representative or the Company shall have the right to
postpone the time of closing, but in no event longer than five business days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Except
to the extent provided in subparagraphs (d) and (g) of section 7 hereof,
termination of this Agreement pursuant to this section 5 shall be without any
liability on the part of the Company or any Underwriter other than a defaulting
Underwriter which shall have failed, otherwise than for some reason sufficient
to justify under the terms hereof the cancellation or termination of its
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(1) Times mentioned herein are New York time.
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obligations hereunder, to pay for the Notes which such Underwriter has agreed to
purchase (any such failure or refusal being hereinafter referred to as a
"default"). Unless this Agreement is terminated in accordance with any of its
provisions, a default by one or more of the Underwriters shall not relieve any
other Underwriter from its obligation to purchase the Notes which it has agreed
to purchase.
6. Payment. At the time of closing, the Company will cause the
Underwriters' Notes to be delivered to the Representative for the account of
each Underwriter against payment of the purchase price of such Notes by
certified or official bank check or checks payable to the order of the Company
in New York Clearing House or other next day funds.
7. Covenants of the Company. The Company agrees as follows:
(a) The Company will not file any amendment or supplement to the
Registration Statement or the Prospectus of which the Representative
shall not previously have been advised or which shall be disapproved by
______________________, which firm is acting as counsel for the
Underwriters, and will not file any document pursuant to the Exchange
Act which is deemed to be incorporated by reference in the Prospectus
of which _____________________ shall not previously have been advised.
(b) The Company will deliver to the Representative a reasonable
number of copies of the registration statement as originally filed
(including documents incorporated by reference therein) and of all
amendments thereto up to the time of closing, one of which shall be
signed by or on behalf of the proper officers of the Company and a
majority of its Board of Directors and shall contain a signed copy of
each consent and certificate included therein or filed as an exhibit
thereto. Promptly upon the filing with the Commission of any amendment
to the Registration Statement or of any supplement to or amendment of
the Prospectus, the Company will deliver to the Representative a
reasonable number of copies thereof, one copy of any such amendment to
the Registration Statement to be signed and to include signed consents
and certificates as above described. The terms "supplement" and
"amendment" or "amend", as used in this Agreement, shall include all
documents filed by the Company with the Commission subsequent to the
date of the Basic Prospectus, pursuant to the Exchange Act, which are
deemed to be incorporated by reference in the Prospectus.
(c) The Company will advise the Representative promptly (confirming
such advice in writing) of any official request made by the Commission
for amendment to the Registration Statement or Prospectus or for
additional information with respect thereto and of any official notice
of the institution of proceedings for, or of the entry of, a stop order
suspending the effectiveness of the Registration Statement. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if such a stop order should be entered, the Company will
make every reasonable effort to obtain the lifting or removal thereof
as soon as possible.
(d) The Company will pay all expenses in connection with the
preparation and filing of the Registration Statement, the preparation
of the Indenture, the rating of the Notes, the issuance and delivery of
the Notes and the printing of the copies of any
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preliminary prospectus and of the Prospectus to be furnished as
provided in the first sentence of subparagraph (h) below; and will pay
any taxes on the issuance of the Notes, but will not pay any transfer
taxes. The Company will not be required to pay any amount for any
expenses of the Representative or any of the Underwriters, except the
cost of mailing to Underwriters of copies of the Registration Statement
and all amendments thereto (including documents incorporated by
reference), the preliminary prospectuses and the Prospectus, and except
as provided by subparagraph (g) below, and provided that if no Notes
are delivered to and purchased by the Underwriters hereunder for any
reason other than a default by one or more of the Underwriters or the
termination of this Agreement pursuant to section 10 hereof, the
Company, in addition to any payment provided for by subparagraph (g) of
this section 7, will reimburse the Representative for the reasonable
out-of-pocket expenses of the Underwriters, not exceeding $50,000, and
for the fees and disbursements of _____________________, the
Underwriters agreeing to pay such expenses, fees and disbursements in
any other event. The Company will not in any event be liable to any of
the several Underwriters for damages on account of loss of anticipated
profits.
