exv10w38



 






Exhibit 10.38




TELLABS ADVANTAGE PROGRAM




AS AMENDED AND RESTATED EFFECTIVE DECEMBER 31, 2004




     Pursuant to resolutions made by the Board of Directors of Tellabs Operations, Inc. on December
3, 2004 and December 31, 2004, the attached amendment to the Tellabs Advantage Program, is hereby
adopted in accordance with the authorizations and directions of such resolutions.



	 	 	 	 	 
	

	 	TELLABS OPERATIONS, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	 
	 	 	 	 
	 	 	Victoria L. Perrault
	 
	 	 	 	 
	 	 	Its: Executive VP, Human Resources






 









 






2004 AMENDMENT

TO THE

TELLABS ADVANTAGE PROGRAM




     Effective as set forth below, this Amendment is made on December 31, 2004 by Tellabs
Operations, Inc. (the “Company”), a Delaware corporation;



     WHEREAS, the Board of Directors of the Company executed the Tellabs Operations, Inc. Written
Consent of Directors dated December 3, 2004, in order to merge the Advanced Fibre Communications
401(k) Savings Plan (“AFC Plan”) into the Tellabs Advantage Program (“Program”) effective January
1, 2005;



     WHEREAS, the Board of Directors of the Company executed the Tellabs Operations, Inc. Written
Consent of Directors dated December 31, 2004, in order to merge the Vinci Systems, Inc. 401(k)
Profit Sharing Plan (“Vinci Plan”) into the Program effective February 28, 2005;



     WHEREAS, the Vinci Plan does not contain optional forms of distribution of benefits different
from the forms of distribution allowed under the Program;



     WHEREAS, the Company executed the Special Amendment to the AFC Plan dated December 3, 2005 to
eliminate all optional forms of distribution of benefits under the AFC Plan effective March 3,
2005;



     WHEREAS, the Company desires to amend the Program to comply with Section 411(d)(6) of the
Internal Revenue Code of 1986, as amended, by allowing former AFC Participants in the AFC Plan to
choose among the optional forms of benefits currently available to them until March 2, 2005; and



     WHEREAS, the Company desires to amend the Program pursuant to Article Eleven thereof.



     NOW, THEREFORE, the sections of the Plan set forth below are amended as follows, with the
changes indicated by double underline.



     1. Section 1.4 (Definitions) is hereby amended to add the following terms:




     “AFC Accounts” means the AFC Participants’ funds which were transferred from the
AFC Plan to the Trust Fund as a result of the merger of the AFC Plan into the Plan effective
January 1, 2005.




     “AFC Acquisition Date” means November 30, 2004, the date of the acquisition of
Advanced Fibre Communications, Inc. by Tellabs, Inc.,.




     “AFC Participant” means employees of Advanced Fibre Communications, Inc. or any
subsidiary thereof who were participants in the AFC Plan on November 29, 2004



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and whose AFC Accounts were subsequently transferred from the AFC Plan trust fund
to the Trust Fund as a result of the merger of the AFC Plan into the Plan effective February
4, 2005.




     “AFC Plan” means the Advanced Fibre Communications 401(k) Savings Plan as in effect
on the AFC Acquisition Date, and as amended from time to time thereafter up to and including
its merger into the Plan.




     “Vinci Accounts” means the Vinci Participant’s funds which were transferred from
the Vinci Plan to the Trust Fund as a result of the merger of the Vinci Plan into the Plan
effective February 28, 2005.




     “Vinci Acquisition Date” means December 30, 2004, the date of the acquisition of
Vinci Systems, Inc. by Tellabs, Inc.,.




     “Vinci Participant” means employees of Vinci Systems, Inc. or any subsidiary
thereof who were participants in the Vinci Plan on December 30, 2004 and whose Vinci
Accounts were subsequently transferred from the Vinci Plan to the Trust Fund as a result of
the merger of the Vinci Plan into the Plan effective February 28, 2005.




     “Vinci Plan” means the Vinci Systems, Inc. 401(k) Profit Sharing Plan as in effect on
the Vinci Acquisition Date, and as amended from time to time thereafter up to and including
its merger.



