EXHIBIT
10.41


 


 


 


AVAYA INC.


 


SAVINGS
RESTORATION PLAN


 


Effective January 1,
2004


 


 


 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1 INTRODUCTION

  	
   

  
	
  1.1 Purpose
  of Plan

  	
   

  
	
  1.2 Status
  of Plan

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2
  DEFINITIONS

  	
   

  
	
  2.1 “Account”

  	
   

  
	
  2.2 “Automatic
  Company Allocation”

  	
   

  
	
  2.3 “Beneficiary”

  	
   

  
	
  2.4 “Compensation”

  	
   

  
	
  2.5 “Change
  in Control”

  	
   

  
	
  2.6 “Code”

  	
   

  
	
  2.7 “Company”

  	
   

  
	
  2.8 “Effective
  Date”

  	
   

  
	
  2.9 “Elective
  Deferrals”

  	
   

  
	
  2.10 “Eligible
  Employee”

  	
   

  
	
  2.11 “Employee”

  	
   

  
	
  2.12 “Employer”

  	
   

  
	
  2.13 “ERISA”

  	
   

  
	
  2.14 “Limit”

  	
   

  
	
  2.15 “Matching
  Allocation”

  	
   

  
	
  2.16 “Participant”

  	
   

  
	
  2.17 “Plan”

  	
   

  
	
  2.18 “Plan
  Administrator”

  	
   

  
	
  2.19 “Plan
  Year”

  	
   

  
	
  2.20 “Qualified
  Plan”

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3
  ELIGIBILITY AND PARTICIPATION

  	
   

  
	
  3.1
  Eligibility

  	
   

  
	
  3.2 Participation

  	
   

  
	
   

  	
   

  
	
  ARTICLE 4
  CONTRIBUTIONS

  	
   

  
	
  4.1
  Elective Deferrals

  	
   

  
	
  4.2
  Elections

  	
   

  
	
  4.3
  Automatic Company Allocations

  	
   

  
	
  4.4
  Matching Allocations

  	
   

  
	
   

  	
   

  
	
  ARTICLE 5
  ACCOUNTS

  	
   

  
	
  5.1
  Accounts

  	
   

  
	
  5.2
  Investments

  	
   

  
	
  5.3
  Statements

  	
   

  
	
   

  	
   

  
	
  ARTICLE 6
  VESTING

  	
   

  



 


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  ARTICLE 7
  DISTRIBUTION OF ACCOUNTS

  	
   

  
	
  7.1
  Election of Payment Form

  	
   

  
	
  7.2 Death

  	
   

  
	
  7.3 Taxes

  	
   

  
	
   

  	
   

  
	
  ARTICLE 8
  PLAN ADMINISTRATION

  	
   

  
	
  8.1
  Establishment and Authority of Committee

  	
   

  
	
  8.2
  Committee Procedures

  	
   

  
	
  8.3
  Communications to the Committee

  	
   

  
	
  8.4 Claims
  Procedure

  	
   

  
	
  8.5
  Delegation of Duties

  	
   

  
	
  8.6
  Appropriate Forms

  	
   

  
	
  8.7
  Liability for Breach of Duty by Others

  	
   

  
	
  8.8
  Indemnity for Liability

  	
   

  
	
  8.9 Powers,
  Duties, Procedures

  	
   

  
	
  8.10
  Information

  	
   

  
	
   

  	
   

  
	
  ARTICLE 9
  AMENDMENT AND TERMINATION

  	
   

  
	
  9.1
  Authority to Amend and Terminate

  	
   

  
	
  9.2
  Existing Rights

  	
   

  
	
   

  	
   

  
	
  ARTICLE 10
  MISCELLANEOUS

  	
   

  
	
  10.1 No
  Funding

  	
   

  
	
  10.2
  General Creditor Status

  	
   

  
	
  10.3
  Non-assignability

  	
   

  
	
  10.4
  Limitation of Participant’s Rights

  	
   

  
	
  10.5
  Participants Bound

  	
   

  
	
  10.6
  Satisfaction of Claims; Unclaimed Benefits

  	
   

  
	
  10.7
  Governing Law and Severability

  	
   

  
	
  10.8 Not
  Contract of Employment

  	
   

  
	
  10.9
  Severability

  	
   

  
	
  10.10
  Headings

  	
   

  



 


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Avaya Inc.

