**Exhibit10.18**

 

**EMPLOYMENTAND NONCOMPETITION AGREEMENT**

 

THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (the“Agreement”) is made and entered into as of January 5, 2004, by and amongAvocent California Corp. (formerly known as Crystal Link Technologies, a Californiacorporation (“Employer”), Avocent Huntsville Corp., an Alabama corporation(“AHC”), Avocent Corporation, a Delaware corporation, and Rick Moore (the“Employee”).

 

RECITALS

 

WHEREAS, Avocent Corporation and its affiliatesincluding Avocent International Ltd., Avocent Huntsville Corp., and AvocentRedmond Corp. (Avocent Corporation and its affiliates are collectively referredto in this Agreement as “Avocent”) are engaged in the business of designing,manufacturing, and selling wired and wireless connectivity solutions forenterprise data centers, service providers, and financial institutions; and

 

WHEREAS, on the date ofthis Agreement, Employer became a wholly-owned subsidiary of AHC under theterms and conditions of that certain Agreement and Plan of Reorganization byand among Avocent Corporation, Avocent California Acquisition Corp., andCrystal Link Technologies dated November 15, 2003 (the “ReorganizationAgreement”).  Pursuant to theReorganization Agreement, (i) Avocent California Acquisition Corp., aCalifornia corporation and a wholly-owned subsidiary of AHC, merged with andinto Crystal Link Technologies (the “Merger”), and upon the Merger, CrystalLink Technologies became a wholly-owned subsidiary of AHC and changed its nameto Avocent California Corp.

 

WHEREAS, Employer desiresto employ the Employee and the Employee is willing to accept such employment byEmployer on the terms and subject to the conditions set forth in thisAgreement.

 

**AGREEMENT**

 

THE PARTIES HERETO AGREEAS FOLLOWS:

 

# 1.             DUTIES. During the term of this Agreement, the Employee agrees to be employed byEmployer and to serve Avocent as its Senior Vice President of WirelessTechnology.  The Employee shall devotesuch of his business time, energy, and skill to the affairs of Avocent andEmployer as shall be necessary to perform the duties of Senior Vice Presidentof Wireless Technology.  The Employeeshall report to the President and Chief Executive Officer and the ExecutiveVice President of Employer and Avocent Corporation and to the Boards ofDirectors of the Employer and Avocent Corporation, and at all times during theterm of this Agreement, the Employee shall have powers and duties at leastcommensurate with his position as Senior Vice President of Wireless Technologyof Avocent Corporation.

#  

# 2.             TERM OF EMPLOYMENT.

#  

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

 

----

 

### (a)           “TERMINATION FOR CAUSE”shall mean termination by the Employer or Avocent Corporation of the Employee’semployment with the Employer or Avocent by reason of the Employee’s willfuldishonesty towards, fraud upon, or deliberate injury or attempted injury to,the Employer or Avocent or by reason of the Employee’s willful material breachof this Agreement which has resulted in material injury to the Employer orAvocent.

###  

### (b)           “TERMINATIONS OTHERTHAN FOR CAUSE” shall mean termination by the Employer or Avocent Corporationof the Employee’s employment with the Employer or Avocent (other than in aTermination for Cause) and shall include (i) any constructive termination ofthe Employee’s employment by reason of material breach of this Agreement by theEmployer or Avocent, such constructive termination to be effective upon thirty(30) days written notice from the Employee to the Employer of such constructivetermination and (ii) any attempt to relocate outside of the vicinity ofEscondido, California:  (x) theEmployee, (y) the Employee’s duties and responsibilities, or (z) the Employer’soffice at which Employee is employed. Notwithstanding the foregoing, Employee agrees that a change in hisduties and responsibilities shall not result in a constructive terminationunder this Section 2.1(b) unless such change results in a substantialdiminution of Employee’s duties and responsibilities n.

 

### (c)           “VOLUNTARY TERMINATION”shall mean termination by the Employee of the Employee’s employment with theEmployer or Avocent other than (i) constructive termination as describedin subsection 2.1(b), (ii) “Termination Upon a Change in Control” asdescribed in Section 2.1(e), and (iii) termination by reason of theEmployee’s disability or death as described in Sections 2.5 and 2.6.

 

### (d)           “TERMINATION UPON ACHANGE IN CONTROL” shall mean (i) a termination by the Employee of theEmployee’s employment with the Employer or Avocent within six (6) monthsfollowing any “Change in Control” or (ii) any termination by the Employer orAvocent Corporation of the Employee’s employment with the Employer orAvocent(other than a Termination for Cause) within eighteen (18) monthsfollowing any “Change in Control.”