     2. Section 1.4 (Definitions) the definition of “Eligible Employee” is hereby deleted
and replaced with the following:



     “Eligible Employee” means any employee of the Employer but excluding any employee who is (1) a
Member of a Collective Bargaining Unit; (2) an individual providing services to the Employer in the
capacity of, or who is or was designated by the Employer as, a Leased Employee, an independent
contractor, intern or a Limited Term Employee; or (3) are non-resident aliens who receive no earned
income from the Employer which constitutes income from services within the United States.
Notwithstanding the foregoing, any employee of Salix Technologies, Inc. or any subsidiary thereof
who was eligible to participate in the Salix Plan as of May 19, 2000 will be considered an Eligible
Employee as of May 19, 2000. Notwithstanding the foregoing, any individual employed by Coherent
Communications Systems Corporation or any subsidiary thereof as of the Coherent Acquisition Date,
or thereafter until December 31, 1998, shall not become an Eligible Employee until January 1, 1999.
Notwithstanding the foregoing, any individual employed by Ocular Networks, Inc. or any subsidiary
thereof who was eligible to participate in the Ocular Plan as of the Ocular Acquisition Date shall
not become an Eligible Employee until April 1, 2002. Notwithstanding the foregoing, any individual
employed by Vivace Networks, Inc. or any subsidiary thereof who was eligible to participate in the
Vivace Plan as of the Vivace Acquisition Date shall not become an Eligible Employee until November
1, 2003. Notwithstanding the foregoing, any individual employed by Advanced Fibre
Communications, Inc. or any subsidiary thereof who was eligible to participate in the AFC Plan as
of the AFC Acquisition Date shall not become an Eligible Employee until January 1, 2005.
Notwithstanding the foregoing, any individual employed by Vinci Systems, Inc. or any



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subsidiary thereof who was eligible to participate in the Vinci Plan as of the Vinci
Acquisition Date shall not become an Eligible Employee until January 1, 2005.




     3. Section 1.4 (Definitions) subsection (e) of the definition of “Service” is hereby
deleted and replaced with the following:



     (e) Recognition of Services under plans of Acquired Companies. Solely with respect to
former Salix Participants, Coherent Participants, Ocular Participants Vivace Participants, AFC
Participants and Vinci Participants, each such Participant’s period of service shall
include such period or periods of employment previously credited to that Participant under the
Salix Plan, Coherent Plan, Ocular Plan, Vivace Plan, AFC Plan or Vinci Plan, as
applicable; provided, however, that in no event shall any service prior to January 6, 1975 be
deemed Service hereunder.



     4. Section 2.1 (Eligibility Requirements) is hereby amended to add subsections (k) and
(l) as follows:



     (k) Notwithstanding the foregoing provisions of this Section 2.1 (Eligibility
Requirements) an AFC Participant who is an Eligible Employee on January 1, 2005 shall become a
Participant as of that date.



     (l) Notwithstanding the foregoing provisions of this Section 2.1 (Eligibility
Requirements) a Vinci Participant who is an Eligible Employee on January 1, 2005 shall become a
Participant as of that date.



     5. Section 5.1 (Participant’s Accounts), subsection (a) is hereby deleted and replaced
with the following:



     (a) For each Participant there shall be maintained as appropriate a separate Retirement
Account, a separate Profit Sharing Account (which shall, if applicable, consist of separate
pre-1993 and post-1992 sub-accounts as prescribed by the Administrative Committee), a separate
Matching Account, a separate After-Tax Account (which shall, if applicable, consist of a separate
pre-1987 After-Tax sub-account and a separate post-1986 After-Tax sub-account as prescribed by the
Administrative Committee), a separate Before-Tax Account (which shall, if applicable, consist of
separate basic and supplemental sub-accounts as prescribed by the Administrative Committee), and a
separate Rollover Account. Effective April 1, 1999, for each Coherent Participant, there shall
also be maintained as appropriate a separate Coherent Before-Tax Account (which shall consist of a
balance of the Coherent Participant’s pre-tax contribution account under the Coherent Plan), a
separate Coherent Employer Account (which shall consist of the balance of the Coherent
Participant’s matching and profit sharing accounts under the Coherent Plan) and a separate Coherent
Rollover Account. Effective May 19, 2000, for each Salix Participant, there shall also be
maintained as appropriate a separate Salix Before-Tax Account (which shall consist of a balance of
the Salix Participant’s pre-tax contribution account under the Salix Plan), a separate Salix
Employer Account (which shall consist of the balance of the Salix Participant’s matching and profit
sharing accounts under the Salix Plan) and a separate Salix Rollover Account. Effective June 28,
2002, for each Ocular Participant, there shall also be maintained as appropriate a separate Ocular
Account (which shall consist of the balance of an



