Exhibit 4.11
1,750,000 PREFERRED SECURITIES
LUCENT TECHNOLOGIES CAPITAL TRUST I
7.75% CUMULATIVE CONVERTIBLE TRUST PREFERRED SECURITIES
GUARANTEED BY, AND CONVERTIBLE
INTO THE COMMON STOCK OF,
LUCENT TECHNOLOGIES INC.
REGISTRATION RIGHTS AGREEMENT
March 13, 2002
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of March 13, 2002 by and among Lucent Technologies Inc., a
Delaware corporation (the "COMPANY"), Lucent Technologies Capital Trust I (the
"TRUST"), a statutory business trust formed under the Business Trust Act of the
State of Delaware (Chapter 38, Title 12 of the Delaware Code, 12 Del. C. Section
3801 et seq.), Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX"), Xxxxxxx
Xxxxx Xxxxxx Inc. ("XXXXXXX XXXXX BARNEY"), X.X. Xxxxxx Securities Inc., Bear,
Xxxxxxx & Co. Inc., Deutsche Banc Alex. Xxxxx Inc, and XX Xxxxx Securities
Corporation (collectively, the "INITIAL PURCHASERS"), for whom Xxxxxx Xxxxxxx
and Xxxxxxx Xxxxx Xxxxxx are acting as representatives (the "REPRESENTATIVES").
This Agreement is made pursuant to the Purchase Agreement dated March
13, 2002, among the Company, the Trust and the Initial Purchasers (the "PURCHASE
AGREEMENT"), which provides for the sale by the Trust to the Initial Purchasers
an aggregate of 1,750,000 (including an aggregate of 250,000 that the Trust has
granted the Initial Purchasers an overallotment option to purchase pursuant to
the Purchase Agreement) of its 7.75% Cumulative Convertible Trust Preferred
Securities, initial liquidation preference $1,000 per preferred security (the
"TRUST PREFERRED SECURITIES"). The proceeds of the sale by the Trust of the
Trust Preferred Securities, together with the proceeds from the sale of the
common securities of the Trust to the Company, are to be invested by the Trust
in 7.75% convertible subordinated debentures due March 15, 2017 of the Company
(the "SUBORDINATED DEBENTURES") issued pursuant to the Indenture (as defined
herein). The Trust Preferred Securities are guaranteed, on a subordinated basis,
by the Company to the extent set forth in the Guarantee Agreement (the
"GUARANTEE") and will be convertible into shares of Common Stock, par value $.01
per share, of the Company (the "COMMON STOCK") at the conversion price set forth
in the Final Memorandum (as defined in the Purchase Agreement). For purposes of
this Agreement, the term "SECURITIES" refers to the Trust Preferred Securities,
the Subordinated Debentures, all shares of Common Stock issued on conversion of
the Trust Preferred Securities or Subordinated Debentures and the Guarantee.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Trust have agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights
with respect to the Securities set forth in this Agreement. The execution of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"ADDITIONAL DISTRIBUTIONS" shall have the meaning set forth in the
Amended and Restated Trust Agreement.
"ADDITIONAL INTEREST" shall have the meaning set forth in the
Indenture.
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"AMENDED AND RESTATED TRUST AGREEMENT" shall mean the Amended and
Restated Trust Agreement dated as of March 19, 2002 among the Company as
depositor, The Bank of New York, as property trustee, The Bank of New York
(Delaware), as Delaware trustee, and three employees or officers of, or
affiliates with the Company, as administrative trustees.
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMMON STOCK" shall have the meaning set forth in the preamble.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"GUARANTEE" shall have the meaning set forth in the preamble.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement, dated as of
March 19, 2002, executed and delivered by the Company for the benefit of the
Holders as amended or supplemented from time to time in accordance with the
terms thereof.
