**Exhibit10.1**

 

**AMENDED AND RESTATED**

**EMPLOYMENT AND NONCOMPETITIONAGREEMENT**

** **

THIS AMENDED AND RESTATEDEMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made and enteredinto as of                               , 2008,by and among                        .,a                              corporation (the “Employer”), Avocent Corporation, a Delaware corporation, and                              (the “Employee”).

 

RECITALS

** **

WHEREAS, AvocentCorporation and its affiliates, including Employer (collectively referred to inthis 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, and small to medium size businesses worldwide; and

 

WHEREAS, Employee,Employer, and Avocent Corporation entered into that certain Employment andNoncompetition Agreement dated                      (the “2006 Employment Agreement”); and

 

WHEREAS, Employee,Employer, and Avocent Corporation now wish to amend and restate the 2006Employment Agreement with this Amended and Restated Employment andNoncompetition Agreement, and Employee is willing to accept employment asAvocent’s                                   on the terms and subject to the conditions set forth in this Agreement; and

 

WHEREAS, Employee,Employer, and Avocent Corporation now wish to enter into this Amended andRestated Employment and Noncompetition Agreement, and Employee is willing toaccept employment as                                    of Avocent on the terms and subject to the conditions set forth in thisAgreement.

 

**AGREEMENT**

** **

THE PARTIES HERETO AGREEAS FOLLOWS:

 

# 1.             POSITION.  During the term of this Agreement, theEmployee shall be employed by Employer and serve as the                                                      of Avocent.  The Employee shall devotesuch of his business time, energy, and skill to the affairs of Avocent andEmployer as shall be necessary to perform the duties of                                                ..  The Employee shall report to                                and to the Board of Directors of Avocent Corporation (the “Board”), and shallhave powers, duties, authorities, and responsibilities typically associatedwith this position in public companies of a similar size and nature and suchother powers, duties, authorities, and responsibilities as are assigned anddelegated to him by                                     and the Board consistent with his position as                                    .

#  

# 2.             DEFINITIONS AND TERMOF EMPLOYMENT.

#  

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

 

1

----

 

### (a)           “ACCRUED OBLIGATIONS”shall mean, collectively as of the date of any termination, all of Employee’saccrued salary, bonus compensation to the extent earned, vested deferredcompensation, if any, in accordance with the terms of any applicable deferredcompensation plan or arrangement, any benefits under any plans of Employer orAvocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans, and accrued but unused vacation pay.

###  

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

###  

#### (i)            Any person (other thanAvocent Corporation) or more than one person acting as a group (a “Person”)acquires beneficial ownership of Avocent Corporation’s securities and is orthereby becomes when such ownership is combined with stock held by such Persona beneficial owner of securities entitling such Person to exercise twenty-fivepercent (25%) or more of the combined voting power of Avocent Corporation’sthen outstanding stock.  For purposes ofthis Agreement, “beneficial ownership” shall be determined in accordance withRegulation 13D under the Securities Exchange Act of 1934, or any similarsuccessor regulation or rule; and the term “Person” shall include any naturalperson, corporation, partnership, trust, or association, or any group orcombination thereof, whose ownership of Employer’s or Avocent Corporation’ssecurities would be required to be reported under such Regulation 13D, orany similar successor regulation or rule.

####  

#### (ii)           Within any twenty-four(24) month period, the individuals who were Directors of Avocent Corporation atthe beginning of any such period, together with any other Directors firstelected as directors of Avocent Corporation pursuant to nominations approved orratified by at least two-thirds (2/3) of the Directors in office immediatelyprior to any such election, cease to constitute a majority of the Board ofDirectors of Avocent Corporation.

####  

#### (iii)          The closing of anytransaction involving:

####  

##### (1)           any consolidation,merger, or other reorganization of Avocent Corporation in which AvocentCorporation is not the continuing or surviving corporation or pursuant to whichshares of Avocent Corporation common stock would be converted into cash,securities or other property, other than a merger, consolidation, or otherreorganization of Avocent Corporation in which the holders of 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 or other transfer (in one transaction or a series oftransactions) of all or substantially all of the assets of Avocent Corporation.

