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Exhibit 1C
LUCENT TECHNOLOGIES INC.
Euro-Medium Term Notes, Series ___
FORM OF INTERNATIONAL DISTRIBUTION AGREEMENT
______________, 199_
[Name of Agents]
[Address]
Ladies and Gentlemen:
Lucent Technologies Inc., a Delaware corporation (the "Company"),
proposes to issue and sell from time to time up to U.S. $________ (or the
equivalent thereof in other currencies or currency units) aggregate principal
amount of its Euro-Medium Term Notes, Series ___ (the "Notes"), as such amount
shall be reduced by the aggregate principal amount issued and sold in the United
States in a concurrent offering of its Medium Term Notes, Series ____ (the
"Series ___ Notes") and the aggregate principal amount of any other debt
securities and the aggregate purchase price of any warrants issued by the
Company inside or outside of the United States pursuant to a certain
registration statement, discussed in Section II hereof, or otherwise. The Notes
are to be issued and sold under an Indenture dated as ________________, 1996
(the "Indenture"), between the Company and __________________ as trustee (the
"Trustee"). The Notes, which will be issued in bearer form, including temporary
and permanent global form, shall be issued in the currency or currency unit (the
"Specified Currency") and shall have the maturity ranges, annual interest rate
(whether fixed or floating), redemption provisions, repayment provisions and
other terms as set forth in the Prospectus referred to below as it may be
supplemented from time to time, including any pricing supplement ("Pricing
Supplement").
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I.
Subject to the terms and conditions stated herein and subject to
the reservation by the Company of the right to sell Notes (a) directly to
investors on its own behalf or (b) through other agents, dealers or
underwriters, the Company hereby (i) appoints [AGENTS] (individually an "Agent"
and collectively the "Agents") to act as its agents to solicit orders for, and
to sell, all or part of the Notes during a period beginning on the date hereof
and ending when the Notes have been sold, or such other time as the Company may
specify to you in writing, and (ii) agrees that whenever the Company determines
to sell Notes directly to either of you as principal for resale to others it
will enter into a Terms Agreement relating to such sale in accordance with the
provisions of Section I(b) hereof.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent, severally and not jointly, will use its reasonable best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. As soon as practicable, but in any
event not later than one business day in the location of each Agent concerned
after receipt of notice from the Company, the Agents will suspend solicitation
of offers to purchase Notes from the Company until such time as the Company has
advised them that such solicitation may be resumed.
Unless otherwise agreed between the Company and the Agents, the
Company agrees to pay each Agent, as consideration for soliciting the sale of
any Notes, a commission in the form of a discount equal to the following
percentage of the principal amount of each Note sold by such Agent:
TERM COMMISSION RATE
---- ---------------
[From 9 months to 1 year .125%
More than 1 year to 18 months .150%
More than 18 months to 2 years .200%
More than 2 years to 3 years .250%
More than 3 years to 4 years .350%
More than 4 years to 5 years .450%
More than 5 years to 6 years .500%
More than 6 years to 7 years .550%
More than 7 years to 10 years .600%
More than 10 years to 15 years .625%
More than 15 years to 20 years .700%
More than 20 years to 30 years .750%]
Each agent is authorized to solicit offers to purchase Notes only in principal
amounts of at least U.S. $25,000 or any amount in excess thereof that is a whole
multiple of U.S. $5,000 or, if denominated in a Specified Currency other than
U.S. dollars, then the equivalent, at the noon buying rate in New York City for
cable transfers of such Specified Currency as certified for customs practices by
the Federal Reserve Bank of New York or, in the case of European Currency Units
at the rate of exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of the European
Communities, or any successor publication, in either case on the Business Day
(as defined in Exhibit B hereto) immediately preceding the trade date for such
Notes, of U.S. $25,000
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(rounded down to an integral multiple of 100 units of such Specified Currency)
and any larger amount that is an integral multiple of 1000 units of such
Specified Currency. Each Agent shall communicate to the Company, orally or in
writing, each reasonable offer received by it to purchase Notes. The Company
shall have the sole right to accept offers to purchase Notes and may reject any
such offer in whole or in part. Each Agent shall have the right to reject, in
its discretion reasonably exercised, any offer received by it to purchase the
Notes in whole or in part, and any such rejection shall not be deemed a breach
of its agreements contained herein.
(b) Purchases as Principal. Each sale of Notes to an Agent, as
principal, shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which shall be substantially in the form of Exhibit A hereto and which may take
the form of an exchange of any standard form of written telecommunication
between such Agent and the Company) is herein referred to as a "Terms
Agreement". An Agent's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
price to be paid to the Company for such Notes, the currency or currency unit in
which such Notes shall be denominated on which interest is to be paid and in
which the redemption or repayment price, if any, is to be paid, the rate at
which interest will be paid on the Notes, whether such rate of interest shall be
fixed or floating and the time and place of delivery of any payment for such
Notes (the "Settlement Date"). Such Terms Agreement shall also specify any
requirements for opinions of counsel, certificates of the Company and letters
from Coopers & Xxxxxxx pursuant to Section III hereof and may also contain
additional provisions relating to defaults by underwriters and other provisions
relating to termination as may be agreed at the time between the Company and the
applicable Agent.
(c) Offers and Sales of Notes.
(i) Each Agent represents, warrants, covenants and agrees:
(A) that except to the extent permitted under U.S.
Treasury Regulations Section 1.163-5(c)(2)(i)(D) (the "D
Rules"), (1) it has not offered or sold, and during the
restricted period will not offer or sell, Notes to a person
who is within the United States or its possessions or to a
United States person and (2) it has not delivered and will
not deliver within the United States or its possessions
definitive Notes that are sold during the restricted period;
(B) that it has in effect and throughout the
restricted period will have in effect procedures reasonably
designed to ensure that its employees or agents who are
directly engaged in selling Notes are aware that such Notes
may not be offered or sold during the restricted period to a
person who is within the United States or its possessions or
to a United States person, except as permitted by the D
Rules;
(C) if it is a United States person, that it is
acquiring the Notes for purposes of resale in connection with
their original issuance and if it retains Notes for its own
account, it will only do so in accordance with the
requirements of U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(D) with respect to each of its affiliates that
acquires from it Notes for the purpose of offering or selling
such Notes during the restricted period, it either (1)
repeats and confirms the representations
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and agreements contained in clauses (A), (B) and (C) on its
behalf or (2) agrees that it will obtain from such affiliate
for the benefit of the Company the representations and
agreements contained in clauses (A), (B) and (C);
(E) that it has not entered and will not enter into
any contractual arrangement with respect to the distribution
or delivery of the Notes, except with its affiliates or with
the prior written consent of the Company.
Terms used in this paragraph (c)(i) have the meanings given them by
the U.S. Internal Revenue Code and regulations thereunder, including the D
Rules.