###  

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

###  

#### (i)            Any person (other thanAvocent Corporation) acquires beneficial ownership of Employer’s, AHC’s, orAvocent Corporation’s securities and is or thereby becomes a beneficial ownerof securities entitling such person to exercise twenty-five percent (25%) ormore of the combined voting power of Employer’s, AHC’s, or AvocentCorporation’s then outstanding stock. For purposes of this Agreement, “beneficial ownership” shall bedetermined in accordance with Regulation 13D under the Securities ExchangeAct of 1934, or any similar successor regulation or rule; and the term “person”shall include any natural person, corporation, partnership, trust orassociation, or any group or combination thereof, whose ownership ofEmployer’s, AHC’s, or Avocent Corporation’s securities would be required to bereported under such Regulation 13D, or any similar successor regulation orrule.

####  

#### (ii)           Within any twenty-four(24) month period, the individuals who were Directors of Avocent Corporation atthe beginning of any such period, together with any other Directors firstelected as directors of Avocent Corporation pursuant to nominations approved

 

2

----

 

or ratified by at least two-thirds (2/3) of the Directors in officeimmediately prior to any such election, cease to constitute a majority of theBoard of Directors of Avocent Corporation.

####  

#### (iii)          Avocent Corporation’sstockholders approve:

####  

##### (1)           any consolidation ormerger of Avocent Corporation in which Avocent Corporation is not thecontinuing or surviving corporation or pursuant to which shares of AvocentCorporation common stock would be converted into cash, securities or otherproperty, other than a merger or consolidation of Avocent Corporation in whichthe holders of Avocent Corporation’s common stock immediately prior to themerger or consolidation have substantially the same proportionate ownership andvoting control of the surviving corporation immediately after the merger orconsolidation; or

#####  

##### (2)           any sale, lease,exchange, liquidation or other transfer (in one transaction or a series oftransactions) of all or substantially all of the assets of Avocent Corporation.

#####  

Notwithstandingsubparagraphs (e)(iii)(1) and (e)(iii)(2) above, the term “Change inControl” shall not include (i) a consolidation, merger, or other reorganizationif upon 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 or (ii) any transactioncontemplated by or described in the Reorganization Agreement and/or resultingfrom the closing of the transactions described in the Reorganization Agreement including,without limitation, the Merger.

 

## 2.2           BASIC TERM.  The term of employment of the Employee bythe Employer shall be for the period beginning on the date of this Agreement,and ending on December 31, 2007, unless terminated earlier pursuant to this Section2.  At any time before December 31,2007, the Employer and the Employee may by mutual written agreement extend theEmployee’s employment under the terms of this Agreement for such additionalperiods as they may agree.

##  

## 2.3           TERMINATION FORCAUSE.  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 Boards of Directors of Employer and Avocent Corporation stating the reasonfor termination.  Upon Termination ForCause, the Employee immediately shall be paid 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 the Employee shall not be paidany other compensation or reimbursement of any kind, including withoutlimitation, severance compensation.

##  

## 2.4           TERMINATION OTHER THANFOR CAUSE.  Notwithstanding anythingelse in this Agreement, the Employer may effect a Termination Other Than ForCause at any time

 

3

----

 

upon giving thirty (30) days written notice to the Employee of suchtermination.  Upon any Termination OtherThan For Cause, the Employee shall immediately be paid all accrued salary,bonus compensation to the extent earned, vested deferred compensation, if any(other than 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, and all severance compensationprovided in Section 4.2, but no other compensation or reimbursement of anykind.

 

## 2.5           TERMINATION BY REASONOF DISABILITY.  If, during the term ofthis Agreement, the Employee, in the reasonable judgment of the Board ofDirectors of Avocent Corporation, has failed to perform his duties under thisAgreement on account of illness or physical or mental incapacity, and suchillness or incapacity continues for a period of more than six (6) consecutivemonths, the Employer shall have the right to terminate the Employee’semployment hereunder by delivery of written notice to the Employee at any timeafter such six month period and payment to the Employee of all accrued salary,bonus compensation to the extent earned, additional bonus compensation in anamount equal to the average annual bonus earned by the Employee after theMerger as an employee of Avocent Corporation and its affiliates in the two (2)years (or such lesser period following the Merger) immediately preceding thedate of termination, 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 AHC or Avocent stock option plans fully 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 through theexpiration of this Agreement, but the Employee shall not be paid any othercompensation or reimbursement of any kind, including without limitation,severance compensation.

