AVAYA-EX10.43_2014.9.30-10K






Exhibit 10.43


AVAYA HOLDINGS CORP.
SECOND AMENDED AND RESTATED 2007 EQUITY INCENTIVE PLAN
NONSTATUTORY STOCK OPTION AWARD AGREEMENT


THIS AWARD AND ANY SECURITIES ISSUED UPON EXERCISE OF THIS OPTION ARE SUBJECT TO RESTRICTIONS ON VOTING AND TRANSFER AND REQUIREMENTS OF SALE AND OTHER PROVISIONS AS SET FORTH IN THE MANAGEMENT STOCKHOLDERS’ AGREEMENT.
AVAYA HOLDINGS CORP. STRONGLY ENCOURAGES YOU TO SEEK THE ADVICE OF YOUR OWN LEGAL AND FINANCIAL ADVISORS WITH RESPECT TO YOUR AWARD AND ITS TAX CONSEQUENCES.


This agreement (the “Agreement”) evidences a stock option granted by Avaya Holdings Corp. (the “Company”), to the undersigned (the “Award Recipient”), pursuant to, and subject to the terms of, the Second Amended and Restated 2007 Equity Incentive Plan (the “Plan”), which is incorporated herein by reference.


1.    Grant of Option. This Agreement evidences the grant by the Company to the Award Recipient on the date of grant set forth in the grant details table above (“Date of Grant”) of an option (the “Option”) to purchase, in whole or in part, on the terms provided herein and in the Plan, the total number of shares of Stock  (the “Shares”), having an exercise price equal to the Fair Market Value of the Stock on the Date of Grant, in each case as set forth in the table above and subject to adjustment pursuant to Section 7 of the Plan.  The Option will vest in accordance with Section 3 below.
The Option evidenced by this Agreement is intended to be a non-statutory option (that is, an option not described in subsection (b) of Code Section 422). 
2.    Meaning of Certain Terms.  Except as otherwise defined herein, all capitalized terms used in this Agreement shall have the same meaning as in the Plan.    The following terms shall have the following meanings:
		
	(a)
	“Beneficiary” means, in the event of the Award Recipient’s death, the beneficiary, in order of succession:


		
	(i)
	named in the written designation (in form acceptable to the Administrator) most recently filed with the Administrator by the Award Recipient prior to death and not subsequently revoked prior to the death of the Award Recipient, or


		
	(ii)
	if there is no such designated beneficiary, the executor or administrator of the Award Recipient’s estate.  


If any portion of the Option has been transferred to a Permitted Transferee who is a natural person, and such Permitted Transferee dies while such Option or transferred portion thereof is outstanding, the Option or portion thereof so transferred may thereafter be exercised, to the extent it remains exercisable and subject to such limitations as the Administrator may impose, by the person or persons to whom it passed from the Permitted Transferee according the applicable laws of descent and distribution.
		
	(b)
	“Merger” has the same meaning as that term is defined in the Management Stockholders’ Agreement.


		
	(c)
	“Option Holder” means the Award Recipient or, if as of the relevant time the Option has passed to a Beneficiary or Permitted Transferee, the Beneficiary or Permitted Transferee, as the case may be, who holds the Option pursuant to the terms of this Agreement. 


		
	(d)
	“Permitted Transferee” means a transferee of the Option pursuant to a transfer described at Section 6 below.


		
	(e)
	“Vest” means to become exercisable.


3.    Vesting; Method of Exercise; Treatment of the Option Upon Cessation of Employment.  
		
	(a)
	Generally.  The Option, or each portion thereof, as applicable, shall vest in accordance with the terms of the applicable Schedule(s) attached hereto.


