**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 andconditions 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 suchOriginal Cover Page(s) (the “Original Notice(s) of Grant”), and (iii) RestrictedStock Unit Agreement(s) attached as Exhibit A to such Original Notice(s) ofGrant (the “Original RSU Agreement(s)”);

 

WHEREAS,you and Avocent Corporation (the “Company”) now wish to amend and restate theOriginal RSU Agreement(s) to comply with Section 409A of the InternalCode, as amended.

 

NOW,THEREFORE, you and the Company agree as follows:

 

Unlessotherwise defined herein, the terms defined in the Plan shall have the samedefined meanings in this Amended Notice of Grant of Restricted Stock Units.

 

Youhave previously been granted the number of Restricted Stock Units set forth onthe Original Cover Page(s).  Each suchUnit is equivalent to one Share of Common Stock of the Company for purposes ofdetermining the number of Shares subject to this Award.  None of the Restricted Stock Units will beissued (nor will you have the rights of a stockholder with respect to theunderlying shares) until the vesting conditions described below aresatisfied.  Additional terms that nowgovern the Awards described in the Original Cover Pages and the OriginalNotice(s) of Grant are as follows:

 

**Your Award(s) are subject to the terms and conditions of theAmended and Restated Restricted Stock Unit Agreement attached hereto as Exhibit A(the “New RSU Agreement’).  Each VestingSchedule for your Award is set forth on the Original Cover Page(s), and allRestricted Stock Units awarded to you shall vest on the dates set forth in theOriginal Cover Pages(s) and the Original Notice(s) of Grants providedyou are a Service Provider to the Company or any of its Subsidiaries on eachsuch date.  Notwithstanding the foregoingor anything contained in the Original Cover Page(s), the Original Notice(s) ofGrant, or the Original RSU Agreement(s), all Restricted Stock Units awarded toyou shall be deemed and treated as fully earned and the vesting of all suchRestricted Stock Units shall be deemed and treated as fully accelerated upon aChange in Control (as defined in Section 24 of the New RSU Agreement).**

 

Youacknowledge and agree that this agreement and the vesting schedule set forthherein does not constitute an express or implied promise of continuedengagement as a Service Provider for the vesting period, for any period, or atall, and shall not interfere with your right or the Company’s right toterminate your relationship as a Service Provider at any time, with or withoutcause.

 

Youhereby agree to accept as binding, conclusive and final all decisions orinterpretations of the Administrator upon any questions relating to the Planand this Award.

 

Byyour signature and the signature of the Company’s representative below you andthe 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 Ahereto, and the 2005 Equity Incentive Plan constitute your entire agreementwith respect to this Award and may not be modified adversely to your interestexcept by means of a writing signed by the Company and you.

 

| GRANTEE: |   | AVOCENT CORPORATION |
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|     |   | By:                 |   |
|     |   | Its:                |   |
|          |        |                     |  |  |

 

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EXHIBITA

 

**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”), asset forth in the Notice of Grant of Restricted Stock Units and subject to theterms and conditions in this Agreement and the Company’s 2005 Equity IncentivePlan (the “Plan”).  Unless otherwisedefined herein, the terms defined in the Plan shall have the same defined meaningsin this Restricted Stock Unit Agreement.

 

2.             Company’s Obligation.  Each RSU represents the right to receive aShare on the vesting date (or at such later time indicated in thisAgreement).  Unless and until the RSUsvest in the manner set forth in paragraph 3 or Section 19 of the Plan, youwill have no right to receive Shares under such RSUs.  Prior to actual distribution of Sharespursuant to any vested RSUs, such RSUs will represent an unsecured obligationof the Company, payable (if at all) only from the general assets of theCompany.

 

3.             Vesting Schedule and Issuance ofShares.

 

(a)           Subject to paragraphs 4 and 11, and Section 19of the Plan, the RSUs awarded by this Agreement will vest as to the number ofRSUs, and on the dates shown, on the Notice of Grant (each a “Vesting Date”).  In addition, the RSUs awarded under thisAgreement shall be deemed and treated as fully earned and the vesting of allsuch Restricted Stock Units shall be deemed and treated as fully acceleratedupon a Change in Control (as defined in Section 24 of this Agreement), butonly if you will have been continuously a Service Provider from the date theRSUs awarded by this Agreement were granted until the date such vestingoccurs.  If you are not a Service Provideron such date(s), the Award shall terminate, as set forth in paragraph 4.

 

(b)           As soon as practical upon orfollowing each Vesting Date (but, except as provided in this Agreement, in noevent later than the later of (i) the end of the calendar year thatincludes the applicable Vesting Date or (ii) two and one-half (21⁄2) monthsfollowing the applicable Vesting Date, subject to any six (6) month delayrequired by paragraph 8), one Share shall be issued for each RSU that vests onsuch Vesting Date, subject to the terms and provisions of the Plan and thisAgreement.