"HOLDERS" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities (except that for purposes of Section 4 hereof, the
Initial Purchasers shall always be considered Holders), and each of their
respective successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"INDENTURE" shall mean the Indenture, dated as of March 19, 2002,
relating to the Company's Subordinated Debentures, which sets forth the powers,
preferences, rights, qualifications, limitations and restrictions of the
Subordinated Debentures.
"MAJORITY HOLDERS" shall mean, with respect to any particular
Registrable Securities, the Holders of a majority of the aggregate liquidation
preference plus accrued and unpaid distributions of such Registrable Securities
which are Trust Preferred Securities and the aggregate principal amount of such
Registrable Securities which are Subordinated Debentures issued upon exchange of
such Trust Preferred Securities, taken as a whole. In addition, the Common Stock
surrendered for conversion or exchange in order to receive such number of shares
of Common Stock shall be treated as representing the liquidation amount of Trust
Preferred Securities or the principal amount of Subordinated Debentures;
provided that, for purposes of Section 5(b), whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or any of its affiliates
(as such term is defined in Rule 405 under the 0000 Xxx) (other than the Initial
Purchasers or subsequent Holders of Registrable Securities if such subsequent
holders are
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deemed to be such affiliates solely by reason of their holding such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"PROSPECTUS" shall mean the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, at the time such Registration
Statement is declared effective, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case, including all
material incorporated by reference therein.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities on the earlier to
occur of (i) the date on which a Shelf Registration Statement with respect to
such Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Shelf Registration
Statement, (ii) the date on which such Securities may be sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the 1933 Act or (iii) the date on which such Securities shall have
ceased to be outstanding.
"REGISTRATION DEFAULTS" shall mean the occurrence of any of the
following events:
(i) on or prior to the 90th day following the date of original
issuance of the Trust Preferred Securities, a Shelf
Registration Statement has not been filed with the SEC,
(ii) on or prior to the 180th day following the date of original
issuance of the Trust Preferred Securities, a Shelf
Registration Statement has not been declared effective by the
SEC, or
(iii) after a Shelf Registration Statement has been declared
effective by the SEC, the Shelf Registration Statement
thereafter ceases to remain effective or useable (except as
provided in the second to last paragraph of Section 3) in
connection with resales of the Registrable Securities during
the period specified in the third sentence of Section 2(a);
provided, however, that a Registration Default shall cease to occur and be cured
under clause (i) above at such time as a Shelf Registration Statement is filed;
under clause (ii) above at such time as a Shelf Registration Statement is
declared effective by the SEC; and under clause (iii) above at such time as a
Shelf Registration Statement becomes effective or usable again after ceasing to
be effective or usable.
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"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company and the Trust with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel (not to
exceed $10,000) for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Securities), (iii) all expenses of
printing and distributing, at the request of the Company, any Shelf Registration
Statement, any Prospectus, any amendments or supplements thereto, (iv) all
rating agency fees, (v) all fees and disbursements of the Transfer Agent, (vi)
the fees and disbursements of counsel for the Company and the Trust and the
reasonable fees and disbursements of one counsel for the Holders incurred on or
before the initial effectiveness of the Shelf Registration Statement, which
counsel shall be counsel for the Initial Purchasers or other counsel selected by
the Majority Holders and satisfactory to the Company ("COUNSEL FOR THE
HOLDERS"), (vii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, and (viii) the fees and expenses of listing the Common Stock on any
securities exchange or quotation system in accordance with Section 3(o) hereof,
but excluding underwriting discounts, if any, and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
the Holders.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the preamble.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company and the Trust pursuant to the provisions of Section
2(a) of this Agreement providing for the sale by the Holders of all of the
Registrable Securities (except Registrable Securities that the Holders have
elected not to include in such Shelf Registration Statement) or Securities that
represent an unsold allotment for the original offering thereof on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case, including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"SUBORDINATED DEBENTURES" shall have the meaning set forth in the
preamble.