 

## 2.6           TERMINATION BY REASONOF 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, 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 (including having the vesting of any awardsgranted to the Employee under any AHC or Avocent stock option plans fullyaccelerated), accrued vacation pay and any appropriate business expensesincurred by the Employee in connection with his duties hereunder, all to thedate of termination, but the Employee’s estate shall not be paid any othercompensation or reimbursement of any 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 aVoluntary Termination,

 

4

----

 

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           TERMINATION UPON ACHANGE IN CONTROL.  In the event of aTermination Upon a Change in Control, the Employee shall immediately be paidall accrued salary, bonus compensation to the extent earned, vested deferredcompensation, if any (other than pension plan or profit sharing plan benefitswhich will be paid in accordance with the applicable plan), any benefits underany plans of Employer or Avocent in which the Employee is a participant to thefull extent of the Employee’s rights under such plans (including having thevesting of any awards granted to the Employee under any AHC or Avocent stockoption plans fully 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.

 

# 3.             SALARY, BENEFITS AND BONUS COMPENSATION.

 

## 3.1           BASESALARY.  Effective on the date of theMerger, 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$150,000 per annum, payable in equal bi-weekly installments.  The Base Salary for each calendar year (orproration thereof) beginning January 1, 2004****shall be determined by theBoard of Directors of Avocent Corporation upon a recommendation 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 “Consumer Price Index for All UrbanConsumers (CPI-U), All Items Index, for San Diego, CA” published by the U.S.Department of Labor (using January 1, 2003, as the base date for computationprorated 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.  The Employee shall be eligible to receive abonus for each calendar year (or portion thereof) during the term of thisAgreement and any extensions thereof, with the actual amount of any such bonusto be determined in the sole discretion 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 ofAvocent Corporation.

 

5

----

 

## 3.3           ADDITIONALBENEFITS.  During the term of thisAgreement, the Employee shall be entitled to the following fringe benefits:

 

### (a)           THE EMPLOYEEBENEFITS.  The Employee shall beeligible to participate in such of Avocent’s benefits and deferred compensationplans as are now generally available or later made generally available toexecutive officers or Avocent, including, without limitation, stock optionplans, Section 401(k) plan, profit sharing plans, deferred compensation plan, annualphysical examinations, dental and medical plans, personal catastrophe anddisability insurance, retirement plans and supplementary executive retirementplans, if any.  For purposes ofestablishing the length of service under any benefit plans or programs of AHCor Avocent, the Employee’s employment with the Employer (or any successor) willbe deemed to have commenced on the date that Employee first commencedemployment with Crystal Link Technologies, which was August 3, 2001.

 

### (b)           VACATION.  The Employee shall be entitled to vacationin accordance with the Avocent Corporation’s vacation policy but in no eventless than three (3) weeks during each year of this Agreement.

 

### (c)           LIFE INSURANCE.  For the term of this Agreement and anyextensions thereof, the Employer shall at its expense procure and keep ineffect term life insurance on the life of the Employee, payable to suchbeneficiaries as the Employee may from time to time designate, in an aggregateamount equal to three times the Employee’s Base Salary.  Such policy shall be owned by the Employeeor by any person or entity with an insurable interest in the life of theEmployee.

 

### (d)           REIMBURSEMENT FOREXPENSES.  During the term of thisAgreement, the Employer or Avocent Corporation shall reimburse the Employee forreasonable and properly documented out-of-pocket business and/or entertainmentexpenses incurred by the Employee in connection with his duties under thisAgreement in accordance with Avocent’s standard reimbursement policies.

 

# 4.             SEVERANCE COMPENSATION.

 

## 4.1           SEVERANCE COMPENSATIONIN 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 after theMerger as an employee of Avocent Corporation and its affiliates in the two (2)years (or such lesser period following the Merger) immediately preceding thedate of termination.  Notwithstandinganything in this Section 4.1 to the contrary, the Employee may in theEmployee’s sole discretion, by delivery of a notice to the Employer withinthirty (30) days following a Termination Upon a Change in Control, elect toreceive from the Employer a lump sum severance payment by bank cashier’s checkequal to the present value of the flow of cash payments that would otherwise bepaid to the Employee pursuant to this Section 4.1.  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 of

 

6

----

 

90-day U.S. Treasury bills, as reported in *The Wall Street Journal* (orsimilar publication), on the date of delivery of the election notice.  If the Employee elects to receive a lump sumseverance payment, Avocent Corporation shall cause the Employer to make suchpayment to the Employee within ten (10) days following the date on which theEmployee notifies the Employer of the Employee’s election.  The Employee shall also be entitled to havethe vesting of any awards granted to the Employee under any AHC or Avocentstock option plans fully accelerated. The Employee shall be provided with medical plan benefits under any healthplans of Avocent or Employer in which the Employee is a participant to the fullextent of the Employee’s rights under such plans for a period of twelve (12)months from the date of such Termination Upon a Change in Control (even ifEmployee elects to receive a lump sum severance payment).