Savings Restoration Plan


 


As Effective January 1, 2004


 


ARTICLE 1

INTRODUCTION


 


1.1                               Purpose
of Plan.  Avaya Inc. (the “Company”)
established the Avaya Inc. Savings Restoration Plan (the “Plan”) to provide
certain eligible employees certain benefits otherwise limited under the Avaya
Inc. Savings Plan for Salaried Employees due to certain limitations established
under the Internal Revenue Code for such plan. 
The Plan is hereby effective January 1, 2004.


 


1.2                               Status
of Plan.  The Plan is intended to
be an unfunded plan maintained by the Company “primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees” within the meaning of Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, and the Plan shall be interpreted and administered
consistent with this intent.


 


ARTICLE 2

DEFINITIONS


 


Wherever used herein, the
following terms have the meanings set forth below, unless a different meaning
is clearly required by the context:


 


2.1                               “Account” means
an account established for the benefit of a Participant under Section 5.1,
which may include one or more sub-accounts.


 


2.2                               “Automatic
Company Allocation” means an allocation as described in Section 4.1
by the Employer for the benefit of a Participant who is an Eligible Employee.


 


2.3                               “Beneficiary” means
the beneficiary or beneficiaries designated by a Participant or otherwise under
Section 7.2 to receive an amount, if any, payable from such Participant’s
Account upon the death of the Participant.


 


2.4                               “Compensation” means
base pay (before reductions under Code Sections 125, 401(k) and 132(f)),
payments received under the Avaya Inc. Short-Term Disability Plan for Salaried
Employees, short-term incentive compensation plan awards, and marketing and
sales incentive compensation paid to a Participant while employed as an
Eligible Employee.


 


2.5                               “Change
in Control” means:


 


(i)                                     an
acquisition by any individual, entity or group (within the meaning of Section 13
(d)(3) or 14 (d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), (an “Entity”) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of either (A) the then
outstanding shares of common stock


 





















 


of the Company (the “Outstanding
Company Common Stock”) or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company Voting Securities”); excluding,
however, the following: (1) any acquisition directly from the Company, other
than an acquisition by virtue of the exercise of a conversion privilege unless
the security so being converted was itself acquired directly from the Company,
(2) any acquisition by the Company, (3) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (4) any acquisition by any
corporation pursuant to a transaction which complies with clauses (A), (B) and
(C) of subsection (3) of this Section; or


 


(ii)                                  a
change in the composition of the Board such that the individuals who, as of the
Effective Date, constitute the Board (such Board shall be hereinafter referred
to as the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board; provided, however, that for purposes of
this definition, that any individual who becomes a member of the Board
subsequent to the Effective Date, whose election, or nomination for election by
the Company’s stockholders, was approved by a vote of at least a majority of
those individuals who are members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of the Incumbent Board; and provided,
further  however, that any such individual whose initial
assumption of office occurs as a result of or in connection with either an
actual or threatened solicitation by an Entity other than the Board for the
purpose of opposing a solicitation by any other Entity with respect to the
election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of an Entity other than the Board shall not
be so considered as a member of the Incumbent Board; or


 


(iii)                               the
approval by the stockholders of the Company of a merger, reorganization or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (each, a “Corporate Transaction”) or, if consummation of
such Corporate Transaction is subject, at the time of such approval by
stockholders, to the consent of any government or governmental agency, the
obtaining of such consent (either explicitly or implicitly by consummation);
excluding however, such a Corporate Transaction pursuant to which (A) all or
substantially all of the individuals and entities who are beneficial owners,
respectively, of the Outstanding Company Stock and Outstanding Company Voting
Securities immediately prior to such Corporate Transaction will beneficially
own, directly or indirectly, more than 60% of, respectively, the outstanding
shares of common stock, and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such


 


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Corporate Transaction
(including, without limitation, a corporation or other individual, partnership,
association, joint-stock company, trust, unincorporated organization, limited
liability company, other entity or government or political subdivision which as
a result of such transaction owns the Company or all or substantially all of
the Company’s assets either directly or through one or more subsidiaries (a “Parent
Company”)) in substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be,
(B) no Entity (other than the Company, any employee benefit plan (or
related trust) of the Company, such corporation resulting from such Corporate
Transaction or, if reference was made to equity ownership of any Parent Company
for purposes of determining whether clause (A) above is satisfied in connection
with the applicable Corporate Transaction, such Parent Company) will
beneficially own, directly or indirectly, 50% or more of, respectively, the
outstanding shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the outstanding voting
securities of such corporation entitled to vote generally in the election of
the directors unless such ownership resulted solely from ownership of
securities of the Company prior to the Corporate Transaction, and (C)
individuals who were members of the Incumbent Board will immediately after the
consummation of the Corporate Transaction constitute at least a majority of the
members of the board of directors of the corporation resulting from such
Corporate Transaction (or, if reference was made to equity ownership of any
Parent Company for purposes of determining whether clause (A) above is
satisfied in connection with the applicable Corporate Transaction, of the
Parent Company); or


 


(iv)                              the
approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.