#####  

Notwithstandingthe foregoing, the term “Change in Control” shall not include a consolidation,merger, or other reorganization if upon consummation of such transaction all ofthe outstanding 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

----

 

### (c)           “CODE” means theInternal Revenue Code of 1986, as amended.

###  

### (d)           “CONSTRUCTIVETERMINATION” shall mean Employee’s voluntary termination of Employee’semployment by reason of (i) a material diminution of Employee’s title,reporting line, powers, duties, authorities, or responsibilities, (ii) areduction in Employee’s base salary or annual bonus target percentage, or(iii) any other material breach of this Agreement by the Employer orAvocent Corporation; provided, however that termination shall only constitute“Constructive Termination” if Employee gives Employer written notice withinninety (90) days of the occurrence of an event that would constituteConstructive Termination and Employer has failed to cure such event withinthirty (30) days of receipt of such written notice and such separation fromservice occurs during a period not to exceed two (2) years following theinitial existence of the reason giving rise to such Constructive Termination.

###  

### (e)           “RELEASE” shall mean arelease of any claims against Avocent, Employer that is acceptable in form andsubstance to Avocent Corporation.  ARelease must be executed and become effective by the sixtieth (60th) day following termination or within theshorter time frame provided by such Release (such deadline, the “ReleaseDeadline”).

###  

### (f)            “SECTION 409A”shall mean the Section 409A of the Code and the final regulations and anyguidance promulgated thereunder, as each may be amended from time to time.

###  

### (g)           “SEVERANCE PAYMENTDATE” shall mean the date specified in Section 4.6 of this Agreement.

###  

### (h)           “TERMINATION FOR CAUSE”shall mean termination by the Employer or Avocent Corporation of the Employee’semployment with the Employer by reason of:  (i) the Employee’swillful dishonesty towards, fraud upon, or deliberate injury or attemptedinjury to, the Employer or Avocent which has resulted in material injury toEmployer or Avocent; (ii) the Employee’s willful material breach of thisAgreement which, if curable, is not cured within thirty (30) days after theEmployer or Avocent provides Employee with written notice describing in detailthe material breach; or (iii) the Employee’s conviction of or pleadingguilty or *nolo contendere*to anyfelony or misdemeanor involving, theft, embezzlement, dishonesty, or moralturpitude.

###  

### (i)            “TERMINATION OTHERTHAN FOR CAUSE” shall mean termination by the Employer or Avocent Corporationof the Employee’s employment with the Employer (other than a Termination forCause or a termination by reason of Disability or death as described inSections 2.5 and 2.6) and shall include any Constructive Termination.

###  

### (j)            “TERMINATION UPON ACHANGE IN CONTROL” shall mean (i) a termination by the Employee of theEmployee’s employment with the Employer or Avocent or Employee’s death withinsix (6) months following any “Change in Control” or (ii) anytermination by the Employer or Avocent Corporation of the Employee’s employmentwith the Employer or Avocent within eighteen (18) months following any “Changein Control” (other than a termination by reason of Employee’s death asdescribed in Section 2.6 more than six (6) months following anyChange in Control, a Termination for Cause as described in Section 2.4, ora termination by reason of Disability as described in Section 2.5).

 

3

----

 

### (k)           “VOLUNTARY TERMINATION”shall mean termination by the Employee of the Employee’s employment with theEmployer other than (i) Constructive Termination as described insubsection 2.1(d), (ii) “Termination Upon a Change in Control” asdescribed in Section 2.1(j), and (iii) termination by reason of theEmployee’s Disability or death as described in Sections 2.5 and 2.6

###  

## 2.2           TERM.  The term of employment of the Employee by theEmployer under this Agreement shall begin on the date of this Agreement, andend when such employment terminates or is terminated under any of theprovisions of this Agreement.

##  

## 2.3           TERMINATION FORCAUSE.  Termination For Cause may beeffected by the Employer or Avocent Corporation at any time during the term ofthis Agreement and shall be effected by thirty (30) days written notificationto the Employee from the Board stating the reason for termination.  Upon Termination For Cause, the Employeeimmediately shall be paid (i) on the last date of employment, all AccruedObligations to the date of termination except that any deferred compensationplan or arrangement shall be paid at the time(s) and on the terms andconditions specified in any such deferred compensation plan or arrangement and(ii) upon receipt of proper documentation in accordance with Avocent’sstandard reimbursement policies, reimbursement of any appropriate businessexpenses incurred by the Employee in connection with his duties hereunder on orprior to the date of termination of employment, but no other compensation orreimbursement of any kind, including without limitation, severancecompensation.  Reimbursements will bemade as soon as administratively practicable following the approval of the reimbursementin accordance with Company policies, but in no event will taxablereimbursements be made later than the last date permitted by Section 409Asuch that the reimbursements are not subject to any additional taxationpursuant to Section 409A.

