<PAGE> 1
As filed with the Securities and Exchange Commission on September 15, 2000
-------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AVAYA INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<CAPTION>
Delaware 22-3713430
-------- ----------
<S> <C>
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
211 Mount Airy Road
Basking Ridge, N.J. 07920
------------------- -----
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
AVAYA INC. SAVINGS PLAN
AVAYA INC. SAVINGS PLAN FOR SALARIED EMPLOYEES
(Full title of the Plans)
Please send copies of all communications to:
PAMELA F. CRAVEN
Vice President, General Counsel and Secretary
211 Mount Airy Road
Basking Ridge, N.J. 07920
(908) 953-6000
(Name, address, telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered (1) registered (2) Offering price per share (3) aggregate offering price Registration fee
----------------- ---------- ------------------------ ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par 3,000,000 $4.63 $13,890,000 $3,667
value $0.01 per share
and related Preferred
Stock Purchase
Rights (4)
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also relates
to such indeterminate number of (i) additional shares of Common Stock of
the Registrant as may be issuable as a result of stock splits, stock
dividends or similar transactions, as described in the Plan and (ii)
interests to be offered or sold pursuant to the employee benefits plans
described herein.
(2) Represents an estimate of the maximum number of shares that may be
acquired under the Avaya Inc. Savings Plan and the Avaya Inc. Savings
Plan For Salaried Employees.
<PAGE> 2
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (c) and (h) of the Securities Act. The proposed
maximum aggregate offering price and amount of registration fee are
calculated on the basis of an estimated book value per share of $4.63 as
of June 30, 2000.
(4) No separate consideration will be received for the Rights, which
initially will trade together with the Common Stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information concerning the Avaya Inc.
Savings Plan and the Avaya Inc. Savings Plan For Salaried Employees (the
"Plans") required by Item 1 of Part 1 of Form S-8 and the statement of
availability of Registration Information, Plan Information and other
information required by Item 2 of Part 1 of Form S-8 will be sent or given
to participants as specified by Rule 428 under the Securities Act of
1933, as amended (the "Securities Act"). In accordance with Rule 428 and
the requirements of Part 1 of Form S-8, such documents are not being filed
with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. The Registrant
shall maintain a file of such documents in accordance with the provisions
of Rule 428. Upon request, the registrant shall furnish to the Commission
or its staff a copy or copies of all of the documents included in such
file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Avaya Inc. (the
"Company" or "Avaya") with the Securities and Exchange Commission (the
"SEC") and are incorporated herein by reference (File No. 001-15951):
(1) The Company's Registration Statement on Form 10,
declared effective by the SEC on September 15, 2000.
All documents, filed subsequent to the date hereof by
Avaya with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") and prior to
the filing of a post-effective amendment hereto which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being
hereinafter referred to as "Incorporated Documents"); provided, however,
that the documents enumerated above or subsequently filed by Avaya
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in
each year during which the offering made hereby is in effect prior to the
filing with the SEC of Avaya's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference
herein or be a part hereof from and after the filing of such Annual Report
on Form 10-K.
Any statement contained in an Incorporated Document or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed Incorporated Document
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
-2-
<PAGE> 3
ITEM 5. INTEREST OF NAMED EXPERTS OF COUNSEL
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Avaya's certificate of incorporation provides that each person who was or
is made a party or is threatened to be made a party to or is involved in any
action suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person, or person of whom such
person is the legal representative, is or was a director or officer of Avaya or
is or was serving at Avaya's request as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is the alleged action of such person in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, will be
indemnified and held harmless by Avaya to the fullest extent authorized by the
Delaware General Corporation Law ("DGCL"), as the same exists or may hereafter
be amended but, in the case of any such amendment, only to the extent that such
amendment permitted us to provide prior to such amendment, against all expense,
liability and loss reasonably incurred or suffered by such person in connection
therewith. Such right to indemnification includes the right to have Avaya pay
the expenses incurred in defending any such proceeding in advance of its final
disposition, subject to the provisions of the DGCL. Such rights are not
exclusive of any other right which any person may have or thereafter acquire
under any statute, provision of the certificate, by-law, agreement, vote of
shareowners or disinterested directors or otherwise. No repeal or modification
of such provision will in any way diminish or adversely affect the rights of
any director, officer, employee or agent of Avaya thereunder in respect of any
occurrence or matter arising prior to any such repeal or modification. Avaya's
certificate of incorporation also specifically authorized us to maintain
insurance and to grant similar indemnification rights to Avaya's employees or
agents.
