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.


 




	
  GRANTEE:

  	
   

  	
  AVOCENT CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  
					






 


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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 (21⁄2) 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
(21⁄2) 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 (21⁄2) 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


 


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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 (21⁄2) 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 or executor must furnish the Company with (a) written notice
of his or her status as transferee, and (b) evidence satisfactory to the
Company to establish the validity of the transfer and compliance with any laws
or regulations pertaining to said transfer.


 


6.             Withholding of
Taxes.  The Company (or the employing
Parent or Subsidiary) will withhold from the number of Shares otherwise
issuable under this Award a number of Shares that have an aggregative market
value sufficient to pay the minimum statutorily required federal, state and
local tax withholding obligations, unless the Company, in its sole discretion,
requires you to make alternate arrangements satisfactory to the Company for
such withholdings in advance of the arising of any withholding
obligations.  Shares will be valued at
their Fair Market Value when the taxable event occurs.  The number of Shares withheld pursuant to
this paragraph 6 will be rounded up to the nearest whole Share, with no refund
provided for any value of the Shares withheld in excess of the tax obligation
as a result of such rounding, all pursuant to such procedures as the
Administrator may specify from time to time.


 


Notwithstanding
any contrary provision of this Agreement, no Shares will be issued unless and
until income, employment and other taxes which the Company determines must be
withheld or collected with respect to such Shares have been withheld or
collected.  In addition and to the
maximum extent permitted by law, the Company (or the employing Parent or
Subsidiary) has the right to retain without notice from salary or other amounts
payable to you, cash having a sufficient value to satisfy any tax withholding
obligations that the Company determines cannot be satisfied through the
withholding of otherwise deliverable Shares. 
All income and other taxes related to the RSUs and any Shares delivered
in payment thereof are your sole responsibility.


 


7.             Rights as
Stockholder.  Neither you nor any
person claiming under or through you will have any of the rights or privileges
of a stockholder of the Company in respect of any Shares deliverable hereunder
unless 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 this
Agreement to the contrary, if the vesting of the balance, or some lesser
portion of the balance, of the RSUs is accelerated in connection with your
termination as a Service Provider, such accelerated RSUs will not be payable
until and unless you have a “separation from service” within the meaning of Section 409A.  Further, and notwithstanding anything in the
Plan or this Agreement to the contrary, if any such accelerated RSUs would
otherwise become payable upon a “separation from service” within the meaning of
Section 409A, and if (x) you are a “specified employee” within the
meaning 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) the
payment of all or a portion of such accelerated RSUs would result in


 


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the
imposition of additional tax under Section 409A if paid to you on or
within the six (6) month period following your “separation from service”
within the meaning of Section 409A, then the payment of the portion of
such accelerated RSUs that would result in the additional tax imposition will
not be made until the date six (6) months and one (1) day following
the date of your “separation from service” within the meaning of Section 409A,
unless you die following your termination as a Service Provider, in which case
the RSUs will be paid in Shares to your estate as soon as practicable following
your death (and in all cases within ninety (90) days of your death).  It is the intent of this Agreement to comply
with the requirements of Section 409A so that none of the RSUs provided
under this Agreement or Shares issuable thereunder will be subject to the
additional tax imposed under Section 409A, and any ambiguities herein will
be interpreted to so comply.


 


9.             Intentionally Omitted.]


 


10.           Address for Notices.  Any notice to be given to the Company under
the 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 hereafter
designate in writing or electronically.


 


11.           Changes in RSUs.  In the event that as a result of a stock or
extraordinary cash dividend, stock split, distribution, reclassification,
recapitalization, combination of Shares or the adjustment in capital stock of
the Company or otherwise, or as a result of a merger, consolidation, spin-off
or other corporate transaction or event, the RSUs will be increased, reduced or
otherwise affected, and by virtue of any such event you will in your capacity
as owner of unvested RSUs which have been awarded to you (the “Prior RSUs”) be
entitled to new or additional or different shares of stock, cash or other
securities or property (other than rights or warrants to purchase securities);
such new or additional or different shares, cash or securities or property will
thereupon be considered to be unvested RSUs and will be subject to all of the
conditions and restrictions that were applicable to the Prior RSUs pursuant to
this Agreement and the Plan.  If you
receive rights or warrants with respect to any Prior RSUs, such rights or
warrants may be held or exercised by you, provided that until such exercise any
such rights or warrants and after such exercise any shares or other securities
acquired by the exercise of such rights or warrants will be considered to be
unvested RSUs and will be subject to all of the conditions and restrictions
which were applicable to the Prior RSUs pursuant to the Plan and this
Agreement.  The Administrator in its
absolute discretion at any time may accelerate the vesting of all or any
portion of such new or additional shares of stock, cash or securities, rights
or warrants to purchase securities or shares or other securities acquired by
the exercise of such rights or warrants; provided, however, that the payment of
such accelerated new or additional awards shall be made in accordance with the
timing of payment rules under paragraph 3(c)(i).