##  

## 2.4           TERMINATION OTHER THANFOR CAUSE.  Notwithstanding anything elsein this Agreement, the Employer or Avocent Corporation may effect a TerminationOther Than For Cause at any time upon giving thirty (30) days’ written noticeto the Employee of such termination. Upon any Termination Other Than For Cause, the Employee shallimmediately be paid on the last date of employment (i) all AccruedObligations, all to the date of termination except that any deferred compensationplan or arrangement shall be paid at the time(s) and on the terms andconditions specified in any such deferred compensation plan or arrangement,(ii) upon receipt of proper documentation in accordance with Avocent’sstandard reimbursement policies, reimbursement of any appropriate businessexpenses incurred by the Employee in connection with his duties hereunder on orprior to the date of termination of employment, and (iii) all severancecompensation provided in Section 4.2, but no other compensation orreimbursement of any kind. Reimbursements will be made as soon as administratively practicablefollowing the approval of the reimbursement in accordance with Companypolicies, but in no event will taxable reimbursements be made later than thelast date permitted by Section 409A such that the reimbursements are notsubject to any additional taxation pursuant to Section 409A.

##  

## 2.5           TERMINATION BY REASONOF DISABILITY.  If, during the term ofthis Agreement, the Employee, in the reasonable judgment of the Board is unableto perform the essential functions of his job, with or without accommodation,because of a mental or physical illness, disease or condition (such illness,disease and incapacity referred to as, a “Disability”) and the Employee has notperformed the powers, duties, authorities, and responsibilities typicallyassociated with his position in public companies of a similar size and nature,the Employer shall 

 

4

----

 

## have the right toterminate the Employee’s employment for Disability hereunder by delivery ofwritten notice to the Employee at any time and the Employee shall immediatelybe paid on the last date of employment (i) all Accrued Obligations, all tothe date of termination except that any deferred compensation plan orarrangement shall be paid at the time(s) and on the terms and conditionsspecified in any such deferred compensation plan or arrangement, (ii) uponreceipt of proper documentation in accordance with Avocent’s standardreimbursement policies, reimbursement of any appropriate business expensesincurred by the Employee in connection with his duties hereunder on or prior tothe date of termination of employment, and (iii) all severancecompensation provided in Section 4.3, but no other compensation orreimbursement of any kind.  Reimbursementswill be made as soon as administratively practicable following the approval ofthe reimbursement in accordance with Company policies, but in no event willtaxable reimbursements be made later than the last date permitted bySection 409A such that the reimbursements are not subject to anyadditional taxation pursuant to Section 409A.

##  

## 2.6           TERMINATION BY REASONOF DEATH.  In the event of the Employee’sdeath during the term of this Agreement, the Employee’s employment shall bedeemed to have terminated as of the date of death and the Employer shall, assoon as administratively practicable, pay to his estate or such beneficiariesas the Employee may from time to time designate (i) all AccruedObligations, all to the date of termination except that any deferredcompensation plan or arrangement shall be paid at the time(s) and on theterms and conditions specified in any such deferred compensation plan orarrangement, (ii) upon receipt of proper documentation in accordance withAvocent’s standard reimbursement policies, reimbursement of any appropriatebusiness expenses incurred by the Employee in connection with his dutieshereunder on or prior to the date of termination of employment, and(iii) all severance compensation provided in Section 4.4, but theEmployee’s estate and beneficiaries shall not be paid any other compensation orreimbursement of any kind.  For theavoidance of doubt, amounts payable under any life insurance policies shall bepaid in accordance with their terms. Reimbursements will be made as soon as administratively practicablefollowing the approval of the reimbursement in accordance with Companypolicies, but in no event will taxable reimbursements be made later than thelast date permitted by Section 409A such that the reimbursements are notsubject to any additional taxation pursuant to Section 409A.

