**Exhibit10.9**

** **

***AVOCENT CORPORATIONDEFERRED COMPENSATION PLAN***

 

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**AVOCENT CORPORATION**

 

**DEFERRED COMPENSATION PLAN**

 

Avocent Corporation, a Delaware corporation (the “Company”)on behalf of itself and Participating Affiliates, hereby establishes thisDeferred Compensation Plan (the “Plan”), effective January 1, 2009, forthe purpose of attracting high quality executives and promoting in its keyexecutives and directors increased efficiency and an interest in the successfuloperation of the Company.  The Plan isintended to, and shall be interpreted to, comply in all respects with InternalRevenue Code Section 409A and those provisions of the Employee RetirementIncome Security Act of 1974, as amended, applicable to an unfunded planmaintained primarily to provide deferred compensation benefits for a selectgroup of “management or highly compensated employees.”

 

# **ARTICLE 1****Definitions**

#  

## 1.1           **“Account(s)”** shall mean the account or accounts establishedfor a particular Participant pursuant to Article 3 of the Plan.

##  

## 1.2           **“Administrative Committee”**shall mean the CompensationCommittee of the Board of Directors of the Company or such other person orpersons appointed by the Board of Directors of the Company to administer thePlan pursuant to Article 7 of the Plan.

##  

## 1.3           **“Base Salary”** shall mean the Participant’s base annualsalary excluding incentive and discretionary bonuses, Commissions and othernon-regular forms of compensation, before reductions for contributions to ordeferrals under any pension, deferred compensation or benefit plans sponsoredby the Employer.

##  

## 1.4           **“Beneficiary”** shall mean the person(s) or entitydesignated as such in accordance with Article 6 of the Plan.

##  

## 1.5           **“Bonus”** shall mean any amount paid to the Participant by theEmployer in the form of a discretionary or incentive compensation or any otherbonus designated by the Administrative Committee before reductions forcontributions to or deferrals under any pension, deferred compensation orbenefit plans sponsored by the Employer.

##  

## 1.6           **“Change in Control”** shall mean, with respect to the Company,after the effective date hereof, any of the following events:

##  

(a)         Any person, other thanthe Company, or more than one person acting as a group (a “Person”) acquiresbeneficial ownership of the Company’s securities and is or thereby becomes whensuch ownership is combined with stock held by such Person a beneficial owner ofsecurities entitling such Person to exercise twenty-five percent (25%) or moreof the combined voting power of the Company’s then outstanding stock.  For purposes of this Plan, “beneficialownership” shall be

 

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determined in accordancewith Regulation 13D of the Securities Exchange Act of 1934, or any similarsuccessor regulation or rule; and the term “Person” shall include any naturalperson, corporation, partnership, trust or association, or any group orcombination thereof, whose ownership of an Employer’s or the Company’ssecurities would be required to be reported under such Regulation 13D or anysimilar successor regulation or rule.

 

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

 

(c)         The closing of anytransaction involving:

 

i.      any consolidation, merger,or other reorganization of the Company in which the Company is not thecontinuing or surviving corporation or pursuant to which shares of the Company’scommon stock would be converted into cash, securities or other property, otherthan a merger, consolidation, or other reorganization of the Company in whichthe holders of the Company’s common stock immediately prior to the merger orconsolidation have substantially the same proportionate ownership and votingcontrol of the surviving corporation immediately after the merger orconsolidation; 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 inControl” shall not include a consolidation, merger, or other reorganization ifupon consummation of such transaction all of the outstanding voting stock ofthe Company is owned, directly or indirectly, by a holding company, and theholders of the Company’s common stock immediately prior to the transaction havesubstantially the same proportionate ownership and voting control of suchholding company after such transaction, and no event shall constitute a Changein Control for purposes of this Plan if it is not a change in the ownership oreffective control of the Company, or in the ownership of a substantial portionof the assets thereof, within the meaning of Code Section 409A and theTreasury Regulations promulgated thereunder.

 

## 1.7           **“Code”** shall mean the Internal Revenue Code of 1986, assubsequently amended, as interpreted by regulations, rulings, and applicableauthorities.

##  

## 1.8           **“Commissions”** shall mean commissions payable to theParticipant for the applicable Plan Year (as determined by the AdministrativeCommittee in compliance with Code Section 409A) before reductions forcontributions to or deferrals under any pension, deferred compensation orbenefit plans sponsored by the Employer.

##  

## 1.9           **“Company**” shall mean Avocent Corporation.

 

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## 1.10         **“CompanyContribution”** shall mean the contribution by the Employer toParticipant’s Account pursuant to Section 3.2 of the Plan.

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## 1.11         **“CompanyContribution Account”** shall mean the Account established for CompanyContributions pursuant to Article 4 of the Plan.

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## 1.12         “**Compensation**”shall mean Base Salary, Bonus, Commissions and/or Director Fees eligible fordeferral for a particular Plan Year under Section 3.1.1.

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## 1.13         **“Crediting Rate”** shall mean the notional gains and lossescredited on the Participant’s Account balance which are based on theParticipant’s choice among the investment alternatives made available by theAdministrative Committee pursuant to Article 4 of the Plan.

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## 1.14         ***“*Deferral Account*”***shall mean the Account established for Participant deferrals pursuant to Article 4of the Plan.

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## 1.15         **“Director Fees”** shall mean the cash compensation earned byan Eligible Director for services performed as a member of the Board ofDirectors of the Company or Participating Affiliate**suchas retainer fees and meeting fees which are specified by the AdministrativeCommittee as eligible for deferral under the Plan.  The Administrative Committee, in its completeand sole discretion, may allow separate deferral elections with respect to differenttypes of Director’s Fees as specified in Participant Election materials.

