**Exhibit10.4**

** **

**EMPLOYMENT ANDNONCOMPETITION AGREEMENT**

** **

THISEMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made and enteredinto as of January 2, 2008, by and among Avocent Huntsville Corp., anAlabama corporation (“Employer”), Avocent Corporation, a Delaware corporation,and Kay E. Kienast (the “Employee”).

 

**RECITALS**

 

WHEREAS,Avocent Corporation and its affiliates (collectively referred to in thisAgreement as “Avocent”) are engaged in the business of designing, manufacturing, and selling connectivity andcentralized management of information technology infrastructure solutions forenterprise data centers, branch offices, andsmall to medium size businesses worldwide;

 

WHEREAS, Employee, Employer, and Avocent Corporation now wish to enterinto this Employment and Noncompetition Agreement, and Employee is willing toaccept employment as Avocent’s Executive Vice President – Chief MarketingOfficer on the terms and subject to the conditions set forth in this Agreement.

 

**AGREEMENT**

** **

THEPARTIES HERETO AGREE AS FOLLOWS:

 

# 1.             DUTIES. During the term of this Agreement,the Employee agrees to be employed by Employer and to serve Avocent as itsExecutive Vice President – Chief Marketing Officer. The Employee shall devotesuch of her business time, energy, and skill to the affairs of Avocent andEmployer as shall be necessary to perform the duties of Chief MarketingOfficer. The Employee shall report to the Chief Executive Officer 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 her position as Chief Marketing Officer ofAvocent Corporation.

#  

# 2.             TERM OF EMPLOYMENT.

#  

## 2.1           DEFINITIONS. For purposes of this Agreementthe following terms shall have the following meanings:

##  

### (a)           “TERMINATION FOR CAUSE” shall meantermination by the Employer or Avocent Corporation of the Employee’s employmentwith the Employer or Avocent by reason of the Employee’s willful dishonesty towards,fraud upon, or deliberate injury or attempted injury to, the Employer orAvocent or by reason of the Employee’s willful material breach of thisAgreement which has resulted in material injury to the Employer or Avocent.

###  

### (b)   “TERMINATIONS OTHER THAN FOR CAUSE” shallmean termination by the Employer or Avocent Corporation of the Employee’semployment with the Employer or Avocent (other than in a Termination for Cause)and shall include any constructive termination of the Employee’s employment byreason of material breach of this Agreement by the Employer or Avocent, suchconstructive termination to be effective upon thirty (30) days written 

###  

1

----

###  

### noticefrom the Employee to the Employer of such constructive termination; provided,however, that the term “Termination Other Than for Cause” shall notinclude Employer’s termination of Employee if Employee has not commenced living(in temporary accommodations) in the Huntsville, Alabama area by January 14,2008, and competed her physical relocation to the Huntsville, Alabama area by May 31, 2008,and any such termination of Employee by Employer shall be treated as a “VoluntaryTermination” by Employee under this Agreement.

###  

### (c)           “VOLUNTARY TERMINATION” shall mean terminationby the Employee of the Employee’s employment with the Employer or Avocent otherthan (i) constructive termination as described in subsection 2.1(b), (ii) “TerminationUpon a Change in Control” as described in Section 2.1(e), and (iii) terminationby reason of the Employee’s disability or death as described inSections 2.5 and 2.6. “Voluntary Termination” shall also include Employer’stermination of Employee if Employee has not commenced living (in temporaryaccommodations) in the Huntsville, Alabama area by January 14, 2008, andcompeted her physical relocation to the Huntsville, Alabama area by May 31, 2008.

###  

### (d)           “TERMINATION UPON A CHANGE IN CONTROL” shallmean (i) a termination by the Employee of the Employee’s employment withthe Employer or Avocent within six (6) months following any “Change inControl” or (ii) any termination by the Employer or Avocent Corporation ofthe Employee’s employment with the Employer or Avocent (other than aTermination for Cause) within eighteen (18) months following any “Change inControl.”