		
	(b)
	Exercise of the Option.  No portion of the Option may be exercised until such portion vests.  Each election to exercise any vested portion of the Option shall be subject to the terms and conditions of the Plan and shall be in writing and signed by the Award Recipient or by the Beneficiary or Permitted Transferee to whom such portion of the Option has passed (or electronically transmitted, to the extent permitted by the Administrator), in each case subject to any restrictions provided under the Plan and the Management Stockholders’ Agreement.  Each such exercise election must be received by the Company at its principal office and be accompanied by payment in full as provided in the Plan.  The purchase price may be paid (i) by cash or check acceptable to the Administrator, or (ii) on a cashless basis under which shares of Stock otherwise deliverable under the Option and having a Fair Market Value equal to the exercise price are withheld by the Company in accordance with the Plan, or (iii) by such other means, if any, as may be acceptable to the Administrator, or (iv) by any combination of the foregoing permissible forms of payment.  In the event that the Option is exercised by a person other than the Award Recipient, the Company will be under no obligation to deliver Shares hereunder unless and until it is satisfied as to the authority of the Option Holder to exercise the Option.  The latest date on which the Option or any portion thereof may be exercised is the 10th anniversary of the Date of Grant, (the “Final Exercise Date”), and if not exercised by such date the Option or any remaining portion thereof will thereupon immediately terminate.


		
	(c)
	Treatment of the Option Upon Cessation of Employment.  If the Award Recipient’s Employment ceases, the Option to the extent not already vested will be immediately forfeited and any vested portion of the Option will be treated as follows: 


		
	(i)
	Subject to (ii), (iii), and (iv) below, the Option, to the extent exercisable immediately prior to the cessation of the Award Recipient’s Employment, will remain exercisable until the earlier  of (i) 30 days following cessation of Employment or (ii) the Final Exercise Date, and unless previously exercised will thereupon immediately terminate.


		
	(ii)
	In the event of cessation of the Award Recipient’s Employment by reason of death, Disability, or Retirement, the Option, to the extent exercisable immediately prior to Award Recipient’s death, Disability, or Retirement, will remain exercisable until the earlier of (i) the first anniversary of the Award Recipient’s death, Disability, or Retirement, or (ii) the Final Exercise Date, and unless previously exercised will thereupon immediately terminate.


		
	(iii)
	Except as otherwise set forth in any Schedule(s) to this Agreement, in the event of termination of the Award Recipient’s Employment by the Company without Cause or the Award Recipient’s voluntary termination of Employment for Good Reason, the Option, to the extent exercisable immediately prior to the cessation of the Award Recipient’s Employment, will remain exercisable until the earlier of (i) 90 days following cessation of Employment, or (ii) the Final Exercise Date, and unless previously exercised will thereupon immediately terminate.  


		
	(iv)
	In the event of cessation of the Award Recipient’s Employment as a result of an act or failure to act constituting Cause, the Option will be treated as having terminated immediately prior to such cessation of Employment.


4.    Share Restrictions, etc.  Except as expressly provided herein, the Award Recipient’s rights hereunder and with respect to Shares received upon exercise are subject to the restrictions and other provisions contained in the Management Stockholders’ Agreement.  
5.    Legends, etc.  Shares issued upon exercise shall bear such legends as may be required or provided for under the terms of the Management Stockholders’ Agreement.  
6.    Transfer of Option. The Option may only be transferred to a legal representative in the event of the Award Recipient’s incapacity or to one or more transferees permitted under Section 6(a)(3) of the Plan.
7.    Withholding. The exercise of the Option will give rise to “wages” subject to withholding.  The Award Recipient expressly acknowledges and agrees that the Award Recipient’s rights hereunder, including the right to be issued Shares upon exercise, are subject to the Award Recipient promptly paying to the Company in cash (or by such other means, including but not limited to the withholding of Shares that would otherwise be received upon exercise of the Option if deemed acceptable to the Administrator in its sole discretion, which Shares shall have a Fair Market Value equal to the minimum statutory tax withholding requirements) all taxes required to be withheld.  In the event of an exercise of the Option, or a portion of the Option, in connection with a cessation of Employment as result of death, Disability, termination without Cause, or voluntary termination for Good Reason, the Award Recipient may elect to have shares of Stock held back by the Company in satisfaction of minimum statutory tax withholding requirements.  The Award Recipient also authorizes the Company and its subsidiaries to withhold such amount from any amounts otherwise owed to the Award Recipient and the Company may so withhold as provided in Section 3(b) above.  
8.    Effect on Employment.  Neither the grant of the Option, nor the issuance of Shares upon exercise of the Option, shall give the Award Recipient any right to be retained in the employ of the Company or any of its Affiliates, affect the right of the Company or any of its Affiliates to discharge or discipline such Award Recipient at any time, or affect any right of such Award Recipient to terminate his or her Employment at any time.
9.    Other Undertakings.  By executing this Agreement, the Award Recipient also agrees to the terms and conditions set forth in Appendix I, which are incorporated herein by reference and shall survive any exercise, expiration, forfeiture or other termination of this Agreement or the Option issuable hereunder.
10.    Governing Law.  This Agreement and all claims arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by and construed in accordance with the domestic substantive laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction.
11.    Acceptance of Agreement.  In order for this Award to become effective, the Award Recipient must acknowledge acceptance of the Agreement within 60 days from the Grant Date.  If the foregoing does not occur by such date, then the Award may be cancelled at the discretion of the Company
Acknowledgement