"TRANSFER AGENT" shall mean the transfer agent with respect to the
Trust Preferred Securities and the Common Stock
"TRUST AGREEMENT" shall mean the Trust Agreement dated as of February
1, 2002 among the Company as depositor, The Bank of New York, as property
trustee, The Bank of New York (Delaware), as Delaware trustee, and three
employees or officers of, or affiliates with the Company, as administrative
trustees.
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"TRUST PREFERRED SECURITIES" shall have the meaning set forth in the
preamble.
"UNDERWRITERS" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration under the 0000 Xxx.
(a) The Company and the Trust shall prepare, and not later
than 90 days following the date of original issuance of the Trust
Preferred Securities, shall use its reasonable best efforts to cause to
be filed with the SEC, a Shelf Registration Statement. The Company and
the Trust shall use their reasonable best efforts to have the Shelf
Registration Statement declared effective by the SEC on or prior to the
date that is 180 days after the date of original issuance of the Trust
Preferred Securities. The Company and the Trust agree to use their
reasonable best efforts to keep the Shelf Registration Statement
continuously effective until the earlier of the expiration of the
period referred to in Rule 144(k) under the 1933 Act with respect to
the Registrable Securities or two years after the issue date of the
Trust Preferred Securities or such shorter period that will terminate
when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company and the Trust further agree to
supplement or amend the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form
used by the Company and the Trust for such Shelf Registration Statement
or by the 1933 Act or by any other rules and regulations thereunder for
shelf registration or if reasonably requested by a Holder with respect
to information relating to such Holder and required by applicable law
to be included therein, and to use their reasonable best efforts to
cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon thereafter as
practicable. The Company and the Trust agree to furnish to the Holders
of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(b) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a). Each Holder
shall pay all underwriting discounts, if any, and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(c) The Shelf Registration Statement filed pursuant to Section
2(a) hereof will not be deemed to have become effective unless it has
been declared effective by the SEC; provided, however, that, if, after
it has been declared effective, the offering of Registrable Securities
pursuant to the Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court, the Shelf Registration Statement
will be deemed not to be effective during the period of such
interference until the offering of Registrable Securities pursuant to
the Shelf Registration Statement may legally resume.
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(d) Upon the occurrence of a Registration Default, Holders
will be entitled to receive Additional Distributions as provided in the
Amended and Restated Trust Agreement or, if the Trust Preferred
Securities have been exchanged for Subordinated Debentures, Additional
Interest as provided in the Indenture.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company and the Trust acknowledge that
any failure by the Company or the Trust to comply with any of their
respective obligations under Section 2(a) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of
any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company's and the
Trust's obligations under Section 2(a) hereof.
3. Registration Procedures.
In connection with the obligations of the Company and the Trust with
respect to the Shelf Registration Statement pursuant to Section 2(a) hereof, the
Company and the Trust shall reasonably promptly:
(a) prepare and file with the SEC a Shelf Registration
Statement on the appropriate form under the 1933 Act, which form shall
(x) be selected by the Company, (y) be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) comply as
to form in all material respects with the requirements of the
applicable form and include all financial statements required by the
SEC to be filed therewith or incorporated by reference therein, and use
their reasonable best efforts to cause the Shelf Registration Statement
to become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and post-
effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective for the
applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the 1933 Act; and keep each Prospectus
current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities;
(c) furnish to each Holder of Registrable Securities, to
counsel for the Holders and for the Initial Purchasers (or, if
applicable, separate counsel for the Holders) and to each Underwriter
of an Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus and any amendment or supplement thereto and such other
documents as such Holder or Underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities; and each of the Company and the Trust consent
to the use of such Prospectus and any amendment or supplement thereto
in accordance with applicable law by
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each of the selling Holders of Registrable Securities and any such
Underwriters in connection with the offering and sale of the
Registrable Securities covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in accordance with
applicable law; provided, however, that such consent is subject to
compliance by the Holders and any such Underwriters with the second to