(ii) Each Agent represents and agrees that (A) it has not
offered or sold, and will not, for as long as Part III of the Companies
Xxx 0000 remains in force in relation to the Notes, offer or sell in
the United Kingdom, by means of any document, any Notes other than to
persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent (except in circumstances
which do not constitute an offer to the public within the meaning of
the Companies Act 1985); (B) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect
to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; (C) it has only issued or passed on and
will only issue or pass on to any person in the United Kingdom any
document received by it in connection with the issue of the Notes if
that person is of a kind described in Article 9(3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1988;
and (D) once the provisions of Part V of the Financial Services Xxx
0000 comes into force in relation to the Notes, it will not, directly
or indirectly issue or cause to be issued in the United Kingdom any
advertisement offering the Notes in circumstances which would require
(for the avoidance of any contravention of those provisions) a
prospectus to have been delivered to the Registrar of Companies in
England and Wales.
(iii) Each Agent agrees that it will (A) comply with all laws
and regulations existing on the date hereof in each jurisdiction in
which it shall offer or sell any Notes; (B) use its reasonable best
efforts to comply with any changes in applicable laws and regulations,
or in the interpretation thereof, and any additional laws and
regulations which may become effective in such jurisdictions after the
date hereof; and (C) not offer or sell any Notes in any jurisdiction
where it has knowledge or, in the exercise of reasonable care, should
have knowledge that such action would not be in compliance with the
applicable laws thereof. Each Agent understands that no action has been
taken to permit a public offering in any jurisdiction outside the
United States where action would be required for such purpose. Each
Agent agrees not to cause any advertisement of the Notes to be
published in any newspaper or periodical or posted in any public place
and not to issue any circular relating to the Notes other than the
Prospectus, except in any such case with the express consent of the
Company.
(iv) Each Agent confirms and represents that it is a dealer
actually engaged in the investment banking or securities business and
that it is either (A) a member in good standing of the United States
National Association of Securities Dealers, Inc. (the "NASD") who
agrees to comply with the Rules of Fair Practice of the NASD, or (B) a
dealer with its principal place of business located outside the United
States and not eligible for membership in the NASD. Each Agent hereby
agrees to comply with the provisions of Section 24 of Article III of
the Rules of Fair Practice of the NASD and the NASD's interpretation
with respect to free-riding and withholding, and if such Agent is a
foreign dealer and not a member of the NASD, it also agrees to comply,
as
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though it were a member of the NASD, with the provisions of Sections 24
and 36 of Article III of such Rules of Fair Practice, and to comply
with Section 25 of Article III thereof as that Section applies to
non-member foreign dealers.
(v) To the extent permitted by applicable law and subject to
paragraphs (ii) and (iii) above, each Agent is authorized to distribute
copies of the Prospectus and each amendment or supplement thereto to
potential investors in, and purchasers of, Notes and to deliver, or
cause to be delivered, copies of the Prospectus and each amendment or
supplement thereto to the Luxembourg Stock Exchange, whether or not
delivery of the Prospectus or any such amendment or supplement is
required by any law, regulation or agreement to be so delivered.
(vi) In connection with the distribution of the Notes by an
Agent, such Agent, may over-allot and effect transactions in the Notes
in any over-the-counter market or otherwise, with a view to stabilizing
or maintaining the market prices of the Notes at levels other than
those which might otherwise prevail in the open market, but in such
event and in relation thereto each Agent will act for itself and not
the Company and any loss resulting from over-allotment and
stabilization will be borne, and any profit arising therefrom will be
beneficially retained, by it.
(vii) Each Agent agrees to indemnify and hold harmless the
Company, the other Agent and each person controlling the Company or
such other Agent from and against any and all losses, claims, damages
or liabilities arising from any breach by such Agent of any of the
foregoing provisions of this Article 1(c).
(d) Procedures. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Euro-Medium Term Notes, Series ___ Administrative Procedures (attached
hereto as Exhibit B) (the "Procedures"), as amended from time to time. The
Procedures may be amended only by written agreement of the Company and the
Agents. The Company will furnish a copy of the Procedures as from time to time
in effect to the Trustee, each authenticating agent and each paying agent
designated pursuant to the Indenture and the common depositary as designated by
the Company (the "Depositary") for Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear"), and Centrale
de Livraison de Valeurs Mobilieres S.A. ("CEDEL").
(e) Delivery. The documents required to be delivered by Section III
of this Agreement shall be delivered on the date hereof or at such other time as
you and the Company may agree upon in writing (each a "time of closing").
(f) Series Notes. The Company agrees to notify each Agent of sales
by the Company of its Series _____ Notes.
II.
The Company represents and warrants to each Agent that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. ____)
including a prospectus relating to notes and warrants 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
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Rule 424 under the Act. The term "Registration Statement" means such
registration statement as amended to the date hereof, together with
such prospectus supplement, as amended to the date hereof. The term
"Basic Prospectus" means the prospectus, as amended, included in the
Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement or supplements
specifically relating to 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 relating to
the Notes, filed with the Commission pursuant to the Act, 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 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 Agent
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,
instructions, rules and regulations.
(d) The accountants who have certified or shall certify the
financial statements 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 contemplated in this
Agreement nor the fulfillment of the terms of this Agreement 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, or the Company's Certificate of Incorporation or By-Laws, or,
to the best of its knowledge, any order, rule or regulation applicable
to the Company of any court, federal or state regulatory body,
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administrative agency or other governmental body having jurisdiction
over the Company or its properties.
III.
The obligations of each Agent hereunder are subject to the
following conditions:
(a) At the time of closing and at each Settlement Date with
respect to any Terms Agreement, the Indenture shall be qualified under
the Trust Indenture Act and no stop order suspending the effectiveness
of the Registration Statement as amended from time to time shall be in
effect, no proceedings for that purpose shall be pending before, or
threatened by, the Commission, and at the time of closing each Agent
shall have received, and at each Settlement Date with respect to any
Terms Agreement, if called for by such Terms Agreement, the Agent which
is a party thereto shall have received, a certificate, dated the time
of closing or such applicable Settlement Date 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.
(b) At or prior to the time of closing each Agent shall
have received, and at each Settlement Date with respect to any Terms
Agreement if called for by such Terms Agreement, the Agent which is a
party thereto shall have received, from counsel for the Company an
opinion, satisfactory to ___________________________, your counsel, 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 and authenticated pursuant
to the Indenture and delivered to and paid for by the purchasers
thereof in accordance with the provisions hereof, will be legal, valid
and binding obligations of the Company in accordance with their terms;
(v) this Agreement (and, if the opinion is being given on
account of the Company having entered into a Terms Agreement, the
applicable Terms 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 indemnification and contribution hereunder
may be limited under applicable law;
(vi) no consent, approval, authorization or other order of
any regulatory authority (other than the order which has been entered
by the Commission) is legally required for the issuance and sale of the
Notes to you pursuant to the terms of this Agreement except such as may
be required by the Luxembourg
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Stock Exchange or under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this Agreement
and such other approvals (specified in such opinion) as have been
obtained;
(vii) 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 and the applicable
rules and regulations of the Commission thereunder, (B) each part of
the Registration Statement filed with the Commission, when it became
effective, complied as to form in all material respects with the
requirements of the Act and the applicable 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 of this Agreement complied, as to form in all material respects
with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder; and
(viii) the opinions of counsel expressed or referred to under
"Taxation" in the Prospectus are confirmed as correct.