##  

## 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 (i) all AccruedObligations, all to the date of termination except that any deferredcompensation plan or arrangement shall be paid at the time(s) and on theterms and conditions specified in any such deferred compensation plan orarrangement, and (ii) upon receipt of proper documentation in accordancewith Avocent’s standard reimbursement policies, reimbursement of anyappropriate business expenses incurred by the Employee in connection withEmployee’s duties hereunder on or prior to the date of termination ofemployment, but no other compensation or reimbursement of any kind, includingwithout limitation, severance compensation. Reimbursements will be made as soon as administratively practicablefollowing the approval of the reimbursement in accordance with Companypolicies, but in no event will taxable reimbursements be made later than thelast date permitted by Section 409A such that the reimbursements are notsubject to any additional taxation pursuant to Section 409A.

 

5

----

 

## 2.8           TERMINATION UPON ACHANGE IN CONTROL.  In the event of aTermination Upon a Change in Control, the Employee shall immediately be paid(i) all Accrued Obligations, all to the date of termination except thatany deferred compensation plan or arrangement shall be paid at thetime(s) and on the terms and conditions specified in any such deferredcompensation plan or arrangement, (ii) upon receipt of properdocumentation in accordance with Avocent’s standard reimbursement policies,reimbursement of any appropriate business expenses incurred by the Employee inconnection with his duties hereunder on or prior to the date of termination ofemployment, and (iii) all severance compensation provided inSection 4.1, but no other compensation or reimbursement of any kind.  Reimbursements will be made as soon asadministratively practicable following the approval of the reimbursement in accordancewith Company policies, but in no event will taxable reimbursements be madelater than the last date permitted by Section 409A such that thereimbursements are not subject to any additional taxation pursuant toSection 409A.

##  

# 3.     SALARY, BENEFITS AND BONUSCOMPENSATION.

#  

## 3.1           BASE SALARY.  Effective                   , 200  (the “Effective Date”), as payment for the services to be rendered by theEmployee as provided in Section 1 and subject to the terms and conditionsof Section 2, the Employer agrees to pay to the Employee a “Base Salary”at the rate of                                                    Thousand Dollars($                  .00)per annum, payable in equal bi-weekly installments in accordance withEmployer’s normal payroll practices.  TheBase Salary for each calendar year (or proration thereof) beginningJanuary 1, 2009 shall be determined by the Compensation Committee of theBoard (the “Compensation Committee”).* *The Employee’s Base Salary shallbe reviewed annually by the Board and the Compensation Committee.

##  

## 3.2           BONUSES.  The Employee shall be eligible to earn 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 basedupon its evaluation of the Employee’s performance during such year, with theannual target for each calendar year being at least                percent (    %) of Base Salary for that year and the annualbonus opportunity for each calendar year being at least                  percent (    %) of the Base Salary for that year.  Employee must be employed by Avocent on thelast day of the fiscal year (or other period determined by the CompensationCommittee) to which the bonus relates. 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 (or otherperiod determined by the Compensation Committee) to which such bonusrelates.  In no event will any such bonusbe paid later than March 15th of the year following the fiscal year in whichthe bonus is earned.  All such bonusesshall be reviewed annually by the Compensation Committee.

##  

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

##  

### (a)           THE EMPLOYEEBENEFITS.  The Employee shall be eligibleto participate in such of Avocent’s benefits and deferred compensation plans asare now generally available or later made generally available to executiveofficers of Avocent, including, without limitation, equity plans,Section 401(k) plan, profit sharing plans, deferred compensationplan, annual physical examinations, dental and medical plans, personal catastropheand disability insurance, retirement plans and supplementary executiveretirement plans, if any, in each case in 

 

6

----

 

### accordance withthe terms and provisions of the relevant plan and as such plans, policies, andarrangements may exist from time to time. For purposes of establishing the length of service under any benefitplans or programs of Avocent, the Employee’s employment with the Employer (orany successor) will be deemed to have commenced on                                 .  Avocent retains the right to modify or terminateany and all benefit plans and programs at any time and for any reason.

###  

### (b)           VACATION.  During the term of this Agreement, theEmployee shall be entitled to not less than three (3) weeks of paidvacation during each calendar year in accordance with the Avocent Corporation’svacation policy, with the timing and duration of specific vacations mutuallyand reasonably agreed to by the parties hereto.

