**Exhibit 10.3**

** **

**AMENDEDAND RESTATED**

**EMPLOYMENT AND NONCOMPETITION AGREEMENT**

THIS AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”)is made and entered into as of December 13, 2006, by and among AvocentHuntsville Corp., an Alabama corporation ( “Employer”), Avocent Corporation, aDelaware corporation, and Stephen M. Daly****(the “Employee”).

**RECITALS**

WHEREAS, Avocent Corporation and its affiliates (collectively referredto in this Agreement as “Avocent”) are engaged in the business of designing, manufacturing, and selling connectivityand centralized management of information technology infrastructure solutionsfor enterprise data centers, branch offices, and small to medium sizebusinesses worldwide;

WHEREAS, Employee,Employer, andAvocent Corporation entered into that certain Amended and Restated Employmentand Noncompetition Agreement dated February 8, 2005 (the “2005 EmploymentAgreement”); and

WHEREAS, Employee, Employer, and Avocent Corporation now wish toamend and restate the 2005 Employment Agreement with this Amended and Restated Employment and NoncompetitionAgreement, and Employee is willing to accept employment as Avocent’s SeniorVice President of Corporate Strategy (and, effective January 1, 2007 andsubject to Board approval, as Executive Vice President and General Manager ofAvocent’s LANDesk Division) on the terms and subject to the conditions setforth in this Agreement.

**AGREEMENT**

THE PARTIES HERETO AGREE AS FOLLOWS:

# 1.             DUTIES.  During the term of this Agreement, theEmployee agrees to be employed by Employer and to serve Avocent as its SeniorVice President of Corporate Strategy (and, effective January 1, 2007 andsubject to Board approval, as Executive Vice President and General Manager ofAvocent’s LANDesk Division).  The Employee shall devote such of hisbusiness time, energy, and skill to the affairs of Avocent and Employer asshall be necessary to perform the duties of Senior Vice President of CorporateStrategy (and Executive Vice President and General Manager of Avocent’sLANDesk Division).  The Employee shall report to the ChiefExecutive Officer of Avocent Corporation and to the Board of Directors ofAvocent Corporation, and at all times during the term of this Agreement, theEmployee shall have powers and duties at least commensurate with his positionas Avocent’s Senior Vice President of Corporate Strategy (and ExecutiveVice President and General Manager of Avocent’s LANDesk Division).

# 2.             TERMOF EMPLOYMENT.

## 2.1           DEFINITIONS.  For purposes of this Agreement the followingterms shall have the following meanings:

1

----

##  

### (a)           “TERMINATIONFOR CAUSE” shall mean termination by the Employer or Avocent Corporation of theEmployee’s employment with the Employer or Avocent by reason of the Employee’swillful dishonesty towards, fraud upon, or deliberate injury or attemptedinjury to, the Employer or Avocent or by reason of the Employee’s willfulmaterial breach of this Agreement which has resulted in material injury to theEmployer or Avocent.

### (b)           “TERMINATIONSOTHER THAN FOR CAUSE” shall mean termination by the Employer or AvocentCorporation of the Employee’s employment with the Employer or Avocent (otherthan in a Termination for Cause) and shall include any constructive terminationof the Employee’s employment by reason of material breach of this Agreement bythe Employer or Avocent, such constructive termination to be effective uponthirty (30) days written notice from the Employee to the Employer of suchconstructive termination.

### (c)           “VOLUNTARYTERMINATION” shall mean termination by the Employee of the Employee’semployment with the Employer or Avocent other than (i) constructivetermination as described in subsection 2.1(b), (ii) “Termination Upon aChange in Control” as described in Section 2.1(e), and (iii) termination byreason of the Employee’s disability or death as described in Sections 2.5and 2.6.

### (d)           “TERMINATIONUPON A CHANGE IN CONTROL” shall mean (i) a termination by the Employee ofthe Employee’s employment with the Employer or Avocent within six (6) months followingany “Change in Control” or (ii) any termination by the Employer or AvocentCorporation of the Employee’s employment with the Employer or Avocent (otherthan a Termination for Cause) within eighteen (18) months following any “Changein Control.”

