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EXHIBIT (d)(3)
AVAYA INC. LONG TERM INCENTIVE PLAN FOR MANAGEMENT EMPLOYEES ("PLAN")
RESTRICTED STOCK UNIT AWARD AGREEMENT
SOCIAL SECURITY NO.
OR AVAYA PERSONAL NUMBER
NAME (FOR NON-U.S. EMPLOYEES) XXXXX DATE
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July 24, 2001, unless
extended as provided in the
Offer to Exchange dated June
26, 2001 (the "Offer to
Exchange")
CAPITALIZED TERMS NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE SAME MEANINGS
AS IN THE PLAN.
Pursuant to the Plan and the "offer" (as defined in the Offer to Exchange),
you are granted, upon the execution of this agreement and its acceptance by
Avaya Inc. ("Avaya"), as of the Grant Date set forth above, a number of
restricted stock units ("Restricted Stock Units") equal to the aggregate of the
quotients of (i) the exchange value for each Eligible Option (as defined in the
Offer to Exchange) validly tendered by you in connection with the offer (each, a
"Tendered Option"), which is defined as the number of common shares underlying
each Tendered Option multiplied by the per share exchange value for such
Tendered Option (as provided in the Offer to Exchange) divided by (ii) the
average of the high and low prices of a share of Avaya common stock as traded on
the New York Stock exchange on the third business day prior to the expiration of
the offer. Upon termination of the restrictions related thereto each Restricted
Stock Unit will be converted into one common share par value $.01 of Avaya
("Shares").
1. VESTING OF AWARD. Subject to Section 2, the Restricted Stock Units
shall vest and become nonforfeitable in equal one-third installments (or as
nearly equal installments as practicable) on each of August 1, 2002, August 1,
2003 and August 1, 2004 (the date on which any Restricted Stock Unit vests being
the "Vesting Date" for such Restricted Stock Unit). The period beginning on the
Grant Date hereof 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 as described below, any Restricted Stock Units that are not
vested shall be forfeited. Transfer to or from Avaya and any Affiliate 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 a military leave or other approved leave of
absence, unless the Committee shall otherwise determine. Upon termination of
your employment for Cause, any Restricted Stock Units that are not vested shall
be forfeited.
(a) RETIREMENT OR VOLUNTARY SEPARATION UNDER THE VOLUNTARY
RETIREMENT/SEPARATION PROGRAM -- If, under the voluntary
retirement/separation program announced in June 2001, you retire or
voluntarily leave Avaya, the Restricted Stock Units will become
nonforfeitable, the Restriction Period will end and the award will be paid
as soon as practicable after the date of retirement or voluntary separation
as specified in Section 3.
(b) DEATH OR DISABILITY -- If you die or become disabled during the
Restriction Period, the Restricted Stock Units will become nonforfeitable,
the Restriction Period will end and the award will be paid as soon as
practicable after the date of death or disability as specified in Section
3. "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.
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(c) COMPANY ACTION -- If your employment is terminated as a result of
a Company Action, the Restricted Stock Units will become nonforfeitable,
the Restriction Period will end and the award will be paid as soon as
practicable after the date of termination as specified in Section 3.
(d) CAUSE -- "Cause" means:
(i) Violation of Avaya's code of conduct;
(ii) Conviction of (including a plea of guilty or nolo contendere)
of a felony or any crime of theft, dishonesty or moral
turpitude; or
(iii) Gross omission or gross dereliction of any statutory or
common law duty to Avaya.
3. PAYMENT OF SHARES. As soon as practicable after termination of the
Restriction Period, Avaya will deliver a certificate representing the Shares
being distributed to you or to your legal representative.
4. TRANSFERABILITY. You may not transfer, pledge, assign, sell or
otherwise alienate your Restricted Stock Units.
5. 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.
For the purposes of all calculations under Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), to the extent applicable to the
grant of Restricted Stock Units under this Agreement, you and Avaya hereby elect
and agree to make all determinations as to present value using 120 percent of
the applicable Federal rate (determined under Section 1274(d) of the Code)
compounded semiannually, as in effect on the date of this Agreement.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE BEEN INFORMED OF THE AVAILABILITY OF
MAKING AN ELECTION IN ACCORDANCE WITH SECTION 83(B) OF THE CODE; THAT SUCH
ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE WITHIN 30 DAYS OF THE
GRANT DATE; AND THAT YOU ARE SOLELY RESPONSIBLE FOR MAKING SUCH ELECTION.
6. 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.
7. CANCELLATION OF OPTIONS. You acknowledge that the grant of Restricted
Stock Units provided for in this Agreement is granted in consideration of your
surrender to Avaya of all Tendered Options in connection with the offer. The
parties hereto acknowledge and agree that (i) the grant of Restricted Stock
Units is in full satisfaction of Avaya's obligations in respect of all Tendered
Options and you hereby waive any claim in connection therewith and (ii) upon the
grant of Restricted Stock Units on the Grant Date, (A) you will no longer have
any right, title or interest to or in any of the Tendered Options and (B) the
option agreement(s) shall be deemed null and void and the Tendered Options shall
be canceled.
8. SUBJECT TO PLAN. This Agreement and grant of Restricted Stock Units are
subject to all of the terms and conditions of the Plan. Avaya's communication to
you of its acceptance of all of the Tendered Options as of the Grant Date shall
form a binding agreement between Avaya and you on the terms set forth herein and
in the Offer to Exchange.
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Please indicate your acceptance of terms 1-8 by signing at the place provided
and returning the original of this Agreement.*
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ACCEPTED AND AGREED:
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SIGNATURE
* If you return this Agreement electronically on the offer web site, your
delivery of this agreement electronically constitutes acceptance of the terms
of this Agreement and acknowledgement that you have reviewed a copy of the
Plan. We will be deemed to have accepted this Agreement, if and when we give a
written notice to option holders of our acceptance for payment of options
tendered pursuant to the Offer to Exchange, which may be by electronic mail or
press release, on the business day after the offer expires.
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