Avaya's certificate of incorporation provides that none of Avaya's
directors will be personally liable to Avaya or Avaya's shareowners for
monetary damages for breach of fiduciary duty as a director, except, if
required by the DGCL, as amended from time to time, for liability: (i) for any
breach of the director's duty of loyalty to us or our shareowners; (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law; (iii) under Section 174 of the DGCL, which concerns
unlawful payments of dividends, stock purchase or redemptions; or (iv) for any
transaction from which the director derived an improper personal benefit.
Neither the amendment nor repeal of such provision will eliminate or reduce the
effect of such provision in respect of any matter occurring, or any cause of
action, suit or claim that, but for such provision, would accrue or arise prior
to such amendment or repeal.
While Avaya's certificate of incorporation provides directors with
protection from awards for monetary damages for breach of their duty of care,
it does not eliminate such duty. Accordingly, the certificate of incorporation
will have no effect on the availability of equitable remedies such as an
injunction ore recission based on a director's breach of his or her duty of
care.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
-3-
<PAGE> 4
ITEM 8. EXHIBITS
The following exhibits are filed with this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
-------------- ----------------------
<S> <C>
4.1 Amended and Restated Certificate of
Incorporation (Incorporated by
reference to Exhibit 3.1 of the
registrant's Registration Statement on
Form 10, as amended, declared
effective by the SEC on September 15,
2000, File No. 001-15951).
4.2 Rights Agreement between the
registrant and The Bank of New York,
as rights agent (incorporated by
reference to Exhibit 4.4 to the
registrant's Registration Statement
(No. 001-15951) on Form 10).
5.1 Opinion of Pamela F. Craven, Vice
President, General Counsel and
Secretary of the registrant, as to the
legality of the securities to be
issued.
23.1 Consent of Pamela F. Craven is
included in the opinion filed as
Exhibit 5 hereto.
23.2 Consent of PricewaterhouseCoopers LLP
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement.
-4-
<PAGE> 5
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs 1(i) and 1(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and each filing of the Plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
person of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issues.
(d) The undersigned Registrant hereby undertakes to submit, or cause to
be submitted, the Plans and any amendments thereto to the Internal Revenue
Service (the "IRS") in a timely manner and will make changes required by the
IRS in order to qualify the Plans under Section 401 of the Internal Revenue
Code.
-5-
<PAGE> 6
SIGNATURES
The Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in Basking Ridge, New Jersey on
September 15, 2000.
AVAYA INC.
By: /s/ Donald K. Peterson
----------------------
Name: Donald K. Peterson
Title: President and Chief Executive
Officer
Pursuant to the requirements of the Securities Exchange Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Principal Executive Officer:
Donald K. Peterson President and Chief Executive Officer September 15, 2000
------------------------------------------
Donald K. Peterson
Principal Financial Officer and
Principal Accounting Officer:
Garry K. McGuire Chief Financial Officer September 15, 2000
------------------------------------------
Garry K. McGuire Sr.
Directors:
Richard J. Rawson Director September 15, 2000
------------------------------------------
Richard J. Rawson
Pamela F. Craven Director September 15, 2000
------------------------------------------
Pamela F. Craven
</TABLE>
-6-
<PAGE> 7
SIGNATURES
The Plans
Pursuant to the requirements of the Securities Act of 1933, as amended,
the trustees (or other persons who administer the Plans) have duly caused this
Registration Statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in Basking Ridge, New Jersey on
September 15, 2000.
AVAYA INC. SAVINGS PLAN
By: /s/ Susan Wong
---------------------
Name: Susan Wong
Title: Plan Administrator
AVAYA INC. SAVINGS PLAN FOR SALARIED EMPLOYEES
By: /s/ Susan Wong
----------------------
Name: Susan Wong
Title: Plan Administrator
-7-
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. NAME OF DOCUMENT
----------- ----------------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation
(Incorporated by reference to Exhibit 3.1 of the
registrant's Registration Statement on Form 10, as
amended, declared effective by the SEC on September
15, 2000, File No. 001-15951).
4.2 Rights Agreement between the registrant and The Bank
of New York, as rights agent (incorporated by
reference to Exhibit 4.4 to the registrant's
Registration Statement (No. 001-15951) on Form 10).
5.1 Opinion of Pamela F. Craven, Vice President, General
Counsel and Secretary of the registrant, as to the
legality of the securities to be issued.
23.1 Consent of Pamela F. Craven is included in the
opinion filed as Exhibit 5 hereto.
23.2 Consent of PricewaterhouseCoopers LLP
</TABLE>
-8-