The Award Recipient confirms that he or she has been provided adequate opportunity to review the Option grant awarded to him or her under the Plan, including this Agreement and the Management Stockholders’ Agreement.
The Award Recipient understands that clicking the appropriate box, “Accept” for acceptance or “Reject” for rejection, indicates his or her irrevocable election to accept or reject, as applicable, the terms of the grant as set forth in this Agreement.
By acceptance of the Option, the Award Recipient agrees to become a party to (or remain, if the Award Recipient is already a party to), and be bound by the terms of, the Management Stockholders’ Agreement.  The Award Recipient further acknowledges and agrees that (i) this is an electronic agreement, (ii) the signature to this Agreement on behalf of the Company is an electronic signature that will be treated as an original signature for all purposes hereunder and (iii) any such electronic signature shall be binding against the Company and shall create a legally binding agreement when this Agreement is accepted by the Award Recipient.
.
The foregoing Agreement is hereby accepted as of the Grant Date:


By:  Avaya Holdings Corp..:
____ 
Name:    Roger Gaston
Title:    Senior Vice President, Human Resources




Schedule A
Vesting Schedule for Time-Based Award


		
	1.
	The Time-Based Award, unless earlier terminated, forfeited or expired, shall vest as follows:


		
	a.
	One-fourth (1/4th) of the total number of Shares on the first anniversary of the Grant Date (“First Vesting Period"); and


		
	b.
	One-sixteenth (1/16) of the total number of Shares on each quarterly anniversary of the Grant Date thereafter (each a “Quarterly Vesting Date”), with the last such vesting date falling on the fourth anniversary of the Grant Date (collectively “Second Vesting Period”).


		
	2.
	Notwithstanding Section 1 above, in the event of a termination of the Award Recipient’s Employment as a result of death or Disability, or by the Company without Cause (an “Accelerating Termination” during:


		
	a.
	First Vesting Period: if the Accelerating Termination occurs during the First Vesting Period, one quarter (1/4) of such Shares that otherwise would have vested at the end of the First Vesting Period had the Accelerating Termination not occurred will vest on termination of Employment for each partial or full quarter following the Grant Date in which the Award Recipient was Employed during the First Vesting Period.  Any other portion of the Award that remains unvested as of the date of such termination of Employment shall be forfeited and cancelled immediately.




		
	b.
	Second Vesting Period:  if the Accelerating Termination occurs during the Second Vesting Period, the portion of the Award that was scheduled to have vested on the Quarterly Vesting Date immediately following the Accelerating Termination will vest on the date of termination of Employment.  Any other portion of the Award that remains unvested as of the date of such termination of Employment shall be forfeited and cancelled immediately.


		
	3.
	In the event of termination of the Award Recipient’s Employment as described in Section 3(c)(iii) of the Agreement, if such termination of Employment occurs within the one-year period following a Change of Control, unless the Shares shall have been terminated, exercised or exchanged for other current or deferred cash or property in connection with the Change of Control, the Shares, to the extent outstanding immediately prior to such termination of Employment, shall be treated for all purposes of this Agreement as having vested in full immediately prior to such termination of Employment.