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Ocular Participant’s funds which were transferred from the Ocular Plan to the Trust Fund as a
result of the merger of the Ocular Plan into the Plan). Effective November 1, 2003, for each Vivace
Participant, there shall also be maintained as appropriate a separate Vivace Account (which shall
consist of the balance of a Vivace Participant’s funds which were transferred from the Vivace Plan
to the Trust Fund as a result of the merger of the Vivace Plan into the Plan). Effective
February 4, 2005, for each AFC Participant, there shall also be maintained as appropriate a
separate AFC Account (which shall consist of the balance of an AFC Participant’s funds which were
transferred from the AFC Plan to the Trust Fund as a result of the merger of the AFC Plan into the
Plan). Effective February 28, 2005, for each Vinci Participant, there shall also be maintained as
appropriate a separate Vinci Account (which shall consist of the balance of a Vinci Participant’s
funds which were transferred from the Vinci Plan to the Trust Fund as a result of the merger of the
Vinci Plan into the Plan). Effective July 1, 2003, for each Active Participant there shall
also be established a Company Contribution Account. Each Account (including any sub-accounts)
shall be credited with the amount of contributions, interest and earnings of the Trust Fund
allocated to such Account and shall be charged with all distributions, withdrawals and losses of
the Trust Fund allocated to such Account.




     6. Section 5.2 (Participant Accounts), subsection (c)(i) is hereby deleted and
replaced with the following:



     (i) Subject to subsection (iii) below, the Investment Committee shall direct the Trustee to
invest each Participant’s Accounts from time to time among the Funds as the Participant may elect.
A Participant may elect to have a uniform percentage of his Company Contribution Account,
Retirement Account, Profit Sharing Account, After-Tax Account, Matching Account, Before-Tax
Account, Rollover Account, effective as of April 1, 1999, each of his Coherent Accounts (excluding
the value of any loan credited to any such Account), effective as of May 19, 2000, each of his
Salix Accounts (excluding the value of any loan credited to any such Account), effective as of June
28, 2002, his Ocular Account (excluding the value of any loan credited to such Account), effective
as of November 1, 2003, his Vivace Account (excluding the value of any loan credited to such
Account), effective as of February 4, 2005, his AFC Account (excluding the value of any loan
credited to such Account) and effective as of February 28, 2005, his Vinci Account (excluding the
value of any loan credited to such Account) credited in increments of 1% to one or more of the
Funds. All contributions to his Company Contribution Account, Retirement Account, Profit Sharing
Account, After-Tax Account, Matching Account, Before-Tax Account, and Rollover Account shall be
credited to such Funds in accord with such election.



     7. Section 5.2 (Participant Accounts), subsection (c)(ii) is hereby deleted and
replaced with the following:



     (ii) Subject to subsection (iii) and (vi) below and to any restriction on transfer which
result from the investment medium chosen for a Fund, a Participant may elect to transfer in
multiples of 1% a uniform percentage of his Company Contribution Account, Retirement Account,
Profit Sharing Account, Matching Account, After-Tax Account, Before-Tax Account, Rollover Account,
effective as of April 1, 1999, each of his Coherent Accounts (excluding the value of any loan
credited to any such Account), effective as of May 19, 2000, each of his Salix Accounts (excluding
the value of any loan credited to any such Account), effective as of June 28,



