**Exhibit 10.4**

 

**AMENDED AND RESTATED**

**EMPLOYMENTAND NONCOMPETITION AGREEMENT**

THIS AMENDED ANDRESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made andentered into as of December 13, 2006, by and among Avocent International Ltd.,an Irish corporation (“Employer”), Avocent Corporation, a Delaware corporation,and Kieran MacSweeney (the “Employee”).

**RECITALS**

WHEREAS, AvocentCorporation and its affiliates (collectively referred to in this Agreement as “Avocent”)are engaged in the business of designing,manufacturing, and selling connectivity and centralized management ofinformation technology infrastructure solutions for enterprise data centers, branch offices, small to medium size businessesworldwide;

WHEREAS, Employee,Employer, and Avocent Corporation entered into that certain Amended andRestated Employment and Noncompetition Agreement datedOctober 10, 2003 (the “2003 Employment Agreement”); and

WHEREAS, Employee,Employer, and Avocent Corporation now wish to amend and restate the 2003Employment Agreement with this Amended and Restated Employment andNoncompetition Agreement, and Employee is willing to accept employment asAvocent’s Senior Vice President and the General Manager of the Avocent DesktopSolutions Division and Managing Director of Avocent International on the termsand subject to the conditions set forth in this Agreement.

**AGREEMENT**

THE PARTIES HERETOAGREE 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 and the General Manager of the Avocent Desktop SolutionsDivision and Managing Director of Avocent International.  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 and theGeneral Manager of the Avocent Desktop Solutions Division and Managing Directorof Avocent International.  The Employeeshall report to the Chief Executive Officer and to the President of AvocentCorporation and to the Board of Directors of Avocent Corporation, and at alltimes during the term of this Agreement, the Employee shall have powers andduties at least commensurate with his position as Senior Vice President and theGeneral Manager of the Avocent Desktop Solutions Division and Managing Directorof Avocent International.

# 2.             TERM OF EMPLOYMENT.

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

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### (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 (i) any constructivetermination of the Employee’s employment by reason of material breach of thisAgreement by the Employer or Avocent, such constructive termination to beeffective upon thirty (30) days written notice from the Employee to theEmployer of such constructive termination and (ii) any attempt to relocateoutside of the vicinity of Shannon, Ireland: (x) the Employee, (y) the Employee’s duties and responsibilities, or (z)the Employer’s office at which Employee is employed.  Notwithstanding the foregoing, Employeeagrees that a change in his duties and responsibilities shall not result in aconstructive termination under this Section 2.1(b) unless such change resultsin a substantial diminution of Employee’s duties and responsibilities.

### (c)           “VOLUNTARYTERMINATION” shall mean termination by the Employee of the Employee’semployment with the Employer or Avocent other than (i) constructive terminationas described in subsection 2.1(b), (ii) “Termination Upon a Change inControl” as described in Section 2.1(e), and (iii) termination by reasonof the Employee’s disability or death as described in Sections 2.5 and2.6.

### (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) monthsfollowing any “Change in Control” or (ii) any termination by the Employer orAvocent Corporation 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 abeneficial owner of securities entitling such person to exercise twenty-fivepercent (25%) or more of the combined voting power of Employer’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 of Employer’sor Avocent Corporation’s securities would be required to be reported under suchRegulation 13D, or any similar successor 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

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#### 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)  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 shares ofAvocent Corporation common stock would be converted into cash, securities orother property, other than a merger or consolidation of Avocent Corporation inwhich the holders of Avocent Corporation’s common stock immediately prior tothe merger or consolidation have substantially the same proportionate ownershipand voting control of the surviving corporation immediately after the merger orconsolidation; 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 the Employer under thisAgreement shall begin on the date of this Agreement, and end when suchemployment is terminated 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 allaccrued 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, accrued vacation pay andany appropriate business

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## 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           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 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 as an employeeof Avocent Corporation and its affiliates and predecessors in the two (2) yearsimmediately preceding the date of termination, vested deferred compensation, ifany (other than pension plan or profit sharing plan benefits which will be paidin 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 (including having the vesting of anyawards granted to the Employee under any Avocent stock option, restrictedstock, performance share, or other equity plans deemed and treated as fullyearned and accelerated), accrued vacation pay and any appropriate businessexpenses incurred by the Employee in connection with his duties hereunder, allto the date of termination, with the exception of medical and dental benefitswhich shall continue for a period of twelve (12) months from the date of suchnotice of termination, but the Employee shall not be paid any othercompensation or reimbursement of any kind, including without limitation, severancecompensation.

## 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, 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 Avocent stock option, restricted stock,performance share, or other equity plans deemed and treated as fully earned andaccelerated), 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 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

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## in connection with his duties hereunder, all to the date oftermination, but no other compensation or reimbursement of any kind, includingwithout limitation, severance compensation.

