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Published: 2008-03-26

Agreement for the Purchase and Sale of Assets - Lucent Technologies Inc. and Tyco Group S.A.R.L.



                                 AMENDMENT NO. 1

                                       TO

                  AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS


         THIS AMENDMENT NO.1 TO AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
(this "AMENDMENT") is made as of December 29, 2000 by and between LUCENT
TECHNOLOGIES INC., a Delaware corporation ("SELLER" or "LUCENT"), and TYCO GROUP
S.A.R.L., a company organized under the laws of Luxembourg ("BUYER").


                                 R E C I T A L S


         A. WHEREAS, Seller and Buyer have entered into that certain Agreement
for the Purchase and Sale of Assets dated as of November 13, 2000 (the
"AGREEMENT");

         B. WHEREAS, Seller and Buyer desire to enter into this Amendment to
amend the Agreement; and

         C. WHEREAS, capitalized terms used in this Amendment but not defined
have the meanings ascribed to them in the Agreement.

         NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained and intending to be legally bound hereby, the parties hereto
hereby agree as follows:


         1. AMENDMENTS TO THE AGREEMENT

         a. Section 1.1 of the Agreement shall be amended to add the following
definitions:

         "SECONDED EMPLOYEES" has the meaning assigned in Section 5.4(c).

         "EMPLOYEE TRANSITION PERIOD" has the meaning assigned in Section
         5.4(c).

         "LUCENT MEXICAN COMPANY" has the meaning assigned in Section 2.1(k).

         "PAST SERVICE TRANSITION BENEFIT FORMULA" is 2000 W2 compensation (but
         not any compensation attributable to the exercise of stock options or
         in excess of Section 401(a)(17) of the Code) times a factor equal to 3%
         + 0.3% *(age-40, 




         not less than zero) + 0.3%*(age-45, not less than zero) + 0.3%*(age-50,
         not less than zero).

         "PRIMARY CLOSING" has the meaning assigned in Section 8.4.

         "SUBSEQUENT CLOSING" has the meaning assigned in Section 8.4.

         "TRANSFERRED RETIREE NONREPRESENTED EMPLOYEES" shall have the meaning
         assigned in Section 5.4(p)."

         b. Section 2.1(k) of the Agreement shall be deleted in its entirety and
replaced with the following:

         "(k) the quotas of Lucent Inepar Sistemas de Energia Ltda. (the
         "BRAZILIAN JV COMPANY"), the shares of Lucent Technologies
         Microelectronica de Mexico S.A. de C.V. (the "LUCENT MEXICAN COMPANY").
                

         c. Section 2.3(c) of the Agreement shall be deleted in its entirety and
replaced with the following:

         "(c) Within sixty (60) days after the Closing Date, Buyer shall pay to
         Seller as an addition to the Purchase Price an amount equal to the
         Dallas Receivables (net of allowance for doubtful accounts allocable to
         the Dallas Receivables) minus (a) the Warranty Liability of $14,700,000
         as of September 30, 2000, and minus (b) the amount attributable to
         GR/IR (goods received/invoices not received) in the United States. Any
         disagreements related to this provision shall be handled as set forth
         in Section 2.3(b)."

         d. Two new Sections 2.3(e) and (f) shall be added to the Agreement to
read as follows:

         "(e) If there shall occur a Primary Closing (as defined below) and one
         or more Subsequent Closings (as defined below) as contemplated by
         Section 8.4, for purposes of this Section 2.3(b) the "Closing Date"
         shall be the date of the Primary Closing (as defined below), and the
         calculations required hereunder shall be made with respect to the
         entirety of the Business as of such date.

         (f) Seller agrees to engage PricewaterhouseCoopers LLP to perform an
         audit of the total sales revenue of the Business for the fiscal year
         ended September 30, 2000 (the "FISCAL YEAR AUDIT"), and for the two
         months ended November 30, 2000 (the "INTERIM PERIOD AUDIT"), within
         forty five (45) days after the Closing Date. On or before the end of
         such 45-day period, Seller shall deliver to Buyer the results of the
         Fiscal Year Audit and the Interim 


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         Period Audit. To the extent that the total sales revenue for the fiscal
         year ended September 30, 2000 as shown in the Fiscal Year Audit results
         (the "AUDITED FISCAL REVENUE") is less than One Billion Five Hundred
         Sixty Four Million Dollars ($1,564,000,000) (the "REPRESENTED FISCAL
         REVENUE"), then Seller shall pay to Buyer an amount equal to the
         product of: (x) the Represented Fiscal Revenue minus the Audited Fiscal
         Revenue, multiplied by (y) a factor of 1.60. To the extent that the
         total sales revenue for the two month period ended November 30, 2000 as
         shown in the Interim Period Audit results (the "AUDITED INTERIM
         REVENUE") is less than Two Hundred Sixty Two Million Dollars
         ($262,000,000) (the "REPRESENTED INTERIM REVENUE"), then Seller shall
         pay to Buyer an amount equal to the product of: (x) the Represented
         Interim Revenue minus the Audited Interim Revenue, multiplied by (y) a
         factor of 1.60. Any payments due to Buyer under this Section 2.3(f)
         shall be paid to Buyer by wire transfer in immediately available funds
         to an account specified by Buyer, within five (5) days after Seller
         provides the audit results to Buyer."