 


2.6                               “Code” means
the Internal Revenue Code of 1986, as amended from time to time, and the
regulations and rulings issued thereunder. 
Reference to any section or subsection of the Code includes
reference to any comparable or succeeding provisions of any legislation that
amends, supplements or replaces such section or subsection.


 


2.7                               “Company”
means Avaya Inc., a Delaware corporation, or any successor corporation
thereto.


 


2.8                               “Effective
Date” means January 1, 2004, the date of the establishment of the
Plan.


 


2.9                               “Elective
Deferrals” means amounts an Eligible Employee elects to defer under the
Plan pursuant to Section 4.1.


 


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2.10                        “Eligible
Employee” means any Employee designated by the Company in its sole
discretion as an Eligible Employee, who satisfies the eligibility requirements
set forth in Article 3.


 


2.11                        “Employee”
means an employee of an Employer who is an “eligible employee” under the
Qualified Plan.


 


2.12                        “Employer”
means the Company or an affiliated corporation of the Company that is a “participating
company” under the Qualified Plan.


 


2.13                        “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations and rulings issued thereunder.  Reference to any section or subsection of
ERISA includes reference to any comparable or succeeding provisions of any
legislation that amends, supplements or replaces such section or
subsection.


 


2.14                        “Limit”
means the Code Section 401(a)(17) limit on Compensation or the Code Section 415
limit on allocations under the Qualified Plan.


 


2.15                        “Matching
Allocation” means an allocation by the Employer for the benefit of a
Participant who is an Eligible Employee, as described in Section 4.2.


 


2.16                        “Participant”
means a current or former Eligible Employee who participates in the Plan in
accordance with Article 3 or maintains an Account balance hereunder.


 


2.17                        “Plan”
means the Avaya Inc. Savings Restoration Plan as provided herein and as
amended from time to time.


 


2.18                        “Plan
Administrator” shall mean the person(s) designated in Section 8.4.


 


2.19                        “Plan
Year” means the calendar year.


 


2.20                        “Qualified
Plan” means the Avaya Inc. Savings Plan for Salaried Employees, as amended
from time to time.


 


ARTICLE 3

ELIGIBILITY AND PARTICIPATION


 


3.1                               Eligibility.  An Eligible Employee shall be eligible to
participate in the Plan.


 


3.2                               Participation.  An Eligible Employee shall become a
Participant in the Plan on the first date an amount is credited to his or her
Account.  A Participant in the Plan shall
continue to be a Participant so long as any amount remains credited to his or
her Account.


 


ARTICLE 4

CONTRIBUTIONS


 


4.1                               Elective
Deferrals.  With respect to any
Plan Year, an Eligible Employee may irrevocably elect to defer, on a pre-tax
basis, up to 25% (in whole percentages) of his or her


 


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Compensation
after reaching a Limit for the Plan Year. 
The deferral percentage elected by an Eligible Employee shall only apply
to Compensation after a Limit is reached for a Plan Year.  Such an election is a separate and
independent election from an election to defer Compensation under the Qualified
Plan.


 


4.2                               Elections.


 


(a)                                  Time for Making Elective Deferral Elections.


 


(i)                                     Generally.  An election to defer Compensation must be
made on or before September 30 prior to the calendar year in which such
Compensation is earned.  The Plan
Administrator will notify each Eligible Employee of the applicable election
period and deadline for filing such elections. 
Notwithstanding the foregoing, an election to defer Compensation for the
first Plan Year must be made before January 1, 2004.


 


(ii)                                  Newly
Eligible Employees.  In the case of
an individual who first becomes an Eligible Employee during a Plan Year, such
Eligible Employee must make an election to defer Compensation within 30 days
after the Employee becomes an Eligible Employee.  Such an election shall be effective beginning
with the first administratively feasible payroll period beginning after the
date the Eligible Employee submits his or her election to the Plan
Administrator.  Such an election shall be
effective only with respect to Compensation earned after the effective date of
the election.


 


(b)                                 Deferral Forms; Irrevocability.  All deferral election forms must be timely
filed, recorded or otherwise made in the manner prescribed by the Plan
Administrator.  An Eligible Employee may
change a prior election up to the date established under Section 4.3(a),
as applicable.  However, from and after
the last date permitted for making such elections, all deferral elections
pursuant to this Article 4 shall be irrevocable.