## 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 extent of the Employee’s rights under such plans(including having 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), accrued vacation payand any appropriate business expenses incurred by the Employee in connectionwith his duties hereunder, all to the date of termination, and all severancecompensation provided in Section 4.1, but no other compensation orreimbursement of any kind.

# 3.             SALARY, BENEFITS AND BONUSCOMPENSATION.

## 3.1           BASE SALARY. Effective January 1, 2006, as payment for the services to be rendered bythe Employee as provided in Section 1 and subject to the terms andconditions of Section 2, the Employer agrees to pay to the Employee a “BaseSalary” at the rate of €245,327 per annum, payable in equal bi-weeklyinstallments.  The Base Salary for eachcalendar year (or proration thereof) beginning January 1, 2006 shall bedetermined by the Board of Directors of Avocent Corporation upon arecommendation of the CompensationCommittee of Avocent Corporation (the “Compensation Committee”), whichshall authorize an increase in the Employee’s Base Salary in an amount which,at a minimum, shall be equal to the cumulative cost-of-living increment on theBase Salary as reported in the “ConsumerPrice Index” for Ireland as published by the Central Statistics Office ofIreland (using January 1, 2006, as the base date for computation prorated forany partial year).* *The Employee’s Base Salary shallbe reviewed annually by the Board of Directors and the Compensation Committeeof 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 Compensation Committee of theBoard of Directors of Avocent Corporation based upon its evaluation of theEmployee’s performance during such year. All such bonuses shall be payable during the last month of the fiscalyear or within forty-five (45) days after the end of the fiscal year to whichsuch bonus relates.  All such bonusesshall be reviewed annually by the Compensation Committee of Avocent Corporation.

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

### (a)           THEEMPLOYEE BENEFITS.  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 option,restricted stock, performance share, and other equity plans, Section 401(k)plan or agreed equivalent plan, profit sharing plans, deferred compensationplan, annual physical examinations, dental and medical plans, personalcatastrophe and disability insurance, retirement

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### plans and supplementary executive retirement plans, if any.  For purposes of establishing the length ofservice under any benefit plans or programs of Avocent, the Employee’semployment with the Employer (or any successor) will be deemed to havecommenced on the date that Employee first commenced employment with AvocentInternational Ltd., which was October 29, 1996.

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

### (c)           LIFEINSURANCE.  For the term of thisAgreement and any extensions thereof, the Employer shall at its expense procureand keep in effect term life insurance on the life of the Employee, payable tosuch beneficiaries as the Employee may from time to time designate, in anaggregate amount equal to three times the Employee’s Base Salary.  Such policy shall be owned by the Employee orby any person or entity with an insurable interest in the life of the Employee.

### (d)           REIMBURSEMENTFOR EXPENSES.  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           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 solediscretion, by delivery of a notice to the Employer within thirty (30) daysfollowing a Termination Upon a Change in Control, elect to receive from theEmployer a lump sum severance payment by bank cashier’s check equal to thepresent value of the flow of cash payments that would otherwise be paid to theEmployee pursuant to this Section 4.1. Such present value shall be determined as of the date of delivery of thenotice of election by the Employee and shall be based on a discount rate equalto the interest rate of 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 Avocent stockoption, restricted stock, performance share, or other equity plans deemed andtreated as fully earned and accelerated. The Employee shall be provided with medical plan benefits under anyhealth plans of Avocent or Employer in which the Employee is a participant tothe full extent of the Employee’s rights under such plans for a period oftwelve (12) months from the date of such Termination Upon a Change in Control(even if Employee elects to receive a lump sum severance payment).

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## 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 inthis Agreement, any cash severance payments otherwise due to Employee pursuantto Section 4 or otherwise on or within the six-month period following Employee’stermination will accrue during such six-month period and will become payable ina lump sum payment on the date six (6) months and one (1) day following thedate of Employee’s termination, provided, that such cash severance paymentswill be paid earlier, at the times and on the terms set forth in the applicableprovisions of Section 4, if Employer reasonably determines that the impositionof additional tax under Section 409A of the Internal Revenue Code of 1986, asamended, will not apply to an earlier payment of such cash severancepayments.  In addition, this Agreementwill be deemed amended in Employer’s reasonable discretion to the extentnecessary to avoid imposition of any additional tax or income recognition priorto actual payment to Employee under Code Section 409A and any temporary,proposed or final Treasury Regulations and guidance promulgated thereunder andthe parties agree to cooperate with each other and to take reasonably necessarysteps in this regard so as not to reduce the benefits provided to Employeeunder this Agreement.  Employer agrees tonotify Employee of any such proposed amendments prior to implementing any suchamendment.