(e) The Company will apply the proceeds from the sale of the Notes
as set forth under the heading "Use of Proceeds" appearing in the
Prospectus.
(f) So long as any of the Notes shall remain outstanding, the
Company will furnish to the Representative, upon request and in
reasonable quantities for distribution to the Underwriters, copies of
such documents, reports and other information as may be required to be
furnished to noteholders under the Indenture.
(g) The Company will use its best efforts to qualify the Notes, or
to assist in the qualification of the Notes by or on behalf of the
Representative, for offer and sale under the securities or Blue Sky
laws of such states as the Representative may designate, and will pay
or reimburse the Representative for counsel fees filing fees and
out-of-pocket expenses in connection with such that the Company Shall
not be qualification; provided that the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any state or to pay, or to incur, or to reimburse
the Representative for, any such expenses if no notes are delivered to
and purchased by the Underwriters hereunder because of a default by one
or more of the Underwriters or the termination of this Agreement
pursuant to section 10 hereof.
(h) The Company will furnish to the Representative or to the
respective Underwriters as many copies of the Prospectus as the
Representative or the respective Underwriters may reasonably request
for the purposes contemplated by the Act. If. during such period after
the first date of the public offering of the Notes as, in the opinion
of the counsel for the Underwriters, the Prospectus is required by law
to be delivered, any event shall occur which should be set forth in a
supplement to or an amendment of the Prospectus in order to make the
Prospectus not misleading, the Company will, upon the occurrence of
each such event, forthwith at its expense, either (i) prepare and
furnish to the Representative or to the respective Underwriters as many
copies as the
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Representative or the respective Underwriters may reasonably request
for the purposes contemplated by the Act of a supplement to or
amendment of the Prospectus which will supplement or amend the
Prospectus or (ii) file with the Commission documents deemed
incorporated by reference in the Prospectus, in either case so that as
supplemented or amended, it will not at the date of such supplement or
amendment contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statement
therein not misleading. For the purpose of this subparagraph (h), the
Company will furnish such reasonable information with respect to itself
as the Representative may from time to time request, and the
Representative, at its own expense, may visit any of the properties of
the Company and may inspect the books of account of the Company at any
reasonable time. Notwithstanding any of the other provisions of this
subparagraph (h), the Company shall not be under any obligation to
furnish any supplement to or amendment of the Prospectus on account of
any change in, or to include in any amended prospectus any change in,
the information furnished to the Company by any Underwriter or
Underwriters or by the Representative on its or their behalf for use in
the Prospectus, unless the Representative has advised the Company in
writing of such change and has requested the Company at the expense of
such Underwriter or Underwriters to prepare a supplement to or
amendment of the Prospectus to reflect such change or to include such
change in an amended prospectus.
(i) The Company will cause to be made generally available to its
security holders as soon as practicable an earnings statement or
statements which shall meet the requirements of Section 11(a) of the
Act and Rule 158 promulgated thereunder.
(j) Until the business day following the Closing Date, the Company
will not, without the consent of the Representative offer, sell or
contract to sell, or announce the offering of, any debt securities [(if
applicable) denominated or payable in any currency or currency unit
other then U.S. dollars] covered by the Registration Statement or any
other registration statement filed under the Act.
8. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Underwriters' Notes shall be
subject to the following additional conditions:
(a) At the time of closing, the Indenture shall be qualified under
the Trust Indenture Act, the Prospectus shall have been filed or
delivered for filing to the Commission not later than 5:00 p.m. on the
second business day following the date hereof, no stop order suspending
the effectiveness of the Registration Statement, as amended from time
to time, shall be in effect and no proceedings for that purpose shall
be pending before or threatened by the Commission, and the
Representative shall have received a certificate dated the day of the
closing and signed by a Vice President or the Treasurer of the Company
to the effect that no such stop order is in effect and, to the
knowledge of the Company, no proceedings for such purpose are pending
before, or threatened by, the Commission,
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(b) At or prior to the time of closing, the Representative shall
have received from counsel for the Company, an opinion, satisfactory to
___________________, to the effect that --
(i) The Company is a corporation in good standing, duly
organized and validly existing under the laws of the State of
Delaware; and is authorized by its Certificate of Incorporation to
transact the business in which it is engaged, as set forth in the
Prospectus;
(ii) The Company is duly qualified to transact the business in
which it is engaged, as set forth in the Prospectus, in each state
in which it operates;
(iii) The indenture has been duly executed and delivered
pursuant to due authorization by appropriate corporate action, is a
valid and binding agreement in accordance with its terms and has
been duly qualified under the trust Indenture Act;
(iv) the Notes, when duly executed, registered and authenticated
pursuant to the indenture and delivered to and paid for by the
Underwriters in accordance with the provisions hereof in the case of
the Underwriters' Notes, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of Contract Notes, will be
legal, valid and binding obligations of the Company in accordance
with their terms;
(v) this Agreement has been duly authorized, executed and
delivered on behalf of the Company and is valid and binding on the
Company, except as rights to indemnity and contribution hereunder
may be limited under applicable law;
(vi) each Delayed Delivery Contract has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding agreement of the Company in accordance with its terms;
(vii) all consents, approvals, authorizations or other orders of
regulatory authorities legally required for the execution of the
Indenture and the issuance and sale of the Notes to the Underwriters
pursuant to the terms of this Agreement, or to purchasers pursuant
to Delayed Delivery Contracts, have been obtained; and
(viii) except as to financial statements and schedules contained
therein, which such opinion need not pass upon, (A) each document or
portion thereof incorporated by reference in the Prospectus complied
when filed with the Commission as to form in all material respects
with the requirements of the Exchange Act, together with the
applicable instructions, rules and regulations of the Commission
thereunder, (B) each part of the Registration Statement when it
became effective complied as to form in all material respects with
the requirements of the Act and the applicable instructions, rules
and regulations of the Commission thereunder; and (C) the
Registration Statement and the Prospectus, as amended or
supplemented, if applicable, comply, and at the date hereof
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complied, as to form in all material respects with the requirements
of the Act and the applicable instructions, rules and regulations to
the Commission thereunder.
(c) At or prior to the time of closing, the Representative shall
have received from ___________________ an opinion to the effect
specified in clauses (iii) through (vi), and (viii)(B) and (C) of
subparagraph (b) above.
(d) At each of the dates hereof and at or prior to the time of
closing, the Representative shall have received an executed copy of a
letter of Coopers & Xxxxxxx, addressed to the Company and to the
Representative, to the effect that (i) they are independent public
accountants as required by the Act and the applicable published rules
and regulations of the Commission thereunder; (ii) the audited
financial statements contained or incorporated by reference in the
Registration Statement, as amended or supplemented from time to time,
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the applicable
published rules and regulations of the Commission thereunder; and (iii)
nothing has come to their attention as the result of specified
procedures not constituting an audit that caused them to believe (A)
that the unaudited financial statements, if any, contained in or
incorporated by reference as aforesaid, do not so comply and are not
fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements contained as aforesaid, (B) that there was
any change in the capital stock or long or intermediate term debt of
the Company, or any decrease in net assets, from the date of the latest
balance sheet which is contained in or incorporated by reference as
aforesaid, to a date not more than five days prior to the date of such
letter or (C) that there were any decreases, as compared with the
corresponding period in the preceding year, in total revenues, income
before interest deductions or net income from the date of the latest
figures for such items contained in the Registration Statement to the
date of the latest available financial statements of the Company;
provided that, with respect to any of the items specified in clause
(iii), such letter may contain an exception for matters which the
Registration Statement discloses have occurred or may occur; and
provided further, that the letter may vary from the requirements
specified in this subparagraph in such manner as the Representative in
its sole discretion may determine to be immaterial or in such manner as
may be acceptable to the Representative.
(e) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the Registration Statement and the Prospectus
there shall not have been, at the time of closing, any material adverse
change, financial or otherwise, in the condition of the Company from
that set forth in the Registration Statement and the Prospectus the
representations and warranties of the Company herein shall be true at
the time of closing; the Company shall not have failed, at or prior to
the time of closing, to have performed all agreements herein contained
which should have been performed by it at or prior to such time; and
the Representative shall have received, at the time of closing, a
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certificate to the foregoing effect dated the day of the closing and
signed by a Vice President or the Treasurer of the Company.
