EXHIBIT 10.40


 


AVAYA INC. 2004 LONG TERM INCENTIVE PLAN (“PLAN”)


RESTRICTED STOCK UNIT AWARD AGREEMENT


 


	
  Name

  	
  Grant Date

  
	
   

  	
   

  
	
  Capitalized terms not otherwise defined herein shall have the same
  meanings as in the Plan.

  	
   

  



 


You have been granted as of the Grant Date set forth above,             
restricted stock units (“Restricted Stock Units”). Upon termination
of the restrictions related thereto, each Restricted Stock Unit will be
converted into one share of Avaya Inc. (“Avaya”) common stock, par value $.01 (“Shares”),
subject to the terms and conditions of the Plan and this Agreement.


 


1.               Vesting of Award.  The Restricted Stock Units shall vest and
become nonforfeitable on the following schedule; 50%
on the third anniversary of the Grant Date, and 50%
on the fourth anniversary of the Grant Date (the date on which any Restricted
Stock Unit vests being the “Vesting Date” for such Restricted Stock Unit).  The period beginning on the Grant Date hereof
and ending on the day prior to the Vesting Date for a Restricted Stock Unit is
herein referred to as the “Restriction Period” with respect to such Restricted
Stock Unit.


 


2.  Termination of Employment.  Upon termination of your employment for any
reason other than death or disability as described below, including without
limitation, retirement and termination as a result of your employer ceasing to
be either Avaya or a Subsidiary, any Restricted Stock Units that are not vested
shall be forfeited and cancelled. Transfer to and from Avaya and any Subsidiary
shall not be considered a termination of employment for purposes of this
Agreement.  Nor shall it be considered a
termination of employment for purposes of this Agreement if you are placed on
an approved leave of absence, unless the Committee shall otherwise determine.  Upon termination of your employment for Cause,
any Restricted Stock Units that are not vested shall be forfeited and
cancelled.


 


(a)                                  Death
- If you die prior to the Vesting Date, the Restricted Stock Units will become
nonforfeitable, the Restriction Period will end and the award will be paid as
soon as practicable after the date of death as specified in Section 3.


 


(b)                                 Disability
- “Disability” means termination of employment under circumstances where you
qualify for and receive payments under a long-term disability pay plan
maintained by Avaya or any Subsidiary or as required by or available under
applicable local law.  Upon termination
of your employment prior to the Vesting Date as a result of your Disability the
Restricted Stock Units will become nonforfeitable, the Restriction Period will
end and the award will be paid at time of termination as specified in Section
3.


 


(c)                                  Cause. “Cause” means:


(i)             violation of
Avaya’s code of conduct;


(ii)          conviction
of a felony (including a plea of guilty or nolo contendere) or any crime of
theft, dishonesty or moral turpitude, or


(iii)       gross
omission or gross dereliction of any statutory or common law duty to Avaya.


 


3.               Payment of Shares.  As soon as practicable after termination of
the Restriction Period, the Company will deliver a certificate representing the
Shares being distributed to you or to your legal representative.


 


4.               Transferability.  Unless otherwise provided for in the Plan,
you may not transfer, pledge, assign, sell or otherwise alienate your
Restricted Stock Units.


 


5.               No Right of Employment.  Neither the Plan nor this Restricted Stock
Unit Award shall be construed as giving you the right to be retained in the
employ of Avaya or any Subsidiary.


 


6.     Taxes.  Avaya shall deduct or cause to be deducted
from, or collect or cause to be collected with respect to, your Restricted
Stock Units any federal, state, or local taxes required by law to be withheld
or paid with respect to your Restricted Stock Units, and you or your legal
representative or beneficiaries shall be required to pay any such amounts.  Avaya shall have the right to take such
action as may be necessary, in Avaya’s opinion, to satisfy such obligations.


 





















 


7.               Beneficiary.  You may, in accordance with procedures
established by the Committee, designate one or more beneficiaries to receive
all or part of this award in case of your death, and you may change or revoke
such designation at any time.  Such
designation shall not be effective unless and until the Senior Vice President-
Human Resources shall determine, on advice of counsel, that resale of Shares by
your beneficiary(ies) does not require any registration, qualification, consent
or approval of any securities exchange or governmental or regulatory agency or
authority.  In the event of your death,
any portion of this Award that is subject to such a designation (to the extent
such designation is valid, effective and enforceable under this Agreement and
applicable law) shall be distributed to such beneficiary or beneficiaries in
accordance with this Agreement.  Any
other portion of this Award shall be distributed to your estate.  If there shall be any question as to the
legal right of any beneficiary to receive a distribution hereunder, or to the
extent your designation is not effective, such portion will be delivered to
your estate, in which event neither Avaya nor any Subsidiary shall have any
further liability to anyone with respect to such award.


 


8.               Governing Law.  The validity, construction and effect of this
Agreement shall be determined in accordance with the laws of the State of
Delaware without giving effect to principles of conflicts of law.


 


9.               Subject to Plan.  This Agreement and grant of Restricted Stock
Units are subject to all of the terms and conditions of the Plan.


 


	
  Please
  indicate your acceptance of terms 1-9, and acknowledge that you have received
  a copy of the Plan, as currently in effect, by signing at the place provided
  and returning the original of this Agreement.

  
	
   

  	
   

  
	
  ACCEPTED
  AND AGREED:

  	
  Avaya
  Inc.

  
	
  SIGNATURE

  	
  BY