# 5.             NON-COMPETITION OBLIGATIONS.  Unless waived or reduced by the Employer orAvocent, during the term of this Agreement and for a period of twelve (12)months

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# thereafter, the Employeewill not, without the Employer’s and Avocent Corporation’s prior writtenconsent, directly or indirectly:.

### (a)   eitheralone or as a partner, joint venturer, officer, director, employee, consultant,agent, independent contractor or stockholder of any company or business, engagein any business activity world wide which is substantially similar to or indirect competition with any of the business activities of or services providedby Employer or Avocent at such time. Notwithstanding the foregoing, the ownership by the Employee of not morethan five percent (5%) of the shares of stock of any corporation having a classof equity securities actively traded on a national securities exchange or onThe Nasdaq Stock Market shall not be deemed, in and of itself, to violate theprohibitions of this Section 5; or

### (b)   solicit,in any way encourage, take away, or engage in business with customers ofEmployer or Avocent (or any current or future parent, affiliate, or subsidiaryof any of them) for his own benefit in a manner competitive with the businessof Employer or Avocent or for the benefit of any person competing with thebusiness 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, plans andnegotiations, whether written or oral with respect to the subject matter hereof(including the 2003 Employment Agreement),**and any understandings, agreements (including the 2003Employment Agreement) or obligations respecting any past or futurecompensation, bonuses, reimbursements or other payments to the Employee fromthe Employer or Avocent Corporation.

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## All modifications to the Agreement must be in writing and signed by theparty against 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: | Avocent Corporation  |
|-----------------------------|----------------------|
|                        | 4991 Corporate Drive |
|                        | Huntsville, AL 35805 |
|                        | Attn:                | President |
|                        | Copy to:             | General Counsel |
|                        |                 |
| If to the Employee:         | Kieran MacSweeney    |

 

Any party may change suchparty’s address for notices by notice duly given pursuant to thisSection 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 Ireland.  The Employee, the Employer, and AvocentCorporation each hereby expressly consents to the exclusive venue of thelocated in Shannon (Limerick), Ireland, for any lawsuit arising from orrelating 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 Shannon (Limerick), Ireland, 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 thearbitrator selected by him and of his own attorneys, and the expenses of hiswitnesses and all other expenses connected with the presentation of hiscase.  The cost of the arbitrationincluding the cost of the record or transcripts thereof, if any, administrativefees, and all other 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 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.

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

## 6.14         INDEMNIFICATIONFOR SECTION 4999 EXCISE TAXES.  In theevent that 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 Agreement(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)   TheEmployee shall be entitled to receive an additional payment from the Employerand/or Avocent Corporation equal to (i) one hundred percent (100%) of anyExcise Tax actually paid or payable by the Employee in connection with thePayments, plus (ii) an additional payment in such amount that after all taxes,interest and penalties incurred in connection with all payments under thisSection 2(a), the Employee retains an amount equal to one hundred percent(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 supporting calculations of itsdeterminations to the Employer and the Employee.  All fees and expenses of the Accounting Firmshall be borne solely by the Employer. For purposes of making the calculations required by this Section, theAccounting Firm may make reasonable assumptions

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### and approximations concerning applicable taxes and may rely onreasonable, good faith interpretations concerning the application of Sections280G and 4999 of the Internal Revenue Code, provided the Accounting Firm’sdeterminations must be made with substantial authority (within the meaning ofSection 6662 of the Internal Revenue Code). The payments to which the Employeeis entitled pursuant to this Section shall be paid by the Employer and/orAvocent Corporation to the Employee in cash and in full not later than thirty(30) calendar days following the date the Employee becomes subject to theExcise Tax.

IN WITNESS WHEREOF, theparties hereto have executed this Agreement as of the day and year first abovewritten.
|            | **AVOCENT INTERNATIONAL LTD.:** |
|------------|---------------------------------|
| ** ** | ** **                      |
| ** ** | ** **                      |
| ** ** | ** **                      |
|       | By:                             | /s/ John R. Cooper |
|       | Its:                            | Chairman |
|       |                            |
|       |                            |
| ** ** | **AVOCENT CORPORATION:**        |
| ** ** | ** **                      |
| ** ** | ** **                      |
| ** ** | ** **                      |
|       | By:                             | /s/ John R. Cooper |
|       | Its:                            | Chairman |
|       |                            |
|       |                            |
| ** ** | **EMPLOYEE:**                   |
| ** ** | ** **                      |
| ** ** | ** **                      |
| ** ** | ** **                      |
|       | /s/ Kieran MacSweeney           |
|       | Kieran MacSweeney               |

 

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