 

## 4.2           SEVERANCE COMPENSATIONIN THE EVENT OF A TERMINATION OTHER THAN FOR CAUSE.  In the event of a Termination Other Than for Cause, the Employeeshall be paid as severance compensation his Base Salary (at the rate payable atthe time of such termination) for a period of twelve (12) months from the dateof such termination, on the dates specified in Section 3.1, and Employeeshall also be paid an amount equal to the average annual bonus earned by theEmployee after the Merger as an employee of Avocent Corporation and itsaffiliates in the two (2) years (or such lesser period following the Merger)immediately 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 bankcashier’s check 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 Wall Street Journal* (or similarpublication), on the date of delivery of the election notice.  If the Employee elects to receive a lump sumseverance payment, Avocent Corporation shall cause the Employer to make suchpayment to the Employee within ten (10) days following the date on which theEmployee notifies the Employer of the Employee’s election.  The Employee shall also be entitled to havethe vesting of any awards granted to the Employee under any AHC or Avocent stockoption plans fully accelerated. The Employee shall be provided with medicalplan benefits under any health plans of Avocent or Employer in which theEmployee is a participant to the full extent of the Employee’s rights undersuch plans for a period of twelve (12) months from the date of such TerminationOther Than for Cause (even if Employee elects to receive a lump sum severancepayment).

 

## 4.3           NO SEVERANCECOMPENSATION 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.

 

# 5.             NON-COMPETITION OBLIGATIONS.  Unless waived or reduced by the Employer orAvocent, during the term of this Agreement and (i) for a period of twenty-four (24) months afterthe termination of this Agreement for any reason that occurs prior to the fifth(5th) anniversary of the Merger, or (ii) for a period oftwelve (12) months after the Merger,the Employee will not, without the Employer’s and Avocent Corporation’s priorwritten consent, directly or indirectly, alone or as a partner, joint venturer,officer, director, employee, consultant, agent,

 

7

----

 

independent contractor or stockholder of any company or business,engage in any business activity in the United States, Canada, Europe, or Asiawhich is substantially similar to or in direct competition with any of thebusiness activities of or services provided by the Employer or Avocent at suchtime.  Notwithstanding the foregoing,the ownership by the Employee of not more than five percent (5%) of the sharesof stock of any corporation having a class of equity securities actively tradedon a national securities exchange or on The Nasdaq Stock Market shall not bedeemed, in and of itself, to violate the prohibitions of this Section 5.

#  

# 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 theEmployee’s reasonable attorneys’ fees and disbursements incurred in suchlitigation.

##  

## 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 theEmployee hereunder shall be reduced by all federal, state, local, and otherwithholdings and 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           ENTIRE AGREEMENT;MODIFICATIONS.  Except as otherwiseprovided herein, this Agreement represents the entire understanding among theparties with respect to the subject matter hereof, and this Agreementsupersedes any and all prior understandings, agreements, plans andnegotiations, whether written or oral with respect to the subject matter hereofincluding without limitation, the Original Employment Agreement,**and any understandings, agreements orobligations respecting any past or future compensation, bonuses, reimbursementsor other payments to the Employee from the Employer or AvocentCorporation.  All modifications to theAgreement must be in writing and signed by the party against whom enforcementof 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: | Avocent Corporation  |
|------------------------------|----------------------|
|                         | 4991 Corporate Drive |
|                         | Huntsville, AL 35805 |

 

8

----

 

 
|                | Attn:      | Executive Vice  President |
|---------------------|------------|---------------------------|
|                | Copy to:   | General Counsel           |
|                |       |
| If to the Employee: | Rick Moore |
|                |       |                      |
|                |       |                      |
|                     |            |                           |  |

 