last paragraph of Section 3;
(d) use their reasonable best efforts (i) to register or
qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of
Registrable Securities covered by the Shelf Registration Statement
shall reasonably request in writing by the time the Shelf Registration
Statement is declared effective by the SEC and (ii) to cooperate with
such Holders in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. and do any and all
other customary acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each
such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that neither the Company nor the Trust shall be
required to (A) register or qualify as a foreign corporation or as a
trust or as a dealer in securities in any jurisdiction where it would
not otherwise be required to register or qualify but for this Section
3(d), or (B) take any action that would subject either of them to any
general service of process or to taxation in any such jurisdiction if
it is not so subject;
(e) notify each Holder of Registrable Securities, counsel for
the Holders and for the Initial Purchasers (or, if applicable, separate
counsel for the Holders) promptly and, if requested by such Persons,
confirm such advice in writing, (i) when the Shelf Registration
Statement has become effective and when any post-effective amendment
thereto has been filed and becomes effective, (ii) of any request by
the SEC or any state securities authority for amendments and
supplements to the Shelf Registration Statement and Prospectus or for
additional information after the Shelf Registration Statement has
become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of
the Shelf Registration Statement or the initiation of any proceedings
for that purpose, (iv) if, between the effective date of the Shelf
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the Company or the Trust receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
of any proceeding for such purpose, (v) of the happening of any event
during the period the Shelf Registration Statement is effective which
makes any statement made in the Shelf Registration Statement or the
related Prospectus untrue in any material respect or which requires the
making of any changes in the Shelf Registration Statement or Prospectus
in order to make the statements therein not misleading and (vi) of any
determination by the Company that a post-effective amendment to the
Shelf Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration
Statement at
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the earliest possible moment and provide prompt notice to each Holder
of Registrable Securities of the withdrawal of any such order;
(g) furnish to each Holder of Registrable Securities, upon
request and without charge, at least one conformed copy of the Shelf
Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in connection with any sale of Registrable Securities
which are in certificated form that will result in such securities no
longer being Registrable Securities, cooperate with the selling Holders
of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends (unless required by applicable
securities laws) and enable such Registrable Securities to be in such
denominations and registered in such names as the selling Holders may
reasonably request at least two business days prior to the closing of
any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section
3(e) hereof that so requires, use their reasonable best efforts to
prepare and file with the SEC a supplement or post-effective amendment
to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Company agrees to notify the
Holders of Registrable Securities to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and the
Holders hereby agree to suspend use of the Prospectus until the Company
has amended or supplemented the Prospectus to correct such misstatement
or omission;
(j) a reasonable time prior to the filing of the Shelf
Registration Statement, any Prospectus, any amendment to the Shelf
Registration Statement or amendment or supplement to a Prospectus to be
filed pursuant to the 1933 Act, provide copies of such document to
Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx Xxxxxx and their counsel and make such
of the representatives of the Company as shall be reasonably requested
by Xxxxxxx Xxxxx Barney and Xxxxxx Xxxxxxx or their counsel available
for discussion of such document, and shall not at any time file or make
any amendment to the Shelf Registration Statement, any Prospectus or
any amendment of or supplement to the Shelf Registration Statement or a
Prospectus, of which Xxxxxxx Xxxxx Barney and Xxxxxx Xxxxxxx and their
counsel shall not have previously been advised and furnished a copy or
to which Xxxxxxx Xxxxx Barney and Xxxxxx Xxxxxxx or their counsel shall
reasonably object within two business days after receipt thereof;
(k) obtain a CUSIP number for all Registrable Securities not
later than the effective date of the Shelf Registration Statement;
(l) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration
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of the Registrable Securities, cooperate with the trustee under the
Indenture and the Holders to effect such changes to the Indenture as
may be required for the Indenture to be so qualified in accordance with
the terms of the TIA and execute, and use its best efforts to cause the
trustee under the Indenture to execute, all documents as may be
required to effect such changes and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) make available for inspection by any Underwriter
reasonably acceptable to the Company participating in any disposition