##  

## 1.16         **“Disability”** shall be interpreted consistent with therequirements of Code Section 409A and shall mean that the Participant (i) isunable to engage in any substantial gainful activity by reason of any medicallydeterminable physical or mental impairment which can be expected to result indeath or can be expected to last for a continuous period of not less thantwelve (12) months, or (ii) is, by reason of any medically determinablephysical or mental impairment that can be expected to result in death or can beexpected to last for a continuous period of not less than twelve (12) months,receiving income replacement benefits for a period of not less than threemonths under an accident and health plan covering employees of the Participant’sEmployer. The Administrative Committee may require that the Participant submitevidence of such qualification for disability benefits in order to determinethat the Participant is disabled under this Plan.

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## 1.17         “**Distributable Amount**” shall mean the vested balance in theapplicable Account as determined under Article 4.

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## 1.18         **“Eligible Executive or Director”** shall mean a managementlevel or highly compensated executive**or Director ofthe Company or a ParticipatingAffiliate selected by the Administrative Committee to be eligible toparticipate in the Plan.

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## 1.19         **“Employer”** shall mean the Company or Participating Affiliatefor which the relevant Participant performs services and from which suchParticipant is entitled to the payment of Base Salary, Bonus, Commission,and/or Director’s Fees.

 

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## 1.20         **“ERISA”** shall mean the Employee Retirement Income SecurityAct of 1974, as amended, as interpreted by regulations, rulings and applicableauthorities.

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## 1.21         **“Hardship Distribution”** shall mean a distribution by reasonof an Unforeseeable Emergency pursuant to Section 5.5 of the Plan.

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## 1.22         **“Involuntary Termination”** shall mean a Termination ofService which is either (a) initiated by the Employer, other than aTermination for Cause, or (b) initiated by the Participant for good reasondue to a material diminution of the Participant’s title, responsibilities,position or salary, a significant negative change in the location or conditionsof the Participant’s workplace or any other material breach of the Participant’semployment or service agreement by the Employer without the Participant’s priorconsent, assuming that the Participant notifies the Employer of such adversecircumstance within ninety (90) days of the initial occurrence, the Employerdoes not cure the problem within thirty (30) days of receipt of such notice,and Termination of Service is effective within twelve (12) months of suchinitial occurrence.

##  

## 1.23         **“Participant”** shall mean an Eligible Executive or Directorwho has elected to participate and has made a Participant Election pursuant to Article 2of the Plan or has received a Company Contribution.

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## 1.24         **“Participant Election”** shall mean an election regardingdeferrals, Company Contributions and/or distributions submitted by theParticipant to the Administrative Committee on a timely basis pursuant to Article 3of the Plan, which may include contributions, benefits, terms and conditionsunique to such Participant.  TheParticipant Election may take the form of an electronic communication accordingto specifications established by the Administrative Committee.

##  

## 1.25         **“ParticipatingAffiliate”** shall mean an affiliate of the Company that has been designated and approved by theAdministrative Committee as a Participating Affiliate. In order to become aParticipating Affiliate, such entity shall deliver to the AdministrativeCommittee a corporate resolution evidencing adoption of the Plan by the Boardof Directors of the Participating Affiliate. Each Participating Affiliate, by adopting the Plan, agrees to complywith any requirements of the Administrative Committee with respect toadministration of the Plan and authorizes the Administrative Committee and/orthe Company to act as its agent in all transactions in which the AdministrativeCommittee believes such agency will facilitate administration of the Plan,including amendment or termination of the Plan. A Participating Affiliate may independently terminate its participationin the Plan under the same terms and conditions provided in Section 9.1 ofthe Plan.

##  

## 1.26         **“Payment Date”** shall mean the date by which a lump sumpayment shall be made or the date by which installment payments shall commence.Unless otherwise specified, the Payment Date shall be the last day of the sixth(6th) monthcommencing after the event triggering the payout occurs. Subsequentinstallments shall be made in March of each succeeding Plan Year.  In the case of death, the AdministrativeCommittee shall be provided with documentation reasonably necessary toestablish the fact of the Participant’s death. The Payment Date of a Scheduled Distribution shall be March of thePlan Year in which the 

 

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## distribution is scheduled to commence. Notwithstanding the foregoing, the Payment Date shall not be before theearliest date on which benefits may be distributed under Code Section 409Awithout the imposition of excise taxes, as reasonably determined by theAdministrative Committee.

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## 1.27         **“Plan Year”** shall mean the calendar year.

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## 1.28         **“Retirement”** shall mean Termination of Employment on orafter the Retirement Eligibility Date.

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## 1.29         **“Retirement Eligibility Date”** shall mean the date on whichthe Participant attains age sixty-five (65).

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## 1.30         **“Scheduled Distribution”** shall mean the distribution elected by the Participant pursuant to Section 5.4of the Plan.

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## 1.31         **“Scheduled Distribution Account”**  shall mean an Account established for amountspayable in the form of a Scheduled Distribution pursuant to Article 4 ofthe Plan.