### (e)           “CHANGEIN CONTROL” shall mean, after the date of this Agreement, any one of thefollowing events:

#### (i)    Anyperson (other than Avocent Corporation) acquires beneficial ownership ofEmployer’s or Avocent Corporation’s securities and is or thereby becomes a beneficialowner of securities entitling such person to exercise twenty-five percent (25%)or more of the combined voting power of Employer’s or Avocent Corporation’sthen outstanding stock.  For purposes ofthis Agreement, “beneficial ownership” shall be determined in accordance withRegulation 13D under 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 or combinationthereof, whose ownership of Employer’s or Avocent Corporation’s securitieswould be required to be reported under such Regulation 13D, or any similarsuccessor regulation or rule.

#### (ii)   Withinany twenty-four (24) month period, the individuals who were Directors ofAvocent Corporation at the beginning of any such period, together with anyother Directors first elected as directors of Avocent Corporation pursuant tonominations approved or ratified by at least two-thirds (2/3) of the Directorsin office immediately prior to any such election, cease to constitute amajority of the Board of Directors of Avocent Corporation.

#### (iii)  AvocentCorporation’s stockholders approve:

##### (1)           anyconsolidation or merger of Avocent Corporation in which Avocent Corporation isnot the continuing or surviving corporation or pursuant to which 

2

----

#####  

##### shares of Avocent Corporation common stock would be converted intocash, securities or other property, other than a merger or consolidation ofAvocent Corporation in which the holders of Avocent Corporation’s common stockimmediately prior to the merger or consolidation have substantially the sameproportionate ownership and voting control of the surviving corporationimmediately after the merger or consolidation; or

##### (2)           anysale, lease, exchange, liquidation or other transfer (in one transaction or aseries of transactions) of all or substantially all of the assets of AvocentCorporation.

Notwithstandingsubparagraphs (e)(iii)(1) and (e)(iii)(2) above, the term “Change inControl” shall not include a consolidation, merger, or other reorganization ifupon consummation of such transaction all of the outstanding voting stock ofAvocent Corporation is owned, directly or indirectly, by a holding company, andthe holders of Avocent Corporation’s common stock immediately prior to thetransaction have substantially the same proportionate ownership and votingcontrol of such holding company after such transaction.

## 2.2           TERM.  The term of employment of the Employee by theEmployer under this Agreement shall begin on the date of this Agreement, and end when such employment isterminated under any of the provisions of this Agreement.

## 2.3           TERMINATIONFOR CAUSE.  Termination For Cause may beeffected by the Employer at any time during the term of this Agreement andshall be effected by thirty (30) days written notification to the Employee fromthe Board of Directors of Avocent Corporation stating the reason fortermination.  Upon Termination For Cause,the Employee immediately shall be paid all accrued salary, bonus compensationto the extent earned, vested deferred compensation, if any (other than pensionplan or profit sharing plan benefits which will be paid in accordance with theapplicable plan), any benefits under any plans of Employer or Avocent in whichthe Employee is a participant to the full extent of the Employee’s rights undersuch plans, accrued vacation pay and any appropriate business expenses incurredby the Employee in connection with his duties hereunder, all to the date oftermination, but the Employee shall not be paid any other compensation orreimbursement of any kind, including without limitation, severancecompensation.

## 2.4           TERMINATIONOTHER THAN FOR CAUSE.  Notwithstandinganything else in this Agreement, the Employer may effect a Termination OtherThan For Cause at any time upon giving thirty (30) days written notice to theEmployee of such termination.  Upon anyTermination Other Than For Cause, the Employee shall immediately be paid all accruedsalary, bonus compensation to the extent earned, vested deferred compensation,if any (other than pension plan or profit sharing plan benefits which will bepaid in accordance with the applicable plan), any benefits under any plans ofEmployer or Avocent in which the Employee is a participant to the full extentof the Employee’s rights under such plans, accrued vacation pay and anyappropriate business expenses incurred by the Employee in connection with hisduties hereunder, all to the date of termination, and all severancecompensation provided in Section 4.2, but no other compensation orreimbursement of any kind.