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2002, his Ocular Account (excluding the value of any loan credited to any such Account)
effective as of November 1, 2003, his Vivace Account (excluding the value of any loan credited to
any such Account) effective as of_February 4, 2005, his AFC Account (excluding the value of any
loan credited to any such Account), and effective as of February 28, 2005, his Vinci Account
(excluding the value of any loan credited to any such Account) held in any Fund to one or more
different Funds. Any such election shall not affect any prior election under subsection (i) above.
Loans made pursuant to Section 7.11 (Loans) shall be treated as segregated investments
from the Participant’s applicable Accounts, transferred to and from various Funds in accord with
uniform rules established by the Administrative Committee.




     8. Section 6.1 (General Rule) subsection (a) is hereby deleted and replaced with the
following:



     (a) an amount equal to the value of the Units credited to the Participant’s Profit Sharing
Account attributable to pre-1993 contributions, Before-Tax Account, Matching Account, Company
Contribution Account, After-Tax Account, Rollover Account, Coherent Before-Tax Account, Coherent
Rollover Account, Salix Before-Tax Account, Salix Employer Account, Salix Rollover Account, Ocular
Account, Vivace Account, AFC Account and Vinci Account plus any of the Participant’s Before-Tax Contributions and After-Tax Contributions made to the Trust Fund but not
included in the Participant’s Units as of such Valuation Date; and



     9. Section 7.1 (Commencement and Form of Distributions) subsection (d) is hereby
amended by adding the following new paragraph (v) immediately following the last paragraph in
subsection (d):



     (v) Notwithstanding the above provisions, all Tellabs Plan Participants who had been AFC
Participants immediately prior to the merger of such AFC Plan into the Tellabs Plan on January 1,
2005 and their Beneficiaries shall be allowed to choose an alternate distribution option for their
AFC Account in accordance with the terms of the AFC Plan until March 2, 2005. After close of
business on March 2, 2005, all AFC Participants will no longer be entitled to choose optional forms
of distributions in accordance with the AFC Plan and will be entitled to choose either a rollover
or lump sum distribution as provided for in (i) above.



     10. Section 7.1(Commencement and Form of Distributions) subsection (g) is hereby
deleted and replaced with the following:



     (g) Notwithstanding anything in this Section 7.1 to the contrary, if the present value
of the nonforfeitable portion of the Participant’s Retirement Account, or if the vested balance of
the Participant’s remaining Accounts does not exceed $1,000 at the time a distribution is
to be made from the Plan (or at the time of any prior distributions did not exceed $1,000)
and distribution pursuant to this Section 7.1 has not otherwise commenced, the
Administrative Committee shall direct the Trustee to distribute such amount in a single sum payment
to the individual so entitled and the payment thereof shall be in full satisfaction of any
liability of the Trust to such individual. Effective for distributions made after December 31,
2001, the present value of a Participant’s nonforfeitable accrued benefit may be determined without
regard to the portion of the benefit that is attributable to Rollover Contributions (and any
earnings allocable to the



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rollover contributions). Rollover Contributions are defined as any rollover contribution
under Code Sections 402(c), 403(a)(4), 403(b)(8), 438(d)(3)(A)(ii) and 457(e)(16).




     11. Section 7.4 (Distributions to Beneficiaries) subsection (a) is hereby deleted and
replaced with the following:



     (a) Except as otherwise provided in this Section 7.4, the balance of a deceased
Participant’s Accounts other than the Retirement Account; prior to February 1, 2002, his Salix

Accounts and Coherent Accounts; prior to September 5, 2002 his Ocular Account; prior to February 1,
2004 his Vivace Account; and prior to March 3, 2005 his AFC Account which are
distributable to a beneficiary shall be distributed in one or more of the forms described in
subsection 7.1(d)(i) or 7.1(d)(ii) above, in accordance with an effective designation filed by the
Participant with the Administrative Committee or, if no such designation has been filed, in one of
such forms as the beneficiaries shall request.