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## 1.32         **“Termination of Service”** shall mean, with respect to a givenParticipant, the date when, for any reason, including by reason of Retirement,death or Disability, (but excluding approved leaves of absence of six (6) monthsor less, or a longer period if the right to return to employment after suchperiod is protected by law or contract) the level of services provided by suchParticipant to the Employer (or any affiliate under common ownership aggregatedwith the Company for purposes of Code Section 409A) in any capacity haspermanently decreased to a level equal to no more than 20 percent (20%) of theaverage level of services performed by such Participant for the Employer duringthe immediately preceding thirty-six (36) month period (or the Participant’sfull period of services to the Employer, if a lesser period).  A Participant who is providing services as aDirector shall be considered terminated when such Participant ceases to be amember of the Board of Directors of the Employer. * *Notwithstanding the foregoing, ifthe Participant provides services for the Employer as both an employee and aDirector, to the extent permitted under Code Section 409A and applicableauthorities, the services provided by such Participant as a Director shall notbe taken into account in determining whether the Participant has experienced aTermination of Service as an employee, and the services provided by suchParticipant as an employee shall not be taken into account in determiningwhether the Participant has experienced a Termination of Service as a Director.

##  

## 1.33         **“Unforeseeable Emergency”****shall mean asevere financial hardship to the Participant resulting from an illness oraccident involving the Participant, the Participant’s spouse, a Beneficiary, orthe Participant’s dependent (as defined in Code Section 152(a)), loss ofthe Participant’s property due to casualty, or other similar extraordinary andunforeseeable circumstance arising as a result of events beyond the control ofthe Participant (but shall in all events correspond to the meaning of the term “unforeseeableemergency” in Code Section 409A and applicable authorities).

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## 1.34         **“Valuation Date”** shall mean the date through which earningsare credited and shall be as close to the payout or other event triggering valuation as isadministratively feasible 

 

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## but in no event earlier than the last day ofthe month preceding the month in which the statement or payment triggeringvaluation occurs.

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# **ARTICLE 2****Participation**

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## 2.1           Commencementof Participation.  An EligibleExecutive or Director shall become a Participant in the Plan by completing andsubmitting to the Administrative Committee the appropriate ParticipantElections, including such other documentation and information as theAdministrative Committee may reasonably request, during the enrollment periodestablished by the Administrative Committee or has received a CompanyContribution to the Plan.

##  

## 2.2           Durationof Participation.  A Participantshall continue to be eligible to make deferrals and receive CompanyContributions under Article 3 until the earlier of the Participant’sTermination of Service or such time as the Administrative Committee shalldetermine that the Participant is no longer an Eligible Executive orDirector.  Notwithstanding the foregoing,the Participant’s deferral elections shall continue in place with respect toCompensation earned for the Plan Year in which Termination of Service ortermination of eligibility shall occur (excluding any severance benefits). Aterminated Participant’s Accounts shall continue to be credited with notionalearnings as provided in Article 4 until such time as all of theParticipant’s Accounts shall have been fully distributed.

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# **ARTICLE 3****Deferrals, Contributions, and Elections**

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## 3.1           Electionsto Defer Compensation.

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### 3.1.1        Form of Elections.  A Participant may only elect to deferCompensation attributable to services provided after the time an election ismade.  Elections shall take the form of (a) aflat dollar amount which must be in excess of two thousand dollars ($2,000) forthe Plan Year, (b) a whole percentage of Compensation, (c) a wholepercentage of Compensation up to a maximum dollar amount, or (d) a wholepercentage of that portion of Compensation in excess of a dollar amount for thePlan Year (in each case, less applicable payroll withholding requirements forSocial Security and income taxes and employee benefit plans, as determined inthe sole and absolute discretion of the Administrative Committee).  Notwithstanding the previous sentence, anyelection involving a percentage of Compensation or Compensation in excess of adollar amount must satisfy the condition that the amount which would bedeferred, if the Participant’s Compensation for the Plan Year were equal to theamount of such Participant’s Compensation for the immediately preceding PlanYear, must be not less than two thousand dollars ($2,000). The AdministrativeCommittee may further limit the minimum or maximum amount deferred by anyParticipant or group of Participants, or waive the foregoing limits for anyParticipant or group of Participants, for any reason.

###  

### 3.1.2        Timing and Duration of Deferral Election.  An Eligible Executive or Director shall makean initial election to defer Compensation during the enrollment periodestablished by the Administrative Committee prior to the effective date of theParticipant’s commencement of participation in the Plan and shall apply only toCompensation for services 

 

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### performed after such deferral election is processed.  The enrollment period shall generally occurprior to the beginning of the applicable Plan Year, but the AdministrativeCommittee may establish a special enrollment period ending no later than thirty(30) days after an Eligible Executive first becomes eligible to participate inthe Plan, to allow deferrals by such Eligible Executive of amounts earnedduring the balance of such Plan Year (as long as such Eligible Executive is notalready a participant in another plan or arrangement which is aggregated withthis Plan for purposes of Code Section 409A).  A Participant may increase, decrease,terminate or recommence a deferral election with respect to Compensation forany subsequent Plan Year in which the Participant is eligible to participate inthe Plan by filing a Participant Election during the enrollment periodestablished by the Administrative Committee prior to the beginning of the PlanYear in which the applicable services are performed, which election shall beeffective on the first day of the next following Plan Year.  In the absence of an affirmative election bythe Participant to the contrary, the deferral election for the prior Plan Yearshall continue in effect for future Plan Years. After the beginning of the Plan Year (or the effective date of amid-year commencement of participation), deferral elections with respect to Compensationfor services performed during such Plan Year shall be irrevocable except in theevent of an Unforeseeable Emergency or Disability as specified in Article 5.  Notwithstanding the foregoing, theAdministrative Committee may allow deferral elections to be made or revised nolater than six (6) months before the end of the performance period solelywith respect to any “performance-based compensation” as defined in Code Section 409Aand applicable Treasury Regulations that is based on services performed over aperiod of at least twelve (12) months*.*

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## 3.2           CompanyContributions.