## 2.5           TERMINATIONBY REASON OF DISABILITY.  If, during theterm of this Agreement, the Employee, in the reasonable judgment of the Boardof Directors of Avocent Corporation, has failed to perform his duties underthis Agreement on account of illness or physical 

3

----

##  

## or mental incapacity, and such illness or incapacity continues for aperiod of more than six (6) consecutive months, the Employer shall have theright to terminate the Employee’s employment hereunder by delivery of writtennotice to the Employee at any time after such six month period and payment tothe Employee of all accrued salary, bonus compensation to the extent earned,additional bonus compensation in an amount equal to the average annual bonusearned by the Employee as an employee of Avocent Corporation and its affiliatesand predecessors in the two (2) years immediately preceding the date oftermination, vested deferred compensation, if any (other than pension plan orprofit sharing plan benefits which will be paid in accordance with theapplicable plan), any benefits under any plans of Employer or Avocent in whichthe Employee is a participant to the full extent of the Employee’s rights undersuch plans (including having the vesting of any awards granted to the Employeeunder any Avocent stock option, restricted stock, performance share, or otherequity plans deemed and treated as fully earned and accelerated), accruedvacation pay and any appropriate business expenses incurred by the Employee inconnection with his duties hereunder, all to the date of termination, with theexception of medical and dental benefits which shall continue for a period oftwelve (12) months from the date of such notice of termination, but theEmployee shall not be paid any other compensation or reimbursement of any kind,including without limitation, severance compensation.

## 2.6           TERMINATIONBY REASON OF DEATH.  In the event of theEmployee’s death during the term of this Agreement, the Employee’s employmentshall be deemed to have terminated as of the last day of the month during whichhis death occurs and the Employer shall pay to his estate or such beneficiariesas the Employee may from time to time designate all accrued salary, bonus compensationto the extent earned, vested deferred compensation, if any (other than pensionplan or profit sharing plan benefits which will be paid in accordance with theapplicable plan), any benefits under any plans of Employer or Avocent in whichthe Employee is a participant to the full extent of the Employee’s rights undersuch plans (including having the vesting of any awards granted to the Employeeunder any Avocent stock option, restricted stock, performance share, or otherequity plans deemed and treated as fully earned and accelerated), accruedvacation pay and any appropriate business expenses incurred by the Employee inconnection with his duties hereunder, all to the date of termination, but theEmployee’s estate shall not be paid any other compensation or reimbursement ofany kind, including without limitation, severance compensation.

## 2.7           VOLUNTARYTERMINATION.  Notwithstanding anythingelse in this Agreement, the Employee may effect a Voluntary Termination at anytime upon giving thirty (30) days written notice to the Employer of suchtermination.  In the event of a VoluntaryTermination, the Employer shall immediately pay all accrued salary, bonuscompensation to the extent earned, vested deferred compensation, if any (otherthan pension plan or profit sharing plan benefits which will be paid inaccordance with the applicable plan), any benefits under any plans of Employeror Avocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans, accrued vacation pay and any appropriatebusiness expenses incurred by the Employee in connection with his dutieshereunder, all to the date of termination, but no other compensation orreimbursement of any kind, including without limitation, severancecompensation.

## 2.8           TERMINATIONUPON A CHANGE IN CONTROL.  In the eventof a Termination Upon a Change in Control, the Employee shall immediately bepaid all accrued salary, bonus compensation to the extent earned, vesteddeferred compensation, if any (other than pension plan or profit sharing planbenefits which will be paid in accordance with the applicable plan), anybenefits under any plans of Employer or Avocent in which the Employee is aparticipant to the full 

4

----

## extent of the Employee’s rights under such plans (including having thevesting of any awards granted to the Employee under any Avocent stock option,restricted stock, performance share, or other equity plans deemed and treatedas fully earned and accelerated), accrued vacation pay and any appropriatebusiness expenses incurred by the Employee in connection with his dutieshereunder, all to the date of termination, and all severance compensationprovided in Section 4.1, but no other compensation or reimbursement of anykind.