         e. Section 5.4(c) of the Agreement shall be deleted in its entirety and
replaced with the following:

         "(c) (i) Employment with Buyer of Transferred Employees shall be
         effective as of the Business Day following the close of business on the
         Closing Date, except that the employment of individuals (1) receiving
         short-term disability benefits on the Closing Date, (2) on approved
         leave of absence on the Closing Date or (3) for whom required
         Governmental Approvals for the transfer of any such individuals has not
         yet been approved as of the Closing Date (the "SECONDED EMPLOYEES")
         will become effective as of the date they present themselves for work
         with the Buyer in the case of (1) and (2) or as soon as practicable
         after the Governmental Approvals are received in the case of (3).

              (ii) The Seconded Employees will remain in the employment of
         Seller or a Seller Subsidiary until all required Governmental Approvals
         are obtained for their transfer to Buyer or a Buyer Designee (the
         "EMPLOYMENT TRANSITION PERIOD") but will perform services and continue
         to devote all of their time to the Business until such time as they
         transfer to Buyer or a Buyer Designee to the extent permitted by law.
         Buyer or the applicable Buyer Designee agrees to reimburse Seller or
         the applicable Seller Subsidiary, on not more than a monthly basis, for
         all reasonable costs and expenses incurred by Seller or the applicable
         Seller Subsidiary in connection with any such Seconded Employee during
         this Employment Transition Period."


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         f. Section 5.4(h) of the Agreement shall be deleted in its entirety and
replaced with the following:

         "(h) For purposes of this Section 5.4, "PENSION TRANSFER AMOUNT" shall
         mean the greater of (A) and (B), where (A) shall be the minimum
         required transfer amount determined in accordance with the terms of
         Seller's pension plans and the requirements of Section 414(1) of the
         Code, utilizing the "safe harbor" rates and assumptions set forth in
         the regulations promulgated under Section 4044 of ERISA as of the
         Closing Date, except that the termination and retirement rate
         assumptions utilized for purposes of this Section 5.4(h) shall be the
         assumptions used by Seller to determine the funding requirements for
         the 2000 plan year and that no expense load, including any loading
         charge determined under the Loading Assumptions set forth in Appendix C
         to Part 4044 of the PBGC Regulations, shall be charged, and (B) shall
         be the sum of (I) and (II) less (III), where (I) is the accumulated
         benefit obligation under FAS 87 as of the Closing Date with respect to
         Represented Transferred Employees, (II) is the accumulated
         postretirement benefit obligation for post-retirement medical and
         dental plans under FAS 106 as of the Closing Date with respect to
         Represented Transferred Employees, and (III) is the amount transferred
         under Section 5.4(i) with respect to the postretirement medical and
         dental plans for Represented Transferred Employees. For purposes of the
         preceding sentence, such accumulated benefit obligation and accumulated
         postretirement benefit obligation shall be determined on the basis of
         the plan provisions in effect on the Closing Date and the actuarial
         methods and assumptions (based on the terms and conditions of the
         United States collective bargaining agreement in effect as of September
         30, 2000) utilized for purposes of Seller's financial disclosures under
         FAS 87 and 106 for such plans as of September 30, 2000."

         g. Two new Sections 5.4(o) and (p) shall be added to the Agreement to
read as follows:

         "(o) Buyer shall provide to any U.S. Non-Represented Transferred
         Employee who, as of the Closing Date, is forty or more years of age and
         has three or more years of service with Seller, a lump sum payment
         (either in the form of a contribution into a retirement account or a
         cash payment), which payment shall be determined by Buyer in accordance
         with the Past Service Transition Benefit Formula.


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         (p) Seller and Buyer acknowledge that certain employees of the Business
         who retire prior to or on the Closing Date in contemplation of the
         Transaction will not be included in the list of Business Employees to
         be provided to Buyer, and therefore will not become Transferred
         Employees. In the case of such U.S. employees who are not represented
         by the Communications Workers of America (the "Transferred Retiree
         Nonrepresented Employees"), Buyer agrees to hire such employees
         effective as of the day after the Closing Date and to treat them for
         all purposes in accordance with Section 5.4 as if they were Transferred
         Employees."

         h. Section 5.8(c) of the Agreement shall be deleted in its entirety and
replaced with the following:

         "(c) As soon as reasonably practicable after the Closing Date, but in
         no event later than three (3) months following the Closing Date, Buyer
         shall change the name of the Brazilian JV Company and the Lucent
         Mexican Company to delete any references to "Lucent".

