Exhibit 10.1


 


 


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


FORM OF
PERFORMANCE VESTING RESTRICTED STOCK UNIT AWARD AGREEMENT


 


 


	
  Name

   

  «FirstName» «LastName»

  	
  Grant Date

   

  «GrantDate»

   

  
	
  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, «XX» restricted
stock units (“Restricted Stock Units”) (subject to Section 1 below). Upon
termination of the restrictions related thereto, each Restricted Stock Unit
will be converted into one share of Avaya Inc. (“Avaya” or “Company”) 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 upon the date the
Committee determines that the following condition has been satisfied:  that Avaya’s diluted earnings per share
(determined in accordance with U.S. Generally Accepted Accounting Principles (“GAAP”)
and as adjusted by the Items (defined below)) (“EPS”) for the fiscal year ended
September 30, 20XX, shall be at least $XX; provided, however, that the
percentage of Restricted Stock Units that may vest and become nonforfeitable
shall be determined based on the schedule attached hereto as Appendix A;
provided, further, however, that if the aggregate EPS total calculated by
combining Avaya’s EPS for each of the fiscal years ended September 30, 20XX through
and including September 30, 20XX is less than $XX, then all Restricted Stock
Units shall be forfeited and cancelled (the date on which any Restricted Stock
Unit vests being the “Vesting Date” for such Restricted Stock Unit).  Consistent with the terms of the Plan, the
Committee may, in its discretion, reduce the amount of any Award subject to
Article 22 of the Plan based on such criteria as it shall determine, including
but not limited to individual merit.


 


“Items” shall
include:


 


(a)                                  any of the following items that has an
impact on net income for a fiscal year of more than $XX million:


(i)    extraordinary items (net of applicable
taxes),


(ii)   cumulative effects of changes in accounting
principles, and


(iii)       nonrecurring items (net of applicable taxes)
including, but not limited to, gains or losses on asset dispositions and sales
of divisions, business units or subsidiaries, restructuring charges, gains and
losses from qualified benefit plan curtailments and settlements, and income or
expenses related to deferred tax assets, and


 


(b)           any of the following items that has
an impact on EPS for a fiscal year of more than $XX per share:


(i)    gains and losses (net of applicable  taxes) from the sales of securities, and


(ii)          the issuance or exercise of any dilutive securities
such as convertible debt, preferred stock, warrants, restricted stock units or
stock options.


 


                        The period
beginning on the October 1 immediately preceding the Grant Date (the “Period
Start Date”) 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.


 


(a)                                  Death - If you die prior to the Vesting Date,
then the Restriction Period will end and the award will be paid only if the
condition set forth in Section 1 is met after your date of death, in which case
the award will be paid as soon as practicable after the Vesting Date according
to the following formula and all other Restricted Stock Units not so paid will
be forfeited and cancelled:  the number
of Restricted Stock Units that will vest shall be determined by multiplying the
total number of Restricted Stock Units subject to  this award by a fraction, the numerator of
which shall be equal to the number of complete months which you survived
following the Period Start Date, and the denominator of which shall be equal to
the number of complete months in the Restriction Period.  In all other instances if you die prior to
the Vesting Date your award will be forfeited and cancelled.


 


(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.  If your employment is terminated prior to the
Vesting Date, then the Restriction Period will end and the award will be paid
only if the condition set forth in Section 1 is met after your date of termination,
in which case the award will be paid as soon as practicable after the Vesting
Date according to the following formula and all other Restricted Stock Units
not so paid will be forfeited and cancelled: 
the number of Restricted Stock Units that will vest shall be determined
by multiplying the total number of Restricted Stock Units subject to  this award by a fraction, the numerator of
which shall be equal to the number of complete months you were employed by Avaya
or any Subsidiary following the Period Start Date, and the denominator of which
shall be equal to the number of complete months in the Restriction Period.  In all other instances if you terminate your
employment as a result of a Disability, your award will be forfeited.


 


3.               Delivery
of Shares.   As soon as
practicable after termination of the Restriction Period, and subject to Section
6, 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.               Confidentiality;
Non-solicitation; Recoupment of Profits.


 


(a)                                  You recognize and acknowledge that during
your employment with Avaya you have had access to highly confidential and
proprietary Company information and trade secrets (“Proprietary Information,”
as described herein) and the use, misappropriation or disclosure of  Proprietary Information would cause
irreparable injury to Avaya; and it is essential to the protection of Avaya’s
good will and to the maintenance of Avaya’s competitive position that
Proprietary Information be kept secret and that you not disclose  Proprietary Information to others or use any
Proprietary Information to your own advantage or the advantage of any third
parties.  For purposes of this Agreement,
the term “Proprietary Information” shall include any and all information, in
any form whatsoever, including but not limited to, hard copy, computer floppy
diskette, CD, CD-ROM drive, information retained in electronic storage, or
other information storage means, relating to Avaya’s technology; techniques;
processes; tools; research and development; market research, data and strategy;
and, information relating to sales, pricing and customers, including
customer-specific sales information, pricing policies and strategies.


 


(b)                                 You further recognize and acknowledge
that it is vital for the proper protection of Avaya’s legitimate interests that
during the term of your employment and for a period of one (1) year from the
date of termination of your Avaya employment you may not directly or
indirectly: (i) solicit, induce, or attempt to induce employees of Avaya or any
affiliate of Avaya to terminate their employment with, or otherwise cease their
relationship with Avaya or any affiliated company; or (ii)  solicit, induce, hire or attempt to solicit,
induce or hire any employee of Avaya to work or provide services to any third
party; or (iii) solicit to divert or take away or attempt to divert or to take
away, the business or patronage of any of Avaya’s clients, customers or
accounts, or prospective clients, customers or accounts.


 


(c)                                  You agree that if you violate the terms
of this Section (a) or (b), this Agreement will be cancelled immediately in its
entirety, and any benefit already paid out within twelve (12) months prior to
Avaya’s notice to you of such violation shall, at the sole discretion of Avaya,
be required to be repaid to Avaya within ten (10) business days of Avaya’s
demand of you in writing.  Further,
insofar as any violation of this Section (a) or (b) may cause harm or injury to
Avaya which may not be calculable or remedial by way of monetary damages, you
understand and acknowledge that Avaya may initiate an action in law or in
equity to prevent you from engaging in any conduct which is in violation of
this Section (a) or (b) and/or to initiate an action to recoup any and all
profits you have earned as a result of this Agreement.


 


(d)                                 If any restriction set forth in this
Section is found by a court of competent jurisdiction to be unenforceable
because it extends for too long a period of time or over too great a range of
activities or in too broad a geographic area, it shall be interpreted to extend
over the maximum period of time, range of activities or geographic areas as to
which it may be enforceable.


 


(e)                                  You understand and agree that the
restrictions contained in this Section are necessary for the protection of the
business and goodwill of Avaya and are expressly considered by you to be
reasonable for such purpose.


 


9.               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.


 


10.         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 1-10, 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