 

(c)           (i)  If the Administrator, inits discretion, accelerates the vesting of the balance, or some lesser portionof the balance, of the Award, the payment of such accelerated portion of theAward 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(21⁄2) months following the end of the Company’s taxable year in which theapplicable Vesting Date occurs; provided, however, if the Award is “deferredcompensation” within the meaning of Section 409A, the payment of suchaccelerated portion of the Award nevertheless shall be made at the same time ortimes as if such Award had vested in accordance with the vesting schedule setforth 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 ofthe Company as of such date(s)), unless an earlier payment date, in thejudgment of the Administrator, would not cause you to incur an additional taxunder Section 409A, in which case, payment of such accelerated Award shallbe made within two and one-half (21⁄2) months following the earliest permissiblepayment 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 inpayment pursuant to this paragraph 3(c) will cease upon your death andsuch payment will be made as soon as practicable after the date of yourdeath.  For purposes of this Agreement, “Section 409A”means Section 409A of the Internal Revenue Code of 1986, as amended, andany proposed, temporary or final Treasury Regulations and Internal RevenueService guidance thereunder, as each may be amended from time to time.

 

(ii)           If the vesting of all or a portion ofthis Award accelerates pursuant to (a) Section 19(c) of the Planin the event of a Change of Control that is not a “change in control” withinthe

 

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meaningof Section 409A, or (b) pursuant to any other plan or agreement thatprovides for acceleration in the event of a Change of Control that is not a “changein control” within the meaning of Section 409A, then the payment of suchaccelerated portion of the Award (including any new or additional Awardsexisting as a result of paragraph 11 of this Agreement) will be made inaccordance with the timing of payment rules that apply to discretionaryaccelerations under paragraph 3(c)(i). If the vesting of all or a portion of this Award accelerates in theevent of a Change of Control that is a “change in control” within the meaningof 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 ofthis Agreement) will be made within two and one-half (21⁄2) months of the Changeof Control event.

 

(d)           No fractional Shares shall be issuedunder this Agreement.

 

4.             Forfeiture upon Termination asService Provider.  Except as providedin paragraph 3, if you terminate service as a Service Provider for any or noreason prior to vesting, the unvested RSUs awarded by this Agreement willthereupon be forfeited and automatically transferred to and reacquired by theCompany at no cost to the Company and your right to acquire any Shareshereunder will immediately terminate.

 

5.             Payments after Death.  Any distribution or delivery to be made toyou under this Agreement will, if you are then deceased, be made to the administratoror executor of your estate.  Any suchadministrator or executor must furnish the Company with (a) written noticeof his or her status as transferee, and (b) evidence satisfactory to theCompany to establish the validity of the transfer and compliance with any lawsor regulations pertaining to said transfer.

 

6.             Withholding ofTaxes.  The Company (or the employingParent or Subsidiary) will withhold from the number of Shares otherwiseissuable under this Award a number of Shares that have an aggregative marketvalue sufficient to pay the minimum statutorily required federal, state andlocal tax withholding obligations, unless the Company, in its sole discretion,requires you to make alternate arrangements satisfactory to the Company forsuch withholdings in advance of the arising of any withholdingobligations.  Shares will be valued attheir Fair Market Value when the taxable event occurs.  The number of Shares withheld pursuant tothis paragraph 6 will be rounded up to the nearest whole Share, with no refundprovided for any value of the Shares withheld in excess of the tax obligationas a result of such rounding, all pursuant to such procedures as theAdministrator may specify from time to time.

 

Notwithstandingany contrary provision of this Agreement, no Shares will be issued unless anduntil income, employment and other taxes which the Company determines must bewithheld or collected with respect to such Shares have been withheld orcollected.  In addition and to themaximum extent permitted by law, the Company (or the employing Parent orSubsidiary) has the right to retain without notice from salary or other amountspayable to you, cash having a sufficient value to satisfy any tax withholdingobligations that the Company determines cannot be satisfied through thewithholding of otherwise deliverable Shares. All income and other taxes related to the RSUs and any Shares deliveredin payment thereof are your sole responsibility.

 

7.             Rights asStockholder.  Neither you nor anyperson claiming under or through you will have any of the rights or privilegesof a stockholder of the Company in respect of any Shares deliverable hereunderunless and until certificates representing such Shares will have been issued,recorded on the records of the Company or its transfer agents or registrars,and delivered to you or your broker.