(c) At or prior to the time of closing each Agent shall
have received, and at each Settlement Date with respect to any Term
Agreement, if called for by such Terms Agreement, the Agent which is a
party thereto shall have received, from ___________________________ an
opinion to the effect specified in clauses (iii) through (v), and
(vii)(B) and (C) of paragraph (b) above.
(d) 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 and at
each Settlement Date with respect to any Terms Agreement, 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 and at each Settlement Date with respect to any
Terms Agreement; the Company shall not have failed, at or prior to the
time of closing or such applicable Settlement Date, to have performed
all agreements herein contained which should have been performed by it
at or prior to such time; and each Agent shall have received at the
time of closing, and the Agent which is a party to any Terms Agreement
shall have received at each Settlement Date with respect to any such
Terms Agreement, a certificate to the foregoing effect dated the day of
the closing and signed by a Vice President or the Treasurer of the
Company.
(e) At or prior to the time of closing each Agent shall
have received, and at each Settlement Date with respect to any Terms
Agreement, if called for by such Terms Agreement the Agent which is
party thereto shall have received, executed copies of a letter from
Coopers & Xxxxxxx addressed to the Company and to each Agent, if
delivered at the time of closing, or to the Company and the applicable
Agent if delivered in connection with any Terms Agreement, 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
in or incorporated by reference in the Registration Statement 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 refer-
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ence 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 in the Registration
Statement 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 may be acceptable to
each Agent if delivered at the time of closing or the applicable Agent
if delivered in connection with a Terms Agreement.
In case, at the time of closing, and at each Settlement Date
with respect to any Terms Agreement, any of the condition specified above in
this Article III shall not have been fulfilled, this Agreement may be terminated
by the Agents if such failure occurs at the time of closing, or by the
applicable agent, if such failure occurs at a Settlement Date with respect to
any Terms Agreement, in each case by delivering written notice of termination to
the Company. Any such termination shall be without liability of any party to any
other party except as may be provided in Section VI.
(f) To the extent provided in Section V(e), the Notes shall have
been listed on the Luxembourg Stock Exchange.
IV.
The obligation of the Company to deliver the Notes upon payment
therefor shall be subject to the following conditions: at the time of closing,
and at each Settlement Date with respect to any Terms Agreement, the Indenture
shall be qualified under the Trust Indenture Act 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 the purpose shall then be pending
before, or threatened by, the Commission.
In case the conditions specified above in this Article IV shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Agents, if such failure occurs
at the time of closing, or to the applicable Agent, if such failure occurs at a
Settlement Date with respect to any Terms Agreement.
Any such termination shall be without liability of any party to any
other party.
V.
In further consideration of your agreements herein contained with
respect to any Notes, the Company covenants and agrees as follows:
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(a) To furnish each of you, without charge, as many copies
of the Registration Statement, including exhibits and materials, if
any, incorporated by reference therein and, during the period mentioned
in paragraph (d) below, as many copies of the Prospectus, relating to
such Notes, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request. 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.
(b) To advise each of you promptly (confirming such advice
in writing) of any official request made by the Commission for an
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.
(c) Not to file any amendment or supplement to the
Registration Statement or the Prospectus with respect to the Notes of
which you shall not previously have been advised or which shall be
disapproved by ___________________________, your counsel, and not to
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.
(d) If, during such period after the first date of the
public offering of such Notes as in the opinion of
___________________________, your counsel, the Prospectus relating to
such Notes is required by law to be delivered, any event shall occur as
a result of which it is necessary to amend or supplement such
Prospectus in order to make the statements therein, in the light of the
circumstances when such Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement such
Prospectus to comply with law, forthwith to prepare and furnish, at its
own expense, to each of you, either amendments or supplements to such
Prospectus so that the statements in such Prospectus as so amended or
supplemented will not, in the light of the circumstances when such
Prospectus is delivered to a purchaser, be misleading or so that such
Prospectus will comply with law.
(e) With respect to the Notes to be offered or sold
hereunder through or to such Agent, to use its best efforts to have the
Notes approved, by the date on which solicitation of offers to purchase
Notes or on which any Terms Agreement is to be executed, for listing on
the Luxembourg Stock Exchange subject only to notice of issuance and to
delivery to such Exchange of Prospectuses as amended or supplemented to
reflect the terms of each issuance of Notes, to cause such listing to
be continued during the term of such Notes and to furnish to such
Exchange all documents, information and undertakings that may be
reasonably necessary in order to effect or continue such listing;
provided, however, that if the Company can no longer reasonably
maintain such listing on the Luxembourg Stock Exchange, it will use its
best efforts to obtain and maintain the quotation for, or listing of,
the Notes on such other stock exchange or exchanges as the Company may
decide, with the approval of the Agents.
(f) To cause to be made generally available to its security
holders as soon as practicable an earnings statement or statements
which shall meet the
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requirements of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder covering a period of twelve months which
shall begin not later than the day of the Company's fiscal quarter next
following the effective date (as defined in Rule 158 under the Act) of
the Registration Statement with respect to each sale of Notes.
(g) To apply the proceeds from the sale of the Notes as set
forth under the heading "Use of Proceeds" appearing in the Prospectus.
(h) Each acceptance by the Company of an offer for the
purchase of Notes, and each sale of Notes to the applicable Agent
pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to you
pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations
and warranties will be true and correct at the time of delivery to the
purchaser or his agent, or the applicable Agent, of the Notes relating
to such acceptance or sale, as the case may be, as though made at and
as of each such time (and it is understood that such representations
and warranties shall relate to the Registration Statement and the
Prospectus as amended and supplemented to each such time).
(i) Each time the Registration Statement or the Prospectus
is amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates (excluding any
change in the formula by which such interest rate may be determined) or
maturities offered on the Notes or for a change deemed immaterial in
the reasonable opinion of the Agent), or if the Company sells Notes to
an Agent pursuant to a Terms Agreement, and if so indicated in the
applicable Terms Agreement, the Company will deliver or cause to be
delivered forthwith to each Agent or, in the case of a sale of Notes
pursuant to a Terms Agreement, to the applicable Agent, a certificate
of the Company signed by the President, Vice President or the Treasurer
of the Company, dated the date of the effectiveness of such amendment
or filing or supplement or sale, as the case may be, in form reasonably
satisfactory to such Agent, to the effect that the statements contained
in the certificates referred to in Sections III(a) and (d) that was
last furnished to the Agent (either pursuant to Sections III(a) and (d)
or pursuant to this Section V(i)) are true and correct, as though made
at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificates,
certificates of the same tenor as the certificates referred to in
Sections III(a) and (d) relating to the Registration Statement and the
Prospectus, as amended and supplemented to the time of delivery of such
certificates.