 


(c)                                  No Election.  An Eligible Employee’s deferral election for
a Plan Year shall apply to subsequent Plan Years until he or she revokes such
election.


 


4.3                               Automatic
Company Allocations.  Each
payroll period after an Eligible Employee reaches a Limit for a Plan Year, the
Plan Administrator shall credit an Automatic Company Allocation to such
Eligible Employee’s Account.  The
Automatic Company Allocation for an Eligible Employee shall equal two percent
multiplied by the Eligible Employee’s Compensation for the payroll period after
the Eligible Employee reached a Limit for the Plan Year.


 


4.4                               Matching
Allocations.  A Participant who
reaches a Limit for a Plan Year shall receive a Matching Allocation equal to
the excess of:  (a) the sum of (i) 100%
of the Participant’s Elective Deferrals under this Plan and contributions
(excluding catch up and rollover contributions) under the Qualified Plan up to
2% of Compensation plus (ii) 50% of the Participant’s Elective Deferrals under
this Plan and contributions (excluding catch up and rollover contributions)
under the Qualified Plan in excess of 2% of Compensation, up to 6% of


 


5





















 


Compensation,
over (b) such Participant’s matching contributions under the Qualified Plan for
the Plan Year.


 


ARTICLE 5

ACCOUNTS


 


5.1                               Accounts.  The Plan Administrator shall establish an
Account for each Participant to reflect allocations, if any, made for the
Participant’s benefit together with any adjustments for income, gain or loss
and any payments from the Account.  A
separate sub-account shall be established for Elective Deferrals, Automatic
Company Allocations, and Matching Allocations. 
The Accounts are established solely for the purposes of tracking
allocations and any income adjustments thereto. 
The Accounts shall not be used to segregate assets for payment of any
amounts deferred or allocated under the Plan.


 


5.2                               Investments.


 


(a)                                  Amounts
credited to each Participant’s Account shall be deemed invested, in accordance
with the Participant’s directions, in one or more investment funds that are
available under the Plan.  If a
Participant does not make investment elections with respect to amounts credited
to his or her Account, such amounts shall be deemed invested in the investment
fund as the Avaya Inc. Investment Committee may direct.


 


(b)                                 A
Participant shall make his or her investment fund selections at such time as he
or she makes a Deferral Election, as described in Article 4.  Investments must be made in whole
percentages.  From time to time, pursuant
to uniform nondiscriminatory rules established by the Plan Administrator, a
Participant may change his or her investment elections or may reallocate
amounts invested among the investment funds available under the Plan.


 


(c)                                  Expense
charges for transactions performed for each Participant’s Account shall be
debited against each respective Account. 
Other Plan charges and administrative expenses will be debit against
Participant Accounts to the extent not paid by the Employer.


 


5.3                               Statements.  Periodically, the Plan Administrator
shall provide the Participant with access to a statement of such Participant’s
Account reflecting the deemed income, gains and losses (realized and
unrealized), contributions and distributions with respect to such Account since
the prior statement.


 


ARTICLE 6

VESTING


 


Subject to Plan Section 10.2,
a Participant shall have a fully vested and nonforfeitable right to his or her:


 


(a)                                  Elective
Deferral subaccount at all times, and


 


(b)                                 Automatic
Company Allocation and Matching Allocation subaccounts on the earlier of the
date he or she becomes 100 percent vested under the Qualified Plan or the date
of a Change in Control.


 


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ARTICLE 7

DISTRIBUTION OF ACCOUNTS


 


7.1                               Election
of Payment Form.  Except as
otherwise permitted in this Article 7, a Participant may elect, on a form
provided by the Plan Administrator, one of the following payment options for
all amounts credited to such Participant’s Account:


 


(a)                                  a
lump sum payment as soon as practicable after termination of employment;


 


(b)                                 a
lump sum payment in the January following termination of employment; or


 


(c)                                  annual
installments over a period of up to ten years (as elected by the Participant).


 


Notwithstanding the
foregoing, a Participant’s Account shall be paid as a lump sum payment pursuant
to paragraph (b) if: (i) the amounts credited to a Participant’s Account do not
exceed $100,000 when he or she terminates employment, or (ii) the Participant
does not make a payment form election. 
Notwithstanding the foregoing, if there is a Change of Control, each
Participant’s Account shall be paid as a lump sum payment as soon as
practicable after such Change of Control.


 


Any election of payment
form shall be made during the time for making an elective deferral election in Section 4.2.  After such an election is made it shall be
irrevocable until the next period under Section 4.2 during which such
Participant could make an elective deferral election.