 




Appendix I


Avaya Inc.


Non-Disclosure, IP Assignment, Non-Solicitation and Other Restricted Activity Agreement
By executing the Award Agreement, the Award Recipient acknowledges the importance to Avaya Holdings Corp., Avaya Inc. and their respective Affiliates, existing now or in the future (hereinafter referred to collectively as the “Company”) of protecting its confidential information and other legitimate business interests, including without limitation the valuable trade secrets and good will that it has developed or acquired.  The Award Recipient further acknowledges that the Company is engaged in a highly competitive business, that its success in the marketplace depends upon the preservation of its confidential information and industry reputation, and that obtaining agreements such as this one from those under Employment is reasonable.  The Award Recipient undertakes the obligations in this Appendix I in consideration of the Award Recipient’s initial and/or ongoing Employment with the Company, the Award Recipient’s opportunity to receive an Award pursuant to the Second Amended and Restated 2007 Equity Incentive Plan, the Award Recipient’s being granted access to trade secrets and other confidential information of the Company, and for other good and valuable consideration, the receipt and sufficiency of which the Award Recipient acknowledges.
		
	1.
	Loyalty and Conflicts of Interest


		
	1.1.
	Exclusive Duty.  During his or her Employment, the Award Recipient will not engage in any other business activity except as permitted by the Company’s Code of Conduct.


		
	1.2.
	Compliance with Company Policy.  The Award Recipient will comply with all policies, practices and procedures of the Company which the Company conveys to the Award Recipient, as these may be implemented and/or changed by the Company from time to time.  Without limiting the generality of the foregoing, the Award Recipient acknowledges that the Company may from time to time have agreements with other Persons which impose obligations or restrictions on the Company regarding Intellectual Property, as defined below, created during the course of work under such agreements and/or regarding the confidential nature of such work.  The Award Recipient will comply with and be bound by all such obligations and restrictions which the Company conveys to him or her and will take all actions necessary (to the extent within his or her power and authority) to discharge the obligations of the Company under such agreements.


		
	2.
	Confidentiality


		
	2.1.
	Nondisclosure and Nonuse of Confidential Information.  All Confidential Information, as defined below, which the Award Recipient creates or has access to as a result of his or her Employment and other associations with the Company is and shall remain the sole and exclusive property of the Company.  The Award Recipient will never, directly or indirectly, use or disclose any Confidential Information, except (a) as required for the proper performance of his or her regular duties for the Company, (b) as expressly authorized in writing in advance by the Company, (c) as required by applicable law or regulation, (d) to his or her attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring his or her investment in the Company (provided they agree not to disclose such Confidential Information to others, except as authorized by this Section 2.1), (e) to any prospective purchaser of any shares from him or her (at a time when such transfer is permissible under the terms of the Management Stockholders’ Agreement and other applicable agreements), so long as such prospective purchaser agrees to be bound by the provisions of this Section 2.1 and to use such Confidential Information solely for purposes of evaluating a possible investment in the Company, or (f) as may be reasonably determined by the Award Recipient to be necessary in connection with the enforcement of his or her rights in connection with this Appendix I.   This restriction shall continue to apply after the termination of the Award Recipient’s Employment or this Appendix I, howsoever caused.  The Award Recipient shall furnish prompt notice to the Company of any required disclosure of Confidential Information sought pursuant to subpoena, court order or any other legal process or requirement, and shall provide the Company a reasonable opportunity to seek protection of the Confidential Information prior to any such disclosure, to the greatest extent time and circumstances permit.  