###  

### (c)           REIMBURSEMENT FOREXPENSES.  During the term of thisAgreement, the Employer or Avocent Corporation shall reimburse the Employee forreasonable and properly documented out-of-pocket business and/or entertainmentexpenses incurred by the Employee in connection with his duties under thisAgreement in accordance with Avocent’s standard reimbursement policies.  Requests for reimbursement must be submittedin accordance with Avocent’s reimbursement policies, as in effect from time totime.  Reimbursements will be made assoon as administratively practicable following approval of the reimbursement,but in no event later than March 15th of the yearfollowing the Employee’s taxable year in which the expenses are incurred.

###  

(e)           EQUITY AWARDS.

 

(i)             Employee has in thepast been granted restricted stock units and performance shares under one ormore of Avocent’s (and/or its affiliates’ or predecessors’) equity incentiveplans, and Employee shall be eligible to participate in any long-term incentiveand equity-based arrangements generally available to senior executives ofEmployer or Avocent and shall receive such awards as the Compensation Committeein its discretion shall grant to Employee (all such past and future equityawards, the “Equity Awards”).

 

(ii)            Any Equity Awardsdescribed in Section 3.3(e)(i) of this Agreement shall be earned andvest as set forth in Employee’s Restricted Stock Unit Agreement(s),Notice(s) of Grant of Performance Shares, or other documentation of suchawards, but upon the termination of Employee’s employment with Employer, anysuch Equity Awards shall be deemed and treated as earned and/or the vesting ofsuch awards shall be accelerated as to the extent set forth in Section 4of this Agreement.  In the event that(i) there is a “Change of Control” as defined in the Avocent Corporation2005 Equity Incentive Plan (the “2005 Plan”) or any new equity plan approved by Avocent Corporation’s stockholders(the “New Plan,” and collectively with the 2005 Plan, the “Stock Plans”) andEmployee is employed by Employer or a successor at the time of such Change ofControl event, (ii) any of Employee’s then-outstanding Equity Awardsconstitute “deferred compensation” within the meaning of Section 409A, and(iii) such Equity Awards are accelerated by application of Section 19of the 2005 Plan or any comparable section of a New Plan (as a result of suchawards not being assumed or substituted for), then if such “Change of Control,”event is not also a “change in control” within the meaning ofSection 409A, such accelerated awards, though vested, will nonetheless bepaid out to Employee on the award’s original vesting schedule, unless(x) Avocent Corporation determines in good faith that an earlier payoutwould not result in the imposition of additional taxation to Employee under Section 409Aor (y) there is a subsequent termination of Employee’s employment in amanner that would otherwise (without 

 

7

----

 

application ofSection 19 or any comparable section of the applicable Stock Plan) triggervesting pursuant to Section 4 of this Agreement, in which case the paymentof such awards will be made at the time(s) and pursuant to the terms andconditions specified in Section 4 of this Agreement, which shall thenbecome applicable.  All Equity Awards thatconstitute “deferred compensation” within the meaning of Section 409A willotherwise be paid on the later of (i) the end of the calendar year inwhich such Equity Awards vest, or (ii) two and one-half (21⁄2) monthsfollowing the vesting of such Equity Awards. Notwithstanding the foregoing, the delay of the payment of such awardspursuant to the prior sentence will cease upon Employee’s death and suchpayment will be made as soon as practicable after the date of Employee’sdeath.  Avocent and the Employee herebyagree that the provisions of this Section shall supersede any conflictingprovisions of the applicable Stock Plan and any equity-based compensation awardagreement of the Employee.

 

### (f)            LIFE INSURANCE.  For the term of this Agreement and anyextensions thereof, the Employer shall at its expense procure and keep ineffect term life insurance on the life of the Employee, payable to suchbeneficiaries as the Employee may from time to time designate, in an aggregateamount equal to three (3) 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.

###  

# 4.             SEVERANCECOMPENSATION.

#  

## 4.1           SEVERANCE COMPENSATIONIN THE EVENT OF A TERMINATION UPON A CHANGE IN CONTROL.  In the event of a Termination Upon a Changein Control, and contingent on Employee’s Release becoming effective by theRelease Deadline, the Employee shall be entitled to the severance payments andbenefits in this Section 4.1.  TheEmployee shall be paid as severance compensation a lump sum amount equal to            (    ) times his annual Base Salary (calculated at the ratepayable at the time of such termination) on the Severance Payment Date, and onthe Severance Payment Date, the Employee shall also be paid a lump sum amountequal to the average annual bonus earned by the Employee as an employee ofEmployer and Avocent and its predecessors in the two (2) years immediatelypreceding the date of termination.  TheEmployee shall also be entitled to have the vesting of any then-outstandingEquity Awards deemed and treated as fully earned and accelerated, and all suchshares under any such Equity Awards shall be delivered to Employee on theSeverance Payment Date.  If Employeetimely elects continuation of Employee’s medical, dental and vision coverageunder a group health plan of Avocent or Employer pursuant to the ConsolidatedOmnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within thetime period prescribed pursuant to COBRA, Employer shall provide suchcontinuation coverage under such plans for a period of eighteen (18) monthsfrom the date of such Termination Upon a Change in Control at no cost toEmployee.