2.9           REIMBURSEMENT OF RELOCATION EXPENSES.  If Employee is terminated for any reason(other than a Termination for Cause as defined in Section 2.1(a) or a VoluntaryTermination as defined in Section 2.1(c)) at any time prior to September 1,2007, Avocent agrees to reimburse Employee for the reasonable moving andrelocation expenses actually incurred by Employee in relocating fromHuntsville, Alabama, to the Salt Lake City, Utah, area in an amount not toexceed Fifty Thousand Dollars ($50,000).

# 3.     SALARY,BENEFITS AND BONUS COMPENSATION.

## 3.1           BASE SALARY.  Effective January1, 2006, as payment for the services to be rendered by the Employee as providedin Section 1 and subject to the terms and conditions of Section 2,the Employer agrees to pay to the Employee a “Base Salary” at the rate of$220,000.00 per annum, payable in equal bi-weekly installments.  The Base Salary for each calendar year (orproration thereof) beginning January 1, 2006****shallbe determined by the Board of Directors of Avocent Corporation upon arecommendation of the Compensation Committee of AvocentCorporation (the “Compensation Committee”), which shall authorize an increasein the Employee’s Base Salary in an amount which, at a minimum, shall be equalto the cumulative cost-of-living increment on the Base Salary as reported inthe “ConsumerPrice Index for All Urban Consumers (CPI-U), All Items Index” for South UrbanSize A, published by the U.S. Department of Labor (using July 1, 2006, as thebase date for computation prorated for any partial year).* *TheEmployee’s Base Salary shall be reviewed annually by the Board of Directors andthe Compensation Committee of Avocent Corporation.

## 3.2           BONUSES.  TheEmployee shall be eligible to receive a bonus for each calendar year (orportion thereof) during the term of this Agreement and any extensions thereof,with the actual amount of any such bonus to be determined in the solediscretion of the Compensation Committee of the Board of Directors of AvocentCorporation based upon its evaluation of the Employee’s performance during suchyear.  All such bonuses shall be payableduring the last month of the fiscal year or within forty-five (45) days afterthe end of the fiscal year to which such bonus relates.  All such bonuses shall be reviewed annuallyby the Compensation Committee of Avocent Corporation.

## 3.3           ADDITIONAL BENEFITS. During the term of this Agreement, the Employee shall be entitled to thefollowing fringe benefits:

### (a)           THE EMPLOYEE BENEFITS. The Employee shall be eligible to participate in such of Avocent’sbenefits and deferred compensation plans as are now generally available orlater made generally available to executive officers or Avocent, including,without limitation, stock option, restricted stock, performance share, andother equity plans, Section 401(k) plan, profit sharing plans, deferredcompensation plan, annual physical examinations, dental and medical plans,personal catastrophe and disability insurance, retirement plans andsupplementary 

5

----

###  

### executive retirement plans, if any. For purposes of establishing the length of service under any benefitplans or programs of Avocent, the Employee’s employment with the Employer (orany successor) will be deemed to have commenced on the date that Employee firstcommenced employment with Avocent, which was October 9, 2002.

### (b)           VACATION.  TheEmployee shall be entitled to vacation in accordance with the AvocentCorporation’s vacation policy but in no event less than three (3) weeks duringeach year of this Agreement.

### (c)           LIFE INSURANCE.  Forthe term of this Agreement and any extensions thereof, the Employer shall atits expense procure and keep in effect term life insurance on the life of theEmployee, payable to such beneficiaries as the Employee may from time to timedesignate, in an aggregate amount equal to three times the Employee’s BaseSalary.  Such policy shall be owned bythe Employee or by any person or entity with an insurable interest in the lifeof the Employee.