(j) Each time the Registration Statement or the Prospectus
is amended or supplemented, or if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms
Agreement, the Company shall furnish or cause to be furnished forthwith
to each Agent, or, in the case of a sale of Notes pursuant to a Terms
Agreement, to the applicable Agent, a written opinion of counsel of the
Company satisfactory to such Agent; provided, however, that such
opinion need not be furnished with respect to an amendment or
supplement (i) providing solely for a change in the interest rates
offered on the Notes (other than a change in the formula by which such
interest rate may be determined) or for a change deemed immaterial in
the reasonable opinion of such Agent, or (ii) setting forth or
incorporating by reference financial statements or other information as
of and for a fiscal quarter, unless, in the case of clause (ii) above,
in the reasonable judgment of such Agent, such financial statements or
other information are of such a na-
12
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ture that an opinion of counsel should be furnished; provided, further
that such counsel need not provide an opinion regarding the content of
such financial statements. Any such opinion shall be dated the date of
such amendment or supplement, in form satisfactory to the Agent to whom
such opinion will be delivered, and shall be of the same tenor as the
opinion referred to in Section III(b) but modified to relate to the
Registration Statement and the Prospectus, as amended and supplemented
to the time of delivery of such opinion. In lieu of such opinion,
counsel last furnishing such an opinion to such Agent may furnish to
such Agent a letter to the effect that such Agent may rely on such last
opinion to the same extent as though it were dated the date of such
letter authorizing reliance on such last opinion (except that
statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such letter authorizing reliance).
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or
supplemental financial information or such amended or supplemental
information is incorporated by reference in the Registration Statement
or the Prospectus, or if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms
Agreement, the Company shall cause Coopers & Xxxxxxx, its independent
public accountants, forthwith to furnish each Agent a letter, dated the
date of the effectiveness of such amendment or the date of filing of
such supplement, or the date of such sale, as the case may be, in form
satisfactory to the Agents of the same tenor as the letter referred to
in Section III(e) with regard to the amended or supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date of
such letter.
(l) Between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will
not, without your prior consent, offer or sell, or enter into any
agreement to sell, any debt securities of the Company substantially
similar to the Notes (other than Notes that are to be sold pursuant to
such Terms Agreement, the Series [ ] Notes, and commercial paper in the
ordinary course of business), except as may otherwise be provided in
any such Terms Agreement.
(m) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and any applicable
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and all amendments thereto, (ii) the
preparation, issuance and delivery of the Notes (including any
temporary global Notes or permanent global Notes), (iii) the fees and
disbursements of the Company accountants and of the Trustee and its
counsel, (iv) the qualification of the Notes under securities laws and
the listing of the Notes on the Luxembourg Stock Exchange, including
filing fees of the Luxembourg Stock Exchange or the Luxembourg Monetary
Institute, fees of the Listing Agent and the reasonable fees and
disbursements of your counsel in connection therewith, (v) the printing
and delivery to you in quantities as herein above stated of copies of
the Registration Statement and all amendments thereto, and of the
Prospectus and any amendments or supplements thereto, (vi) the printing
and delivery to you of copies of the Indentures, (vii) any fees charged
by rating agencies for the rating of the Notes, (viii) any advertising
and other out-of-pocket expenses incurred with the approval of the
Company, provided, however, that the expenses of any tombstone
advertisement shall be paid by the Agents, (ix) the fees and expenses,
if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) any fees charged by
rating agencies for the rating of the Notes.
13
13
The Company shall also reimburse each Agent promptly upon
receipt of an invoice from such Agent for the reasonable fees of counsel for
such Agent incurred in connection with the offering and sale of the Notes; and
further that the Company will indemnify and hold harmless each Agent from any
documentary, stamp or similar issue tax and any related interest or penalties on
the issue, sale to the Agent or delivery of the Notes (including any temporary
global Notes or permanent global Notes) pursuant to this Agreement or on the
execution and delivery of this Agreement or any Terms Agreement which are or may
be due in the United Kingdom or the United States.
VI.
(a) The Company agrees to indemnify and hold each Agent, and each
person, if any, who controls such Agent 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 or its subsidiaries 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 paragraph
(d) of Article V hereof and if used as amended or supplemented by all amendments
or supplements thereto which have been furnished to you) 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 an behalf of such
Agent for use in connection with the preparation of any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto 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 an Agent (or to the benefit of any person controlling
such Agent) 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 such Agent, 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 Agent 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 the Registration Statement or any such
preliminary prospectus or the 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 Agent for use in connection with the preparation
thereof.
(c) The Company and each Agent 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 writ-
14
14
ten 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 ouch 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 an account of such indemnity agreement. In case of such
notice of any such action, such party or parties shall be so entitled to
participate at its or their own expense in the defense of such actions 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 some 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
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 parties, which firm shall be designated in writing by the Agent who
is a party to the proceeding or, if more than one Agent is party to the
proceedings, by mutual agreement of the Agents, 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 an indemnified party or parties
without prior written consent by the indemnifying party or parties to such
settlement.
(d) If the indemnification provided for in paragraph (a) or (b)
above 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 each Agent 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 of each Agent 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 each Agent 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 each Agent
and the parties' relative intent, knowledge, access to Information and
opportunity to correct or prevent such statement or omission. The Company and
each Agent agree that it would not be just and equitable if contribution
pursuant to this paragraph (d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this paragraph (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in this paragraph (d) shall
15
15
be deemed to include, subject to the limitation set forth above in this Article
VI, 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 paragraph (d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
distributed by it were offered to the public exceeds the amount of any damages
which such Agent has been required to pay, otherwise than pursuant to this
paragraph (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
any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Article VI and in Article I(c)(vii) and the representations, warranties and
agreements of the Company and the Agents in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement or of any Terms Agreement hereunder, (ii) any investigation made by
any Agent or on its behalf or any person controlling any Agent or by or on
behalf of the Company, its directors or officers or any person controlling the
Company, and (iii) acceptance of and payment for any of the Notes.
This Agreement and any Terms Agreement hereunder shall inure to the
benefit of the Company, its directors, its officers who sign the Registration
Statement, each Agent, or in the case of any such Terms Agreement, the
applicable Agent and each controlling person referred to in Article VI hereof
and their respective successors. Nothing in this Agreement or in any Terms
Agreement hereunder is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any Terms Agreement hereunder or any
provision herein or therein contained. The term "successor" as used in this
Agreement or any Terms Agreement hereunder shall not include any purchaser, as
such purchaser, of any of the Notes from an Agent.
The provisions of this Agreement relating to the solicitation of
offers to purchase Notes from the Company may be suspended or terminated at any
time by the Company as to any Agent or by any Agent insofar as this Agreement
relates to such Agent upon the giving of written notice of such suspension or
termination to such Agent or the Company, as the case may be. In the event of
such suspension or termination with respect to any Agent, (x) this Agreement
shall remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Notes already issued, agreed to
be issued or the subject of a pending offer at the time of such suspension or
termination, and (z) in any event, this Agreement shall remain in full force and
effect insofar as the third paragraph of Article I(a), Article V(f), Article
V(m) and Article VI are concerned.
This Agreement and any Terms Agreement may be executed 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.
