-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ulau31AHEhSy9T8wtTYnLcNn8rTK+Q96ow89tlyQrey45OsKvXhb6ACT83ro2a+q LMtH1tKiCcF6uUanEAbFPA== 0001047469-03-003488.txt : 20030131 0001047469-03-003488.hdr.sgml : 20030131 20030131135941 ACCESSION NUMBER: 0001047469-03-003488 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20030130 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030131 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AVAYA INC CENTRAL INDEX KEY: 0001116521 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 223713430 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-15951 FILM NUMBER: 03534139 BUSINESS ADDRESS: STREET 1: 211 MOUNT AIRY RD CITY: BASKING RIDGE STATE: NJ ZIP: 07920 BUSINESS PHONE: 9089536000 MAIL ADDRESS: STREET 1: 211 MOUNT AIRY ROAD CITY: BASKING RIDGE STATE: NJ ZIP: 07920 FORMER COMPANY: FORMER CONFORMED NAME: LUCENT EN CORP DATE OF NAME CHANGE: 20000612 8-K 1 a2102190z8-k.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): January 30, 2003 AVAYA INC. (Exact name of registrant as specified in its charter) Delaware 1-15951 22-3713430 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 211 Mount Airy Road Basking Ridge, NJ 07920 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (908) 953-6000 ITEM 5. OTHER EVENTS On January 28, 2003, Avaya Inc. ("Avaya"), together with Warburg Pincus Equity Partners, L.P. and affiliated investment funds (the "Warburg Pincus Funds"), completed the exchange offer for Avaya's Liquid Yield Option(TM) Notes (LYONS) due 2021. In exchange for the $84,426,000 aggregate principal amount at maturity of LYONs accepted in the exchange offer, the Warburg Pincus Funds will pay an aggregate of $17,596,190.50 in cash and Avaya will deliver 6,500,032 shares of its common stock. Avaya and the Warburg Pincus Funds are parties to a Backstop Agreement dated as of December 23, 2002, as amended, (the "Backstop Agreement") which contains the terms relating to the Warburg Pincus Funds' participation in the exchange offer. Pursuant to the terms of the Backstop Agreement, Avaya agreed (i) to grant the Warburg Pincus Funds series D warrants to purchase shares of Avaya common stock based on the amount of cash used by the Warburg Pincus Funds to purchase LYONs in the exchange offer, (ii) to decrease to $0.01 the exercise price of series A and series B warrants currently held by the Warburg Pincus Funds, and (iii) to adjust the number of shares of common stock that may be purchased upon the exercise of such warrants. The Warburg Pincus Funds has also agreed to convert any LYONs purchased with its cash in the exchange offer into shares of Avaya common stock. On January 30, 2003, Avaya and the Warburg Pincus Funds entered into a Waiver/Confirmation Letter Agreement to confirm and waive certain provisions of the Backstop Agreement. The parties agreed that (i) the Warburg Pincus Funds would not receive any series D warrants, (ii) the number of shares of common stock of Avaya that may be purchased upon exercise of the series B warrants would not be adjusted, and (iii) the per share exercise price of the series B warrants held by the Warburg Pincus Funds would not be reduced. However, in consideration of the foregoing agreements, in accordance with the terms of the Backstop Agreement, the parties did agree (i) that the per share exercise price of the series A warrants would be reduced to $0.01, (ii) the Warburg Pincus Funds would exercise for cash a portion of the series A warrants to purchase an aggregate of 5,581,013 shares of common stock of Avaya for aggregate cash consideration of $55,810.13 and (iii) the Warburg Pincus Funds would convert all LYONs acquired by them into an aggregate of 1,588,560 shares of common stock of Avaya. The Waiver/Confirmation Letter Agreement between Avaya and the Warburg Pincus Funds is attached hereto as Exhibit 99.1. Note: Liquid Yield Option and LYON are trademarks of Merrill Lynch & Co., Inc. ITEM 7(C). EXHIBITS 99.1 Waiver/Confirmation Letter Agreement, dated January 30, 2003, between Avaya and the Warburg Pincus Funds. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. AVAYA INC. Date: January 31, 2003 By: /s/ Garry K. McGuire ------------------------------------ Name: Garry K. McGuire Title: Chief Financial Officer and Senior Vice President, Operations
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - -------------- ----------- 99.1 Waiver/Confirmation Letter Agreement, dated as of January 30, 2003, between Avaya and the Warburg Pincus Funds.