###  

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

###  

#### (i)            Any person (other than Avocent Corporation)acquires beneficial ownership of Employer’s or Avocent Corporation’s securitiesand is or thereby becomes a beneficial owner of securities entitling suchperson to exercise twenty-five percent (25%) or more of the combined votingpower of Employer’s or Avocent Corporation’s then outstanding stock. Forpurposes of this Agreement, “beneficial ownership” shall be determined inaccordance with Regulation 13D under the Securities Exchange Act of 1934,or any similar successor regulation or rule; and the term “person” shallinclude any natural person, corporation, partnership, trust or association, orany group or combination thereof, whose ownership of Employer’s or AvocentCorporation’s securities would be required to be reported under suchRegulation 13D, or any similar successor regulation or rule.

####  

#### (ii)           Within any twenty-four (24) month period, theindividuals who were Directors of Avocent Corporation at the beginning of anysuch period, together with any other Directors first elected as directors ofAvocent Corporation pursuant to nominations approved or ratified by at leasttwo-thirds (2/3) of the Directors in office immediately prior to any suchelection, cease to constitute a majority of the Board of Directors of AvocentCorporation.

####  

#### (iii)          Avocent Corporation’s stockholders approve:

####  

##### (1)           any consolidation or merger of Avocent Corporationin which Avocent Corporation is not the continuing or surviving corporation orpursuant to which shares of Avocent Corporation common stock would be convertedinto cash, securities or other property, other than a merger or consolidationof Avocent Corporation in which the holders of 

#####  

2

----

#####  

##### AvocentCorporation’s common stock immediately prior to the merger or consolidationhave substantially the same proportionate ownership and voting control of thesurviving corporation immediately after the merger or consolidation; or

#####  

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

#####  

Notwithstanding subparagraphs (e)(iii)(1) and (e)(iii)(2) above,the term “Change in Control” shall not include a consolidation, merger, orother reorganization if upon consummation of such transaction all of theoutstanding voting stock of Avocent Corporation is owned, directly orindirectly, by a holding company, and the holders of Avocent Corporation’scommon stock immediately prior to the transaction have substantially the sameproportionate ownership and voting control of such holding company after suchtransaction.

 

## 2.2           TERM. The term of employment of the Employeeby the Employer under this Agreement shall begin on the date of this Agreement,and end when such employment is terminated under any of the provisions of thisAgreement.

##  

## 2.3           TERMINATION FOR CAUSE. Termination For Causemay be effected by the Employer at any time during the term of this Agreementand shall be effected by thirty (30) days written notification to the Employeefrom the Boards of Directors of Employer and Avocent Corporation stating the reasonfor termination. Upon Termination For Cause, the Employee immediately shall 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,accrued vacation pay and any appropriate business expenses incurred by theEmployee in connection with her 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           TERMINATION OTHER 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 any Termination Other Than For Cause, theEmployee shall immediately be paid all accrued salary, bonus compensation tothe 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 her duties hereunder, all to the date oftermination, and all severance compensation provided in Section 4.2, butno other compensation or reimbursement of any kind.

##  

## 2.5           TERMINATION BY REASON OF DISABILITY. If,during the term of this Agreement, the Employee, in the reasonable judgment ofthe Board of Directors of Avocent Corporation, has failed to perform her dutiesunder this Agreement on account of illness or physical or mental incapacity,and such illness or incapacity continues for a period of more than six (6) 

##  

3

----

##  

## 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 her 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,severance compensation.

##  

## 2.6           TERMINATION BY REASON OF DEATH. In the eventof the Employee’s death during the term of this Agreement, the Employee’semployment shall be deemed to have terminated as of the last day of the monthduring which her death occurs and the Employer shall pay to her estate or suchbeneficiaries as the Employee may from time to time designate all accruedsalary, bonus compensation to the extent earned, vested deferred compensation,if any (other than pension plan or profit sharing plan benefits which will bepaid in accordance with the applicable plan), any benefits under any plans ofEmployer or Avocent in which the Employee is a participant to the full extentof the Employee’s rights under such plans (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 her duties hereunder, allto the date of termination, but the Employee’s estate shall not be paid anyother compensation or reimbursement of any kind, including without limitation,severance compensation.

