**Exhibit 10.20**

** **

**AMENDEDAND RESTATEDEMPLOYMENT AND NONCOMPETITION AGREEMENT**

** **

THIS AMENDED AND RESTATEDEMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made and enteredinto as of October 10, 2003, by and among Avocent Huntsville Corp., anAlabama corporation (“AHC” or “Employer”), Avocent Corporation, a Delawarecorporation, and Douglas E. Pritchett (the “Employee”).

 

RECITALS

 

WHEREAS, AvocentCorporation and its affiliates including Avocent International Ltd., AvocentHuntsville Corp., and Avocent Redmond Corp. (Avocent Corporation and itsaffiliates are collectively referred to in this Agreement as “Avocent”) areengaged in the business of designing, manufacturing, and selling connectivitysolutions for enterprise data centers, service providers, and financialinstitutions; and

 

WHEREAS, Employee,Avocent Employment Services Co., and Avocent Corporation entered into thatcertain Employment and Noncompetition Agreement dated July 1, 1999, asamended by that certain First Amendment dated March 7, 2000 (collectively,the “Original Employment Agreement”); and

 

WHEREAS, Employee,Employer, and Avocent Corporation now wish to amend and restate the OriginalEmployment Agreement with this Amended and Restated Employment andNoncompetition Agreement.

 

**AGREEMENT**

** **

THE PARTIES HERETO AGREEAS 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 Finance, Chief Financial Officer, Treasurer, and Assistant Secretary.  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 Finance,Chief Financial Officer, Treasurer, and Assistant Secretary.  The Employee shall report to the Presidentand Chief Executive Officer and the Executive Vice President of Employer andAvocent Corporation and to the Boards of Directors of the Employer and AvocentCorporation, and at all times during the term of this Agreement, the Employeeshall have powers and duties at least commensurate with his position as SeniorVice President of Finance, Chief Financial Officer, Treasurer, and AssistantSecretary of Avocent Corporation.

 

# 2.                                       TERMOF EMPLOYMENT.

 

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

##  

### (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 attempted

 

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injury to, the Employeror Avocent or by reason of the Employee’s willful material breach of thisAgreement which has resulted in material injury to the Employer 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 by reason of the Employee’s disability or death asdescribed in Sections 2.5 and 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) 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)                                  “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 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 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 

 

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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                                 BASICTERM.  The term of employment of theEmployee by the Employer shall be for the period beginning on the date of thisAgreement, and ending on December 31, 2007, unless terminated earlierpursuant to this Section 2.  At anytime before December 31, 2007, the Employer and the Employee may by mutualwritten agreement extend the Employee’s employment under the terms of thisAgreement for such additional periods as they may agree.

##  

## 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 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                                 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 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 or mental incapacity, and suchillness or incapacity continues for a period of more than six (6) 

 

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consecutive months, theEmployer shall have the right to terminate the Employee’s employment hereunderby delivery of written notice to the Employee at any time after such six monthperiod and payment to the Employee of all accrued salary, bonus compensation tothe extent earned, additional bonus compensation in 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, 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 AHC or Avocent stock option plansfully accelerated), accrued vacation pay and any appropriate business expensesincurred by the Employee in connection with his duties hereunder, all to thedate of termination, with the exception of medical and dental benefits whichshall continue through the expiration of this Agreement, but the Employee shallnot be paid any other compensation or reimbursement of any kind, includingwithout 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, 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, the Employer shall immediately pay 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, 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 extent of the Employee’s rights under such plans(including having the vesting of any awards granted to the Employee under anyAHC or Avocent stock option plans fully accelerated), accrued 

 

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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 4.1, but no other compensation orreimbursement of any kind.

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# 3.                                       SALARY,BENEFITS AND BONUS COMPENSATION.

#  

## 3.1                                 BASESALARY.  Effective January 1, 2003,as payment for the services to be rendered by the Employee as provided inSection 1 and subject to the terms and conditions of Section 2, theEmployer agrees to pay to the Employee a “Base Salary” at the rate of$235,000.00 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 South Urban Size A (More Than1,500,000)” published by the U.S. Department of Labor (using January 1,2003, as the base date for computation prorated for any 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 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.

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

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### (a)                                  THEEMPLOYEE BENEFITS.  The Employee shallbe eligible to participate in such of Avocent’s benefits and deferredcompensation plans as are now generally available or later made generally availableto executive officers or Avocent, including, without limitation, stock optionplans, Section 401(k) plan, profit sharing plans, deferred compensationplan, annual physical examinations, dental and medical plans, personalcatastrophe and disability insurance, retirement plans and supplementaryexecutive retirement plans, if any.  Forpurposes of establishing the length of service under any benefit plans orprograms of AHC or Avocent, the Employee’s employment with the Employer (or anysuccessor) will be deemed to have commenced on the date that Employee firstcommenced employment with AHC, which was September 16, 1998.

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

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### (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 

 

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designate, in anaggregate amount 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.

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### (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.

