Exhibit 4.1
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AMENDMENT NO. 1
Dated as of February 28, 2002
TO THE
RIGHTS AGREEMENT
Dated as of September 29, 2000
Between
AVAYA INC.
and
THE BANK OF NEW YORK
Rights Agent
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AMENDMENT NO. 1 (this "Amendment"), dated as of February 28,
2002, to the Rights Agreement(the "Agreement"), dated as of September 29, 2000,
between AVAYA INC., a Delaware corporation (the "Company"), and THE BANK OF NEW
YORK, as Rights Agent (the "Rights Agent").
The board of directors of the Company (the "Board of
Directors") has authorized and declared a dividend of one preferred share
purchase right (a "Right") for each Common Share (as hereinafter defined) of the
Company outstanding on September 29, 2000 (the "Record Date"), each Right
representing the right to purchase one one-thousandth of a Preferred Share (as
hereinafter defined), upon the terms and subject to the conditions herein set
forth, and has further authorized and directed the issuance of one Right
(subject to adjustment as provided herein) with respect to each Common Share
that shall become outstanding between the Record Date and the earlier of the
Distribution Date and the Expiration Date (as such terms are hereinafter
defined); PROVIDED, however, that Rights may be issued with respect to Common
Shares that shall become outstanding after the Distribution Date and prior to
the Expiration Date in accordance with Section 22 of the Agreement. Capitalized
terms not otherwise defined herein shall have the meaning ascribed to them in
the Agreement.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. AMENDMENTS TO THE AGREEMENT. The Agreement is
hereby amended as follows:
(a) Section 1(a) of the Agreement is hereby amended in its
entirety to read as follows:
"(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding, but shall not include (i) the Company, any Subsidiary of the
Company, any employee benefit or compensation plan of the Company or of any
Subsidiary of the Company, or any Person holding Common Shares for or pursuant
to the terms of any such plan, or prior to the Spinoff Date, any Lucent Entity
(each, an "Exempt Person") or (ii) any such Person who has become and is the
Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding solely as a result of (A) the acquisition by such Person or one or
more of its Affiliates or Associates of Beneficial Ownership of additional
Common Shares if such acquisition was made in the good faith belief that such
acquisition would not (x) cause
the Beneficial Ownership by such Person, together with its Affiliates and
Associates, to be 15% or more of the Common Shares of the Company outstanding at
the time of such acquisition and such good faith belief was based on the good
faith reliance on information contained in publicly filed reports or documents
of the Company that are inaccurate or out-of-date or (y) otherwise cause a
Distribution Date or the adjustment provided for in Section 11(a) to occur or
(B) the acquisition by such Person or one or more of its Affiliates or
Associates of Beneficial Ownership of additional Common Shares of the Company if
the Board of Directors determines that such acquisition was made in good faith
without the knowledge by such Person or Affiliates or Associates that such
Person would thereby become an Acquiring Person, which determination of the
Board of Directors shall be conclusive and binding on such Person, the Rights
Agent, the holders of the Rights and all other Persons. Notwithstanding the
foregoing, if any Person that is not an Acquiring Person due to (ii)(A) or
(ii)(B) of the prior sentence does not reduce its percentage of Beneficial
Ownership of Common Shares of the Company to less than 15% by the Close of
Business on the tenth calendar day after notice from the Company (the date of
notice being the first day) that such Person's Beneficial Ownership of Common
Shares would make it an Acquiring Person, such Person shall, at the end of such
ten calendar day period, become an Acquiring Person (and such clause (ii)(A) or
(ii)(B) shall no longer apply to such Person). For purposes of this definition,
the determination whether any Person acted in "good faith" shall be conclusively
determined by the Board of Directors. Notwithstanding anything in this
definition of Acquiring Person to the contrary, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common Shares by the
Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or more
of the Common Shares of the Company then outstanding; PROVIDED, HOWEVER, that if
a Person shall become the Beneficial Owner of 15% or more of the Common Shares
of the Company then outstanding by reason of share acquisitions by the Company
and shall, after such share acquisitions by the Company, become the Beneficial
owner of any additional Common Shares of the Company (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding Common
Shares or pursuant to a split or subdivision of the outstanding Common Shares),
then such Person shall be deemed to be an "Acquiring Person" unless upon
becoming the Beneficial Owner of such additional Common Shares such Person does
not beneficially own 15% or more of the Common Shares then outstanding."
(b) Section 3(a) of the Agreement is amended in its
entirety to read as follows:
"(a) Until the Close of Business on the earlier of (i) the
tenth day after the Shares Acquisition Date or (ii) such date, if any, as may be
designated by the Board of Directors following the commencement of, or first
public disclosure of an intent to commence, a tender or exchange offer by any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit or compensation plan of the Company or of any Subsidiary of the Company,
any Person holding Common Shares for or pursuant to the terms of any such plan,
or prior to the Spinoff Date, any Lucent Entity) for outstanding Common Shares,
if upon consummation of such tender or exchange offer such Person would be the
Beneficial Owner of 15% or more of the outstanding Common Shares (the earlier of
such dates being herein referred to as the "Distribution Date"), (x) the Rights
will be evidenced by the Book-Entries, or certificates for, Common Stock
registered in the name of the holders of Common Stock (together with, in the
case of Book-Entries representing, or the certificates for, Common Stock
outstanding as of the Record Date, the Summary of Rights) and not by separate
Book-Entries or Rights Certificates and the record holders of the Common Stock
represented by such Book-Entries or certificates shall be the record holders of
the Rights represented thereby, and (y) the Rights will be transferable only in
connection with the transfer of Common Shares. Until the Distribution Date (or,
if earlier, the Expiration Date), transfer on the Company's stock ownership
records of any Common Stock represented by a Book-Entry or the surrender for
transfer of any certificate for Common Stock shall constitute the surrender for
transfer of the Right or Rights associated with the Company Stock evidenced
thereby, whether or not accompanied by a copy of the Summary of Rights."
SECTION 2. GOVERNING LAW. This Amendment shall be deemed to be
a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State.
SECTION 3. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 4. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and year first
above written.
AVAYA INC.,
By /s/ Pamela F. Craven
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Name: Pamela F. Craven
Title: Senior Vice President
Attest:
By /s/ Eric Sherbet
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Name: Eric Sherbet
Title: Assistant Secretary
THE BANK OF NEW YORK,
by /s/ JAMES KISZKA
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Name: James Kiszka
Title: Vice President
Attest:
by /s/ MICHAEL BLANKMAN
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Name: Michael Blankman
Title: Vice President