		
	2.2.
	Use and Return of Documents.  All documents, records and files, in any media of whatever kind and description, relating to the business, present or otherwise, of the Company and any copies (including without limitation electronic), in whole or in part, thereof (the “Documents” and each individually, a “Document”), whether or not prepared by the Award Recipient, shall be the sole and exclusive property of the Company.  Except as required for the proper performance of the Award Recipient’s regular duties for the Company or as expressly authorized in writing in advance by the Company, the Award Recipient will not copy any Documents or remove any Documents or copies or derivatives thereof from the premises of the Company.  The Award Recipient will safeguard, and return to the Company immediately upon termination of Employment, and at such other times as may be specified by the Company, all Documents and other property of the Company, and all documents, records and files of its customers, subcontractors, vendors and suppliers (“Third-Party Documents” and each individually a “Third-Party Document”), as well as all other property of such customers, subcontractors, vendors and suppliers, then in the Award Recipient’s possession or control.  Provided, however, if a Document or Third-Party Document is on electronic media, the Award Recipient may, in lieu of surrender of the Document or Third-Party Document, provide a copy on electronic media (e.g., a properly formatted diskette) to the Company and delete and overwrite all other electronic media copies thereof.  Upon request of any duly authorized officer of the Company, the Award Recipient will disclose all passwords necessary or desirable to enable the Company to obtain access to the Documents and Third-Party Documents.  Notwithstanding any provision of this Section 2.2 to the contrary, the Award Recipient shall be permitted to retain copies of all Documents evidencing his or her hire, equity and other compensation rate and benefits, this Appendix I, and any other agreements between the Award Recipient and the Company that the Award Recipient has signed.


		
	3.
	Non-Solicitation and Other Restricted Activity


		
	3.1.
	Non-Competition.  This paragraph is applicable to Vice President and higher positions as of the date this Award is accepted. During his or her Employment the Award Recipient will not, directly or indirectly, compete with the Company, anywhere in the world, whether as an owner, partner, investor, consultant, employee or otherwise.  Further, during the 12-month period immediately following the termination of the Award Recipient’s Employment for any reason, the Award Recipient will not work for or provide services to, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Material Competitor (as defined below).  The foregoing shall not prevent: (i) passive ownership by the Award Recipient of no more than two percent (2%) of the equity securities of any publicly traded company; or (ii) the Award Recipient’s providing services to a division or subsidiary of a multi-division entity or holding company, so long as no division or subsidiary to which the Award Recipient provides services is a Material Competitor, and the Award Recipient does not otherwise engage in competition on behalf of the multi-division entity or any competing division or subsidiary thereof.  


		
	3.2.
	Good Will.  Any and all good will which the Award Recipient develops during his or her Employment with any of the customers, prospective customers, subcontractors or suppliers of the Company shall be the sole, exclusive and permanent property of the Company, and shall continue to be such after termination of the Award Recipient’s Employment, howsoever caused. 


		
	3.3.
	Non-Solicitation of Customers.  During his or her Employment and during the 12-month period immediately following the termination of such Employment for any reason, the Award Recipient will not, directly or indirectly, (a) solicit, encourage or induce any customer of the Company to terminate or diminish in any substantial respect its relationship with the Company; or (b) seek to persuade or induce any such customer or prospective customer of the Company to conduct with anyone else any substantial business or activity which such customer or prospective customer conducts or could conduct with the Company; provided that the restrictions in (a) and (b) shall apply (i) only with respect to those Persons who are or have been a customer of the Company at any time within the immediately preceding one-year period or whose business has been solicited on behalf of the Company by any of its officers, employees or agents within said one-year period, other than by form letter, blanket mailing or published advertisement, and (ii) only if the Award Recipient has performed work for such Person during his or her Employment with the Company or has been introduced to, or otherwise had contact with, such Person as a result of his or her Employment  or other associations with the Company or has had access to Confidential Information which would assist in the solicitation of such Person.  The foregoing restrictions shall not apply to general solicitation or advertising, including through media and trade publications.


		
	3.4.
	Non-Solicitation/Non-Hiring of Employees and Independent Contractors.  During his or her Employment and for the 12-month period immediately following the termination of such Employment for any reason, the Award Recipient will not, and will not assist anyone else to, (a) hire or solicit for hiring any employee of the Company or seek to persuade or induce any employee of the Company to discontinue Employment with the Company, or (b) hire or engage any independent contractor providing services to the Company, or solicit, encourage or induce any independent contractor providing services to the Company to terminate or diminish in any substantial respect its relationship with the Company.  For the purposes of this Appendix I, an “employee” or “independent contractor” of the Company is any person who is or was such at any time within the preceding six-month period.  The foregoing restrictions shall not apply to general solicitation or advertising, including through media, trade publications and general job postings.