### (d)           REIMBURSEMENT FOR EXPENSES.  During the term of this Agreement, theEmployer or Avocent Corporation shall reimburse the Employee for reasonable andproperly documented out-of-pocket business and/or entertainment expensesincurred by the Employee in connection with his duties under this Agreement inaccordance with Avocent’s standard reimbursement policies.

# 4.             SEVERANCECOMPENSATION.

## 4.1           SEVERANCECOMPENSATION IN THE EVENT OF A TERMINATION UPON A CHANGE IN CONTROL.  In the event of a Termination Upon a Changein Control, the Employee shall be paid as severance compensation his BaseSalary (at the rate payable at the time of such termination) for a period oftwelve (12) months from the date of such Termination Upon a Change in Control,on the dates specified in Section 3.1, and the Employee shall also be paidan amount equal to the average annual bonus earned by the Employee as anemployee of Avocent Corporation and its affiliates and predecessors in the two(2) years immediately preceding the date of termination.  Notwithstanding anything in thisSection 4.1 to the contrary, the Employee may in the Employee’s sole discretion,by delivery of a notice to the Employer within thirty (30) days following aTermination Upon a Change in Control, elect to receive from the Employer a lumpsum severance payment by bank cashier’s check equal to the present value of theflow of cash payments that would otherwise be paid to the Employee pursuant tothis Section 4.1.  Such presentvalue shall be determined as of the date of delivery of the notice of electionby the Employee and shall be based on a discount rate equal to the interest rateof 90-day U.S. Treasury bills, as reported in *The Wall Street Journal* (or similar publication), on thedate of delivery of the election notice. If the Employee elects to receive a lump sum severance payment, AvocentCorporation shall cause the Employer to make such payment to the Employeewithin ten (10) days following the date on which the Employee notifies theEmployer of the Employee’s election.  TheEmployee shall also be entitled to have the vesting of any awards granted tothe Employee under any Avocent stock option, restricted stock, performanceshare, or other equity plans deemed and treated as fully earned andaccelerated.  The Employee shall beprovided with medical plan benefits under any health plans of Avocent orEmployer in which the Employee is a participant to the full extent of theEmployee’s rights under such plans for a period of twelve (12) months from thedate of such Termination Upon a Change in Control (even if Employee elects toreceive a lump sum severance payment).

6

----

##  

## 4.2           SEVERANCECOMPENSATION IN THE EVENT OF A TERMINATION OTHER THAN FOR CAUSE.  In the event of a Termination Other Than forCause, the Employee shall be paid as severance compensation his Base Salary (atthe rate payable at the time of such termination) for a period of twelve (12)months from the date of such termination, on the dates specified inSection 3.1, and Employee shall also be paid an amount equal to theaverage annual bonus earned by the Employee as an employee of AvocentCorporation and its affiliates and predecessors in the two (2) yearsimmediately preceding the date of termination. Notwithstanding anything in this Section 4.2 to the contrary, theEmployee may in the Employee’s sole discretion, by delivery of a notice to theEmployer within thirty (30) days following a Termination Other Than for Cause,elect to receive from the Employer a lump sum severance payment by bank cashier’scheck equal to the present value of the flow of cash payments that wouldotherwise be paid to the Employee pursuant to this Section 4.2.  Such present value shall be determined as ofthe date of delivery of the notice of election by the Employee and shall bebased on a discount rate equal to the interest rate on 90-day U.S.Treasury bills, as reported in *The WallStreet Journal* (or similar publication), on the date of delivery ofthe election notice.  If the Employeeelects to receive a lump sum severance payment, Avocent Corporation shall causethe Employer to make such payment to the Employee within ten (10) daysfollowing the date on which the Employee notifies the Employer of the Employee’selection.  The Employee shall also beentitled to have the vesting of any awards granted to the Employee under anyAvocent stock option, restricted stock, performance share, or other equityplans deemed and treated as fully earned and accelerated. The Employee shall beprovided with medical plan benefits under any health plans of Avocent orEmployer in which the Employee is a participant to the full extent of theEmployee’s rights under such plans for a period of twelve (12) months from thedate of such Termination Other Than for Cause (even if Employee elects toreceive a lump sum severance payment).