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### 3.2.1        Discretionary Company Contributions.  The Employer shall have the discretion tomake Company Contributions to the Plan at any time on behalf of anyParticipant.  Company Contributions shallbe made in the complete and sole discretion of the Employer and no Participantshall have the right to receive any Company Contribution in any particular PlanYear, regardless of whether Company Contributions are made on behalf of otherParticipants.

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## 3.3           DistributionElections.

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### 3.3.1        Initial Election.  At the time of making a deferral electionunder the Plan, the Participant shall designate the time and form ofdistribution of deferrals made pursuant to such election (together with anyearnings credited thereon) from among the alternatives specified in Section 5.1or 5.2.

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### 3.3.2        Modification of Election.  A new distribution election may be made atthe time of subsequent deferral elections with respect to deferrals in PlanYears beginning after the election is made. However, a distribution election with respect to previously deferredamounts may only be changed under the terms and conditions specified in Code Section 409A.  Except as expressly provided in Article 5(or otherwise permitted under Code Section 409A and applicable authorities),no acceleration of a distribution is permitted. A subsequent election that delays payment or changes the form of paymentshall be permitted if, and only if, all of the following requirements are met:

 

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#### 3.3.2.1     the new election does not take effect until atleast twelve (12) months after the date on which the new election is made;

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#### 3.3.2.2     in the case of payments made on account ofTermination of Service (other than by reason of death or Disability), a Changein Control or a Scheduled Distribution, the new election delays payment for atleast five (5) years from the date that payment would otherwise have beenmade, absent the new election; and

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#### 3.3.2.3     in the case of payments made according to aScheduled Distribution, the new election is made not less than twelve (12)months before the date on which payment would have been made (or, in the caseof installment payments, the first installment payment would have been made)absent the new election.

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Forpurposes of application of the above change limitations, installment paymentsshall be treated as a single payment and changes shall be made separately withrespect to each Account.**Electionchanges made pursuant to this Section shall be made in accordance with rules establishedby the Administrative Committee, and shall comply with all requirements of CodeSection 409A and applicable authorities.

 

# **ARTICLE 4****Accounts, Crediting and Vesting**

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## 4.1           Accounts.  Solely for recordkeeping purposes at leasttwo bookkeeping Accounts shall be maintained for each Participant under thePlan, a Deferral Account and a Company Contributions Account.  The Deferral Account shall be maintained forthe Participant and credited with the Participant’s deferrals as directed inthe applicable Participant Election for such the applicable deferral Plan Year*. *A separate Company Contribution Account shall bemaintained for the Participant and shall be credited with any CompanyContributions credited on behalf of such Participant at the time specified bythe Administrative Committee.  Inaddition, a Participant may also establish one or more Scheduled DistributionAccounts at the time of making a deferral election which shall be credited withthe Participant’s deferrals directed to such Account(s) at the time suchamounts would otherwise have been paid to the Participant.  Each Account may be further dividedinto separate subaccounts for investment purposes (“investment fund subaccounts”)to accommodate the direction of investments as provided in Section 4.2*.*

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## 4.2           InvestmentDirection and Crediting Rate. Amounts in a Participant’s Accounts shall be credited with notionalearnings or losses based on the Participant’s choice among the investmentalternatives or “funds” made available from time to time by the AdministrativeCommittee. The Administrative Committee shall establish a procedure by which aParticipant may choose between investment funds specified by the AdministrativeCommittee and may change investment elections at least quarterly, subject toadministrative feasibility.  TheParticipant’s Account balance shall reflect the earnings or losses on theinvestment funds selected by the Participant. If an investment fund selected by a Participant sustains a loss, theParticipant’s Account shall be reduced to reflect such loss.  If the Participant fails to elect aninvestment alternative for a particular Account or investment subaccount, theCrediting Rate shall be based on the default investment alternative selectedfor this purpose by the 

 

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## Administrative Committee.  TheParticipant’s choice among investments shall be solely for purposes ofcalculation of a notional Crediting Rate on a Participant’s Accounts.  The Employer shall have no obligation to setaside or invest funds as directed by the Participant and, if the Employerelects to invest funds as directed by the Participant, the Participant shallhave no more right to such investments than any other unsecured generalcreditor.  During payout, the Participant’sAccount shall continue to be credited at the Crediting Rate selected by theParticipant from among the investment alternatives or rates made available bythe Administrative Committee for such purpose. Installment payments shall be recalculated annually by dividing theaccount balance by the number of payments remaining, without regard toanticipated earnings or in any other reasonable manner as may be determinedfrom time to time by the Administrative Committee.

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## 4.3           Creditingof Accounts.  A Participant’sAccounts shall be credited as follows:

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### 4.3.1        Participant Deferrals.  On or before the third (3rd) business day after amounts wouldotherwise have been paid to the Participant, the Administrative Committee shallcredit the Participant’s applicable Account with an amount equal toCompensation deferred by the Participant and shall allocate such amount toinvestment subaccounts in accordance with the Participant’s election under Section 4.2;

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### 4.3.2        Company Contributions.  On the date specified by the AdministrativeCommittee for the crediting of a Company Contribution to the Plan on behalf ofa Participant, the Administrative Committee shall credit the Participant’sCompany Contributions Account with an amount equal to the Company Contributionand shall allocate such amount to investment subaccounts in accordance with theParticipant’s election under Section 4.2.