pursuant to the Shelf Registration Statement, and counsel for the
Holders reasonably acceptable to the Company, at reasonable times and
in a reasonable manner, all financial and other records, material
corporate documents and properties of the Company and the Trust, and
cause the respective officers, directors and employees of the Company
and the respective officers of the Trust to supply such information
reasonably requested by any such representative, Underwriter, attorney
or accountant in connection with the Shelf Registration Statement, in
each case, that would customarily be reviewed or examined in connection
with a "DUE DILIGENCE" review in connection with filing a Shelf
Registration Statement of the Company;
(n) if reasonably requested by any Holder of Registrable
Securities covered by the Shelf Registration Statement, (i) as promptly
as practicable incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as is required
to be included therein in accordance with applicable law and (ii) make
all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing;
provided, however, that the Company and the Trust shall not be required
to take any action pursuant to this Section 3(n) that would, in the
opinion of counsel for the Company reasonably satisfactory to the
Initial Purchasers, violate applicable law;
(o) cause all Registrable Securities covered by the Shelf
Registration Statement (i) that consist of Common Stock to be listed on
each securities exchange or quotation system on which similar
securities issued by the Company are then listed, if so requested by
the Majority Holders and (ii) that consist of Trust Preferred
Securities to be rated with Standard & Poor's and Xxxxx'x Investors
Service Inc., if so requested by the Majority Holders; and
(p) in the case of an Underwritten Offering pursuant to the
Shelf Registration, upon the request of the Majority Holders of
Registrable Securities included therein, enter into such customary
agreements and take all such other customary actions in connection
therewith (including those reasonably requested by counsel for the
Holders) in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, (i) to the extent
possible, make such reasonable representations and warranties to the
Holders and any Underwriters of such Registrable Securities with
respect to the business of the Trust, the Company and the Company's
subsidiaries, the Shelf Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as were
made by the Company in the Purchase Agreement and
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confirm the same if and when requested, (ii) obtain opinions of counsel
to the Company and of counsel to the Trust (both of such counsel and
opinions, in form, scope and substance, shall be reasonably
satisfactory to the selling Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) subject to the
making of such representations as are customarily made to such
accountants in relation to their provision of such letters, obtain
"cold comfort" letters from the independent certified public
accountants of the Company (and, if necessary, any other certified
public accountant of any subsidiary or affiliate of the Company, or of
any business acquired by the Company for which financial statements and
financial data are or are required to be included in the Shelf
Registration Statement) addressed to each selling Holder and
Underwriter of Registrable Securities, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings, and (iv)
deliver such documents and certificates as may be reasonably requested
by counsel for the Holders to evidence the continued validity of the
representations and warranties of the Company made pursuant to clause
(i) above and to evidence compliance with any customary conditions
contained in an underwriting agreement.
The Company may require each Holder of Registrable Securities to
promptly furnish to the Company such information regarding the Holders and the
proposed distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing. Notwithstanding
anything herein to the contrary, no Holder of Registrable Securities may include
any of its Registrable Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such Holder (i) furnishes to the Company in
writing within 20 days after receipt of a request therefor, the information
specified in Items 507 and 508 of Regulation S-K, as applicable, of the 1933 Act
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary prospectus included therein, (ii) agrees to promptly furnish
additional information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading and
(iii) at the Company's request, acknowledges in writing its agreement to be
bound by the provisions of this Agreement in accordance with Section 5(d)
hereof. No Holder shall be entitled to Additional Dividends or Additional
Interest during any period in which exclusion of any Registrable Securities of
such Holder from any Shelf Registration Statement results from the operation of
this paragraph.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3(e) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the Shelf Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(i) hereof, and,
if so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Company shall give any
such notice to suspend the disposition of Registrable Securities pursuant to the
Shelf Registration Statement, the Company and the Trust shall extend the period
during which the Shelf Registration Statement shall be maintained effective
pursuant to
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this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions. Such suspensions may not exceed 90 days in the
aggregate in any consecutive 365-day period.
