EXHIBIT 99.12
AVOCENT CORPORATION
2005 EQUITY INCENTIVE PLAN
NOTICE OF GRANT OF RESTRICTED STOCK UNITS
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Notice of Grant.
Name: _______________________
You have been granted _________ Restricted Stock Units. 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 of this grant are as follows:
Date of Grant ___________________, 2006
Expiration Date: ___________________, 2006
Vesting Schedule: [Insert Vesting Schedule]
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 prior
to the Expiration Date, you and the Company agree that this Notice of Grant, the
form of 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
- ------------------------------- ------------------------------------
Signature By
- -------------------------------- ------------------------------------
Print Name Title
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EXHIBIT A
---------
AVOCENT CORPORATION
2005 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
1. Grant. The Company hereby grants to the Employee 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. Unless and until the RSUs vest, the Employee 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. Subject to paragraph 4, the RSUs awarded by this
Agreement will vest in the Employee according to the vesting schedule specified
in the Notice of Grant [for the Company's Senior Officers: which shall include
accelerated vesting of all RSU's awarded by this Agreement to the same extent
and on the same terms and conditions that the vesting of any stock options
awards granted to Employee is accelerated under the terms of any agreement
(including any employment or option agreement or amendment) between Employee and
the Company (or any of its Subsidiaries)].
4. Forfeiture upon Termination as Service Provider. Notwithstanding any
contrary provision of this Agreement or the Notice of Grant, if the Employee
terminates service as a Service Provider for any or no reason prior to vesting,
the unvested RSUs awarded by this Agreement will thereupon be forfeited at no
cost to the Company.
5. Payment after Vesting. Any RSUs that vest in accordance with paragraph 3
will be paid to the Employee (or in the event of the Employee's death, to his or
her estate) solely in Shares; provided that to the extent determined appropriate
by the Administrator, the minimum statutorily required federal, state and local
withholding taxes with respect to such RSUs will be paid by reducing the number
of vested RSUs actually paid to the Employee.
6. Payments after Death. Any distribution or delivery to be made to the
Employee under this Agreement will, if the Employee is then deceased, be made to
the administrator or executor of the Employee's 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.
7. Rights as Stockholder. Neither the Employee nor any person claiming
under or through the Employee 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 the Employee or Employee's broker.
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8. No Effect on Employment. The Employee's employment with the Company and
its Subsidiaries is on an at-will basis only. Accordingly, the terms of the
Employee's employment with the Company and its Subsidiaries will be determined
from time to time by the Company or the Subsidiary employing the Employee (as
the case may be), and the Company or the Subsidiary will have the right, which
is hereby expressly reserved, to terminate or change the terms of the employment
of the Employee at any time for any reason whatsoever, with or without good
cause or notice.
9. 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.
10. Grant is Not Transferable. Except to the limited extent provided in
paragraph 6, 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.
11. 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.
12. 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 as a condition to the issuance of Shares to the
Employee (or his or her 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.
13. 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.
14. 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 Employee, 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.
[For the Company's Senior Officers: 15. Stock Ownership Guidelines.
Employee understands and acknowledges that this Agreement and the right to
receive Shares under this RSU Award is 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.]
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AVOCENT CORPORATION
2005 EQUITY INCENTIVE PLAN
NOTICE OF GRANT OF PERFORMANCE SHARES
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Notice of Grant.
Name: _______________________
You have been granted _________ Performance Shares. Each such Share 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 Performance
Shares 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 of this grant are as follows:
Date of Grant ___________________, 2006
Expiration Date: ___________________, 2006
Vesting Schedule: [Insert Vesting Schedule]
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 prior
to the Expiration Date, you and the Company agree that this Notice of Grant, the
form of Performance Share 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
- ------------------------------- ------------------------------------
Signature By
- -------------------------------- ------------------------------------
Print Name Title
11
EXHIBIT A
---------
AVOCENT CORPORATION
2005 EQUITY INCENTIVE PLAN
PERFORMANCE SHARE AGREEMENT
1. Grant. The Company hereby grants to the Employee an award of Performance
Shares, as set forth in the Notice of Grant of Performance Shares 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 Performance Share
Agreement.
2. Company's Obligation. Each Performance Share represents the right to
receive a Share on the vesting date. Unless and until the Performance Shares
vest, the Employee will have no right to receive Shares under such Performance
Share. Prior to actual distribution of Shares pursuant to any vested Performance
Shares, such Performance Shares will represent an unsecured obligation of the
Company, payable (if at all) only from the general assets of the Company.
3. Vesting Schedule. Subject to paragraph 4, the Performance Shares awarded
by this Agreement will vest in the Employee according to the vesting schedule
specified in the Notice of Grant [for the Company's Senior Officers: which shall
include accelerated vesting of all Performance Shares awarded by this Agreement
to the same extent and on the same terms and conditions that the vesting of any
stock options awards granted to Employee is accelerated under the terms of any
agreement (including any employment or option agreement or amendment) between
Employee and the Company (or any of its Subsidiaries)].
4. Forfeiture upon Termination as Service Provider. Notwithstanding any
contrary provision of this Agreement or the Notice of Grant, if the Employee
terminates service as a Service Provider for any or no reason prior to vesting,
the unvested Performance Shares awarded by this Agreement will thereupon be
forfeited at no cost to the Company.
5. Payment after Vesting. Any Performance Shares that vest in accordance
with paragraph 3 will be paid to the Employee (or in the event of the Employee's
death, to his or her estate) solely in Shares; provided that to the extent
determined appropriate by the Administrator, in its sole discretion, the minimum
statutorily required federal, state and local withholding taxes with respect to
such Performance Shares will be paid by reducing the number of vested
Performance Shares actually paid to the Employee.
6. Payments after Death. Any distribution or delivery to be made to the
Employee under this Agreement will, if the Employee is then deceased, be made to
the administrator or executor of the Employee's 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.
7. Rights as Stockholder. Neither the Employee nor any person claiming
under or through the Employee 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 the Employee or Employee's broker.
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8. No Effect on Employment. The Employee's employment with the Company and
its Subsidiaries is on an at-will basis only. Accordingly, the terms of the
Employee's employment with the Company and its Subsidiaries will be determined
from time to time by the Company or the Subsidiary employing the Employee (as
the case may be), and the Company or the Subsidiary will have the right, which
is hereby expressly reserved, to terminate or change the terms of the employment
of the Employee at any time for any reason whatsoever, with or without good
cause or notice.
9. 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.
10. Grant is Not Transferable. Except to the limited extent provided in
paragraph 6, 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.
11. 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.
12. 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 as a condition to the issuance of Shares to the
Employee (or his or her 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.
13. 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.
14. 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 Performance Shares have vested). All
actions taken and all interpretations and determinations made by the
Administrator in good faith will be final and binding upon Employee, 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.
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