         i. A new Section 8.4 shall be added to the Agreement to read as
follows:

         "8.4 SUBSEQUENT CLOSINGS

         Notwithstanding the foregoing, in the event that all of the conditions
         set forth in Section 8.1 hereof are satisfied with respect to Mexico
         and the United States, but such conditions are not satisfied with
         respect to one or more other jurisdictions, Seller and Buyer agree to
         consummate the Closing with respect to those assets and liabilities of
         the Business for which (i) all required approvals and consents
         described in Section 8.1 have been obtained, or (ii) no approvals or
         consents are required (a "Primary Closing"). In the event of a Primary
         Closing, Seller shall transfer and assign to Buyer or a Buyer Designee,
         and Buyer or a Buyer Designee shall purchase and accept from Seller,
         those Purchased Assets and Assumed Liabilities constituting that part
         of the Business for which consents or approvals described in Section
         8.1 have been obtained or are not required, and Buyer shall pay such
         amount of the Purchase Price (as set forth on Schedule 2.3(d)) to be
         allocated to such part of the Business being so transferred. The
         closing or closings with respect to the Purchased Assets and Assumed
         Liabilities not transferred, assigned, purchased and 


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         accepted at the Primary Closing (each, a "Subsequent Closing") shall
         occur as promptly as practical after receipt of the remaining approvals
         and consents referred to in Section 8.1. At each Subsequent Closing,
         Buyer shall pay to Seller such amount of the Purchase Price (as set
         forth on Schedule 2.3(d)) to be allocated to such part of the Business
         being so transferred. From the Primary Closing, the entirety of the
         Business shall be operated for the benefit and detriment of Buyer.
         Buyer and Seller agree to negotiate in good faith any appropriate
         modifications to this Agreement to effectuate the foregoing."

         j. Section 9.2 of the Agreement shall be deleted in its entirety and
replaced with the following:

         "The representations and warranties of Buyer and Seller contained in
         this Agreement shall survive the Closing for eighteen (18) months
         provided, however, that (i) the representations and warranties in
         Sections 3.5(a), the second sentence of Section 3.7(b) and Section
         3.13(a), in each case relating to title matters shall survive the
         Closing and shall not terminate and (ii) the representations and
         warranties in Section 3.11 relating to environmental matters shall
         survive the Closing and shall terminate at the close of business on the
         120th day following the expiration of the applicable statute of
         limitations with respect to the environmental liabilities in question.
         Neither Seller nor Buyer shall have any liability whatsoever with
         respect to any such representations or warranties after the survival
         period for such representation or warranty expires."

         2. REPRESENTATIONS AND WARRANTIES

         2.1 SELLER'S REPRESENTATION AND WARRANTY

         Seller represents and warrants to Buyer that Seller has all requisite
corporate power and authority to execute and deliver this Amendment and to
effect the transactions contemplated hereby and has duly authorized the
execution, delivery and performance of this Amendment by all requisite corporate
action. This Amendment has been duly executed and delivered by Seller and this
Amendment is a valid and legally binding obligation of Seller, enforceable
against it in accordance with its terms, except to the extent that enforcement
of the rights and remedies created hereby may be affected by bankruptcy,
reorganization, moratorium, insolvency and similar Laws of general application
affecting the rights and remedies of creditors and by general equity principles.

         2.2 BUYER'S REPRESENTATION AND WARRANTY


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         Buyer represents and warrants to Seller that Buyer has all requisite
corporate power and authority to execute and deliver this Amendment and to
effect the transactions contemplated hereby and has duly authorized the
execution, delivery and performance of this Amendment by all requisite corporate
action. This Amendment has been duly executed and delivered by Buyer and this
Amendment is a valid and legally binding obligation of Buyer, enforceable
against it in accordance with its terms, except to the extent that enforcement
of the rights and remedies created hereby may be affected by bankruptcy,
reorganization, moratorium, insolvency and similar laws of general application
affecting the rights and remedies of creditors and by general equity principles.

         3. MISCELLANEOUS PROVISIONS

         3.1 GOVERNING LAW

         THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAW.

         3.2 EXECUTION IN COUNTERPARTS

         This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.

         3.3 AGREEMENT AS AMENDED

         This Amendment is limited as specified herein and shall not constitute
a modification, acceptance or waiver of any other provision of the Agreement.
From and after the date hereof, all references to the Agreement shall be deemed
references to the Agreement as amended and supplemented hereby.



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         IN WITNESS WHEREOF, each of Seller and Buyer has caused this Amendment
to be duly executed on its behalf by a duly authorized representative as of the
date first written above.


                                LUCENT TECHNOLOGIES INC.



                                By:                                         
                                   -----------------------------------------
                                Name:
                                Title:

                                TYCO GROUP S.A.R.L.



                                By:                                         
                                   -----------------------------------------
                                Name:
                                Title:



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