The Holders of Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering and shall be reasonably
acceptable to the Company.
4. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Initial Purchasers, each other Holder and each Person, if any, who
controls the Initial Purchasers or any other Holder within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or
is under common control with, or is controlled by any Initial Purchaser
or any other Holder, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or
other expenses incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Shelf Registration
Statement (or any amendment thereto pursuant to which Registrable
Securities were registered under the 1933 Act, including all documents
incorporated therein by reference), or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were
made not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company or the Trust shall have
furnished any amendments or supplements thereto, including all
documents incorporated therein by reference), or caused by any omission
or alleged omission to state therein a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Initial Purchaser or other Holder furnished to the
Company in writing by such Initial Purchaser or relating to any other
Holder furnished to the Company in writing by such Holder expressly for
use therein; provided, however, that the foregoing indemnity with
respect to the Preliminary Memorandum (as defined in the Purchase
Agreement) shall not inure to the benefit of the Initial Purchaser,
other Holder or controlling person from whom the person asserting any
such losses, claims, damages, liabilities or actions in respect thereof
purchased Securities to the extent that any such losses, claims,
damages, liabilities or actions in respect thereof result from such
Initial Purchaser's, other Holder's or controlling person's selling
Securities to a person in an initial resale to whom there was not sent
or given, at or prior to the written confirmation of the sale of such
Securities, a copy of the Final Memorandum (as amended or
supplemented), if the Company had previously furnished a copy of such
amendments or supplements to
12
such Initial Purchaser, other Holder or controlling person prior to
confirmation of the sale of such Securities to such person by such
Initial Purchaser, other Holder or controlling person, and the losses,
claims, damages, liabilities or actions in respect thereof of such
Initial Purchaser, other Holder or controlling person result from an
untrue statement or omission of a material fact contained in the
Preliminary Memorandum, which was corrected in the Final Memorandum (as
amended or supplemented).
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Trust, the Initial
Purchasers, each affiliate of an Initial Purchaser which participated
in the distribution of the Securities and each other selling Holder,
and each of their respective directors and officers who sign the Shelf
Registration Statement, any trustees of the Trust and any Person who
controls the Company, the Trust, any Initial Purchaser and each other
selling Holder within the meaning of Section 15 of the Act or Section
20 of the 1934 Act, to the same extent as the foregoing indemnity from
the Company to the Initial Purchasers and other Holders, but only with
reference to such untrue statements or omissions, or such alleged
untrue statements or omissions, contained in the Shelf Registration
Statement (or any such amendment thereto) based upon information
relating to any Initial Purchaser or other Holder furnished in writing
by or on behalf of such Initial Purchaser or other Holder expressly for
use in the Shelf Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 4(a) or 4(b), such
Person (the "INDEMNIFIED PERSON") shall promptly notify the Person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON")
in writing and the Indemnifying Person, upon request of the Indemnified
Person, shall retain one counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others
the Indemnifying Person may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them. It is understood that the
Indemnifying Person shall not, in respect of the legal expenses of any
Indemnified Person in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such Indemnified Persons and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx Xxxxxx, in
the case of persons indemnified pursuant to Section 4(a), and by the
Company, in the case of
13
persons indemnified pursuant to Section 4(b). The Indemnifying Person
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person
agrees to indemnify the Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that
are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
4(a) or 4(b) is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to
the amount paid or payable by such Indemnified Person as a result of
such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company
and the Trust on the one hand and the Holders on the other hand from
the offering of the Securities or (ii) if the allocation provided by
clause 4(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause 4(d)(i) above but also the relative fault of the
Company and the Trust on the one hand and of the Holders on the other
hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations.