 


Payments from a
Participant’s Account may be in cash or in property, as determined by the Plan
Administrator or the trustee of any existing trust from which payment is made.


 


For purposes of the Plan,
a Participant shall terminate employment when the Participant separates from
service with an Employer and all majority-owned subsidiaries of the
Company.  In addition, termination of
employment shall include when a Participant separates from service due to a
permanent disability.  However, temporary
absence from employment because of illness, vacation, approved leaves of
absences, and transfers of employment among the Employers and the Company’s
majority-owned subsidiaries shall not be considered a termination of employment
or an interruption of employment.


 


7.2                               Death.  If a Participant dies before payment of his
or her Account, all amounts credited to the Participant’s Account shall be paid
to the Participant’s designated Beneficiary in a single lump sum as soon as
practicable following the date of the Participant’s death.


 


A Participant may
designate a Beneficiary by notifying the Plan Administrator in writing, at any
time before Participant’s death, on a form prescribed by the Plan Administrator
for that purpose.  A Participant may
revoke any Beneficiary designation or designate a new Beneficiary at any time
without the consent of a Beneficiary or any other person.  If no Beneficiary is designated or no
Beneficiary survives the Participant, payment shall be made to the Participant’s
surviving spouse, or if none, to the Participant’s estate.


 


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7.3                               Taxes.  Income taxes and other taxes payable with
respect to an Account shall be deducted from such Account.  All federal, state or local taxes that the
Plan Administrator determines are required to be withheld from any payments
made pursuant to this Article 7 shall be withheld.


 


ARTICLE 8

PLAN ADMINISTRATION


 


8.1                               Establishment
and Authority of Committee.


 


(a)                                  Committee.  The
Board of Directors of the Company has appointed the Employee Benefits
Committee, which shall serve as the “plan administrator” and “named fiduciary”
as those terms are defined in ERISA.  The
Employee Benefits Committee shall serve as the final review committee, under
the Plan, to determine conclusively for all parties any and all questions
arising from the administration of the Plan and shall have sole and complete
discretionary authority and control to manage the operation and administration
of the Plan, including, but not limited to the determination of all questions
relating to eligibility for participation and benefits, interpretation of all
Plan provisions, determination of the amount and kind of benefits payable to
any Participant, spouse or Beneficiary, construction of disputed or doubtful
terms, to employ the services of service providers, consultants and others who
may be employees of the Company, and to take such other action as it may find
necessary or appropriate to discharge its responsibilities with respect to the
Plan.  Such decision shall be conclusive
and binding on all parties and not subject to further review.  The Company has appointed members who may be
employees of the Company to serve on the Employee Benefits Committee.


 


(b)                                 Rules.  The
Company shall adopt rules for operation of the Committee.  The Committee shall have authority to adopt
such further rules, not inconsistent with those adopted by the Company, as the
Committee may find appropriate.  The
Company and the Committee may each employ persons to render advice with regard
to any of its responsibilities under the Plan. 
The Company and the Committee may delegate authority with respect to
certain matters to officers or Employees of the Company.


 


(c)                                  Appointment of Plan Administrator.  The Employee Benefits Committee
shall appoint or provide for the appointment of a person, to be known as the
Plan Administrator, who shall have authority to grant or deny claims for
benefits under the Plan.  Benefits under
this Plan will be paid only if the Plan Administrator decides in the Plan
Administrator’s discretion that the applicant is entitled to them.  The Secretary of the Employee Benefits
Committee has the authority to appoint a Temporary Plan Administrator, should
the Plan Administrator be unable to act, in the event of an emergency or due to
absence of one week or more.  During the
period covered by the appointment, the Temporary Plan Administrator shall have
all the powers and duties that have been assigned to the Plan Administrator.


 


8.2                               Committee
Procedures.


 


(a)                                  No
Committee member at any time acting hereunder who is a Participant shall have
any voice in any decision of the Committee made uniquely with respect to such
Committee member or his or her participation or benefits hereunder.


 


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(b)                                 In
the event of any disagreement among the Committee members at any time acting
hereunder and authorized to act with respect to any matter, the decision of a
majority of said Committee members authorized to act upon such matter shall be
controlling and shall be binding and conclusive upon all persons.


 


(c)                                  Each
additional and each successor Committee member at any time acting hereunder
shall have all of the rights and powers and all of the privileges and
immunities hereby conferred upon the original Committee members hereunder, and
all of the duties and obligation so imposed upon the original Committee members
hereunder.