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### 4.3.3        Distributions.  Distributions shall be deducted by theAdministrative Committee from the applicable Account as of the end of the dayon which such distributions are made.

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### 4.3.4        Notional Earnings or Losses.  Each business day, each investment fundsubaccount of each of a Participant’s Accounts shall be credited with earningsor losses in an amount equal to that determined by multiplying the balancecredited to such investment fund subaccount as of the prior day, less anydistributions valued as of the end of the prior day, by the earnings rate forthe corresponding fund as determined by the Administrative Committee.

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### 4.3.5        Separate Accounting for ScheduledDistributions.  In the event that aParticipant elects a Scheduled Distribution for a given Plan Year’s deferral ofCompensation, all amounts attributed to the deferral of Compensation for suchPlan Year shall be accounted for in a manner which allows separate accountingfor the deferral of Compensation and investment gains and losses associatedwith amounts allocated to each such separate Scheduled Distribution.

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## 4.4           Vesting.  The Participant shall be vested at all timesin amounts credited to the Participant’s Deferral Account. Each CompanyContribution and earnings credited thereon shall vest over a period of five (5) PlanYears unless otherwise specified by the Administrative Committee at the timesuch Company Contribution is credited. Each annual Company Contribution, unless otherwise specified by theAdministrative Committee at the time such

 

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## CompanyContribution is credited, shall vest over the five (5) Plan Yearscommencing with the Plan Year for which the Company Contribution is madeaccording to the following vesting schedule:

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| **Plan Year**       | ** ** | **Percentage of**       | ** ** |
|--------------------------|------------|------------------------------|------------|
| **Of Contribution** | ** ** | **Contribution Vested** | ** ** |
|                     |       |                         |       |
| 1st                      |       | 20                           | %          |
| 2nd                      |       | 40                           | %          |
| 3rd                      |       | 60                           | %          |
| 4th                      |       | 80                           | %          |
| 5th                      |       | 100                          | %          |

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## The prior vestingschedule shall be accelerated and the Participant shall be fully vested in hisor her total Company Contribution Account balance in the event of theParticipant’s death, Disability or Retirement.

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## 4.5          Statementof Accounts.  The AdministrativeCommittee shall make available to each Participant electronic statements atleast quarterly setting forth the Participant’s Account balances as of the endof each calendar quarter.

 

**ARTICLE 5**

**Distributions and Benefits**

 

## 5.1          RetirementDistributions.  Except as otherwiseprovided herein, in the event of a Participant’s Retirement, the DistributableAmount credited to the Participant’s Deferral Account and Company ContributionsAccount shall be paid to the Participant in substantially equal installmentsover ten (10) years commencing on the Payment Date following theParticipant’s Termination of Service, unless the Participant has made analternative benefit election on a timely basis pursuant to Section 3.3 toreceive the Retirement and/or Disability benefits in the form of a single lumpsum or in substantially equal annual installments over up to twenty (20) years.

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## 5.2          TerminationDistributions.  Except as provided inSection 5.4, in the event of a Participant’s Termination of Service byreason of Disability or Termination of Service other than by reason ofRetirement or death, the Distributable Amount credited to all of theParticipant’s Deferral Account and Company Contributions Account shall be paidin a single lump sum on the Payment Date following the Retirement EligibilityDate.

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## 5.3          DeathBenefits.  In the event of theParticipant’s death prior to the complete payment of all benefits payable underthe Plan, the Employer shall pay to the Participant’s Beneficiary a deathbenefit equal to the Distributable Amount of all of the Participant’s Accountsin a single lump sum on the Payment Date following the Participant’s death.

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## 5.4          ScheduledDistributions.

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### 5.4.1        ScheduledDistribution Election.  EachParticipant shall be entitled to elect in accordance with Section 3.3 toestablish one or more Scheduled Distribution Accounts to 

 

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### receive aScheduled Distribution of Participant deferrals (but not Company Contributions)in January of any specified Plan Year. The Participant shall receive theScheduled Distribution in a single lump sum. A Participant’s Scheduled Distribution commencement date with respect toa Scheduled Distribution Account shall be no earlier than two (2) yearsfrom the last day of the Plan Year in which deferrals are credited to suchAccount. After a Scheduled Distribution Account has been established,additional deferrals may be allocated to such Account for any Plan Year thatprecedes the Plan Year in which distributions from such Account as scheduled tocommence.  A Participant may delaypayment of a Scheduled Distribution Account, provided such extension complieswith the change requirements of Section 3.3.

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### 5.4.2        Termination ofService.  In the event of aParticipant’s Termination of Service prior to commencement of a ScheduledDistribution, the Scheduled Distributions shall continue to be paid at the sametime and in the same form as they would have been paid to the Participant hadthe Participant not terminated service. Notwithstanding the forgoing, in the event of the Participants deathprior to the commencement of a Scheduled Distribution, benefits payable fromsuch Account shall be distributed in the form applicable to such death underService under Section 5.3 above.

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## 5.5          HardshipDistribution.  Upon a finding thatthe Participant (or, after the Participant’s death, a Beneficiary) has sufferedan Unforeseeable Emergency, subject to compliance with Code Section 409Athe Administrative Committee may, at the request of the Participant orBeneficiary, approve a complete cessation of current deferrals under the Planor accelerate distribution of benefits in the amount reasonably necessary toalleviate such Financial Hardship subject to the following conditions:

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### 5.5.1        Form ofRequest.  The request to take aHardship Distribution shall be made by filing a form provided by and filed withthe Administrative Committee prior to the end of any calendar month.