		
	3.5.
	Notice of New Address and Employment.  During the 12-month period immediately following the termination of his or her Employment for any reason, the Award Recipient will provide the Company with pertinent information concerning each new job or other business activity in which the Award Recipient engages or plans to engage during such 12-month period as the Company may reasonably request in order to determine the Award Recipient’s continued compliance with his or her obligations under this Appendix I.  The Award Recipient shall notify his or her new employer(s) of the Award Recipient’s obligations under this Appendix I, and hereby consents to notification by the Company to such employer(s) concerning his or her obligations under this Appendix I.  The Company shall treat any such notice and information as confidential, and will not use or disclose the information contained therein except to enforce its rights hereunder.


		
	3.6.
	Acknowledgement of Reasonableness; Remedies.  In signing this Award Agreement, the Award Recipient gives the Company assurance that the Award Recipient has carefully read and considered all the terms and conditions hereof.  The Award Recipient acknowledges without reservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the good will, Confidential Information and other legitimate business interests of the Company, that each and every one of those restraints is reasonable in respect to subject matter, length of time and geographic area; and that these restraints will not prevent the Award Recipient from obtaining other suitable Employment during the period in which he or she is bound by them.  The Award Recipient will never assert, or permit to be asserted on the Award Recipient’s behalf, in any forum, any position contrary to the foregoing.  Were the Award Recipient to breach any of the provisions of this Appendix I, the harm to the Company would be irreparable.  Therefore, in the event of such a breach or threatened breach, the Company shall, in addition to any other remedies available to it, have the right to obtain preliminary and permanent injunctive relief against any such breach or threatened breach without having to post bond.  Without limiting the generality of the foregoing, in the event of the Award Recipient’s breach of any of the provisions of this Appendix I, the Company shall have the immediate right to call and repurchase any shares of Stock and any Stock Options that have been awarded to the Award Recipient by the Company other than Invested Equity (as defined in the Management Stockholders’ Agreement), at a purchase price that is the lesser of cost or fair market value, pursuant to the call procedures set forth in the Management Stockholders’ Agreement. 


		
	3.7.
	In the event that any provision of this Appendix I shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.  The 12-month period of restriction set forth in Sections 3.1, 3.3 and 3.4 of this Appendix I shall be tolled, and shall not run, during any period of time in which the Award Recipient is in violation of the terms thereof, in order that the Company shall have the agreed-upon temporal protection recited herein.


		
	3.8.
	Consent to Jurisdiction.  In the event of any alleged breach of this Appendix I, the Award Recipient consents and submits to the jurisdiction of the federal and state courts in and of the State of New Jersey, and of the federal and state courts in and of the state in which the Award Recipient is then employed.  The Award Recipient will accept service of process by registered or certified mail or the equivalent directed to his or her last known address on the books of the Company, or by whatever other means are permitted by such court. 


		
	3.9.
	Limited Exception for Attorneys.  Insofar as the restrictions set forth in this Section 3 prohibit the solicitation, inducement or attempt to hire a licensed attorney who is employed at the Company, they shall not apply if the Award Recipient is a licensed attorney and the restrictions contained herein are illegal, unethical or unenforceable under the laws, rules and regulations of the jurisdiction in which the Award Recipient is licensed as an attorney.


		
	4.
	Intellectual Property


		
	4.1.
	In signing the Award Agreement, the Award Recipient hereby assigns and shall assign to the Company all of his or her right, title and interest in and to all inventions, discoveries, improvements, ideas, mask works, computer or other apparatus programs and related documentation, and other works of authorship (hereinafter each designated “Intellectual Property”), whether or not patentable, copyrightable or subject to other forms of protection, made, created, developed, written or conceived by the Award Recipient during the period of his or her Employment, whether during or outside of regular working hours, either solely or jointly with another, in whole or in part, either: (a) in the course of such Employment, (b) relating to the actual or anticipated business or research development of the Company, or (c) with the use of company time, material, private or proprietary information, or facilities.