## 4.3           NOSEVERANCE COMPENSATION UNDER OTHER TERMINATION. In the event of a Voluntary Termination, Termination For Cause,termination by reason of the Employee’s disability pursuant to Section 2.5,termination by reason of the Employee’s death pursuant to Section 2.6, theEmployee or his estate shall not be paid any severance compensation.

4.4           SECTION 409A COMPLIANCE. Notwithstanding anything to the contrary in this Agreement, any cashseverance payments otherwise due to Employee pursuant to Section 4 or otherwiseon or within the six-month period following Employee’s termination will accrueduring such six-month period and will become payable in a lump sum payment onthe date six (6) months and one (1) day following the date of Employee’stermination, provided, that such cash severance payments will be paid earlier,at the times and on the terms set forth in the applicable provisions of Section4, if Employer reasonably determines that the imposition of additional taxunder Section 409A of the Internal Revenue Code of 1986, as amended, will notapply to an earlier payment of such cash severance payments.  In addition, this Agreement will be deemedamended in Employer’s reasonable discretion to the extent necessary to avoidimposition of any additional tax or income recognition prior to actual paymentto Employee under Code Section 409A and any temporary, proposed or finalTreasury Regulations and guidance promulgated thereunder and the parties agreeto cooperate with each other and to take reasonably necessary steps in thisregard so as not to reduce the benefits provided to Employee under this Agreement.  Employer agrees to notify Employee of anysuch proposed amendments prior to implementing any such amendment.

# 5.             NON-COMPETITIONOBLIGATIONS.  Unless waived or reduced bythe Employer or Avocent, during the term of this Agreement and for a period oftwelve (12) months 

7

----

#  

# thereafter, theEmployee will not, without the Employer’s and Avocent Corporation’s priorwritten consent, directly or indirectly:

### (a)   either alone or as a partner, joint venturer, officer, director,employee, consultant, agent, independent contractor or stockholder of anycompany or business, engage in any business activity world wide which issubstantially similar to or in direct competition with any of the businessactivities of or services provided by Employer or Avocent at such time.  Notwithstanding the foregoing, the ownershipby the Employee of not more than five percent (5%) of the shares of stock ofany corporation having a class of equity securities actively traded on anational securities exchange or on The Nasdaq Stock Market shall not be deemed,in and of itself, to violate the prohibitions of this Section 5; or

### (b)   solicit, in any way encourage, take away, or engage in businesswith customers of Employer or Avocent (or any current or future parent,affiliate, or subsidiary of any of them) for his own benefit in a mannercompetitive with the business of Employer or Avocent or for the benefit of anyperson competing with the business of Employer or Avocent worldwide; or

(c) solicit, in any way encourage, take away, oremploy present or future employees or present or future consultants of Employer orAvocent (or employees or consultants of any current or futureparent, affiliate or subsidiary of any of them) for his own benefit or for thebenefit of any other person.

# 6.             MISCELLANEOUS.

## 6.1           PAYMENTOBLIGATIONS.  If litigation after aChange in Control shall be brought to enforce or interpret any provisioncontained herein, the Employer and Avocent Corporation, to the extent permittedby applicable law and the Employer’s and Avocent Corporation’s Articles ofIncorporation and Bylaws, each hereby indemnifies the Employee for the Employee’sreasonable attorneys’ fees and disbursements incurred in such litigation.

## 6.2           GUARANTEE.  Avocent Corporation hereby unconditional andirrevocable guarantees all payment obligations of the Employer under thisAgreement, including, without limitation, the Employer’s obligations underSections 2, 3, 4, and 6 hereof.

## 6.3           WITHHOLDINGS.  All compensation and benefits to the Employeehereunder shall be reduced by all federal, state, local, and other withholdingsand similar taxes and payments required by applicable law.

## 6.4           WAIVER.  The waiver of the breach of any provision ofthis Agreement shall not operate or be construed as a waiver of any subsequentbreach of the same or other provision hereof.