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### 5.5.2        Amount ofDistribution.  The amount distributedpursuant to this Section with respect to an Unforeseeable Emergency shallnot exceed the amount necessary to satisfy such financial emergency plusamounts necessary to pay taxes reasonably anticipated as a result of thedistribution, after taking into account the extent to which such hardship is ormay be relieved through reimbursement or compensation by insurance or otherwiseor by liquidation of the Participant’s assets (to the extent the liquidation ofsuch assets would not itself cause severe financial hardship).

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### 5.5.3        Form andTiming of Payment.  The amountdetermined by the Administrative Committee as a Hardship Distribution shall bepaid in a single cash lump sum as soon as practicable after the end of the calendarmonth in which the Hardship Distribution election is made and approved by theAdministrative Committee.

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## 5.6          SmallBenefit Exception.  Notwithstandingthe foregoing and the provisions of Article 5, in the event the sum of allbenefits payable to the Participant from all of the Participant’s Accounts atthe time of the Participant’s Termination of Service is less than Five ThousandDollars ($5,000) for the calendar year of payment, the Administrative Committeemay, in its complete and sole discretion, either (a)  pay all benefits tothe Participant under the 

 

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## Plan in a singlelump sum on the Settlement Date following Termination of Employment or (b) chargea reasonable yearly administrative fee against the Participant’s Accounts formaintaining such Accounts.

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## 5.7          Distributionon Change in Control.  In the eventthat the Participant has made a timely election in accordance with Section 3.3to receive an accelerated distribution from a particular Account upon a Changein Control, then**if a Change inControl occurs before the applicable Account has been fully distributed, theremaining balance of such Account shall be distributed in the form of a singlelump sum payable in the fifteenth (15th) month following the month in which suchChange in Control occurs, unless the Participant makes a timely election duringthe first three (3) months following the Change in Control in compliancewith Section 3.3 to delay commencement of benefits from such Account by a minimumof five (5) years and to receive the benefits in the form of a single lumpsum or over a period of up to fifteen (15) years.

 

**ARTICLE6**

**PayeeDesignations and Limitations**

 

## 6.1          Beneficiaries.

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### 6.1.1        BeneficiaryDesignation.  The Participant shallhave the right, at any time, to designate any person(s), entity or trust asBeneficiary (both primary and contingent) to whom payment under the Plan shallbe made in the event of the Participant’s death.  The Beneficiary designation shall beeffective when it is submitted to and acknowledged by the AdministrativeCommittee during the Participant’s lifetime in the format prescribed by theAdministrative Committee.

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### 6.1.2        Absence of ValidDesignation.  If a Participant failsto designate a Beneficiary as provided above, or if every person designated asBeneficiary predeceases the Participant or dies prior to complete distributionof the Participant’s benefits, then the Administrative Committee shall directthe distribution of such benefits to the Participant’s estate.

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## 6.2          Paymentsto Minors.  In the event any amountis payable under the Plan to a minor, payment shall not be made to the minor,but instead be paid (a) to that person’s living parent(s) to act ascustodian, (b) if that person’s parents are then divorced, and one parentis the sole custodial parent, to such custodial parent, to act as custodian, or(c) if no parent of that person is then living, to a custodian selected bythe Administrative Committee to hold the funds for the minor under the UniformTransfers or Gifts to Minors Act in effect in the jurisdiction in which theminor resides.  If no parent is livingand the Administrative Committee decides not to select another custodian tohold the funds for the minor, then payment shall be made to the duly appointedand currently acting guardian of the estate for the minor or, if no guardian ofthe estate for the minor is duly appointed and currently acting within sixty(60) days after the date the amount becomes payable, payment shall be depositedwith the court having jurisdiction over the estate of the minor.

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## 6.3          Paymentson Behalf of Persons Under Incapacity. In the event that any amount becomes payable under the Plan to a personwho, in the sole judgment of the Administrative 

 

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## Committee, isconsidered by reason of physical or mental condition to be unable to give avalid receipt therefore, the Administrative Committee may direct that suchpayment be made to any person found by the Administrative Committee, in itssole judgment, to have assumed the care and guardianship of such person.  Any payment made pursuant to suchdetermination shall constitute a full release and discharge of any and allliability of the Administrative Committee and the Company under the Plan.

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## 6.4          Inabilityto Locate Payee.  In the event thatthe Administrative Committee is unable to locate a Participant or Beneficiarywithin two (2) years following the scheduled Payment Date, the amountallocated to the Participant’s Deferral Account shall be forfeited.  If, after such forfeiture, the Participant orBeneficiary later claims such benefit, such benefit shall be reinstated withoutinterest or earnings.

 

**ARTICLE7**

**Administration/ClaimsProcedures**

 

## 7.1          Administration.  The Plan shall be administered by theAdministrative Committee, which shall have the exclusive right and fulldiscretion (i) to appoint agents to act on its behalf, (ii) tointerpret the Plan, (iii) to decide any and all matters arising hereunder(including the right to remedy possible ambiguities, inconsistencies, oromissions), (iv) to make, amend and rescind such rules as it deemsnecessary for the proper administration of the Plan and (v) to make allother determinations and resolve all questions of fact necessary or advisablefor the administration of the Plan, including determinations regardingeligibility for benefits payable under the Plan.  All interpretations by the AdministrativeCommittee with respect to any matter hereunder shall be final, conclusive andbinding on all persons affected thereby. No member of the Administrative Committee or agent thereof shall beliable for any determination, decision, or action made in good faith withrespect to the Plan.  Each Employer andParticipating Affiliate and the Company will indemnify and hold harmless themembers of the Administrative Committee from and against any and allliabilities, costs, and expenses incurred by such persons as a result of anyact or omission, in connection with the performance of such persons’ duties,responsibilities, and obligations under the Plan, other than such liabilities,costs, and expenses as may result from the bad faith, willful misconduct, orcriminal acts of such persons.