##  

## 2.7           VOLUNTARY TERMINATION. Notwithstandinganything else in this Agreement, the Employee may effect a VoluntaryTermination at any time upon giving thirty (30) days written notice to theEmployer of such termination. In the event of a Voluntary Termination, theEmployer shall immediately pay all accrued salary, bonus compensation to theextent earned, vested deferred compensation, if any (other than pension plan orprofit sharing plan benefits which will be paid in accordance with theapplicable plan), any benefits under any plans of Employer or Avocent in whichthe Employee is a participant to the full extent of the Employee’s rights undersuch plans, accrued vacation pay and any appropriate business expenses incurredby the Employee in connection with her duties hereunder, all to the date oftermination, but no other compensation or reimbursement of any kind, includingwithout limitation, severance compensation.

##  

## 2.8           TERMINATION UPON A CHANGE IN CONTROL. In theevent of a Termination Upon a Change in Control, the Employee shall immediatelybe paid 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 

##  

4

----

##  

## grantedto the Employee under any Avocent stock option, restricted stock, performanceshare, 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 her duties hereunder, all to thedate of termination, and all severance compensation provided in Section 4.1,but no other compensation or reimbursement of any kind.

##  

# 3.     SALARY, BENEFITS AND BONUS COMPENSATION.

#  

## 3.1           BASE SALARY. Effective January 7, 2008, as payment for theservices to be rendered by the Employee as provided in Section 1 andsubject to the terms and conditions of Section 2, the Employer agrees topay to the Employee a “Base Salary” at the rate of $275,000.00 per annum,payable in equal bi-weekly installments. The Base Salary for each calendar year(or proration thereof) beginning January 1, 2009****shallbe determined 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 All Urban Consumers(CPI-U), All Items Index” for South UrbanSize A, published by the U.S. Department of Labor (using January 1, 2008,as the base date for computation prorated for any partial year).**The Employee’s Base Salary shall be reviewed annually bythe Board of Directors and the Compensation Committee of Avocent Corporation.

##  

## 3.2           BONUSES. The Employee shall be eligible toreceive a bonus for each calendar year (or portion thereof) during the term ofthis Agreement and any extensions thereof, with the actual amount of any suchbonus to be determined in the sole discretion of the Compensation Committee ofthe Board of Directors of Avocent Corporation based upon its evaluation of theEmployee’s performance during such year. 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 shallbe reviewed annually by the CompensationCommittee of Avocent Corporation.

##  

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

##  

### (a)           THE EMPLOYEE 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,profit sharing plans, deferred compensation plan, annual physical examinations,dental and medical plans, personal catastrophe and disability insurance,retirement plans and supplementary executive retirement plans, if any. Forpurposes of establishing the length of service under any benefit plans orprograms of Avocent, the Employee’s employment with the Employer (or anysuccessor) will be deemed to have commenced on the date that Employee firstcommenced employment, which was January 7, 2008.

###  

### (b)           VACATION. The Employee shall be entitled tovacation in accordance with the Avocent Corporation’s vacation policy but in noevent less than three (3) weeks during each year of this Agreement.

###  

5

----

###  

### (c)           LIFE INSURANCE. 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 policyshall be owned by the Employee or by any person or entity with an insurableinterest in the life of the Employee.

###  

### (d)           REIMBURSEMENT FOR EXPENSES. During the termof this Agreement, the Employer or Avocent Corporation shall reimburse the Employeefor reasonable and properly documented out-of-pocket business and/orentertainment expenses incurred by the Employee in connection with her dutiesunder this Agreement in accordance with Avocent’s standard reimbursementpolicies.