(e) The Company, the Trust and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section 4
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 4(d) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in Section 4(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 4, no Holder shall be required to
contribute any amount in excess of the amount by which the total price
at which Registrable Securities were sold by such Holder exceeds the
amount of any damages that such Holder has otherwise been required to
pay 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 0000 Xxx) shall be entitled
to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' respective obligations to contribute
pursuant to this Section are several in proportion to the aggregate
principal amount of Registrable Securities sold by them pursuant to the
Shelf Registration Statement. The remedies provided for in this Section
4 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any Indemnified Party at law or in
equity.
14
(f) Any losses, claims, damages or liabilities for which an
Indemnified Person is entitled to indemnification or contribution under
this Section shall be paid by the Indemnifying Person to the
Indemnified Person as such losses, claims, damages or liabilities are
incurred. The indemnity and contribution agreements contained in this
Section 4 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of
any Initial Purchaser, any Holder or any Person controlling any Initial
Purchaser, any Holder, the Company's directors or officers or any
Person controlling the Company, the Trust, the trustees of the Trust or
any officers of, or any person controlling, the Trust, (ii) any
termination of this Agreement and (iii) any sale of Registrable
Securities pursuant to the Shelf Registration Statement.
5. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor the
Trust has entered into, and on or after the date of this Agreement will
not enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to
the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
other issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or consent; provided,
however, that no amendment, modification, supplement, waiver or consent
to any departure from the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered or certified first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at the most
current address set forth in the records of the Transfer Agent, which
address initially is, with respect to the Initial Purchasers, the
address set forth in the Purchase Agreement; (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section; and (iii) if to the
Trust, in care of the Company at the appropriate address in the
preceding clause. A Person may, by notice to another Person, authorize
any additional means by which that other Person may give such notices
and other communications to that Person. All such notices and
communications shall be deemed to have been duly given at the time
delivered, if personally delivered; five business days after being
deposited in the mail, postage pre-paid, if mailed; when receipt is
15
acknowledged, if telecopied; on the next business day if timely
delivered to an air courier guaranteeing overnight delivery; and when
sent, if by any other authorized method.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the
trustee under the Indenture, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the
need for an express assignment or assumption, subsequent Holders;
provided that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Registrable Securities in violation of
the terms of the Purchase Agreement or the Amended and Restated Trust
Agreement. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms
of this Agreement and by taking and holding such Registrable
Securities, such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to the benefits hereof. The
Initial Purchasers shall have no liability or obligation to the Company
or to the Trust with respect to any failure by any other Holder to
comply with, or any breach by any other Holder of, the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not,
and shall cause its affiliates (as defined in rule 405 under the 0000
Xxx) not to, purchase and then resell or otherwise transfer any
Securities other than to the Company or its affiliates.
(f) Third Party Beneficiary. Each Holder shall be a third
party beneficiary to the agreements made hereunder between the Company
and the Trust, on the one hand, and the Initial Purchasers, on the
other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable
to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
(h) Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York.
(j) Severability. In the event that one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
16
(k) Termination. This agreement shall terminate and all rights
and obligations of the parties under it shall cease if the Trust
Preferred Securities are not issued and sold by the Trust to the
Initial Purchasers pursuant to the Purchase Agreement.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LUCENT TECHNOLOGIES CAPITAL TRUST I,
a Delaware Statutory Business Trust
By: LUCENT TECHNOLOGIES INC.,
As Depositor
By: /s/ Xxxxxxx Xxxx-Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxx-Xxxxxx
Title: Senior Vice President and
Teasurer
LUCENT TECHNOLOGIES INC.
By: /s/ Xxxxxxx Xxxx-Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxx-Xxxxxx
Title: Senior Vice-President and
Treasurer
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
For themselves and as Representatives of
the other Initial Purchasers
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Aurora
-----------------------------------
Name: Xxxxxxx Aurora
Title: Vice President
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Director