16
16
This Agreement and any Terms Agreement hereunder shall be governed
by and construed in accordance with the laws of the State of New York.
Very truly yours,
Lucent Technologies Inc.
By
------------------------------------------
Name:
Title:
Accepted:
[AGENT]
By
-----------------------------
Title:
[AGENT]
By
-----------------------------
Title:
17
EXHIBIT A
PAGE 1 OF 2
LUCENT TECHNOLOGIES INC.
Euro-Medium Term Notes, Series ___
TERMS AGREEMENT
____________, 199_
Lucent Technologies Inc.
Attention:
Re: International Distribution Agreement dated ____, 199_
The undersigned agrees to purchase the following principal amount
of your Euro-Medium Term Notes, Series ___:
Specified Currency:
Principal:
Interest:
Aggregate Principal Amount. [U.S. $] [other]
Price to Public:
IF FIXED RATE NOTES:
Interest Rate:
Maturity:
IF FLOATING RATE NOTES:*
Base Rate:
Initial Interest Rate:
Interest Determination Date:
Interest Reset Date:
Interest Payment Dates:
Index Maturity:
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
___________
* See Prospectus Supplement dated ____________, 199_ for explanation of terms.
18
EXHIBIT A
PAGE 2 OF 2
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the
order of the Company, in [New York] Clearing House]
[immediately available] funds [By wire transfer to a bank
account specified by the Company in [next day] [immediately
available] funds] Provisions relating to underwriter default,
if any: Other termination provisions, if any:
[The certificates referred to in Sections III(a) and (d) of the
International Distribution Agreement, the opinion referred to in Sections III(b)
and (c) of the International Distribution Agreement and the accountants letter
referred to in Section III(e) of the International Distribution Agreement will
be required.]
[ ]
By:
-----------------------
Accepted:
Lucent Technologies Inc.
By:
-------------------
19
EXHIBIT A
PAGE 1 OF 2
LUCENT TECHNOLOGIES INC.
Euro-Medium Term Notes, Series ___
TERMS AGREEMENT
___________, 199_
Lucent Technologies Inc.
Attention:
Re: International Distribution Agreement dated _______, 199_
The undersigned agrees to purchase the following principal amount
of your Euro-Medium Term Notes, Series ___:
Specified Currency:
Principal:
Interest:
Aggregate Principal Amount. [U.S. $] [other]
Price to Public:
IF FIXED RATE NOTES:
Interest Rate:
Maturity:
IF FLOATING RATE NOTES:*
Base Rate:
Initial Interest Rate:
Interest Determination Date:
Interest Reset Date:
Interest Payment Dates:
Index Maturity:
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
___________
* See Prospectus Supplement dated ____________, 199_ for explanation of terms.
20
EXHIBIT A
PAGE 2 OF 2
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the
order of the Company, in [New York] Clearing House]
[immediately available] funds
[By wire transfer to a bank account specified by the Company
in [next day] [immediately available] funds]
Provisions relating to underwriter default, if any:
Other termination provisions, if any:
[The certificates referred to in Sections III(a) and (d) of the
International Distribution Agreement, the opinion referred to in Sections III(b)
and (c) of the International Distribution Agreement and the accountants letter
referred to in Section III(e) of the International Distribution Agreement will
be required.]
[ ]
By:
Accepted:
Lucent Technologies Inc.
By:
21
EXHIBIT B
PAGE 1 OF 11
Lucent Technologies Inc.
Euro-Medium Term Notes Series Administrative Procedures
Euro-Medium Term Notes, Series ___ (the "Notes") are to be offered
on a continuous basis by Lucent Technologies Inc. (the "Company"). [AGENTS] as
agents (individually an "Agent" and collectively the "Agents"), have agreed to
use reasonable best efforts to solicit purchases of the Notes. The Agents will
not be obligated to purchase Notes for their own accounts. The Notes are being
sold pursuant to an International Distribution Agreement among the Company and
each Agent dated __________, 199__ (the "Distribution Agreement"). The Notes
will rank equally with all other unsecured and unsubordinated debt of the
Company and have been registered with the Securities and Exchange Commission
(the "Commission"). ___________________________ (the "Trustee") is the trustee
under the Indenture covering the Notes (the "Indenture").
The Trustee will appoint _____________, London Branch as an
authenticating agent (the "Authenticating Agent") for the Notes and the Company
will appoint __________, London Branch as the Paying Agent for the Notes in
London and Banque Generale du Luxembourg, S.A. in Luxembourg as the Paying Agent
for Notes in Luxembourg (individually a "Paying Agent"). Xxxxxx Guaranty Trust
Company, London or Chase Manhattan Bank, London will be the common depositary
(the "Depositary") for the temporary global Notes and the permanent global Notes
on behalf of the operator of the Euroclear System ("Euroclear"), and CEDEL S.A.
("CEDEL") and Kredietbank, S.A. Luxembourgeoise as the listing agent (the
"Listing Agent") for the Notes. The Listing Agent will coordinate with the
Trustee, the Paying Agents and the Agents on a regular basis for purpose of
providing the Luxembourg Stock Exchange such information regarding the Notes
issued and outstanding as such Exchange may require.
In the case of purchase of Notes by [AGENTS] as principal, the
relevant terms and settlement details related thereto, including the Settlement
Date referred to in Section 1(b) of the Distribution Agreement, will be set
forth in a Terms Agreement entered into between [AGENTS] and the Company
pursuant to the Distribution Agreement.
Administrative and record-keeping responsibilities will be handled
for the Company by its Treasury Department. The Company will advise each Agent
in writing of those persons handling administrative responsibilities
("Designated Persons") with whom such agent is to communicate regarding offers
to purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offerings are
explained below.
Maturities: Each Note will have a maturity from date of
issue of not less than nine months and not
more than thirty years.
Price to Public: Each Note will be issued at 100% of principal
amount unless otherwise specified in the
applicable Pricing Supplement.
Form of Definitive Note: The definitive Notes will be issued in bearer
form with interest coupons attached.
Currencies: The Notes, and any coupons appertaining
thereto, will be denominated in U.S. dollars
or in such other currency or currency unit as
specified in the applicable Pricing
Supplement (the "Specified Currency").
22
EXHIBIT B
Page 2 of 11
Denominations: Definitive Notes will be issued in
denominations of U.S. $5,000 and any integral
multiple thereof, or, for Notes not
denominated in U.S. dollars, the equivalent
in the Specified Currency of U.S. $5,000
(rounded down to an integral multiple of 100
units of the Specified Currency) and any
larger amount that is an integral multiple of
1,000 units of such Specified Currency. Any
purchaser of Notes must purchase at least
U.S. $25,000 aggregate principal amount of
Notes at any one time, or, for Notes not
denominated in U.S. dollars, the equivalent
in the Specified Currency of U.S. $25,000
(rounded down to an integral multiple of 100
units of the Specified Currency) which
requirement the Agent will be responsible for
carrying out.