 


8.3                               Communications
to the Committee.  Communications
to the Employee Benefits Committee shall be addressed to the Secretary,
Employee Benefits Committee, 211 Mt. Airy Road, Basking Ridge, NJ 07920.  The Secretary of the Employee Benefits
Committee is hereby designated as agent for service of legal process with
respect to any claims arising under the Plan.


 


8.4                               Claims
Procedure.


 


(a)                                  Initial Claim Determination.  Claims by a Participant or
beneficiary shall be presented in writing to the Plan Administrator.  The Plan Administrator shall review the claim
and determine whether the claim should be approved or denied.  In the event the claim is denied (in whole or
in part), the Plan Administrator shall notify the Participant or Beneficiary in
writing of such denial within 90 days after receipt of the claim.  The letter of denial shall set forth the
following information:


 


(i)                                     the
specific reason or reasons for the denial;


 


(ii)                                  specific
reference to pertinent Plan provisions on which the denial is based;


 


(iii)                               a
description of any additional material or information necessary for the claimant
to perfect the claim and an explanation of why such material or information is
necessary;


 


(iv)                              an
explanation that a full and fair review by the Employee Benefits Committee of
the decision denying the claim may be requested by the claimant or his or her
authorized representative by filing with the Committee, within 60 days after
such notice has been received, a written request for such review; and


 


(v)                                 an
explanation that if such request is so filed, the claimant or his or her
authorized representative may review relevant documents and submit issues and
comments in writing within the same 60 day period specified in Paragraph
(a)(iv) above.


 


If a claimant receives no
response from the Plan Administrator, the claim is considered denied.


 


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(b)                                 Extension of Time for Notice of Denial.  If special circumstances require
an extension of time beyond the 90 day period, the claimant shall be so advised
in writing within the initial 90 day period. 
In no event shall such extension exceed an additional 90 days.


 


(c)                                  Appeal of Plan Administrator’s Determination.  Any claimant may submit a written
request for review of the decision denying the claim if:


 


(i)                                     The
claim is denied by the Plan Administrator;


 


(ii)                                  No
reply at all is received after 90 days; or


 


(iii)                               The
Plan Administrator has extended the time by an additional 90 days and no reply
is received.


 


In such case, the
Employee Benefits Committee shall make a full and fair review of such decision
within 60 days after receiving a request for review and notify the claimant in
writing of the review decision.


 


(d)                                 Time of Committee Decision.  The decision of the Employee
Benefits Committee shall be made promptly, and not later than 60 days after the
Committee receives the request for review, unless special circumstances require
an extension of time for processing, in which case a decision shall be rendered
as soon as possible, but not later than 120 days after receiving the request
for review.  The claimant shall be given
a copy of the decision promptly.  The
decision shall be in writing and shall include specific reasons for the
decision, written in a manner calculated to be understood by the claimant, and
specific references to the pertinent Plan provisions on which the decision is
based.  If the Employee Benefits
Committee does not respond within 60 or 120 days, the claimant may consider the
appeal denied.


 


(e)                                  Exhaustion of Remedy. 
No claimant shall institute any action or proceeding in any
state or federal court of law or equity, or before any administrative tribunal
or arbitrator, for a claim for benefits under the Plan, until he or she has
first exhausted the procedures set forth in this Section.


 


8.5                               Delegation
of Duties.  The Committee may
engage such persons (who may be employees of the Company) as it shall determine
to perform on its behalf the services required of it hereunder, and may, by a
written instrument, (a) designate one or more of them to execute all documents
and other instruments proper, necessary or desirable in order to effectuate the
purposes of the Plan and (b) change any such designation theretofore made, and
any Committee member may so revoke any such designation theretofore made.  Any third party may rely upon the continued
effectiveness of any such a delegation until such third party is given notice
of the change or revocation thereof.


 


8.6                               Appropriate
Forms.  To the extent that the
Committee and the Employers shall prescribe forms for use by the Participants
and their respective Beneficiaries in communicating with the Committee or the
Employers, as the case may be, and shall establish periods during which
communications may be received, they shall respectively be protected in
disregarding any notice or communication for which a form shall so have been
prescribed and which shall not be made in such form, and any notice or
communication for the receipt of which a period shall so


 


10





















 


have been
established and which shall not be received during such period.  The Committee and the Employers shall
respectively also be protected in acting upon any notice or other communication
purporting to be signed by any person and reasonably believed to be genuine and
accurate, or in accepting any notice or communication which shall not be on the
proper form and/or shall not be received during the proper period, and shall
not be deemed imprudent by reason of so doing.


