Common use of Purchase of Notes at Option of the Holder Upon Change in Control Clause in Contracts

Purchase of Notes at Option of the Holder Upon Change in Control. (a) If on or prior to maturity, there shall have occurred a Change in Control, each holder shall have the right to cause the Company to purchase all or a portion of the Notes of such holder on the date that is 35 business days after the occurrence of the Change of Control (the "Change in Control Purchase Date"), for a purchase price equal to the outstanding principal amount thereof plus accrued interest thereon to the Change in Control Purchase Date (the "Change in Control Purchase Price") subject to Article 3 and satisfaction by or on behalf of the holder of the requirements set forth in Section 7.6(c) below. A "Change in Control" shall be deemed to have occurred at such time as either of the following events shall occur: (i) The Company consolidates with or merges into another corporation, or conveys, transfers or leases all or substantially all of its assets to any person, or any other corporation merges into the Company, other than, in any case, a transaction in which the shareholders of the Company immediately prior to such transaction owned, directly or indirectly, immediately following such transaction, at least 50% of the combined voting power of the outstanding Voting Stock of the corporation resulting from such transaction in substantially the same proportion as their ownership of the Voting Stock of the Company immediately prior to such transaction; or (ii) There is a report filed by any person, including its Affiliates and Associates (as defined herein), other than the Company or its Subsidiaries or employee stock ownership plans or employee benefit plans of the Company or its Subsidiaries, on Schedule 13D or 14D-1 (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that such person (for the purposes of this Section 7.6 only, the term "person" shall include a "person" within the meaning of Sections 13(d)(3) and 13(d)(5) or Section 14(d)(2) of the

Purchase of Notes at Option of the Holder Upon Change in Control. (a) If on or prior to maturity, there shall have occurred a Change in Control, each holder Notes shall have be purchased by the right to cause Company, at the Company to option of the Holder thereof, at a purchase all or a portion price specified in paragraph 7 of the Notes (the "Change in Control Purchase Price"), as of such holder on the date that is 35 business days no later than 30 Business Days after the occurrence of the Change of in Control but in no event prior to the date on which such Change in Control occurs (the "Change in Control Purchase Date"), for a purchase price equal to the outstanding principal amount thereof plus accrued interest thereon to the Change in Control Purchase Date (the "Change in Control Purchase Price") subject to Article 3 and satisfaction by or on behalf of the holder Holder of the requirements set forth in Section 7.6(c11.09(c) below. hereof. A "" Change in Control" shall be deemed to have occurred at such time as either of the following events shall occur: (i) The Company consolidates with any "person" including its Affiliates or merges into another corporationAssociates (for the purpose of this Section 11.09 only, as the term "person" is used in Section 13(d)(3) or conveys, transfers or leases all or substantially all Section 14(d)(2) of its assets to any person, or any the Exchange Act) other corporation merges into than the Company, other thanits Subsidiaries or their employee benefit plans, in becomes the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any case, a transaction in which successor rule or regulation promulgated under the shareholders Exchange Act) of the Company immediately prior to such transaction owned, directly or indirectly, immediately following such transaction, at least more than 50% of the combined aggregate voting power of the outstanding Voting Company's Capital Stock entitled under ordinary circumstances to elect at least a majority of the corporation resulting from such transaction in substantially the same proportion as their ownership of the Voting Stock of the Company immediately prior to such transactionits directors; or (ii) There the Company is a report filed by any personconsolidated with, including its Affiliates and Associates or merged into, another Person or such other Person is merged into the Company (as defined herein), other than a transaction pursuant to which the Company holders of 50% or its Subsidiaries or employee stock ownership plans or employee benefit plans more of the Company total voting power of all shares of the Company's Capital Stock entitled to vote generally in the election of directors immediately prior to such transaction have, directly or its Subsidiariesindirectly, on Schedule 13D at least 50% or 14D-1 (more of the total voting power of all capital stock of the continuing or any successor schedule, form surviving corporation entitled to vote generally in the election of directors of such continuing or report) pursuant to surviving corporation immediately after such transaction). Notwithstanding the Exchange Act, disclosing that such person (for the purposes foregoing provisions of this Section 7.6 only11.09, no Change of Control will be deemed to have occurred in connection with any merger or similar transaction the term "person" shall include a "person" within purpose of which is to change the meaning state of Sections 13(d)(3) and 13(d)(5) or Section 14(d)(2) incorporation of thethe relevant Person.