Notes: All Notes will initially be represented by
temporary global Notes. Each temporary global
Note will be exchangeable into a permanent
global Note on the date (the "Exchange Date")
which is 40 days after completion of the
distribution of the Notes evidenced by such
temporary global Note as determined by the
applicable Agent and notified to the Trustee,
the Company, Euroclear and CEDEL by the
applicable Agent, but only upon delivery to
the Trustee of a certificate or certificates
(each a "Clearing System Certificate") signed
by Euroclear or CEDEL, as the case may be, in
the form set forth in Appendix 1 hereto with
respect to the Notes being exchanged, dated
no earlier than the Exchange Date for such
Note, such Clearing System Certificate to be
based on a certificate or certificates (each
a "Final Certification Certificate") in the
form set forth in Appendix 2 hereto with
respect to each of such Notes, received by
Euroclear or Cedel, as the case may be, which
Final Certification Certificates must be
dated no earlier than 15 days before the
Exchange Date and shall be signed by the
account holders appearing in its records as
entitled to such Notes. The permanent global
Note will be exchangeable for definitive
Notes, as described below. Any permanent
global Note will be so exchangeable
commencing on the date which is 30 days after
Euroclear or CEDEL on behalf of the
beneficial owners of the Notes first requests
the Trustee or its agent, the Authenticating
Agent, to exchange all or a portion of such
permanent global Note for definitive Notes.
Each temporary global Note will be held by
the Depositary pending exchange for a
permanent global Note, and each permanent
global Note will be held by the Depositary
pending exchange if necessary for definitive
Notes as provided below.
Interest Payments: Each Note which is a Fixed Rate Note, as
defined in the Prospectus will bear interest
from the date of issue at the annual rate
stated on the face thereof, payable annually
on April 15 of each year, and at ma-
23
EXHIBIT B
PAGE 3 of 11
turity or upon earlier redemption or
repayment and each Note which is a Floating
Rate Note as defined in the Prospectus, will
bear interest as determined in the manner set
forth on the face thereof, payable on the
date or dates set forth on the face thereof.
The date of issue of each Note will be the
date of its authentication as provided in the
Indenture. The date of authentication of each
Note will be the Settlement Date. Except as
otherwise agreed to, interest (including
payments for partial periods) on Fixed Rate
Notes will be calculated on the basis of a
360-day year of twelve 30-day months and
interest on Floating Rate Notes will be
determined by the Company and the purchaser
thereof in accordance with the provisions of
the Prospectus.
Interest on definitive Notes will be payable
on each Interest Payment Date and at maturity
or upon earlier redemption or repayment upon
presentation of the applicable coupon; except
as otherwise described in the Prospectus,
each such presentation of a coupon, and each
such payment of interest prior to maturity,
shall occur at a paying agent outside the
United States. Such payment will be made by
check, or, if requested in writing by the
bearer of the coupon, by transfer to an
account maintained by the payee with a bank
located outside the United States.
In the case of interest payable on any
temporary global Note or permanent global
Note, interest will be paid to Euroclear and
CEDEL for credit to the accounts of the
beneficial owners, provided, however, that
interest in respect of any interest payment
date on a temporary global Note which has not
been exchanged for a permanent global Note as
provided above shall not be paid until the
occurrence of the earlier of (1) the exchange
of such temporary global Note for a permanent
global Note in accordance with the procedures
set forth above and (2) in the case of an
interest payment date occurring between the
original issue date for such Note and the
Exchange Date, delivery by Euroclear or
CEDEL, as the case may be, to the Trustee of
a Clearing System Certificate dated no
earlier than such interest payment date, such
Clearing System Certificate to be based on a
Final Certification Certificate or
Certificates with respect to such Notes
received by Euroclear or Cedel, an the case
may be, which Final Certification
Certificate(s) must be dated no earlier than
15 days prior to such interest payment date
and shall be signed by the account holders
appearing in its records as entitled to such
Notes.
24
EXHIBIT B
PAGE 4 of 11
On the fifth Business Day (as defined below)
immediately preceding each Interest Payment
Date, the Trustee will advise the Company of
the aggregate amount of interest to be paid
on the Notes theretofore issued on such
Interest Payment Date and the currencies or
currency units in which such interest
payments are to be made.
The Trustee will provide monthly to the
Company's Treasury Department a list of the
principal and interest to be paid on the
Notes maturing in the next succeeding month.
Subject to the Indenture, the Trustee will
assume responsibility for withholding taxes
on interest paid as required by law.
Procedures for Posting: If the Company decides to "post" rates, the
Company and the Agents will discuss from time
to time the rates of interest per annum to be
borne by and the maturity of Notes that may
be sold as a result of the solicitation of
offers by the Agents. Once a decision has
been reached to set initially the posted
rates or to change already posted rates, the
Company will promptly advise the Agents to
suspend solicitation of offers until the
initial or changed "posted" rates have been
established.
"Posting" rates shall mean establishing a
fixed set of interest rates, or methods of
determining such rates, and maturities for an
offering period.
Acceptance of Orders: Unless otherwise agreed, the Company will
have the sole right to accept offers to
purchase Notes. Each Agent will promptly
advise the Company of offers to purchase
Notes received by it, and, if the Company has
not posted rates, the proposed rate of
interest on such Notes. The Company may
reject an order in whole or in part. Each
Agent may reject, in its discretion
reasonably exercised, any order received by
it in whole or in part.
25
EXHIBIT B
PAGE 5 of 11
Preparation of
Pricing Supplement: If the Company accepts an offer to purchase a
Note it will prepare a Pricing Supplement
reflecting the terms of such Note and will,
so long as it is a participant in the
Commission's XXXXX program, electronically
submit a version of such Pricing Supplement
complying with the rules of the Commission
relating to such program, or, if the Company
is no longer a participant in such program,
arrange to have ten copies of such Pricing
Supplement filed with, or mailed for filing
to, the Commission, in each case no later
than the second Business Day following the
date such offer is accepted, and will supply
a sufficient number of copies thereof to the
selling Agent and one copy to the Trustee.
The Company will ensure that copies of the
Prospectus Supplement with such Pricing
Supplement will be delivered to the Listing
Agent for delivery to the Luxembourg Stock
Exchange.
The Agent will cause a Prospectus Supplement
with such Pricing Supplement to be delivered
to the purchaser of the Note.
Confirmation: For each offer to purchase a Note solicited
by any Agent and accepted by the Company,
such Agent will issue a written confirmation
to the purchaser, with a copy to the
Company's Treasury Department.
Determination
of Settlement Date: Unless special arrangements have been made,
all offers solicited by the Agents and
accepted by the Company will be settled on
the seventh calendar day next succeeding the
date of acceptance, except that, if the
seventh calendar day next succeeding the date
of acceptance shall not be a Business Day
then settlement shall occur on the next
succeeding calendar day which is a Business
Day. The day of settlement is referred to
herein as the "Settlement Date".