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# 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 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 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) days followingthe 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 anyAHC or Avocent stock option plans fully accelerated.  The Employee shall be provided with medical plan benefits underany health plans of Avocent or Employer in which the Employee is a participantto the 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 bankcashier’s check equal to the present value of the flow of cash payments thatwould otherwise be paid to the 

 

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Employee pursuant to thisSection 4.2.  Such present valueshall be determined as of the date of delivery of the notice of election by theEmployee and shall be based on a discount rate equal to the interest rate on90-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 Avocentstock option plans fully accelerated. The Employee shall be provided withmedical plan benefits under any health plans of Avocent or Employer in whichthe Employee 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).

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## 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 toSection 2.5, termination by reason of the Employee’s death pursuant toSection 2.6, the Employee or his estate shall not be paid any severancecompensation.

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# 5.                                       NON-COMPETITIONOBLIGATIONS.  Unless waived or reducedby the Employer or Avocent, during the term of this Agreement and for a periodof twelve (12) months thereafter, the Employee will not, without the Employer’sand Avocent Corporation’s prior written consent, directly or indirectly, aloneor as a partner, joint venturer, officer, director, employee, consultant,agent, independent contractor or stockholder of any company or business, engagein any business activity in the United States, Canada, Europe, or Asia which issubstantially similar to or in direct competition with any of the businessactivities of or services provided by the 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.

#  

# 6.                                       MISCELLANEOUS.

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## 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.

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## 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.

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## 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.

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## 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.

 

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## 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 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.

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## 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:

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| If to the  Employer/Avocent: | Avocent Corporation                                                                        |
|------------------------------|--------------------------------------------------------------------------------------------|
|                         | 4991 Corporate Drive                                                                       |
|                         | Huntsville, AL 35805                                                                       |
|                         | Attn:          Executive  Vice President |
|                         | Copy  to:    General Counsel                                           |
|                         |                                                                                       |
| If to the Employee:          | Douglas E. Pritchett                                                                       |
|                         |                                                                                       |

 

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 areintended for reference and shall not by themselves determine the constructionor interpretation of this Agreement.

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

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## 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 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.

 

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## 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.  TheEmployer’s and Avocent Corporation’s obligations hereunder shall not beterminated by reason of any liquidation, dissolution, bankruptcy, cessation ofbusiness, or similar event relating to the Employer or AvocentCorporation.  This Agreement shall notbe terminated by any merger or consolidation or other reorganization of theEmployer or Avocent Corporation.  In theevent any such merger, consolidation or reorganization shall be accomplished bytransfer of stock or by transfer of assets or otherwise, the provisions of thisAgreement shall be binding upon and inure to the benefit of the surviving orresulting corporation or person.  ThisAgreement shall 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.

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

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## 6.13                           INDEMNIFICATION.  In addition to any rights to indemnificationto which the Employee is entitled to under the Employer’s or Avocent Corporation’sArticles of Incorporation and Bylaws, the Employer and Avocent Corporationshall indemnify the Employee at all times during and after the term of thisAgreement to the maximum extent permitted under the corporation laws of theState 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.

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## 6.14                           INDEMNIFICATIONFOR SECTION 4999 EXCISE TAXES.  Inthe event that it shall be determined that any payment or other benefit paid bythe Employer 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“Excise Tax”), then the Employer and Avocent Corporation shall indemnify theEmployee for such Excise Tax in accordance with the following:

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### (a)                                  TheEmployee shall be entitled to receive an additional payment from the Employerand/or Avocent Corporation equal to (i) one hundred percent (100%) of any ExciseTax actually paid or finally 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.

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### (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 the AvocentCorporation 

 

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and the Employee (the“Accounting Firm”).  Avocent Corporationshall cause the Accounting Firm to provide detailed supporting calculations ofits determinations to the Employer and the Employee.  All fees and expenses of the Accounting Firm shall be bornesolely by the Employer.  For purposes ofmaking the calculations required by this Section, the Accounting Firm may makereasonable assumptions and approximations concerning applicable taxes and mayrely on reasonable, good faith interpretations concerning the application ofSections 280G and 4999 of the Internal Revenue Code, provided the AccountingFirm’s determinations must be made with substantial authority (within themeaning of Section 6662 of the Internal Revenue Code). The payments towhich the Employee is entitled pursuant to this Section shall be paid bythe Employer and/or Avocent Corporation to the Employee in cash and in full notlater than thirty (30) calendar days following the date the Employee becomessubject to the Excise Tax.

 

IN WITNESS WHEREOF, theparties hereto have executed this Agreement as of the day and year first abovewritten.

 
|   | **AVOCENT  HUNTSVILLE CORP.:** |
|--------|--------------------------------|
|   |                           |   |
|   |                           |   |
|   | By:                            | /s/  Doyle C. Weeks |
|   | Its:                           | Vice  President |
|   |                           |   |
|   |                           |   |
|   | **AVOCENT  CORPORATION:**      |
|   |                           |   |
|   |                           |   |
|   | By:                            | /s/  John R. Cooper |
|   | Its:                           | President  and Chief Executive Officer |
|   |                           |   |
|   |                           |   |
|   | **EMPLOYEE:**                  |
|   |                           |
|   |                           |
|   | /s/  Douglas E. Pritchett      |
|   | Douglas E. Pritchett           |

 

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