 

8.             Code Section 409A.  Notwithstanding anything in the Plan or thisAgreement to the contrary, if the vesting of the balance, or some lesserportion of the balance, of the RSUs is accelerated in connection with yourtermination as a Service Provider, such accelerated RSUs will not be payableuntil and unless you have a “separation from service” within the meaning of Section 409A.  Further, and notwithstanding anything in thePlan or this Agreement to the contrary, if any such accelerated RSUs wouldotherwise become payable upon a “separation from service” within the meaning ofSection 409A, and if (x) you are a “specified employee” within themeaning of Section 409A at the time of such “separation from service”within the meaning of Section 409A (other than due to your death) and (y) thepayment of all or a portion of such accelerated RSUs would result in

 

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theimposition of additional tax under Section 409A if paid to you on orwithin the six (6) month period following your “separation from service”within the meaning of Section 409A, then the payment of the portion ofsuch accelerated RSUs that would result in the additional tax imposition willnot be made until the date six (6) months and one (1) day followingthe date of your “separation from service” within the meaning of Section 409A,unless you die following your termination as a Service Provider, in which casethe RSUs will be paid in Shares to your estate as soon as practicable followingyour death (and in all cases within ninety (90) days of your death).  It is the intent of this Agreement to complywith the requirements of Section 409A so that none of the RSUs providedunder this Agreement or Shares issuable thereunder will be subject to theadditional tax imposed under Section 409A, and any ambiguities herein willbe interpreted to so comply.

 

9.             Intentionally Omitted.]

 

10.           Address for Notices.  Any notice to be given to the Company underthe terms of this Agreement will be addressed to the Company at 4991 Corporate Drive, Huntsville, AL 35805, Attn:Stock Administration, or at such other address as the Company may hereafterdesignate in writing or electronically.

 

11.           Changes in RSUs.  In the event that as a result of a stock orextraordinary cash dividend, stock split, distribution, reclassification,recapitalization, combination of Shares or the adjustment in capital stock ofthe Company or otherwise, or as a result of a merger, consolidation, spin-offor other corporate transaction or event, the RSUs will be increased, reduced orotherwise affected, and by virtue of any such event you will in your capacityas owner of unvested RSUs which have been awarded to you (the “Prior RSUs”) beentitled to new or additional or different shares of stock, cash or othersecurities or property (other than rights or warrants to purchase securities);such new or additional or different shares, cash or securities or property willthereupon be considered to be unvested RSUs and will be subject to all of theconditions and restrictions that were applicable to the Prior RSUs pursuant tothis Agreement and the Plan.  If youreceive rights or warrants with respect to any Prior RSUs, such rights orwarrants may be held or exercised by you, provided that until such exercise anysuch rights or warrants and after such exercise any shares or other securitiesacquired by the exercise of such rights or warrants will be considered to beunvested RSUs and will be subject to all of the conditions and restrictionswhich were applicable to the Prior RSUs pursuant to the Plan and thisAgreement.  The Administrator in itsabsolute discretion at any time may accelerate the vesting of all or anyportion of such new or additional shares of stock, cash or securities, rightsor warrants to purchase securities or shares or other securities acquired bythe exercise of such rights or warrants; provided, however, that the payment ofsuch accelerated new or additional awards shall be made in accordance with thetiming of payment rules under paragraph 3(c)(i).

 

12.           Grant is NotTransferable.  Except to the limitedextent provided in paragraph 5, this grant and the rights and privilegesconferred hereby will not be transferred, assigned, pledged or hypothecated inany way (whether by operation of law or otherwise) and will not be subject tosale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge,hypothecate or otherwise dispose of this grant, or any right or privilegeconferred hereby, or upon any attempted sale under any execution, attachment orsimilar process, this grant and the rights and privileges conferred herebyimmediately will become null and void.

 

13.           Binding Agreement.  Subject to the limitation on thetransferability of this grant contained herein, this Agreement will be bindingupon and inure to the benefit of the heirs, legatees, legal representatives,successors and assigns of the parties hereto.

 

14.           Restrictions onSale of Securities.  The Sharesissued as payment for vested RSUs under this Agreement will be registered underU.S. federal securities laws and will be freely tradable upon receipt. However,your subsequent sale of the Shares may be subject to any market blackout-periodthat may be imposed by the Company and must comply with the Company’s insidertrading policies, and any other applicable securities laws.

 

15.           AdditionalConditions to Issuance of Stock.  Ifat any time the Company will determine, in its discretion, that the listing,registration or qualification of the Shares upon any securities exchange orunder any state or federal law, or the consent or approval of any governmentalregulatory authority is necessary or desirable

 

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asa condition to the issuance of Shares to you (or your estate), such issuancewill not occur unless and until such listing, registration, qualification,consent or approval will have been effected or obtained free of any conditionsnot acceptable to the Company.  TheCompany will make all reasonable efforts to meet the requirements of any suchstate or federal law or securities exchange and to obtain any such consent orapproval of any such governmental authority.

 

16.           Plan Governs.  This Agreement and the Notice of Grant aresubject to all terms and provisions of the Plan.  In the event of a conflict between one ormore provisions of this Agreement or the Notice of Grant and one or moreprovisions of the Plan, the provisions of the Plan will govern.

