Exhibit 10.7
AVOCENT
CORPORATION
2005 EQUITY INCENTIVE
PLAN
AMENDED NOTICE OF GRANT OF
RESTRICTED STOCK UNITS
WHEREAS, you have previously been
granted Restricted Stock Units under the terms and conditions of
one or more (i) Notices of Grant Award and Award Agreement
(the “Original Cover Page(s)”) dated
, (ii) Notices of Grant of Restricted Stock Units attached to
such Original Cover Page(s) (the “Original
Notice(s) of Grant”), and (iii) Restricted Stock
Unit Agreement(s) attached as Exhibit A to such Original
Notice(s) of Grant (the “Original RSU
Agreement(s)”);
WHEREAS, you and Avocent Corporation
(the “Company”) now wish to amend and restate the
Original RSU Agreement(s) to comply with Section 409A of
the Internal Code, as amended.
NOW, THEREFORE, you and the Company
agree as follows:
Unless otherwise defined herein, the
terms defined in the Plan shall have the same defined meanings in
this Amended Notice of Grant of Restricted Stock Units.
You have previously been granted the
number of Restricted Stock Units set forth on the Original Cover
Page(s). Each such Unit is equivalent to one Share of Common
Stock of the Company for purposes of determining the number of
Shares subject to this Award. None of the Restricted Stock
Units will be issued (nor will you have the rights of a stockholder
with respect to the underlying shares) until the vesting conditions
described below are satisfied. Additional terms that now
govern the Awards described in the Original Cover Pages and
the Original Notice(s) of Grant are as follows:
Your Award(s) are subject to
the terms and conditions of the Amended and Restated Restricted
Stock Unit Agreement attached hereto as Exhibit A (the
“New RSU Agreement’). Each Vesting Schedule for
your Award is set forth on the Original Cover Page(s), and all
Restricted Stock Units awarded to you shall vest on the dates set
forth in the Original Cover Pages(s) and the Original
Notice(s) of Grants provided you are a Service Provider to the
Company or any of its Subsidiaries on each such date.
Notwithstanding the foregoing or anything contained in the Original
Cover Page(s), the Original Notice(s) of Grant, or the
Original RSU Agreement(s), all Restricted Stock Units awarded to
you shall be deemed and treated as fully earned and the vesting of
all such Restricted Stock Units shall be deemed and treated as
fully accelerated upon a Change in Control (as defined in
Section 24 of the New RSU Agreement).
You acknowledge and agree that this
agreement and the vesting schedule set forth herein does not
constitute an express or implied promise of continued engagement as
a Service Provider for the vesting period, for any period, or at
all, and shall not interfere with your right or the Company’s
right to terminate your relationship as a Service Provider at any
time, with or without cause.
You hereby agree to accept as
binding, conclusive and final all decisions or interpretations of
the Administrator upon any questions relating to the Plan and this
Award.
By your signature and the signature
of the Company’s representative below you and the Company
agree that this Amended Notice of Grant of Restricted Stock Units,
the form of Amended and Restated Restricted Stock Unit Agreement
attached as Exhibit A hereto, and the 2005 Equity Incentive
Plan constitute your entire agreement with respect to this Award
and may not be modified adversely to your interest except by means
of a writing signed by the Company and you.
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GRANTEE:
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AVOCENT CORPORATION
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By:
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Its:
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1
EXHIBIT A
AVOCENT
CORPORATION
2005 EQUITY INCENTIVE
PLAN
AMENDED AND
RESTATED
RESTRICTED STOCK UNIT
AGREEMENT
1.
Grant . The Company hereby grants to you an award of
Restricted Stock Units (“RSUs”), as set forth in the
Notice of Grant of Restricted Stock Units and subject to the terms
and conditions in this Agreement and the Company’s 2005
Equity Incentive Plan (the “Plan”). Unless
otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Restricted Stock Unit
Agreement.
2.
Company’s Obligation . Each RSU represents the
right to receive a Share on the vesting date (or at such later time
indicated in this Agreement). Unless and until the RSUs vest
in the manner set forth in paragraph 3 or Section 19 of the
Plan, you will have no right to receive Shares under such
RSUs. Prior to actual distribution of Shares pursuant to any
vested RSUs, such RSUs will represent an unsecured obligation of
the Company, payable (if at all) only from the general assets of
the Company.