###  

# 4.             SEVERANCE COMPENSATION.

#  

## 4.1           SEVERANCE COMPENSATION IN THE EVENT OF ATERMINATION UPON A CHANGE IN CONTROL. In the event of a Termination Upon aChange in Control, the Employee shall be paid as severance compensation herBase Salary (at the rate payable at the time of such termination) for a periodof twelve (12) months from the date of such Termination Upon a Change inControl, on the dates specified in Section 3.1, and the Employee shallalso be paid an amount equal to the average annual bonus earned by the Employeeas an employee of Avocent Corporation and its affiliates and predecessors inthe two (2) years immediately preceding the date 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 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 of 90-dayU.S. Treasury bills, as reported in *The Wall Street Journal*(or similar publication), on the date of delivery of the election notice. Ifthe Employee elects to receive a lump sum severance payment, AvocentCorporation shall cause the Employer to make such payment to the Employeewithin ten (10) days following the date on which the Employee notifies theEmployer of the Employee’s election. The Employee shall also be entitled tohave the 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 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 TerminationUpon a Change in Control (even if Employee elects to receive a lump sumseverance payment).

##  

## 4.2           SEVERANCE COMPENSATION IN THE EVENT OF ATERMINATION OTHER THAN FOR CAUSE. In the event of a Termination Other Than forCause, the Employee shall be paid as severance compensation her 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 in Section 3.1,and Employee shall also be paid an amount equal to the average annual bonusearned by the Employee as an employee of Avocent Corporation and its affiliatesand predecessors in the two (2) years immediately preceding the date oftermination. Notwithstanding anything in this Section 4.2 to the contrary,the Employee may in the Employee’s sole discretion, by 

##  

6

----

##  

## deliveryof a notice to the Employer within thirty (30) days following a TerminationOther Than for Cause, elect to receive from the Employer a lump sum severancepayment by bank cashier’s check equal to the present value of the flow of cashpayments that would otherwise be paid to the Employee pursuant to this Section 4.2.Such present value shall be determined as of the date of delivery of the noticeof election by the Employee and shall be based on a discount rate equal to theinterest rate on 90-day U.S. Treasury bills, as reported in *The Wall Street Journal* (or similar publication), on thedate of delivery of the election notice. If the Employee elects to receive alump sum severance payment, Avocent Corporation shall cause the Employer tomake such payment to the Employee within ten (10) days following the dateon which the Employee notifies the Employer of the Employee’s election. TheEmployee shall also be entitled to have the vesting of any awards granted tothe Employee under any Avocent stock option, restricted stock, performanceshare, or other equity plans deemed and treated as fully earned andaccelerated. The Employee shall 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 Other Than for Cause (evenif Employee elects to receive a lump sum severance payment).

##  

## 4.3           NO SEVERANCE COMPENSATION UNDER OTHERTERMINATION. 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 her estate shall not be paid any severance compensation.

##  

4.4           SECTION 409A COMPLIANCE. Notwithstanding anything to the contraryin this Agreement, any cash severance payments otherwise due to Employeepursuant to Section 4 or otherwise on or within the six-month periodfollowing Employee’s termination will accrue during such six-month period andwill become payable in a lump sum payment on the date six (6) months andone (1) day following the date of Employee’s termination, provided, thatsuch cash severance payments will be paid earlier, at the times and on theterms set forth in the applicable provisions of Section 4, if Employerreasonably determines that the imposition of additional tax under Section 409Aof the Internal Revenue Code of 1986, as amended, will not apply to an earlierpayment of such cash severance payments. In addition, this Agreement will bedeemed amended in Employer’s reasonable discretion to the extent necessary toavoid imposition of any additional tax or income recognition prior to actualpayment to Employee under Code Section 409A and any temporary, proposed orfinal Treasury Regulations and guidance promulgated thereunder and the partiesagree to cooperate with each other and to take reasonably necessary steps inthis regard so as not to reduce the benefits provided to Employee under thisAgreement. Employer agrees to notify Employee of any such proposed amendmentsprior to implementing any such amendment.