     12. Section 7.10 (Distribution of Participant’s After-Tax Account, Rollover Account, Salix
Rollover Account, Coherent Rollover Account and Ocular Account Prior to Termination of Employment.)
the Section heading is hereby deleted and replaced with the following:



     (Distribution of Participant’s After-Tax Account, Rollover Account, Salix Rollover Account,
Coherent Rollover Account, Ocular Account, Vivace Account, AFC Account and Vinci Account
Prior to Termination of Employment).



     13. Section 7.10 (Distribution of Participant’s After-Tax Account, Rollover Account,
Salix Rollover Account, Coherent Rollover Account, Ocular Account, Vivace Account, AFC Account
and Vinci Account Prior to Termination of Employment) subsection (c) is hereby deleted and
replaced with the following:



     (c) An amount not to exceed the balance in the Participant’s Rollover Contribution Account,
Salix Rollover Account, Coherent Rollover Account, Ocular Account, Vivace Account, AFC Account
and Vinci Account provided that no such distribution shall reduce the Participant’s Accounts to
an amount equal to the amount of any unpaid loan made pursuant to Section 7.11 (Loans).



     14. Section 7.10 (Distribution of Participant’s After-Tax Account, Rollover Account,
Salix Rollover Account, Coherent Rollover Account, Ocular Account, Vivace Account, AFC Account
and Vinci Account Prior to Termination of Employment) subsection (h) is hereby deleted and
replaced with the following:



     (h) Any distribution from a Participant’s Rollover Account, Salix Rollover Account, Coherent
Rollover Account, Ocular Account, Vivace Account, AFC Account or Vinci Account shall be
deemed to be made first from the Rollover Account and then from the Salix Rollover Account,
Coherent Rollover Account, Ocular Account, Vivace Account, AFC Account or Vinci Account.



     15. Section 7.11 (Loans) subsection (a) is hereby deleted and replaced with the
following:



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     (a) Upon the submission by the Participant of a written loan application form as prescribed
by the Administrative Committee, or any other process approved by the Administrative Committee, a
Participant shall be able to apply for a loan. The funds for such loan may only come from a
Participant’s After-Tax Account, Before-Tax Account, Rollover Account, Coherent Before-Tax Account,
Coherent Employer Account, Coherent Rollover Account, Salix Before-Tax Account, Salix Employer
Account, Salix Rollover Account, Profit Sharing Account attributable to pre-1992 Profit Sharing
Contributions, Ocular Account, Vivace Account, AFC Account and Vinci Account. Participants
shall not be allowed to obtain a loan from the Accounts comprised of Company contributions, with
the exception of the pre-1992 Profit Sharing Contributions. If the Administrative Committee
reasonably believes that the Participant either does not intend to repay the loan or lacks proper
financial ability to repay the loan, it shall not grant such a loan. A Participant shall have no
more than three loans outstanding at any time



     16. Section 7.11 (Loans) subsection (c) is hereby deleted and replaced with the
following:



          (c) The amount of any loan shall not be less than $1,000 unless, in the event that a
Participant demonstrates financial hardship, the Administrative Committee, in its sole discretion,
approves a loan in an amount less than $1,000. The maximum amount of a Participant’s loan shall
not exceed the lesser of: (1) 50%of the Participant’s Before-Tax Account plus 100% of the funds
available in a Participant’s After-Tax Account, Rollover Account, Coherent Before-Tax Account,
Coherent Employer Account, Coherent Rollover Account, Salix Before-Tax Account, Salix Employer
Account, Salix Rollover Account, Profit Sharing Account attributable to pre-1992 Profit Sharing
Contributions, Ocular Account, Vivace Account, AFC Account and Vinci Account; or (2)
$50,000 reduced by the greater of:




               (i) the highest outstanding balance of loans to the Participant from the Trust Fund
during the one-year period ending on the day before the date on which such loan is made or
modified; or




               (ii) the outstanding balance of loans to the Participant from the Trust Fund on the
date on which such loan is made or modified.