 


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


 


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


 


14.           Restrictions on
Sale of Securities.  The Shares
issued as payment for vested RSUs under this Agreement will be registered under
U.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-period
that may be imposed by the Company and must comply with the Company’s insider
trading policies, and any other applicable securities laws.


 


15.           Additional
Conditions to Issuance of Stock.  If
at any time the Company will determine, in its discretion, that the listing,
registration or qualification of the Shares upon any securities exchange or
under any state or federal law, or the consent or approval of any governmental
regulatory authority is necessary or desirable


 


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


 


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


 


17.           Administrator
Authority.  The Administrator will
have the power to interpret the Plan and this Agreement and to adopt such rules for
the administration, interpretation and application of the Plan as are
consistent therewith and to interpret or revoke any such rules (including,
but not limited to, the determination of whether or not any RSUs have
vested).  All actions taken and all
interpretations and determinations made by the Administrator in good faith will
be final and binding upon you, the Company and all other interested
persons.  No member of the Administrator
will be personally liable for any action, determination or interpretation made
in good faith with respect to the Plan or this Agreement


 


18.           Stock Ownership
Guidelines.  You understand and
acknowledge that this Agreement and the right to receive Shares under this RSU
Award are subject to the terms and conditions of the Avocent Corporation
Restricted Stock, Performance Shares, and Stock Ownership General Guidelines as
in effect from time to time and as construed by the Administrator.


 


19.           Captions.  Captions provided herein are for convenience
only and are not to serve as a basis for interpretation and construction of
this Agreement.


 


20.           Agreement
Severable.  In the event that any provision
of this Agreement becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or void, this Agreement will continue in full
force and effect.


 


21.           Modifications to
the Agreement.  This Agreement
constitutes the entire understanding of the parties on the subjects
covered.  You expressly warrant that you
are not accepting this Agreement in reliance on any promises, representations,
or inducements other than those contained herein.  Modifications to this Agreement or the Plan
can be made only in an express written contract executed by a duly authorized
officer of the Company.  Notwithstanding
anything to the contrary in the Plan or this Agreement, the Company may amend
this Agreement as necessary to comply with Section 409A or to otherwise
avoid imposition of any additional tax or income recognition under Section 409A
in 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 an
Award of RSUs under the Plan, and has received, read and understood a
description of the Plan.  You understand
that the Plan is discretionary in nature and may be amended, suspended or
terminated by the Company at any time.


 


23.           Governing Law.  This Agreement shall be governed by the laws
of the State of Alabama without giving effect to the conflict of law principles
thereof.  For purposes of litigating any
dispute that arises under this Award of RSUs or this Agreement, the parties
hereby submit to and consent to the jurisdiction of the State of Alabama, and
agree that such litigation shall be conducted in the courts of Madison County,
Alabama, or the federal courts for the United States for the Northern District
of Alabama, and no other courts, where this Award of RSUs is made and/or to be
performed.


 


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


 


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


 


(b)           Within any twenty-four (24) month period, the individuals
who were Directors of the Company at the beginning of any such period, together
with any other Directors first elected as directors of the Company pursuant to
nominations approved or ratified by at least two-thirds (2/3) of the Directors
in office immediately prior to any such election, cease to constitute a
majority of the Board of Directors of the Company.


 


(c)           The closing of any transaction
involving:


 


(i)            any consolidation, merger, or other reorganization of the
Company in which the Company is not the continuing or surviving corporation or
pursuant to which shares of the Company’s common stock would be converted into
cash, securities or other property, other than a merger, consolidation, or
other reorganization of the Company in which the holders of the Company’s
common stock immediately prior to the merger or consolidation have substantially
the same proportionate ownership and voting control of the surviving
corporation 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 of
the assets of the Company.


 


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


 


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