## 6.5           ENTIREAGREEMENT; MODIFICATIONS.  Except asotherwise provided herein, this Agreement represents the entire understandingamong the parties with respect to the subject matter hereof, and this Agreementsupersedes any and all prior understandings, agreements (including the 2005Employment Agreement), plans and negotiations, whether written or oral withrespect to the subject matter hereof,**and anyunderstandings, agreements (including the 2005 Employment Agreement) orobligations respecting any past or future compensation, bonuses, reimbursementsor other payments to the Employee from the Employer or Avocent Corporation; 

8

----

##  

## provided, however, that the terms and conditions of the ConfidentialInformation, Invention Assignment, Noncompetition and Arbitration Agreementwith Employer (then known as Bear River Digital Corporation) relating toconfidential information and assignment of inventions (but not the otherprovisions thereof) shall remainin full force in effect.  Allmodifications to the Agreement must be in writing and signed by the partyagainst whom enforcement of such modification is sought.

## 6.6           NOTICES.  All notices and other communications underthis Agreement shall be in writing and shall be given by hand delivery or firstclass mail, certified or registered with return receipt requested, and shall bedeemed to have been duly given upon hand delivery to an officer of the Employeror the Employee, as the case may be, or upon three (3) days after mailing tothe respective persons named below:

If to the Employer/Avocent:                                           AvocentCorporation4991 Corporate DriveHuntsville, AL 35805Attn:  PresidentCopy to:  General Counsel

If to the Employee:                                                                                            Stephen M. Daly

 

Anyparty may change such party’s address for notices by notice duly given pursuantto this Section 6.6.

## 6.7           HEADINGS.  The Section headings herein are intended forreference and shall not by themselves determine the construction orinterpretation of this Agreement.

## 6.8           GOVERNINGLAW; VENUE.  This Agreement shall begoverned by and construed in accordance with the laws of the State ofAlabama.  The Employee, the Employer, andAvocent Corporation each hereby expressly consents to the exclusive venue ofthe state and federal courts located in Huntsville, Alabama, for any lawsuitarising from or relating to this Agreement.

## 6.9           ARBITRATION.  Any controversy or claim arising out of orrelating to this Agreement, or breach thereof, shall be settled by arbitrationin Huntsville, Alabama, in accordance with the Rules of the AmericanArbitration Association, and judgment upon any proper award rendered by thearbitrators may be entered in any court having jurisdiction thereof.  There shall be three (3) arbitrators, one (1)to be chosen directly by each party at will, and the third arbitrator to beselected by the two (2) arbitrators so chosen. To the extent permitted by the Rules of the American ArbitrationAssociation, the selected arbitrators may grant equitable relief.  Each party shall pay the fees of the arbitratorselected by him and of his own attorneys, and the expenses of his witnesses andall other expenses connected with the presentation of his case.  The cost of the arbitration including thecost of the record or transcripts thereof, if any, administrative fees, and allother fees and costs shall be borne equally by the parties.

## 6.10         SEVERABILITY.  If a court or other body of competentjurisdiction determines that any provision of this Agreement is excessive inscope or otherwise invalid or 

9

----

##  

## unenforceable, such provision shall be adjusted rather than voided, ifpossible, and all other provisions of this Agreement shall be deemed valid andenforceable to the extent possible.

## 6.11         SURVIVALOF EMPLOYER’S OBLIGATIONS.  The Employer’sand Avocent Corporation’s obligations hereunder shall not be terminated byreason of any liquidation, dissolution, bankruptcy, cessation of business, orsimilar event relating to the Employer or Avocent Corporation.  This Agreement shall not be terminated by anymerger or consolidation or other reorganization of the Employer or AvocentCorporation.  In the event any suchmerger, consolidation or reorganization shall be accomplished by transfer ofstock or by transfer of assets or otherwise, the provisions of this Agreementshall be binding upon and inure to the benefit of the surviving or resultingcorporation or person.  This Agreementshall be binding upon and inure to the benefit of the executors,administrators, heirs, successors and assigns of the parties; provided, however,that except as herein expressly provided, this Agreement shall not beassignable either by the Employer (except to an affiliate of the Employer(including Avocent Corporation) in which event the Employer shall remain liableif the affiliate fails to meet any obligations to make payments or providebenefits or otherwise) or by the Employee.