     17. Section 7.12 (Withdrawals Prior to Termination of Employment and After Age 59-1/2)
is hereby deleted and replaced with the following:



     (a) A Participant who has attained age 59-1/2 may elect to withdraw amounts from his
Before-Tax Account, After-Tax Account, Rollover Account, Matching Account, Salix Before-Tax
Account, Salix Rollover Account, Coherent Before-Tax Account, Coherent Rollover Account, Ocular
Account, Vivace Account, AFC Account and Vinci Account as of the Valuation Date coinciding
with or immediately preceding the date of such withdrawal; provided, however, that during a Plan
Year not more than one withdrawal shall be made pursuant to this Section 7.12; provided,
further, for Plan Years starting before December 31, 2001, that during a Plan Year, not more than
an aggregate of two withdrawals shall be made by a Coherent Participant from his Coherent Accounts
under this Section 7.12, Section 7.10 (Distribution of Participant’s After-Tax
Account, Rollover Account, Salix Rollover Account, Coherent Rollover



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Account, Ocular Account, Vivace Account, AFC Account and Vinci Account Prior to
Termination of Employment) and Section 7.13 (Pre-59-1/2 Coherent Account Withdrawals;
Hardship Withdrawals).




     (b) Withdrawals made pursuant to this Section 7.12 shall be charged against the Participant’s
Accounts in the following order:



     (i) Pre-1987 After-Tax Account;



     (ii) Post-1986 After-Tax Account;



     (iii) Rollover Account, Ocular Account, Vivace Account, AFC Account, or Vinci Account;



     (iv) Matching Account;



     (v) Before-Tax Account;



     (vi) Salix Before-Tax Account or Coherent Before-Tax Account;



     (vii) Salix Rollover Account or Coherent Rollover Account.



     and made from the separate Funds in which such Accounts are invested pursuant to procedures
established by the Administrative Committee, subject to the limitations or restrictions thereon
imposed by the sponsor(s) of the respective Funds or by Section 5.2 (Common Fund).



     18. Section 7.13 (Pre-59-1/2 Coherent Account Withdrawals; Hardship Withdrawals)
subsection (a) is hereby deleted and replaced with the following:



     (a) Withdrawals
Prior to Age 59 1/2. Effective for Plan Years starting on or after
December 31, 2001, no withdrawals will be allowed for
Participants prior to the age of 59 1/2, except
as provided in subsection (b) below. For Plan Years prior to January 1, 2002, a Coherent
Participant who has completed at least five (5) Years of Service may elect to withdraw all or a
portion of his Coherent Employer Account and Coherent Rollover Account. Withdrawals made pursuant
to this subsection 7.13(a) shall be charged against the Coherent Participant’s Coherent Accounts in
the following order; provided, however, that during a Plan Year not more than two withdrawals from
a Coherent Participant’s Coherent Accounts shall be made pursuant to this Section 7.13,
Section 7.10 (Distribution of Participant’s After-Tax Account, Rollover Account, Salix
Rollover Account, Coherent Rollover Account, Ocular Account, Vivace Account, AFC Account and
Vinci Account Prior to Termination of Employment) and Section 7.12 (Withdrawals Prior
to Termination of Employment and After Age 59-1/2).



     19. Section 7.13 (Pre-59-1/2 Coherent Account Withdrawals; Hardship Withdrawals)
subsection (b) is hereby deleted and replaced with the following:



     (b) Hardship.
A Participant who has not attained age 59 1/2 may, upon the determination
by the Administrative Committee that he has incurred a financial hardship, make a hardship
withdrawal from his Before-Tax Contributions and Matching Contributions (together with any



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income allocated to his Before-Tax Account and Matching Account as of December 31, 1988),
After-Tax Account, Rollover Account, Salix Before-Tax Account, Salix Rollover Account, Coherent
Before-Tax Account, Coherent Rollover Account, Ocular Account, Vivace Account, AFC Account and
Vinci Account (but only to the extent of the pre-tax contributions made and pre-1989 earnings
allocated thereto); provided, however, that after December 31, 2003, Matching Contributions and
funds in the Matching Account will not be available for hardship withdrawal.




     20. In all other respects, said Program is ratified and approved. If there is a conflict
between the terms as stated in the Program and the terms as stated in this Amendment, the terms
stated in this Amendment shall prevail.




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