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## 7.2          ClaimsProcedure.  Any Participant, formerParticipant or Beneficiary may file a written claim with the AdministrativeCommittee setting forth the nature of the benefit claimed, the amount thereof,and the basis for claiming entitlement to such benefit.  The Administrative Committee shall determinethe validity of the claim and communicate a decision to the claimant promptlyand, in any event, not later than ninety (90) days after the date of theclaim.  The claim may be deemed by theclaimant to have been denied for purposes of further review described below inthe event a decision is not furnished to the claimant within such ninety (90)day period.  If additional information isnecessary to make a determination on a claim, the claimant shall be advised ofthe need for such additional information within forty-five (45) days after thedate of the claim.  The claimant shallhave up to one hundred and eighty (180) days to supplement the claiminformation, and the claimant shall be advised of the decision on the claimwithin forty-five (45) days after the earlier of the date the supplementalinformation is supplied or the end of the one hundred and eighty (180) dayperiod.  Every claim for benefits that isdenied shall be 

 

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## denied by writtennotice setting forth in a manner calculated to be understood by the claimant (i) thespecific reason or reasons for the denial, (ii) specific reference to anyprovisions of the Plan (including any internal rules, guidelines, protocols,criteria, etc.) on which the denial is based, (iii) description of anyadditional material or information that is necessary to process the claim, and (iv) anexplanation of the procedure for further reviewing the denial of the claim andshall include an explanation of the claimant’s right to submit the claim forbinding arbitration in the event of an adverse determination on review.

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## 7.3          ReviewProcedures.  Within sixty (60) daysafter the receipt of a denial on a claim, a claimant or his/her authorizedrepresentative may file a written request for review of such denial.  Such review shall be undertaken by theAdministrative Committee and shall be a full and fair review. The claimantshall have the right to review all pertinent documents.  The Administrative Committee shall issue adecision not later than sixty (60) days after receipt of a request for reviewfrom a claimant unless special circumstances, such as the need to hold ahearing, require a longer period of time, in which case a decision shall berendered as soon as possible but not later than one hundred and twenty (120)days after receipt of the claimant’s request for review.  The decision on review shall be in writingand shall include specific reasons for the decision written in a mannercalculated to be understood by the claimant with specific reference to anyprovisions of the Plan on which the decision is based and shall include anexplanation of the claimant’s right to submit the claim for binding arbitrationin the event of an adverse determination on review.

 

**ARTICLE8**

**ConditionsRelated to Benefits**

 

## 8.1          Nonassignability.  The benefits provided under the Plan may notbe alienated, assigned, transferred, pledged or hypothecated by any person, atany time, or to any person whatsoever. Those benefits shall be exempt from the claims of creditors or otherclaimants of the Participant or Beneficiary and from all orders, decrees,levies, garnishments or executions to the fullest extent allowed by law.

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## 8.2          NoRight to Employer or Company Assets. The benefits paid under the Plan shall be paid from the general funds ofthe Employer, and the Participant and any Beneficiary shall be no more thanunsecured general creditors of the Employer with no special or prior right toany assets of the Employer, the Company or any Participating Affiliate for paymentof any obligations hereunder.

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## 8.3          ProtectiveProvisions.  The Participant shallcooperate with the Employer by furnishing any and all information requested bythe Administrative Committee, in order to facilitate the payment of benefitshereunder, taking such physical examinations as the Administrative Committeemay deem necessary, consenting to insurance coverage and taking such otheractions as may be requested by the Administrative Committee.  If the Participant refuses to so cooperate,the Employer shall have no further obligation to the Participant under thePlan.

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## 8.4          Withholding.  The Participant shall make appropriatearrangements with the Employer for satisfaction of any federal, state or localincome tax withholding requirements, 

 

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## Social Securityand other employee tax or other requirements applicable to the deferral,crediting, vesting or payment of benefits under the Plan.  There shall be deducted from each paymentmade under the Plan or any other Compensation (including Company Contributions)payable to the Participant (or Beneficiary) all taxes which are required to bewithheld by the Employer in respect to such payment or this Plan.  The Employer shall have the right to reduceany payment (or other Compensation) by the amount of cash sufficient to providethe amount of said taxes.

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## 8.5          Receiptor Release.  Any payment made in goodfaith to a Participant or the Participant’s Beneficiary shall, to the extentthereof, be in full satisfaction of all claims against the AdministrativeCommittee, its members, the Employer, any Participating Affiliates and theCompany.  The Administrative Committeemay require such Participant or Beneficiary, as a condition precedent to suchpayment, to execute a receipt and release to such effect.

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## 8.6          Trust.  The Employer shall be responsible for thepayment of all benefits under the Plan. At its discretion, the Employer may establish one or more grantor trustsfor the purpose of providing for the payment of benefits under the Plan.  Such trust or trusts may be irrevocable, butthe assets thereof shall be subject to the claims of the Employer’screditors.  Neither such trust or trusts,nor the assets thereof, however, shall be located outside of the United States.  Benefits paid to the Participant from anysuch trust or trusts shall be considered paid by the Employer for purposes ofmeeting the obligations of the Employer under the Plan.