Details for Settlement: The applicable Agent must communicate the
following information (the "Sale
Information") from the purchaser to a
designated person at the Company by telephone
(confirmed in writing), facsimile
transmission or other acceptable means:
(1) The applicable Agent's account number
at Euroclear or CEDEL
(2) Principal Amount of the Note
(3) Specified Currency
(4) Interest Rate or Original Issue
Discount
(5) Issue Price
(6) Trade Date
(7) Settlement Date
26
EXHIBIT B
PAGE 6 of 11
(8) Maturity Date
(9) Net proceeds to the Company
(10) Denomination
(11) Presenting Agent's Commission
(12) Base Rate
(13) Initial Interest Rate
(14) Interest Determination Dates
(15) Interest Reset Period
(16) Interest Reset Dates
(17) Interest Payment Periods and Dates
(18) Spread or Spread Multiplier
(19) Index Maturity
(20) Maximum Interest Rate
(21) Minimum Interest Rate
(22) Calculation Agent
(23) Redemption Provisions, if any
(24) Repayment Provisions, if any
(25) Exchange Date
(26) All other items specified in any
particular Note
After receiving the Sale Information from the
Agent, and, after recording the Sale
Information and any necessary calculations,
the Company will communicate such Sale
Information by telephone (confirmed in
writing), facsimile transmission or other
acceptable means (which may include a
facsimile transmission of the Pricing
Supplement), to the Trustee, its agent, the
Authenticating Agent, the Listing Agent and
the Depositary. The Authenticating Agent will
communicate the Sale Information to the
Listing Agent, Euroclear and CEDEL. The
Authenticating Agent will request Euroclear
and CEDEL for a security code number.
Euroclear and CEDEL will assign a security
code number which the Authenticating Agent
will obtain and provide to the Agent.
Settlement: The Company will give to the Trustee, and to
its agent, the Authenticating Agent, such
instructions as have been agreed upon and as
will enable then to take the steps to be
taken by them, as described below, by the
times required below.
For each settlement, the following shall
occur:
27
EXHIBIT B
PAGE 7 of 11
(a) Prior to the Settlement Date, the
Trustee or the Authenticating Agent will
promptly complete the temporary global
Note in accordance with instructions
from the Company to reflect the terms
agreed upon between the purchaser and
the Company. The Authenticating Agent
will authenticate such temporary global
Note and will deliver such temporary
global Note to the Depositary one
Business Day prior to the Settlement
Date;
(b) Upon receipt of the temporary global
Note, the Depositary will confirm
receipt of the temporary global Note to
Euroclear and CEDEL;
(c) On the Settlement Date, the Depositary
credits the temporary global Note to the
account of ___________, London Branch as
Issuing Agent (the "Issuing Agent") at
Euroclear or CEDEL. Interests in the
temporary global Note will be credited
to the accounts of investors against
payment via book entry at Euroclear or
CEDEL in accordance with instructions
received from the Issuing Agent.
If payment to the Issuer is to be made
in U.S. dollars, Canadian dollars, ECU
or Belgian Francs, the Issuing Agent
will give payment instructions in favor
of the Issuer to Euroclear or CEDEL by
4:00 P.M. on the day prior to the
Settlement Date.
If payment to the Issuer is to be made
in a currency other than U.S. Dollars,
Canadian Dollars, ECU or Belgian Francs,
the Issuing Agent will give payment
instructions in favor of the Issuer to
Euroclear or CEDEL prior to 10:00 A.M.
on the day prior to the Settlement Date.
On or before settlement, the Listing Agent
will notify the Company and the applicable
Agent of the effective date of the listing of
such Notes.
Delivery of
Definitive Notes: Prior to the first Settlement Date for any
Notes, the Company will deliver to the
Authenticating Agent duly executed temporary
global Notes in blank, and 40 days
thereafter, permanent global Notes in blank
in the quantities requested by the Trustee
If at any time the holder of any permanent
global Note requests Euroclear or CEDEL to
exchange all or a portion of such permanent
global Note for definitive Notes, Euroclear
or CEDEL will inform the Trustee of such
request and the Trustee will promptly
transmit such request to the Company. The
Company shall arrange for the printing of
such definitive Notes.
28
EXHIBIT B
PAGE 8 of 11
The Company will as soon as practicable
deliver to the Authenticating Agent via the
Trustee definitive Notes to be delivered in
exchange for all or a portion of such
permanent global Note.
On or prior to the applicable Exchange Date,
the Authenticating Agent will authenticate
the definitive Notes and hold them for
delivery.
Fails: In the event that a purchaser shall fail to
make payment for its interest in a Note on
the Settlement Date, the Agent will forthwith
notify the Trustee, the Authenticating Agent
and the Company's Treasury Department by
telephone (confirmed in writing) or by
facsimile transmission. The Authenticating
Agent will promptly notify the Depositary and
Euroclear and CEDEL. The Agent will
immediately cause the temporary global Note
representing the Note in respect of which the
failure occurred to be returned to the
Authenticating Agent. If funds have been
advanced for the purchase of such portion of
the temporary global Note, the Company will,
immediately upon receipt by the
Authenticating Agent of the temporary global
Note, credit the account of or return such
funds to the applicable Agent for that
portion of the temporary global Note that
relates to the sale credited to the account
of Euroclear or CEDEL on behalf of the
purchaser. Such credits or returns will be
made on the Settlement Date if possible and,
in any event, not later than the Business Day
following the Settlement Date. If such
failure shall have occurred for any reason
other than default by the applicable Agent in
the performance of its obligations under the
Distribution Agreement, the Company will
reimburse the applicable Agent on an
equitable basis for its loss of the use of
the funds during the period when they were
credited to the account of the Company.
Immediately upon receipt of the temporary
global Note representing the Note in respect
of which the failure occurred, the
Authenticating Agent will (i) if the
temporary global Note represents only the
Note in respect of which the failure occurred
cancel the Note, make appropriate entries in
its records and, unless otherwise instructed
by the Company, destroy the certificate, and
(ii) if the temporary global Note represents
a Note or Notes in addition to the Note in
respect of which the failure occurred, reduce
the amount of such temporary global Note by
the amount of the Note in respect of which
the failure occurred.
Principal Payments: At maturity or upon redemption or repayment,
the principal amount of each definitive Note
together with any accrued, but unpaid,
interest will be payable in immediately
available funds provided that the Paying
Agent receives the Note, and appropriate
information in time to make payments in such
funds in accordance with its normal
procedures. Notes presented to the paying
29
EXHIBIT B
PAGE 9 of 11
agent or the Trustee will be canceled and
disposed of by the Trustee.
Procedure for Rate Changes: When a decision has been reached to change
the interest rates of Notes being sold by the
Company, the Company will promptly inform
each Agent. Each Agent will advise the
Company with respect to the changed rates.
See Administrative Procedures, "Acceptance of
Orders."
Suspension of Solicitation;
Amendment or Supplement: The Company may instruct the Agents to
suspend solicitation of purchases at any
time. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation
until such time as the Company has advised
them that solicitation of purchases may be
resumed.