 

17.           AdministratorAuthority.  The Administrator willhave the power to interpret the Plan and this Agreement and to adopt such rules forthe administration, interpretation and application of the Plan as areconsistent therewith and to interpret or revoke any such rules (including,but not limited to, the determination of whether or not any RSUs havevested).  All actions taken and allinterpretations and determinations made by the Administrator in good faith willbe final and binding upon you, the Company and all other interestedpersons.  No member of the Administratorwill be personally liable for any action, determination or interpretation madein good faith with respect to the Plan or this Agreement

 

18.           Stock OwnershipGuidelines.  You understand andacknowledge that this Agreement and the right to receive Shares under this RSUAward are subject to the terms and conditions of the Avocent CorporationRestricted Stock, Performance Shares, and Stock Ownership General Guidelines asin effect from time to time and as construed by the Administrator.

 

19.           Captions.  Captions provided herein are for convenienceonly and are not to serve as a basis for interpretation and construction ofthis Agreement.

 

20.           AgreementSeverable.  In the event that any provisionof this Agreement becomes or is declared by a court of competent jurisdictionto be illegal, unenforceable or void, this Agreement will continue in fullforce and effect.

 

21.           Modifications tothe Agreement.  This Agreementconstitutes the entire understanding of the parties on the subjectscovered.  You expressly warrant that youare not accepting this Agreement in reliance on any promises, representations,or inducements other than those contained herein.  Modifications to this Agreement or the Plancan be made only in an express written contract executed by a duly authorizedofficer of the Company.  Notwithstandinganything to the contrary in the Plan or this Agreement, the Company may amendthis Agreement as necessary to comply with Section 409A or to otherwiseavoid imposition of any additional tax or income recognition under Section 409Ain connection to this Award of RSUs.

 

22.           Amendment,Suspension or Termination of the Plan. By accepting this Award, you expressly warrant that you have received anAward of RSUs under the Plan, and has received, read and understood adescription of the Plan.  You understandthat the Plan is discretionary in nature and may be amended, suspended orterminated by the Company at any time.

 

23.           Governing Law.  This Agreement shall be governed by the lawsof the State of Alabama without giving effect to the conflict of law principlesthereof.  For purposes of litigating anydispute that arises under this Award of RSUs or this Agreement, the partieshereby submit to and consent to the jurisdiction of the State of Alabama, andagree that such litigation shall be conducted in the courts of Madison County,Alabama, or the federal courts for the United States for the Northern Districtof Alabama, and no other courts, where this Award of RSUs is made and/or to beperformed.

 

24.           Change in Control.  “Change in Control” shall mean, after thedate of this Agreement, any one of the following events:

 

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(a)           Any person (other than the Company) or more than oneperson acting as a group (a “Person”) acquires beneficial ownership of theCompany’s securities and is or thereby becomes when such ownership is combinedwith stock held by such Person a beneficial owner of securities entitling suchPerson to exercise twenty-five percent (25%) or more of the combined votingpower of the Company’s then outstanding stock. For purposes of this Agreement, “beneficial ownership” shall bedetermined in accordance with Regulation 13D under the Securities ExchangeAct of 1934, or any similar successor regulation or rule; and the term “Person”shall include any natural person, corporation, partnership, trust, orassociation, or any group or combination thereof, whose ownership of theCompany’s securities would be required to be reported under suchRegulation 13D, or any similar successor regulation or rule.

 

(b)           Within any twenty-four (24) month period, the individualswho were Directors of the Company at the beginning of any such period, togetherwith any other Directors first elected as directors of the Company pursuant tonominations approved or ratified by at least two-thirds (2/3) of the Directorsin office immediately prior to any such election, cease to constitute amajority of the Board of Directors of the Company.

 

(c)           The closing of any transactioninvolving:

 

(i)            any consolidation, merger, or other reorganization of theCompany in which the Company is not the continuing or surviving corporation orpursuant to which shares of the Company’s common stock would be converted intocash, securities or other property, other than a merger, consolidation, orother reorganization of the Company in which the holders of the Company’scommon stock immediately prior to the merger or consolidation have substantiallythe same proportionate ownership and voting control of the survivingcorporation immediately after the merger or consolidation; or

 

(ii)           any sale, lease, exchange, liquidation or other transfer(in one transaction or a series of transactions) of all or substantially all ofthe assets of the Company.

 

Notwithstandingthe foregoing, the term “Change in Control” shall not include a consolidation,merger, or other reorganization if upon consummation of such transaction all ofthe outstanding voting stock of the Company is owned, directly or indirectly,by a holding company, and the holders of the Company’s common stock immediatelyprior to the transaction have substantially the same proportionate ownershipand voting control of such holding company after such transaction.

 

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