UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 30, 2008
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AVOCENT CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 000-30575 91-2032368
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
4991 CORPORATE DRIVE HUNTSVILLE, AL 35805
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (256) 430-4000
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n/a
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(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Amended and Restated Employment and Noncompetition Agreements.
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On December 30, 2008, following approval by Avocent Corporation's
Compensation Committee (which is comprised of three independent non-employee
directors), Avocent Corporation (the "Company") entered into amended and
restated employment and noncompetition agreements with its principal executive
officer, its principal financial officer, its other named executive officers,
and certain other senior executive officers. The amended and restated agreements
are substantially similar to the former employment and noncompetition
agreements, and the amended and restated agreements were required to bring the
former employment agreements into compliance with Section 409A of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations and interpretive
guidance issued thereunder ("Section 409A").
Section 409A is a federal tax law enacted in 2004 governing certain
separation and deferred pay arrangements (including equity acceleration
provisions and severance payments under employment or equity agreements).
Section 409A imposes additional tax and penalties on service providers
(including employees) if a covered arrangement was not amended to comply with,
or satisfy an exemption from, Section 409A by December 31, 2008.
The amended and restated employment and noncompetition agreements reflect,
among other things, changes necessary to comply with, or be exempt from, the
requirements of Section 409A governing the timing and form of payments under
such agreements and changes to conform certain definitions of "termination for
cause," "termination other than for cause," "constructive termination,"
"release," and "disability," where applicable, with definitions that are
compliant under Section 409A. In general, these changes do not affect the scope
or amount of benefits an eligible employee will be entitled to receive under any
amended and restated employment agreement.
In addition, a provision providing for annual cost of living increases was
removed from the amended and restated agreements and the definition of "change
in control" under the amended and restated agreements was amended to reflect
that the consummation of certain transactions, rather than stockholder approval
of such transactions, will constitute a "change in control" for purposes of the
amended and restated agreements.
The foregoing description does not purport to be a complete description of
the amended and restated employment and noncompetition agreements and is
qualified in its entirety by reference to the revised form of amended and
restated employment and noncompetition agreement, which Avocent will file as an
exhibit to its Annual Report on Form 10-K for the year ended December 31, 2008.
Deferred Compensation Plan.
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On December 31, 2008, following approval by both Avocent Corporation's
Compensation Committee (which is comprised of three independent non-employee
directors) and Avocent Corporation's Board of Directors, Avocent Corporation
(the "Company") adopted a Deferred Compensation Plan (the "Plan"). Participation
in the Plan is limited to the Company's senior managers (director level and
above) and members of the Company's Board of Directors. Participants may defer
up to 100% (less any applicable social security or other taxes and/or benefits
paid for via payroll deduction) of their salary, commission, and bonuses (or, in
the case of Board members, their Board retainer and meeting fees) and defer
income taxes on such amounts in compliance with Internal Revenue Code Section
409A. The Plan offers these participants a variety of investment funds and
payout options (in-service, retirement, and separation of service). In adopting
the Plan, the Compensation Committee and the Board of Directors of the Company
believed the Plan offered a highly-visible (but voluntary) employee benefit
intended to improve executive retention and attract employee talent, thus
benefiting the Company and its stockholders. Moreover, since the Company does
not currently intend to match contributions by participants to the Plan, the
cost to the Company is expected to be minimal.
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The foregoing description does not purport to be a complete description of
the Plan and is qualified in its entirety by reference to the full text of the
Plan, which Avocent will file as an exhibit to its Annual Report on Form 10-K
for the year ended December 31, 2008.
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AVOCENT CORPORATION
Date: January 6, 2009
By: /s/ Samuel F. Saracino
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Samuel F. Saracino
Executive Vice President of Legal and
Corporate Affairs, General Counsel, and
Secretary
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