EX-99.1 3 a2102190zex-99_1.txt EXHIBIT 99.1 EXHIBIT 99.1 Warburg, Pincus Equity Partners, L.P. Warburg, Pincus Netherlands Equity Partners I, C.V. Warburg, Pincus Netherlands Equity Partners II, C.V. Warburg, Pincus Netherlands Equity Partners III, C.V. 466 Lexington Avenue New York, NY 10017 January 30, 2003 Avaya Inc. 211 Mount Airy Road Basking Ridge, NJ. 07920 Re: EXCHANGE OFFER FOR AVAYA LYONS Ladies & Gentlemen: Reference is made to the Backstop Agreement, dated as of December 23, 2002, as amended January 13, 2003 (the "Agreement"), by and among Avaya Inc. ("Avaya") and the Investors signatories thereto. Capitalized terms used but not defined in this letter shall have the meanings ascribed thereto in the Agreement. The Investors hereby waive their right under Section 3.01(b) of the Agreement to receive any Series D Warrants at the Subsequent Closing. In consideration of this waiver, Avaya hereby agrees that the Investor Cash Amount shall be $17,596,190.50. Accordingly, the Investors hereby agree to promptly transfer such Investor Cash Amount to the Exchange Agent. Further, in connection with the Closing of the Exchange Offer on and as of the date hereof, the Investors and Avaya desire to confirm the application of the provisions of the Agreement as set forth below. 1. The Market Value of a share of Common Stock is $2.7356. 2. Pursuant to Section 3.01(c)(i)(A) of the Agreement, effective as of February 12, 2003, the Exercise Price of the Series A Warrants shall be reduced to $0.01. 3. Notwithstanding Section 3.01(c)(i)(A), no adjustment to the Exercise Price of the Series B Warrants shall be made. 4. As contemplated by the last sentence of Section 3.01(c)(i) of the Agreement, no adjustment to the number of shares of Common Stock that may be purchased upon exercise of the Series A Warrants and the Series B Warrants shall be made. 5. Pursuant to Section 3.02 of the Agreement, at the Subsequent Closing, the Investors shall exercise for cash a portion of the Series A Warrants to purchase an aggregate of 5,581,101 shares of Common Stock for aggregate cash consideration of $55,811.01. 6. Pursuant to Section 3.03 of the Agreement, at the Subsequent Closing, the Investors shall convert all LYONs acquired by them into an aggregate of 1,588,548 shares of Common Stock. 7. Pursuant to Section 5.03 of the LYONs Indenture, Avaya shall pay to the Investors an amount equal to $2.53, in lieu of issuing a fractional share of Common Stock upon conversion of the LYONs acquired by the Investors. Please indicate your agreement by countersigning this letter where indicated below. [Signature pages follow] Very truly yours, WARBURG, PINCUS EQUITY PARTNERS, L.P. By: WARBURG PINCUS & CO. Its General Partner By: /s/ Scott A. Arenare -------------------- Name: Scott A. Arenare Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I, C.V. By: WARBURG PINCUS & CO. Its General Partner By: /s/ Scott A. Arenare -------------------- Name: Scott A. Arenare Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II, C.V. By: WARBURG PINCUS & CO. Its General Partner By: /s/ Scott A. Arenare -------------------- Name: Scott A. Arenare Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III, C.V. By: WARBURG, PINCUS & CO. Its General Partner By /s/ Scott A. Arenare -------------------- Name: Scott A. Arenare Title: Partner Agreed and accepted as of the date hereof: AVAYA INC. By: /s/ Rhonda L. Seegal -------------------- Name: Rhonda L. Seegal Title: Vice President and Treasurer -----END PRIVACY-ENHANCED MESSAGE-----