Avaya Buyout

Avaya (AV)
Silver Lake / TPG Capital
$8.2B Buyout

Summary

Communications company buyout by investment firms

$17.50 per AV share; $8.2B total
AVstock chart

Announced 6.04.07

Closed 10.26.07

Advisors

Financial

AV: Credit Suisse
Silver Lake / TPG: Citi / Morgan Stanley

Legal

AV: Weil Gotshal / Skadden Arps
Silver Lake / TPG: Ropes & Gray

Merger Agreement

General

EDGAR filing
Hyperlinked version
Detailed hyperlinked index follows

Article I The Merger

1.1 The Merger
1.2 Closing
1.3 Effective Time
1.4 Effects of the Merger
1.5 Certificate of Incorporation and By-laws of the
Surviving Corporation
1.6 Directors and Officers of the Surviving Corporation

Article II Effect of the Merger on the Capital Stock of the
Constituent Corporations; Exchange of
Certificates; Company Stock Options

2.1 Effect on Capital Stock
2.2 Exchange of Certificates
2.3 Appraisal Rights
2.4 Company Stock Options and RSUs
2.5 Adjustments

Article III Company Reps

3.1 Organization, Standing and Corporate Power
3.2 Capitalization
3.3 Authority; Noncontravention; Voting Requirements
3.4 Governmental Approvals
3.5 Company SEC Documents; Undisclosed Liabilities
3.6 Absence of Certain Changes
3.7 Legal Proceedings
3.8 Compliance with Laws; Permits
3.9 Affiliate Transactions
3.10 Tax Matters
3.11 Employee Benefits and Labor Matters
3.12 Environmental Matters
3.13 Intellectual Property
3.14 Rights Agreement; Anti-takeover Provisions
3.15 Property
3.16 Contracts
3.17 Opinion of Financial Advisor
3.18 Swap Agreements
3.19 Brokers and Other Advisors
3.20 No Other Representations Or Warranties

Article IV Parent and Merger Sub Reps

4.1 Organization; Standing
4.2 Authority; Noncontravention
4.3 Governmental Approvals
4.4 Ownership and Operations of Merger Sub
4.5 Financing
4.6 Guarantee
4.7 Solvency
4.8 Certain Arrangements
4.9 Brokers and Other Advisors
4.10 Access to Information; Disclaimer

Article V Additional Covenants and Agreements

5.1 Preparation of the Proxy Statement; Stockholders Mtg
5.2 Conduct of Business
5.3 Solicitation; Change in Recommendation
5.4 Reasonable Best Efforts
5.5 Financing
5.6 Public Announcements
5.7 Access to Information; Confidentiality
5.8 Notification of Certain Matters
5.9 Indemnification and Insurance
5.10 Fees and Expenses
5.11 Rule 16b-3
5.12 Employee Matters
5.13 Delisting
5.14 Employee Stock Purchase Plan
5.15 Parent Expenditure

Article VI Conditions Precedent

6.1 Each Party
6.2 Parent and Merger Sub
6.3 Company
6.4 Frustration of Closing Conditions

Article VII Termination

7.1 Termination
7.2 Effect of Termination
7.3 Termination Fee

Article VIII Miscellaneous

8.1 No Survival of Representations and Warranties
8.2 Amendment or Supplement
8.3 Extension of Time, Waiver, Etc
8.4 Assignment
8.5 Counterparts
8.6 Entire Agreement; No Third-party Beneficiaries
8.7 Governing Law; Jurisdiction
8.8 Specific Enforcement
8.9 Waiver of Jury Trial
8.10 Notices
8.11 Severability
8.12 Definitions
8.13 Interpretation

Other Agreements

Amendment #2 to Rights Agreement 6.05.07

Form 8-K

Proxy Solicitation

Definitive proxy statement 8.15.07

Preliminary proxy statement 7.19.07

Table of contents

Deal Protection

No shop covenant

50-day "go shop" provision

Merger agreement 5.3
Proxy statement disclosure scroll to page A-24

Break-up fee

$250mm, plus out-of-pocket expenses
Agreement 7.3
Proxy statement disclosure scroll to page A-39

Regulatory Approvals

HSR Act

Merger agreement 5.4
Proxy statement disclosure scroll to page A-27

Fairness Opinion

Credit Suisse fairness opinion

Proxy statement disclosure scroll to page A-17

Tax Matters

Disclosure

Proxy statement disclosure scroll to page A-11

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