In case any of the conditions specified above in this section 8 shall
not have been fulfilled, this Agreement may be terminated by the Representative
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (d) and (g) of section 7 hereof.
9. Conditions of Company's Obligation. The obligation of the Company to
deliver the Notes upon payment therefor shall be subject to the following
conditions:
At the time of closing, the Indenture shall be qualified under the
Trust Indenture Act, the Prospectus shall have been filed or delivered for
filing to the Commission not later than 5:00 p.m. on the second business day
following the date hereof and no stop order suspending the effectiveness of the
Registration Statement, as amended from time to time; shall be in effect and no
proceedings for that purpose shall then be pending before, or threatened by, the
Commission.
In case any of the conditions specified above in this section 9 shall
not have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representative. Any such
termination shall be without liability of any party to any other party except to
the extent provided in subparagraphs (d) and (g) of section 7 hereof.
10. Termination of Agreement. This Agreement may be terminated, by
delivering written notice of termination to the Company at any time prior to the
time of closing, by the Representative with the consent of Underwriters which,
together with the Representative, have agreed to purchase in the aggregate 50%
or more of the aggregate principal amount of the Notes, if after the signing of
this Agreement trading in securities generally on the New York Stock Exchange
shall have been materially suspended or materially limited or minimum prices
shall have been established on such Exchange (which shall not include trading
suspensions or limitations resulting from the operation of General Rules 80A and
80B of such Exchange, as amended or supplemented), or a banking moratorium shall
have been declared by either federal or New York State authorities.
A termination of this Agreement pursuant to this section 10 shall be
without liability of any party to any other party.
11. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold each Underwriter, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, harmless from and against any and all losses, claims, damages, and
liabilities with respect to the Notes or any other securities of the Company
arising because the Registration Statement, any preliminary prospectus used in
connection with the offering of the Notes or the Prospectus (if used within the
period set forth in section 7(h) hereof and if used, as amended or supplemented
by all amendments or supplements thereto which have been furnished to the
Representative or to such Underwriter) contained or is alleged to have contained
any untrue statement of a material fact or omitted or is alleged to have omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except as to losses, claims, damages or
liabilities caused by any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon information furnished to the Company
herein or otherwise in writing by or on behalf of any
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Underwriter for use in connection with the preparation of any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereof, or caused by any statement in or omission from the Statement
of Eligibility and Qualification of the Trustee under the Indenture, provided
that the indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of Notes to any person if a copy of the
Prospectus (as amended or supplemented by all amendments or supplements thereto
which have been furnished to the Representative or to such Underwriter, but
without documents incorporated by reference therein or exhibits) shall not have
been sent, mailed or given to such person, if required by the Act, at or prior
to the written confirmation of the sale of such Notes to such person.
(b) Each Underwriter agrees to indemnify and hold the Company, its
directors, its officers who sign the registration statement, and each person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, harmless from and against any and all losses, claims,
damages and liabilities arising because the Registration Statement or any
preliminary prospectus relating to the Notes, or the Prospectus or any amendment
or supplement thereto contained or is alleged to have contained any untrue
statement of a material fact or omitted or is alleged to have omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission or alleged untrue
statement or omission was made in any such preliminary prospectus or in the
Registration Statement or Prospectus or any amendment or supplement thereto in
reliance upon information furnished to the Company herein or otherwise in
writing by or on behalf of such Underwriter for use in connection with the
preparation thereof.
(c) The Company and each Underwriter agree that upon the
commencement of any action against it, its directors, its officers who sign the
registration statement, or any person controlling it as aforesaid in respect of
which indemnity may be sought on account of any indemnity agreement contained
herein, it will promptly give written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought, but the omission so to
notify such indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they may have
to the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them. In the
event that the parties to any such action (including impleaded parties) include
both the indemnifying party and the indemnified party and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
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parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
indemnified patties, which firm shall be designated in writing by the
Representative in the case of an action in which one or more Underwriters, or
controlling persons are indemnified parties and by the Company in the case of an
action in which the Company or any of its directors, officers or controlling
persons are indemnified parties. The indemnifying party or parties shall not be
liable under this Agreement with respect to any settlement made by any
indemnified party or parties without prior written consent by the indemnifying
party or parties to such settlement.
