NOT BE TERMINATED BY
ANY MERGER OR CONSOLIDATION OF THE COMPANY WHEREBY THE COMPANY IS OR IS NOT THE
SURVIVING OR RESULTING CORPORATION OR AS A RESULT OF ANY TRANSFER OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY.
IN THE EVENT OF ANY SUCH
MERGER, CONSOLIDATION OR TRANSFER OF ASSETS, THE PROVISIONS OF THIS AGREEMENT
SHALL BE BINDING UPON THE SURVIVING OR RESULTING CORPORATION OR THE PERSON OR
ENTITY TO WHICH SUCH ASSETS ARE TRANSFERRED.
(B)
THE COMPANY AGREES THAT CONCURRENTLY WITH
ANY MERGER, CONSOLIDATION OR TRANSFER OF ASSETS REFERRED TO IN SECTION 10(A), IT
WILL CAUSE ANY SUCCESSOR OR TRANSFEREE UNCONDITIONALLY TO ASSUME, BY WRITTEN
INSTRUMENT DELIVERED TO THE EXECUTIVE (OR THE EXECUTIVE'S BENEFICIARY OR
ESTATE), ALL OF THE OBLIGATIONS OF THE COMPANY HEREUNDER.
FAILURE OF THE
COMPANY TO OBTAIN SUCH ASSUMPTION PRIOR TO THE EFFECTIVENESS OF ANY SUCH MERGER,
CONSOLIDATION OR TRANSFER OF ASSETS SHALL BE A BREACH OF THIS AGREEMENT AND
SHALL ENTITLE THE EXECUTIVE TO COMPENSATION AND
11
OTHER BENEFITS FROM THE COMPANY IN THE SAME AMOUNT AND ON THE SAME TERMS AS THE
EXECUTIVE WOULD BE ENTITLED HEREUNDER IF THE EXECUTIVE'S EMPLOYMENT WERE
TERMINATED FOLLOWING A CHANGE IN CONTROL OTHER THAN BY REASON OF A NONQUALIFYING
TERMINATION DURING THE TERMINATION PERIOD.
FOR PURPOSES OF IMPLEMENTING THE
FOREGOING, THE DATE ON WHICH ANY SUCH MERGER, CONSOLIDATION OR TRANSFER BECOMES
EFFECTIVE SHALL BE DEEMED THE DATE OF TERMINATION.
(C)
THIS AGREEMENT SHALL INURE TO THE BENEFIT
OF AND BE ENFORCEABLE BY THE EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES,
EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND
LEGATEES.
IF THE EXECUTIVE SHALL DIE WHILE ANY AMOUNTS WOULD BE PAYABLE TO THE
EXECUTIVE HEREUNDER HAD THE EXECUTIVE CONTINUED TO LIVE, ALL SUCH AMOUNTS,
UNLESS OTHERWISE PROVIDED HEREIN, SHALL BE PAID IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT TO SUCH PERSON OR PERSONS APPOINTED IN WRITING BY THE EXECUTIVE
TO RECEIVE SUCH AMOUNTS OR, IF NO PERSON IS SO APPOINTED, TO THE EXECUTIVE'S
ESTATE.
11.
NOTICES.
(A)
FOR PURPOSES OF THIS AGREEMENT, ALL NOTICES
AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING AND
SHALL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN DELIVERED OR FIVE (5) DAYS AFTER
DEPOSIT IN THE UNITED STATES MAIL, CERTIFIED AND RETURN RECEIPT REQUESTED,
POSTAGE PREPAID, ADDRESSED
(1)
IF TO THE EXECUTIVE, TO THE HOME ADDRESS OF
THE EXECUTIVE ON THE MOST CURRENT COMPANY RECORDS, AND IF TO THE COMPANY, TO
AVAYA INC., ATTENTION VICE PRESIDENT, HUMAN RESOURCES WITH A COPY TO THE
SECRETARY OF THE BOARD, OR
(2)
TO SUCH OTHER ADDRESS AS EITHER PARTY MAY
HAVE FURNISHED TO THE OTHER IN WRITING IN ACCORDANCE HEREWITH, EXCEPT THAT
NOTICES OF CHANGE OF ADDRESS SHALL BE EFFECTIVE ONLY UPON RECEIPT.
(B)
A WRITTEN NOTICE OF THE EXECUTIVE'S DATE OF
TERMINATION BY THE COMPANY OR THE EXECUTIVE, AS THE CASE MAY BE, TO THE OTHER,
SHALL (I) INDICATE THE SPECIFIC TERMINATION PROVISION IN THIS AGREEMENT RELIED
UPON, (II) TO THE EXTENT APPLICABLE, SET FORTH IN REASONABLE DETAIL THE FACTS
AND