##  

# **ARTICLE9**

# **Miscellaneous**

 

## 9.1          Amendmentor Termination of Plan.  The Employermay, at any time, direct the Administrative Committee to amend or terminate thePlan, except that no such amendment or termination may reduce a Participant’sAccount balances.  If the Employerterminates the Plan, no further amounts shall be deferred hereunder, andamounts previously deferred or contributed to the Plan shall be fully vestedand shall be paid in accordance with the provisions of the Plan as scheduledprior to the Plan termination. Notwithstanding the foregoing, to the extent permitted under Code Section 409Aand applicable authorities, the Employer may, in its complete and solediscretion, accelerate distributions under the Plan in the event of a “changein ownership” or change in “effective control” of the Company or a “change inownership of a substantial portion of assets” or under such other terms andconditions as may be specifically authorized under Code Section 409A andapplicable authorities.

 

## 9.2          Errorsin Account Statements, Deferrals or Distributions.  In the event an error is made in an Accountstatement, such error shall be corrected on the next statement following thedate such error is discovered.  In theevent of an error in deferral amount, consistent with and as permitted by anycorrection procedures established under Code Section 409A, the error shallbe corrected immediately upon discovery by, in the case of an excess deferral,distribution of the excess amount to the Participant, or, in the case of anunder deferral, reduction of other compensation payable to the Participant.  In the event of an error in a distribution,the over or under payment shall be corrected by payment to or collection fromthe Participant consistent with any correction procedures established underCode Section 409A, immediately upon the discovery of such error.  In the event of an overpayment, the Employermay, at its discretion, 

 

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## offset otheramounts payable to the Participant from the Employer (including but not limitedto salary, bonuses, expense reimbursements, severance benefits or otheremployee compensation benefit arrangements, as allowed by law and subject tocompliance with Code Section 409A) to recoup the amount of suchoverpayment(s).

##  

## 9.3          EmploymentNot Guaranteed.  Nothing contained inthe Plan nor any action taken hereunder shall be construed as a contract ofemployment or for services, or as giving any Participant any right to continuethe provision of services in any capacity whatsoever to the Employer, anyParticipating Affiliate, or the Company.

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## 9.4          Successorsof the Company.  The rights andobligations of the Employer under the Plan shall inure to the benefit of, andshall be binding upon, the successors and assigns of the Employer.

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## 9.5          Notice.  Any notice or filing required or permitted tobe given to the Employer or the Participant under this Agreement shall besufficient if in writing and hand-delivered, or sent by registered or certifiedmail to, in the case of the Employer, the principal office of the Company,directed to the attention of the Administrative Committee, and in the case ofthe Participant, to the last known address of the Participant indicated on theemployment records of the Employer.  Suchnotice shall be deemed given as of the date of delivery or, if delivery is madeby mail, as of the date shown on the postmark on the receipt for registrationor certification.  Notices to the Companymay be permitted by electronic communication according to specificationsestablished by the Administrative Committee.

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## 9.6          Headings.  Headings and subheadings in this Plan areinserted for convenience of reference only and are not to be considered in theconstruction of the provisions hereof.

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## 9.7          Gender,Singular and Plural.  All pronounsand any variations thereof shall be deemed to refer to the masculine, feminine,or neuter, as the identity of the person or persons may require.  As the context may require, the singular maybe read as the plural and the plural as the singular.

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## 9.8          Validity.  In the event any provision of the Plan isheld invalid, void or unenforceable, the same shall not affect, in any respectwhatsoever, the validity of any other provisions of the Plan.

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## 9.9          Waiverof Breach.  The waiver by theEmployer of any breach of any provision of the Plan shall not operate or beconstrued as a waiver of any subsequent breach by that Participant or any otherParticipant.

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## 9.10        GoverningLaw.  The Plan is intended to be anunfunded plan maintained primarily to provide deferred compensation benefitsfor a select group of “management or highly compensated employees” within themeaning of Sections 201, 301 and 401 of ERISA and therefore to be exempt fromParts 2, 3 and 4 of Title I of ERISA.  Inthe event any provision of, or legal issue relating to, this Plan is not fullypreempted by federal law, such issue or provision shall be governed by the lawsof the State of Delaware***.***

 

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## 9.11        Mediation/Arbitration.  Any claim, dispute or other matter inquestion of any kind relating to this Plan which is not resolved by the claimsprocedures under this Plan shall be subject to non-binding mediation inaccordance with the applicable employment dispute resolution rules of JAMSin the county in which the Company has its principle place of business, whichmediation will occur in said county, and be presided over by amediator/arbitrator who is listed on the JAMS List of Mediators/Arbitrators forsaid county office at the time the demand for mediation is made.  Notice of demand for mediation shall be madein writing to the opposing party and to JAMS within a reasonable time after theclaim, dispute or other matter in question has arisen.  In no event shall a demand for mediation bemade after the date when the applicable statute of limitations would bar theinstitution of a legal or equitable proceeding based on such claim, dispute orother matter in question.  In the eventthat the dispute is not solved by mediation, it shall be submitted to bindingarbitration in accordance with the applicable employment dispute resolution rules ofJAMS in said location.  The decision ofthe arbitrators shall be final and binding and may be enforced in any court ofcompetent jurisdiction.

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## IN WITNESS WHEREOF, the Board of Directors of theCompany has approved the adoption of this Plan as of the Effective Date and hascaused the Plan to be executed by its duly authorized representative this 31stday of December 2008.

##  

 

|   |   | ***AVOCENT  CORPORATION***        |
|--------|--------|-----------------------------------|
|   |   |                              |
|   |   |                              |
|   |   | By                                |    /s/ Samuel F. Saracino |
|   |   | Title:   Secretary |

 

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