## 6.12         COUNTERPARTS.  This Agreement may be executed in one or morecounterparts, all of which taken together shall constitute one and the sameAgreement.

## 6.13         INDEMNIFICATION.  In addition to any rights to indemnificationto which the Employee is entitled to under the Employer’s or AvocentCorporation’s Articles of Incorporation and Bylaws, the Employer and AvocentCorporation shall indemnify the Employee at all times during and after the termof this Agreement to the maximum extent permitted under the corporation laws ofthe State of Delaware and any other applicable state law, and shall pay theEmployee’s expenses in defending any civil or criminal action, suit, or proceedingin advance of the final disposition of such action, suit, or proceeding, to themaximum extent permitted under such applicable state laws.

## 6.14         INDEMNIFICATION FOR SECTION 4999 EXCISE TAXES.  In the event that it shall be determined thatany payment or other benefit paid by the Employer or Avocent Corporation to orfor the benefit of the Employee under this Agreement or otherwise, butdetermined without regard to any additional payments required under thisAgreement (the “Payments”) would be subject to the excise tax imposed bySection 4999 of the Internal Revenue Code (the “Excise Tax”), then the Employerand Avocent Corporation shall indemnify the Employee for such Excise Tax inaccordance with the following:

### (a)   The Employee shall be entitled to receive an additional paymentfrom the Employer and/or Avocent Corporation equal to (i) one hundred percent(100%) of any Excise Tax actually paid or payable by the Employee in connectionwith the Payments, plus (ii) an additional payment in such amount that afterall taxes, interest and penalties incurred in connection with all paymentsunder this Section 2(a), the Employee retains an amount equal to one hundredpercent (100%) of the Excise Tax.

### (b)   Alldeterminations required to be made under this Section shall be made by theAvocent Corporation’s primary independent public accounting firm, or any othernationally recognized accounting firm reasonably acceptable to AvocentCorporation and the Employee (the “Accounting Firm”).  Avocent Corporation shall cause theAccounting Firm to provide detailed 

10

----

###  

### supporting calculations of its determinations to the Employer and theEmployee.  All fees and expenses of theAccounting Firm shall be borne solely by the Employer.  For purposes of making the calculations requiredby this Section, the Accounting Firm may make reasonable assumptions andapproximations concerning applicable taxes and may rely on reasonable, goodfaith interpretations concerning the application of Sections 280G and 4999 ofthe Internal Revenue Code, provided the Accounting Firm’s determinations mustbe made with substantial authority (within the meaning of Section 6662 of theInternal Revenue Code). The payments to which the Employee is entitled pursuantto this Section shall be paid by the Employer and/or Avocent Corporation to theEmployee in cash and in full not later than thirty (30) calendar days followingthe date the Employee becomes subject to the Excise Tax.

*Signaturepage follows*

11

----

 

INWITNESS WHEREOF, the parties hereto have executed this Agreement as of the dayand year first above written.

 
|            | **AVOCENT HUNTSVILLE CORP.** |               |
|------------|------------------------------|--------------------|
|       |                         |               |   |
|       |                         |               |   |
|       | By:                          | /s/ John R. Cooper |   |
|       | Its:                         | Chairman           |   |
| ** ** |                         |               |   |
|       | **AVOCENT CORPORATION:**     |               |
|       |                         |               |   |
|       |                         |               |   |
|       | By:                          | /s/ John R. Cooper |   |
|       | Its:                         | Chairman           |   |
| ** ** |                         |               |   |
| ** ** | **EMPLOYEE:**                |               |
| ** ** |                         |               |   |
| ** ** |                         |               |   |
|       | /s/ Stephan M. Daly          |               |
|       | Stephan M. Daly              |               |
|            |                              |                    |  |  |  |

 

12

----