		
	4.2.
	The Award Recipient will, without charge to the Company, but at its expense, execute a specific assignment of title to the Company and do anything else reasonably necessary to enable the Company to secure a patent, copyright or other form of protection for said Intellectual Property anywhere in the world.


		
	4.3.
	The Award Recipient acknowledges that the copyrights in Intellectual Property created with the scope of his or her Employment belong to the Company by operation of law.


		
	4.4.
	The Award Recipient has provided to the Administrator a list describing all inventions, original works of authorship, developments, improvements, and trade secrets which were made by the Award Recipient prior to his or her Employment with the Company, which belong to the Award Recipient and which are not assigned to the Company hereunder (collectively referred to as “Prior Inventions”); and, if no such list is provided, the Award Recipient represents and warrants that there are no such Prior Inventions.


		
	5.
	Definitions  


Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided in this Section 5 and as provided elsewhere in this Appendix I.  For purposes of this Appendix I, the following definitions apply:


“Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company, where control may be by management authority, contract or equity interest.


“Confidential Information” means any and all information of the Company, whether or not in writing, that is not generally known by others with whom the Company competes or does business, or with whom it plans to compete or do business, and any and all information, which, if disclosed, would assist in competition against the Company, including but not limited to (a) all proprietary information of the Company, including but not limited to the products and services, technical data, methods, processes, know-how, developments, inventions, and formulae of the Company, (b) the development, research, testing, marketing and financial activities and strategic plans of the Company, (c) the manner in which the Company operates, (d) its costs and sources of supply, (e) the identity and special needs of the customers, prospective customers and subcontractors of the Company, and (f) the people and organizations with whom the Company has business relationships and the substance of those relationships.  Without limiting the generality of the foregoing, Confidential Information shall specifically include:  (i) any and all product testing methodologies, product test results, research and development plans and initiatives, marketing research, plans and analyses, strategic business plans and budgets, and technology grids; (ii) any and all vendor, supplier and purchase records, including without limitation the identity of contacts at any vendor, any list of vendors or suppliers, any lists of purchase transactions and/or prices paid; and (iii) any and all customer lists and customer and sales records, including without limitation the identity of contacts at purchasers, any list of purchasers, and any list of sales transactions and/or prices charged by the Company.  Confidential Information also includes any information that the Company may receive or has received from customers, subcontractors, suppliers or others, with any understanding, express or implied, that the information would not be disclosed.  Notwithstanding the foregoing, Confidential Information does not include information that (A) is known or becomes known to the public in general (other than as a result of a breach of Section 2 hereof by the Award Recipient), (B) is or has been independently developed or conceived by the Award Recipient without use of the Company’s Confidential Information or (C) is or has been made known or disclosed to the Award Recipient by a third party without a breach of any obligation of confidentiality such third party may have to the Company of which the Award Recipient is aware.


“Material Competitor” means an entity, or a division or subsidiary of a multi-division entity or holding company, which engages in business in one or more of the fields in which the Company conducts business and from which the Company derives at least 10% of its annual gross revenues, as determined on the date of the Award Recipient’s termination of Employment with the Company or an affiliate, as applicable.  


“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust and any other entity or organization, other than the Company.


		
	6.
	Compliance with Other Agreements and Obligations


The Award Recipient represents and warrants that his or her Employment by the Company and execution and performance of the Award Agreement, including this Appendix I, will not breach or be in conflict with any other agreement to which the Award Recipient is a party or is bound, and that the Award Recipient is not now subject to any covenants against competition or similar covenants or other obligations to third parties or to any court order, judgment or decree that would affect the performance of the Award Recipient’s obligations hereunder or the Award Recipient’s duties and responsibilities to the Company, except as disclosed in writing to the Company no later than the time an executed copy of the Award Agreement, including this Appendix I, is returned by the Award Recipient.  The Award Recipient will not disclose to or use on behalf of the Company, or induce the Company to use, any proprietary information of any previous employer or other third party without that party’s consent.  