If the Company decides to amend or supplement
the Registration Statement or the Prospectus
relating to the Notes, it will promptly
advise the Agents and the Trustee and will
furnish the Agents and the Trustee with the
proposed amendment or supplement in
accordance with the terms of the Distribution
Agreement. The Company will file with the
Commission any supplement to the Prospectus
relating to the Notes including any
supplement which provides solely for a change
in the interest rates offered on the Notes,
provide the Agents with sufficient quantities
of copies of any supplement within a
reasonable time prior to the earlier of the
delivery of written confirmation of the sale
of Notes or the delivery of Notes to any
purchaser thereof, and confirm to the Agents
that such supplement has been filed with the
Commission.
In the event that at the time the Company
suspends solicitation of purchases there
shall be any orders outstanding for
settlement, the Company will promptly advise
the Agents and the Trustee whether such
orders may be settled and whether copies of
the Prospectus as in effect at the time of
the suspension may be delivered in connection
with the settlement of such orders. The
Company will have the sole responsibility for
such decision and for any arrangements which
may be made in the event that the Company
determines that such orders may not be
settled or that copies of such Prospectus may
not be so delivered.
Delivery of Prospectus: Each Agent shall, for each Note order
received by it, deliver a copy of the
Prospectus as most recently amended or
supplemented (including the Pricing
Supplement relating to such Note) with the
earlier of the delivery of the confirmation
of sale of the Note to a purchaser or such
purchaser's agent (as permitted by applicable
law). Each Agent is also authorized to
distribute to other offerees and purchasers,
and to deliver, or cause to be delivered, to
the Luxembourg Stock Exchange, copies of the
Prospectus, as amended or supplemented at the
time of delivery thereof and copies of the
Company's latest Annual Report on Form
30
EXHIBIT B
PAGE 10 of 11
10-K ("Form 10-K") and all other reports
filed with the Commission since the and of
the fiscal year covered by such Form 10-K.
Authenticity of Signatures: The Agents will have no obligation or
liability to the Company or the Trustee
in respect of the authenticity of the
signature of any officer, employee or agent
of the Company or the Trustee on any Note.
Payment of Selling
Commission and Expenses: The selling commission on each sale of Notes
will be calculated by the applicable Agent
and the applicable Agent will deduct, for its
own account, the selling commission from the
proceeds of each such sale of Notes. Each
Agent will forward, from time to time at its
discretion, an itemized statement setting
forth the aggregate amount of out-of-pocket
expenses incurred by it in connection with
the offering and sale of the Notes, which are
reimbursable to it pursuant to the terms of
the Distribution Agreement. The Company will
promptly remit payment to such Agent.
Advertising: The Company will determine with each Agent
the form, substance and amount of advertising
that may be appropriate in offering the
Notes. Advertising expenses will be paid by
the Company or reimbursed to the Agents by
the Company; provided however that the
expenses of any "Tombstone" advertisement
shall be paid by the Agents.
Notice of Issuance to
Luxembourg Stock Exchange: The Listing Agent will provide such
information to the Luxembourg Stock Exchange
and will inform the Company and the Selling
Agent by telex of the effectiveness of the
listing of such Notes by the close of
business on the related Settlement Date.
To the extent required by the Luxembourg
Stock Exchange, each Agent will provide the
Listing Agent with secondary market
information regarding Notes and the Listing
Agent will provide such information to the
Luxembourg Stock Exchange.
The Listing Agent will, or a regular basis,
provide the Luxembourg Stock Exchange with
such information regarding Notes issued and
outstanding as such Exchange may require.
Business Day: Any day which is not a Saturday or Sunday and
which is neither a legal holiday nor a day on
which banking institutions are authorized or
obligated by law to close in the City of New
York, London, or Brussels, Belgium, or, with
respect to Notes denominated in a Specified
Currency other then U.S. dollars, the capital
city of the country of the Specified
Currency.
31
APPENDIX 1
PAGE 1 OF 2
Form of Certificate to be Given
by the Euroclear Operator or CEDEL S.A.
CERTIFICATE
Lucent Technologies Inc.
Euro-Medium Term Notes, Series ____
Represented by Temporary Global Note No. ___
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in Appendix 2 to Exhibit B of the International
Distribution Agreement relating to the Notes,* as of the date hereof, [U.S. $
_________] principal amount of the above-captioned Notes (i) is owned by persons
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
persons"); (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) ("financial institutions") purchasing for their own
account or for resale, or (b) acquired the Notes through foreign branches of
United States financial institutions and who hold the Notes through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Company or the Company's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United
States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Notes for purposes of resale directly or indirectly to a
United States person or to a person within the United States or it possessions.
Any such certification by electronic transmission satisfies the requirements set
forth in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(ii). We will
retain all certifications from our Member organizations for the period specified
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(i)(C).
We further certify (i) that we are not making available herewith for
exchange (or, if relevant collection of any interest) any portion of the
Temporary Global Note excepted in such certifications and (ii) that as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certifi-
32
APPENDIX 1
PAGE 2 OF 2
cation is or would be relevant, we irrevocably authorize you to produce this
certification to any interested party in such proceedings.
Yours faithfully,
[XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
(Brussels Office), as
Operator of the
Euroclear System]
or
[CEDEL S.A.]
Dated:____________, 19__**
Insert (1) Exchange
_________________
** To be dated no earlier than ______. Insert (1) Exchange Date if
certificate submitted in connection with exchange of the Temporary
Global Security for interests in a Permanent Global Securities or (2)
Interest Payment Date if certificate submitted in connection with the
payment of interest occurring prior to the Exchange Date.
33
APPENDIX 2
FORM OF CERTIFICATE TO BE PROVIDED TO THE
EUROCLEAR OPERATOR OR TO CEDEL S.A.
CERTIFICATE
Lucent Technologies Inc.
Euro-Medium Term Notes, Series
Represented by Temporary Global Note No.
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Notes held by you for our account (i) are owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that (a)
are foreign branches of a United States financial institution (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Notes
through foreign branches of financial institutions and who hold the Notes
through such United States financial institution(s) on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise the Company
or the Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Note is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is to further certify that the financial institution
has not acquired the Notes for purposes of resale directly or indirectly to the
United States person or to a person within a United States or its possessions.
As used in this paragraph, "United States" means the United States of America
(including the States and the District of Columbia), and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
[Exchange Date/interest payment date*] relating to such Notes if the above
statement in not correct on such [Exchange Date/interest payment date* ] and in
the absence of any such notification it may be assumed that this certification
applies as of such date.
This certificate excepts and does not relate to [U.S. $ ____] of such
interest in the above Notes in respect of which we are not able to certify and
as to which we understand [exchange and delivery of definitive
Securities/payment to us of any interest accrued on such amount*] cannot be made
until we do so certify.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
___________________
* Insert applicable part of bracketed language.
34
- 2 -
** Dated:___________________, 19___
By: _________________________________________________
As, or as agent for, the beneficial owner(s)
of the Notes to which this Certificate relates.
___________________
** To be dated no earlier than (1) the fifteenth day prior to the Exchange
Date or (2) if certificate in being delivered in connection with the
payment of interest in respect of an interest payment date occurring
prior to the Exchange Date, the fifteenth day prior to the interest
payment date.