Purchase of Notes at Option of the Holder Upon Change in Control. (ai) If on or prior to maturityOctober 31, 2004 there shall have occurred a Change in Control, each holder shall have the right to cause the Company to purchase all or a portion of the Notes of any Holder shall be purchased by the Company, at the option of such holder on Holder, at a purchase price specified in paragraph 6 of the Notes (the "Change in Control Purchase Price"), as of a date that is no later than 35 business days Business Days after the occurrence of the Change of in Control (the "Change in Control Purchase Date"), for a purchase price equal to the outstanding principal amount thereof plus accrued interest thereon to the Change in Control Purchase Date (the "Change in Control Purchase Price") subject to Article 3 and satisfaction by or on behalf of the holder Holder of the requirements set forth in Section 7.6(c) below3.09(c). A "Change in Control" shall be deemed to have occurred at such time as either of the following events shall occur: (i) The Company consolidates with or merges into another corporation, or conveys, transfers or leases all or substantially all of its assets to any person, or any other corporation merges into the Company, other than, in any case, a transaction in which the shareholders of the Company immediately prior to such transaction owned, directly or indirectly, immediately following such transaction, at least 50% of the combined voting power of the outstanding Voting Stock of the corporation resulting from such transaction in substantially the same proportion as their ownership of the Voting Stock of the Company immediately prior to such transaction; or (ii) There is a report filed by any person, including its Affiliates and Associates (as defined herein), other than the Company or its Subsidiaries or employee stock ownership plans or employee benefit plans of the Company or its Subsidiaries, on Schedule 13D or 14D-1 TO (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that such person any person, including its Affiliates or Associates (for the purposes of this Section 7.6 3.09 only, as the term "person" shall include a "person" within the meaning of Sections is used in Section 13(d)(3) and 13(d)(5) or Section 14(d)(2) of thethe Exchange Act), has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of 50% or more of the aggregate voting power of the Common Stock and other capital stock of the Company with equivalent voting rights then outstanding; PROVIDED, HOWEVER, that a person -------- ------- shall not be deemed beneficial owner of, or to own beneficially, (A) any notes tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person's Affiliates or Associates until such tendered notes are accepted for purchase or exchange thereunder, or (B) any notes if such beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act. (ii) There shall have occurred any change in the composition of a majority of our board of directors which is not supported by our incumbent board of directors. (iii) There shall be consummated any reorganization, consolidation, merger, share exchange or similar business combination involving us with any person or any sale, assignment, conveyance, transfer or other disposition of all or substantially all of our assets unless, following the transaction, the persons that beneficially own the voting stock of Avaya immediately prior to the transaction beneficially own, directly or indirectly, a majority of the combined voting power of all classes of voting securities of Avaya or the entity resulting from the transaction or that acquired all or substantially all of our assets immediately after the transaction. For purposes in defining a change in control: (i) the term "person" and the term "group" have the meanings given by Section 13(d) and 14(d) of the Exchange Act or any successor provisions; (ii) the term "group" includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision; and (iii) the term "beneficial owner" is determined in accordance with Rules 13d-3 and 13d-5 under the Exchange Act or any successor provision, except that a person will be deemed to have beneficial ownership of all shares that person has the right to acquire irrespective of whether that right is exercisable immediately or only after the passage of time. Notwithstanding the foregoing provisions of this Section 3.09, a Change in Control shall not be deemed to have occurred by virtue of the Company, any Subsidiary, any employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary, or any person holding Common Stock for or pursuant to the terms of any such employee benefit plan, filing or becoming obligated to file a report under or in response to Schedule 13D or Schedule TO (or any successor schedule, form or report) under the Exchange Act disclosing beneficial ownership by it of shares of Common Stock, whether in excess of 50% or otherwise.