		
	7.
	Entire Agreement; Severability; Modification




With respect to the subject matter hereof, this Appendix I sets forth the entire agreement between the Award Recipient and the Company, and, except as otherwise expressly set forth herein, supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, regarding the same.  Provided, however, this Appendix I shall not terminate or supersede any obligations the Award Recipient may have pursuant to any other agreement or under applicable law with respect to confidentiality, non-competition, non-solicitation, assignment of rights to intellectual property or the like. Moreover, for the avoidance of doubt, nothing in this Agreement is intended or shall be construed to affect in any way rights and obligations arising pursuant to the Management Stockholders’ Agreement. In the event of conflict between this Appendix I and any prior agreement between the Award Recipient and the Company with respect to the subject matter hereof, this Appendix I shall govern.  The provisions of this Appendix I are severable, and no breach of any provision of this Appendix I by the Company, or any other claimed breach of contract or violation of law, shall operate to excuse the Award Recipient’s obligation to fulfill the requirements of Sections 2, 3 and 4 hereof.  No deletion, addition, marking, notation or other change to the body of this Appendix I shall be of any force or effect, and this Appendix I shall be interpreted as if such change had not been made.  This Appendix I may not be modified or amended, and no breach shall be deemed to be waived, unless agreed to in writing by the Award Recipient and an expressly authorized officer of the Company.  If any provision of this Appendix I should, for any reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to be enforceable to the maximum extent permissible by law.  Provisions of this Appendix I shall survive any termination if so provided in this Appendix I or if necessary or desirable to accomplish the purpose of other surviving provisions.  It is agreed and understood that no changes to the nature or scope of the Award Recipient’s Employment relationship with the Company shall operate to extinguish the Award Recipient’s obligations hereunder or require that a new agreement concerning the subject matter of this Appendix I be executed.


		
	8.
	Assignment




Neither the Company nor the Award Recipient may make any assignment of this Appendix I or any interest in it, by operation of law or otherwise, without the prior written consent of the other; provided, however, the Company may assign its rights and obligations under this Appendix I without the Award Recipient’s consent (a) in the event that the Award Recipient is transferred to a position with one of the Company’s Affiliates or (b) in the event that the Company shall hereafter effect a reorganization, consolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company or any division or line of business of the Company with which the Award Recipient is at any time associated.  This Appendix I shall inure to the benefit of and be binding upon the Award Recipient and the Company, and each of their respective successors, executors, administrators, heirs, representatives and permitted assigns.


		
	9.
	At-Will Employment




This Appendix I does not in any way obligate the Company to retain the Award Recipient’s services for a fixed period or at a fixed level of compensation; nor does it in any way restrict the Award Recipient’s right or that of the Company to terminate the Award Recipient’s Employment at any time, at will, with or without notice or cause.


		
	10.
	Successors




The Award Recipient consents to be bound by the provisions of this Appendix I for the benefit of the Company, and any successor or permitted assign to whose employ the Award Recipient may be transferred, without the necessity that a new agreement concerning the subject matter or this Appendix I be re-signed at the time of such transfer.


		
	11.
	Acknowledgement of Understanding




In agreeing to the terms of the Award Agreement, the Award Recipient gives the Company assurance that the Award Recipient has read and understood all of its terms; that the Award Recipient has had a full and reasonable opportunity to consider its terms and to consult with any person of his or her choosing before signing; that the Award Recipient has not relied on any agreements or representations, express or implied, that are not set forth expressly in this Award Agreement, including this Appendix I; and that the Award Recipient has signed this Award Agreement knowingly and voluntarily. 


 
LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP


	
			
	TITLE
	DATE
	IDENTIFYING NUMBER OR BRIEF DESCRIPTION




 
 























































______ No inventions or improvements


______ Additional sheets attached




Signature of Award Recipient:     __________________________ 
 
Date:                     __________________________





Avaya Holdings Corp. – Proprietary and Confidential
34A