 

# 5.             NON-COMPETITION OBLIGATIONS. Unless waived orreduced by the Employer or Avocent, during the term of this Agreement and for aperiod of twelve (12) months thereafter, the Employee will not, without theEmployer’s and Avocent Corporation’s prior written consent, directly orindirectly:

#  

### (a)   either alone or as a partner,joint venturer, officer, director, employee, consultant, agent, independentcontractor or stockholder of any company or business, engage in any businessactivity world wide which is substantially similar to or in direct competitionwith any of the business activities of or services provided by Employer orAvocent at such time. Notwithstanding the foregoing, the ownership by theEmployee of not more than five percent (5%) 

###  

7

----

###  

### of the shares of stock ofany corporation having a class of equity securities actively traded on anational securities exchange or on The Nasdaq Stock Market shall not be deemed,in and of itself, to violate the prohibitions of this Section 5; or

###  

### (b)   solicit, in any way encourage, take away, orengage in business with customers of Employer or Avocent (or any current orfuture parent, affiliate, or subsidiary of any of them) for her own benefit ina manner competitive with the business of Employer or Avocent or for thebenefit of any person competing with the business of Employer or Avocentworldwide; or

###  

### (c)   solicit, in any way encourage, take away, or employ present or futureemployees or present or future consultants ofEmployer or Avocent (or employees or consultants of anycurrent or future parent, affiliate or subsidiary of any of them) for her ownbenefit or for the benefit of any other person.

###  

# 6.             MISCELLANEOUS.

#  

## 6.1           PAYMENT OBLIGATIONS. 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 herebyunconditional and irrevocable guarantees all payment obligations of theEmployer under this Agreement, including, without limitation, the Employer’sobligations under Sections 2, 3, 4, and 6 hereof.

##  

## 6.3           WITHHOLDINGS. All compensation and benefitsto the Employee hereunder shall be reduced by all federal, state, local, andother withholdings and similar taxes and payments required by applicable law.

##  

## 6.4           WAIVER. The waiver of the breach of anyprovision of this Agreement shall not operate or be construed as a waiver ofany subsequent breach of the same or other provision hereof.

##  

## 6.5           ENTIRE AGREEMENT; 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 matterhereof,**and any understandings,agreements, or obligations respecting any past or future compensation, bonuses,reimbursements or other payments to the Employee from the Employer or AvocentCorporation. All modifications to the Agreement must be in writing and signedby the party against whom enforcement of such modification is sought.

##  

## 6.6           NOTICES. All notices and other communicationsunder this Agreement shall be in writing and shall be given by hand delivery orfirst class mail, certified or registered with return receipt requested, andshall be deemed to have been duly given upon hand delivery to an officer of theEmployer or the Employee, as the case may be, or upon three (3) days aftermailing to the respective persons named below:

 

8

----

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

 

Any party may change such party’s address for notices by notice dulygiven pursuant to this Section 6.6.

 

## 6.7           HEADINGS. The Section headings hereinare intended for reference and shall not by themselves determine theconstruction or interpretation of this Agreement.

##  

## 6.8           GOVERNING LAW; VENUE. This Agreement shall begoverned by and construed in accordance with the laws of the State of Alabama. TheEmployee, the Employer, and Avocent Corporation each hereby expressly consentsto the exclusive venue of the state and federal courts located in Huntsville,Alabama, for any lawsuit arising from or relating to this Agreement.

##  

## 6.9           ARBITRATION. Any controversy or claim arisingout of or relating to this Agreement, or breach thereof, shall be settled byarbitration in Huntsville, Alabama, in accordance with the Rules of theAmerican Arbitration Association, and judgment upon any proper award renderedby the arbitrators may be entered in any court having jurisdiction thereof. Thereshall be three (3) arbitrators, one (1) to be chosen directly by eachparty at will, and the third arbitrator to be selected by the two (2) arbitratorsso chosen. To the extent permitted by the Rules of the AmericanArbitration Association, the selected arbitrators may grant equitable relief. Eachparty shall pay the fees of the arbitrator selected by him and of her ownattorneys, and the expenses of her witnesses and all other expenses connectedwith the presentation of her case. The cost of the arbitration including thecost of the record or transcripts thereof, if any, administrative fees, and allother fees and costs shall be borne equally by the parties.

##  

## 6.10         SEVERABILITY. If a court or other body ofcompetent jurisdiction determines that any provision of this Agreement isexcessive in scope or otherwise invalid or unenforceable, such provision shallbe adjusted rather than voided, if possible, and all other provisions of thisAgreement shall be deemed valid and enforceable to the extent possible.