(d) If the indemnification provided for in subparagraph (a) or (b)
of this section 11 is unavailable to an indemnified party in respect of any
losses, claims, damages, or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect primarily the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Notes and also to reflect where
appropriate the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions or
alleged statements or omissions which resulted in such losses, claims, damages,
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters, and the
parties, relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subparagraph (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this subparagraph (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in this subparagraph (d) shall be deemed to include, subject to the
limitations set forth above in this section 11, any legal or other expenses
reasonably incurred by such indemnified party in connection with defending any
such action or claim. Notwithstanding the provisions of this subparagraph (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has been required to pay, otherwise than pursuant
to this subparagraph (d), by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from and person who was not guilty of such fraudulent
misrepresentation. Each Underwriter's obligation to contribute pursuant to this
subparagraph (d) is several in an amount which shall bear the same proportion to
the total principal amount of Notes set forth opposite the name of such
Underwriter in Schedule I hereto (plus any increase in such amount as may be
required pursuant to Section 5 hereof).
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12. Miscellaneous. This Agreement shall inure to the benefit of the
Company, its directors, its officers who sign the registration statement, the
several Underwriters and each controlling person referred to in section 11
hereof and their respective successors. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under in respect of this Agreement or any
provision herein contained. The term "successor" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Notes from any of
the several Underwriters.
13. Notices. All communications hereunder shall be in writing, and
if to the Underwriters, unless otherwise provided, shall be mailed or delivered
to the Representative at [ ] and if to the Company, unless otherwise
provided, shall be mailed or delivered to the Company attention:
[______________________].
14. Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
15. Survival Clause. Except with respect to any Underwriter who is
in default within the meaning of section 5 hereof, the indemnity and
contribution agreement contained in section 11 hereof and the representations
and warranties of the Company set forth in this Agreement or in any certificate
furnished pursuant hereto shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter, or
(iii) acceptance of and payment for the Notes.
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company and
the several Underwriters, in accordance with its terms.
Very truly yours,
LUCENT TECHNOLOGIES INC.
By
------------------------------------
Name:
Title:
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The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
(Representative of the Several Underwriters)
By:
Acting severally on behalf of itself
and the several Underwriters named
herein.
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SCHEDULE I
Name Principal Amount
---- ----------------
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SCHEDULE II
LUCENT TECHNOLOGIES INC.
NOTES
DELAYED DELIVERY CONTRACT
Lucent Technologies Inc. 199
c/o
Dear Sirs:
The undersigned hereby agrees to purchase from Lucent Technologies Inc.
(the "Company"), and the Company agrees to sell to the undersigned, on ________,
199_ (the "Delivery Date"),
$
---------------------------
principal amount of the Company's Notes (the "Notes") offered by the Company's
Prospectus dated _________ 199_, receipt of a copy of which is hereby
acknowledged, at a purchase price of ____% of the principal amount thereof, plus
accrued interest, if any thereon from ________________, 199_ to the date of
payment and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Notes which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House or other next-day funds, at
___________________, New York, NY, at 10:00 o'clock a.m.,
New York time, on the Delivery Date, upon delivery to the undersigned of the
Notes to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may properly
designate by written or telegraphic communications addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Notes on the Delivery Date and the obligation of the Company to sell and
deliver Notes on the Delivery Date shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Notes to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the Underwriters of, such part of the Notes as is to be sold
to them. Promptly after completion of sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
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Failure to take delivery of and make payment for Notes by any purchaser
under any other Delayed Delivery Contract shall not relieve the undersigned of
its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party without the written consent of the other.
It this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
---------------------------
(Purchaser)
By
---------------------------
---------------------------
(Title)
---------------------------
---------------------------
(Address)
Accepted
LUCENT TECHNOLOGIES INC.
By
----------------------------------------
(Authorized Signature)
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PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (please print)
Telephone No.
Name (including Area Code) Department
---- --------------------- ----------