3.
Vesting Schedule and Issuance of Shares .
(a)
Subject to paragraphs 4 and 11, and Section 19 of the Plan,
the RSUs awarded by this Agreement will vest as to the number of
RSUs, and on the dates shown, on the Notice of Grant (each a
“Vesting Date”). In addition, the RSUs awarded
under this Agreement shall be deemed and treated as fully earned
and the vesting of all such Restricted Stock Units shall be deemed
and treated as fully accelerated upon a Change in Control (as
defined in Section 24 of this Agreement), but only if you will
have been continuously a Service Provider from the date the RSUs
awarded by this Agreement were granted until the date such vesting
occurs. If you are not a Service Provider on such date(s),
the Award shall terminate, as set forth in paragraph 4.
(b)
As soon as practical upon or following each Vesting Date (but,
except as provided in this Agreement, in no event later than the
later of (i) the end of the calendar year that includes the
applicable Vesting Date or (ii) two and one-half (2½)
months following the applicable Vesting Date, subject to any six
(6) month delay required by paragraph 8), one Share shall be
issued for each RSU that vests on such Vesting Date, subject to the
terms and provisions of the Plan and this Agreement.
(c)
(i) If the Administrator, in its discretion, accelerates the
vesting of the balance, or some lesser portion of the balance, of
the Award, the payment of such accelerated portion of the Award
shall be made as soon as practicable after the new vesting date,
but, except as provided in this Agreement, in no event later than
two and one-half (2½) months following the end of the
Company’s taxable year in which the applicable Vesting Date
occurs; provided, however, if the Award is “deferred
compensation” within the meaning of Section 409A, the
payment of such accelerated portion of the Award nevertheless shall
be made at the same time or times as if such Award had vested in
accordance with the vesting schedule set forth in paragraph 3(a),
including any necessary application of paragraph 8 (whether or not
you remain employed by the Company or a Parent or Subsidiary of the
Company as of such date(s)), unless an earlier payment date, in the
judgment of the Administrator, would not cause you to incur an
additional tax under Section 409A, in which case, payment of
such accelerated Award shall be made within two and one-half
(2½) months following the earliest permissible payment date
that would not cause you to incur an additional tax under
Section 409A, subject to paragraph 8 with respect to specified
employees. Notwithstanding the foregoing, any delay in
payment pursuant to this paragraph 3(c) will cease upon your
death and such payment will be made as soon as practicable after
the date of your death. For purposes of this Agreement,
“Section 409A” means Section 409A of the
Internal Revenue Code of 1986, as amended, and any proposed,
temporary or final Treasury Regulations and Internal Revenue
Service guidance thereunder, as each may be amended from time to
time.
(ii)
If the vesting of all or a portion of this Award accelerates
pursuant to (a) Section 19(c) of the Plan in the
event of a Change of Control that is not a “change in
control” within the
2
meaning of Section 409A, or
(b) pursuant to any other plan or agreement that provides for
acceleration in the event of a Change of Control that is not a
“change in control” within the meaning of
Section 409A, then the payment of such accelerated portion of
the Award (including any new or additional Awards existing as a
result of paragraph 11 of this Agreement) will be made in
accordance with the timing of payment rules that apply to
discretionary accelerations under paragraph 3(c)(i). If the
vesting of all or a portion of this Award accelerates in the event
of a Change of Control that is a “change in control”
within the meaning of Section 409A, then the payment of such
accelerated portion of the Award (including any new or additional
Awards existing as a result of paragraph 11 of this Agreement) will
be made within two and one-half (2½) months of the Change of
Control event.
(d)
No fractional Shares shall be issued under this
Agreement.
4.
Forfeiture upon Termination as Service Provider .
Except as provided in paragraph 3, if you terminate service as a
Service Provider for any or no reason prior to vesting, the
unvested RSUs awarded by this Agreement will thereupon be forfeited
and automatically transferred to and reacquired by the Company at
no cost to the Company and your right to acquire any Shares
hereunder will immediately terminate.
5.
Payments after Death . Any distribution or delivery to
be made to you under this Agreement will, if you are then deceased,
be made to the administrator or executor of your estate. Any
such administrator