##  

## 6.11         SURVIVAL OF 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 Avocent Corporation. ThisAgreement shall not be terminated by any merger or consolidation or otherreorganization of the Employer or Avocent Corporation. 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 Agreement shall be binding upon and inure to thebenefit of the executors, administrators, heirs, successors and assigns of theparties; provided, however, that except as herein expressly provided, thisAgreement shall not be assignable either by 

##  

9

----

##  

## theEmployer (except to an affiliate of the Employer (including AvocentCorporation) in which event the Employer shall remain liable if the affiliatefails to meet any obligations to make payments or provide benefits orotherwise) or by the Employee.

##  

## 6.12         COUNTERPARTS. This Agreement may be executedin one or more counterparts, all of which taken together shall constitute oneand the same Agreement.

##  

## 6.13         INDEMNIFICATION. In addition to any rights toindemnification to which the Employee is entitled to under the Employer’s orAvocent Corporation’s Articles of Incorporation and Bylaws, the Employer andAvocent Corporation shall indemnify the Employee at all times during and afterthe term of this Agreement to the maximum extent permitted under thecorporation laws of the State of Delaware and any other applicable state law,and shall pay the Employee’s expenses in defending any civil or criminalaction, suit, or proceeding in advance of the final disposition of such action,suit, or proceeding, to the maximum extent permitted under such applicablestate laws.

##  

## 6.14         INDEMNIFICATION FOR SECTION 4999 EXCISETAXES. In the event that it shall be determined that any payment or otherbenefit paid by the Employer or Avocent Corporation to or for the benefit ofthe Employee under this Agreement or otherwise, but determined without regardto any additional payments required under this Agreement (the “Payments”) wouldbe subject to the excise tax imposed by Section 4999 of the InternalRevenue Code (the “Excise Tax”), then the Employer and Avocent Corporationshall indemnify the Employee for such Excise Tax in accordance with thefollowing:

##  

### (a)   The Employee shall be entitled to receive anadditional payment from the Employer and/or Avocent Corporation equal to (i) onehundred percent (100%) of any Excise Tax actually paid or payable by theEmployee in connection with the Payments, plus (ii) an additional paymentin such amount that after all taxes, interest and penalties incurred inconnection with all payments under this Section 2(a), the Employee retainsan amount equal to one hundred percent (100%) of the Excise Tax.

###  

### (b)   All determinations required to be made underthis Section shall be made by the Avocent Corporation’s primaryindependent public accounting firm, or any other nationally recognizedaccounting firm reasonably acceptable to Avocent Corporation and the Employee(the “Accounting Firm”). Avocent Corporation shall cause the Accounting Firm toprovide detailed supporting calculations of its determinations to the Employerand the Employee. All fees and expenses of the Accounting Firm shall be bornesolely by the Employer. For purposes of making the calculations required bythis 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 ofthe Internal Revenue Code). The payments to which the Employee is entitledpursuant to this Section shall be paid by the Employer and/or AvocentCorporation to the Employee in cash and in full not later than thirty (30)calendar days following the date the Employee becomes subject to the ExciseTax.

 

*Signature Page Follows*

 

10

----

 

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

 

 
|   | **AVOCENT  HUNTSVILLE CORP.:** |
|--------|--------------------------------|
|   |                           |   |
|   |                           |   |
|   | By:                            | /s/ Doyle C. Weeks |
|   | Its:                           | President & Chief Operating Officer |
|   |                           |   |
|   |                           |   |
|   | **AVOCENT CORPORATION:**       |
|   |                           |   |
|   |                           |   |
|   | By:                            | /s/ Doyle C. Weeks |
|   | Its:                           | President & Chief Operating Officer |
|   |                           |   |
|   |                           |   |
|   | **EMPLOYEE:**                  |
|   |                           |   |
|   |                           |   |
|   | /s/ Kay E. Kienast             |
|   | Kay E. Kienast                 |
|        |                                |  |  |

 

11

----