 


8.7                               Liability
for Breach of Duty by Others.


 


(a)                                  Except
as otherwise provided in ERISA § 405(a):


 


(i)                                     No
member of the Employee Benefits Committee shall be answerable or accountable
for any act, default, neglect or misconduct of any person to whom authority is
delegated or of any other person transacting business with the Committee if
such person shall have been selected by the Committee or the Company in good
faith and if the selection of such person shall not constitute a violation of
ERISA § 404(a)(1);


 


(ii)                                  No
member of the Employee Benefits Committee shall be answerable or accountable
for any act, default, neglect or misconduct of any other Committee member or
Committee members or be otherwise answerable or accountable under any
circumstances whatever except for his or her own bad faith to the extent that
responsibilities, obligations or duties have been allocated to such other
Committee member or Committee members; and


 


(iii)                               No
auditor, accountant or legal counsel retained by the Employee Benefits
Committee or any person engaged by the Committee shall be answerable or
accountable under any circumstances whatever except for the breach of
responsibilities, obligations or duties specifically imposed upon and allocated
to him or her by the Committee.


 


(b)                                 In
the administration of the Plan and the members of the Committee, as
appropriate, shall discharge their duties solely in the interest of the
Participants, and their Beneficiaries and:


 


(i)                                     for
the exclusive purpose of providing benefits to the Participants, and their
Beneficiaries and the payment of the reasonable administrative expenses of the
Plan; and


 


(ii)                                  with
the care, skill, prudence and diligence under the circumstances then prevailing
that a prudent person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aim.


 


(c)                                  In
addition to all rights to allocate and delegate responsibilities, obligations,
or duties specifically granted to the Committee by the provisions hereof, it is
specifically understood that the Committee is hereby granted, and shall always
have, to the fullest extent allowed by law, the power to delegate and allocate,
by a written instrument executed by all of the


 


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members of the
Committee and revocable by any of them, any and all specific responsibilities,
obligations or duties among themselves and to delegate to any other person,
firm or corporation the responsibility to carry out any responsibilities of the
Committee hereunder and, to the extent of any such allocation or delegation,
shall have no responsibility for any acts or omissions of the members of the
Committee or of any other person, firm or corporation to whom such
responsibilities, obligations or duties have been allocated or delegated.


 


8.8                               Indemnity
for Liability.  To the maximum
extent allowed by law and to the extent not otherwise indemnified, the Company
shall indemnify the members (and former members) of the Committee, and any
other current or former officer, director, or Employee of the Company, against
any and all claims, losses, damages, expenses, including counsel fees, incurred
by such persons and any liability, including any amounts paid in settlement
with the Company’s approval, arising from such person’s action or failure to
act.


 


8.9                               Powers,
Duties, Procedures.  .The
Plan Administrator shall have such powers and duties, may adopt such rules and
tables, may act in accordance with such procedures, may appoint such officers
or agents, may delegate such powers and duties, may receive such reimbursements
and compensation, and shall follow such claims and appeal procedures with
respect to the Plan as the Plan Administrator may establish.


 


8.10                        Information.  To enable the Plan Administrator to
perform its functions, the Employer shall supply full and timely information to
the Plan Administrator on all matters relating to the compensation of
Participants, their employment, retirement, death, termination of employment,
and such other pertinent facts as the Plan Administrator may require.


 


ARTICLE 9

AMENDMENT AND TERMINATION


 


9.1                               Authority
to Amend and Terminate.  Subject
to Section 9.2, the Board of Directors of the Company (or a delegate of
the Board) shall have the right to amend or terminate the Plan at any
time.  If the Plan is terminated and a
trust is established (as described in Section 10.1), the Company may
(a) elect to continue to maintain the trust to pay benefits hereunder as
they become due as if the Plan had not terminated, or (b) direct the
trustee to pay promptly to Participants (or their Beneficiaries) the balance of
their Accounts.


 


9.2                               Existing
Rights.  No amendment or
termination of the Plan shall adversely affect the rights of any Participant
with respect to amounts that have been credited to his or her Account prior to
the later of the date such amendment or termination is adopted or effective.


 


ARTICLE 10

MISCELLANEOUS


 


10.1                        No
Funding.  The Company intends that the Plan
constitute an “unfunded” plan for tax purposes and for purposes of Title I of
ERISA; provided that the Plan Administrator may authorize the creation of trusts
and deposit therein cash or other property, or make other arrangements to meet
the Company’s obligations under the Plan. 
Notwithstanding the foregoing, the Plan Administrator shall establish
such a trust upon a Change in Control, if none has previously been established,
and the Company shall make a contribution to such trust effective as


 


12





















 


of the date of
the Change in Control in an amount equal to the sum of the value of the
Participants’ Accounts under the Plan as of such date and all contributions
made to the Trust as of the date of the Change in Control shall thereafter be
irrevocable until all Accounts under the Plan have been paid in full.  In the event that such a trust or other
arrangement is established, any Allocations under the Plan may be made in cash
or in property (either in part or in whole), including common stock of the
Company.