Any party may change such party’s address for noticesby notice duly given pursuant to 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           GOVERNING LAW;VENUE.  This Agreement shall be governedby and construed in accordance with the laws of the State of California.  The Employee, the Employer, and AvocentCorporation each hereby expressly consents to the exclusive venue of the stateand federal courts located in San Diego, California, for any lawsuit arisingfrom 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 San Diego, California, in accordance with the Rules of the American ArbitrationAssociation, and judgment upon any proper award rendered by the arbitrators maybe entered in any court having jurisdiction thereof.  There shall be three (3) arbitrators, one (1) to be chosendirectly by each party at will, and the third arbitrator to be selected by thetwo (2) arbitrators so chosen.  To theextent permitted by the Rules of the American Arbitration Association, theselected arbitrators may grant equitable relief.  Each party shall pay the fees of the arbitrator selected by himand of his own attorneys, and the expenses of his witnesses and all otherexpenses connected with the presentation of his case.  The cost of the arbitration including the cost of the record ortranscripts thereof, if any, administrative fees, and all other fees and costsshall 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 unenforceable, such provision shall be adjustedrather than voided, if possible, and all other provisions of this Agreementshall be deemed valid and enforceable to the extent possible.

##  

## 6.11         SURVIVAL OF EMPLOYER’SOBLIGATIONS.  The Employer’s and AvocentCorporation’s obligations hereunder shall not be terminated by reason of anyliquidation, dissolution, bankruptcy, cessation of business, or similar eventrelating to the Employer or Avocent Corporation.  This Agreement shall not be terminated by any merger orconsolidation or other reorganization of the Employer or Avocent Corporation.  In the event any such merger, consolidationor reorganization shall be accomplished by transfer of stock or by transfer ofassets or otherwise, the provisions of this Agreement shall be binding upon andinure to the benefit of the surviving or resulting corporation or person.  This Agreement shall be binding upon andinure to the benefit of the executors, administrators, heirs, successors andassigns of the parties; provided, however, that except as herein expresslyprovided, this Agreement shall not be assignable either by the Employer (exceptto an affiliate of the Employer (including Avocent Corporation) in which

 

9

----

 

event the Employer shall remain liable if the affiliate fails to meetany obligations to make payments or provide benefits or otherwise) or by theEmployee.

##  

## 6.12         COUNTERPARTS.  This Agreement may be executed in one ormore counterparts, all of which taken together shall constitute one and thesame Agreement.

##  

## 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, orproceeding in advance of the final disposition of such action, suit, orproceeding, to the maximum extent permitted under such applicable state laws.

##  

## 6.14         INDEMNIFICATION FORSECTION 4999 EXCISE TAXES.  In the eventthat it shall be determined that any payment or other benefit paid by theEmployer or Avocent Corporation to or for the benefit of the Employee underthis Agreement or otherwise, but determined without regard to any additionalpayments required under this Amendment (the “Payments”) would be subject to theexcise tax imposed by Section 4999 of the Internal Revenue Code (the “ExciseTax”), then the Employer and Avocent Corporation shall indemnify the Employeefor such Excise Tax in accordance with the following:

 

### (a)           The Employee shall beentitled to receive an additional payment from the Employer and/or AvocentCorporation equal to (i) one hundred percent (100%) of any Excise Tax actuallypaid or finally or payable by the Employee in connection with the Payments,plus (ii) an additional payment in such amount that after all taxes, interestand penalties incurred in connection with all payments under this Section 2(a),the Employee retains an amount equal to one hundred percent (100%) of theExcise Tax.

###  

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

 

10

----

 

IN WITNESS WHEREOF, the parties hereto have executedthis Agreement as of the day and year first above written.

 
|   | **AVOCENT  CALIFORNIA CORP.:** |
|--------|--------------------------------|
|   |                           |   |
|   |                           |   |
|   | By:                            | /s/  Douglas E. Pritchett |   |
|   | Its:                           | Vice  President |   |
|   |                           |   |   |
|   |                           |   |   |
|   | **AVOCENT  HUNTSVILLE CORP.:** |   |
|   |                           |   |   |
|   |                           |   |   |
|   | By:                            | /s/  Douglas E. Pritchett |   |
|   | Its:                           | Vice  President |   |
|   |                           |   |   |
|   |                           |   |   |
|   | **AVOCENT  CORPORATION:**      |   |
|   |                           |   |   |
|   |                           |   |   |
|   | By:                            | /s/  Douglas E. Pritchett |   |
|   | Its:                           | Senior  Vice President – Finance and Treasurer |   |
|   |                           |   |   |
|   |                           |   |   |
|   | **EMPLOYEE:**                  |   |
|   |                           |   |   |
|   |                           |   |   |
|   | /s/  Rick Moore                |   |
|   | Rick Moore                     |   |

 

11

----