 


10.2                        General
Creditor Status.  The Plan
constitutes a mere promise by each Employer to make payments in accordance with
the terms of the Plan to Participants (and their Beneficiaries) employed by
that Employer.  Participants (and their
Beneficiaries) shall be unsecured creditors of their Employer.  Nothing in the Plan will be construed to give
any employee or any other person rights to any specific assets of any Employer
or of any other person.


 


10.3                        Non-assignability.  None of the benefits, payments, proceeds
or claims of any Participant or Beneficiary shall be subject to any claim of
any creditor of any Participant or Beneficiary and, in particular, the same
shall not be subject to attachment or garnishment or other legal process by any
creditor of such Participant or Beneficiary, nor shall any Participant or
Beneficiary have any right to alienate, anticipate, commute, pledge, encumber
or assign any of the benefits or payments or proceeds that he or she may expect
to receive, contingently or otherwise under the Plan.


 


10.4                        Limitation
of Participant’s Rights.  Nothing
contained in the Plan shall confer upon any person a right to be employed or to
continue in the employ of an Employer, or to interfere, in any way, with an
Employer’s right to terminate the employment of a Participant in the Plan at
any time, with or without cause.


 


10.5                        Participants
Bound.  Any action with respect
to the Plan taken by the Plan Administrator or a trustee (if any), or any
action authorized by or taken at the direction of the Plan Administrator or a
trustee (if any), shall be conclusive upon all Participants and Beneficiaries
entitled to benefits under the Plan.


 


10.6                        Satisfaction
of Claims; Unclaimed Benefits.  Any
payment to any Participant or Beneficiary in accordance with the provisions of
the Plan shall, to the extent thereof, be in full satisfaction of all claims
under the Plan against the Employer, the Plan Administrator and a trustee (if
any) under the Plan, and the Plan Administrator may require such Participant or
Beneficiary, as a condition precedent to such payment, to execute a receipt and
release to such effect.  If any Participant
or Beneficiary is determined by the Plan Administrator to be incompetent by
reason of physical or mental disability (including minority) to give a valid
receipt and release, the Plan Administrator may cause the payment or payments
becoming due to such person to be made to another person for his or her benefit
without responsibility on the part of the Plan Administrator, the Employer or a
trustee (if any) to follow the application of such funds.  In the case of a benefit payable on behalf of
a Participant, if the Plan Administrator is unable to locate the Participant or
beneficiary to whom such benefit is payable, upon the Plan Administrator’s
determination thereof, such benefit shall be forfeited to the Company.  Notwithstanding the foregoing, if subsequent
to any such forfeiture the Participant or Beneficiary


 


13





















 


to whom such
benefit is payable makes a valid claim for such benefit, such forfeited benefit
shall be restored to the Plan by the Company.


 


10.7                        Governing
Law and Severability.  The Plan
shall be construed, administered, and governed in all respects under and by the
laws of the State of Delaware (without regard to principles of conflicts of
laws) to the extent not preempted by federal law, which shall otherwise
control.  If any provision is held by a
court of competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.


 


10.8                        Not
Contract of Employment.  The
adoption and maintenance of the Plan shall not be deemed to be a contract
between the Company and any person or to be consideration for the employment of
any person.  Nothing herein contained
shall be deemed to give any person the right to be retained in the employ of
the Company or to restrict the right of the Company to discharge any person at
any time nor shall the Plan be deemed to give the Company the right to require
any person to remain in the employ of the Company or to restrict any person’s
right to terminate his employment at any time.


 


10.9                        Severability.  If any provision of this Plan shall be
held illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining provisions hereof; instead, each provision shall be fully
severable and the Plan shall be construed and enforced as if said illegal or
invalid provision had never been included herein.


 


10.10                 Headings.  Headings and subheading in the Plan are
inserted for convenience only and are not to be considered in the construction
of the provisions hereof.


 


*                                         *                                         *


 


IN WITNESS WHEREOF, the Company has caused this Plan to
be effective as of January 1, 2004 and to be executed this           day
of November, 2003.


 


	
   

  	
  AVAYA
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Michael J.
  Harrison

  
	
   

  	
   

  	
  Vice
  President, Global Compensation and

  
	
   

  	
   

  	
  Benefits

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attest:

  	
   

  	
   

  
					



 


 


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