##  

## 4.2           SEVERANCE COMPENSATIONIN THE EVENT OF A TERMINATION OTHER THAN FOR CAUSE.  In the event of a Termination Other Than forCause that does not also constitute a Termination upon a Change in Control, andcontingent on Employee’s Release becoming effective by the Release Deadline,the Employee shall be entitled to the severance payments and benefits in thisSection 4.2.  The Employee shall bepaid as severance compensation a lump sum amount equal to            (    ) times his annual Base Salary (calculated at the ratepayable at the time of such termination) on the Severance Payment Date, and onthe Severance Payment Date, the Employee shall also be paid a lump sum amountequal to the average annual bonus earned by the Employee as an employee ofEmployer and its predecessors in the two (2) years immediately

 

8

----

##  

## preceding the date oftermination.  The Employee shall also beentitled to have the vesting of any then-outstanding Equity Awards deemed andtreated as fully earned and accelerated, and all such shares under any suchEquity Awards shall be delivered to Employee on the Severance PaymentDate.  If Employee timely electscontinuation of Employee’s medical, dental and vision coverage under a grouphealth plan of Avocent or Employer pursuant to COBRA, within the time periodprescribed pursuant to COBRA, Employer shall provide such continuation coverageunder such plans for a period of eighteen (18) months from the date of suchTermination Other than for Cause at no cost to Employee.

##  

## 4.3                                SEVERANCE COMPENSATION UNDER TERMINATION BYREASON OF DISABILITY.  In the event thatthe Employee is terminated by Employer or Avocent by reason of Disability, andcontingent on Employee’s Release becoming effective by the Release Deadline,the Employee shall be entitled to the severance payments and benefits in this Section 4.3.  On the Severance Payment Date, the Employeeshall be paid as severance compensation a lump sum amount equal to the averageannual bonus earned by the Employee as an employee of Employer and Avocent andits affiliates predecessors in the two (2) years immediately preceding thedate of termination.  The Employee shallalso be entitled to have the vesting of any then-outstanding Equity Awardsdeemed and treated as fully earned and accelerated, and all such shares underany such Equity Awards shall be delivered to Employee on the Severance PaymentDate.  If Employee timely electscontinuation of Employee’s medical, dental and vision coverage under a grouphealth plan of Avocent or Employer pursuant to COBRA, within the time periodprescribed pursuant to COBRA, Employer shall provide such continuation coverageunder such plans for a period of eighteen (18) months from the date of suchtermination by reason of Disability at no cost to Employee.

##  

## 4.4                                SEVERANCE COMPENSATION UPON DEATH.  In the event that the Employee’s employmentterminates by reason of the death of Employee, and contingent on the Employee’sEstate signing and not revoking a Release, the Employee’s estate shall beentitled to the severance payments and benefits in this Section 4.4.  The Employee’s estate shall be entitled tohave the vesting of any then-outstanding Equity Awards deemed and treated asfully earned and accelerated, and all such shares under any such Equity Awardsshall be delivered to Employee’s estate on the Severance Payment Date.

##  

## 4.5                                NO SEVERANCE COMPENSATION UNDER OTHERTERMINATION.  In the event of a VoluntaryTermination or a Termination For Cause, the Employee shall not be paid anyseverance compensation.

 

4.6                                SEVERANCEPAYMENT DATE AND SECTION 409ACOMPLIANCE.

###  

### (a)                                  Except as provided in this Section 4.6,the “Severance Payment Date” shall be the sixtieth (60th)day following Employee’s termination of employment, provided the Release hasbecome effective by the Release Deadline.

###  

### (b)                                 Notwithstanding anything to the contrary inthis Agreement, Deferred Compensation Separation Benefits (as defined below)will not become payable under this Agreement, and the Severance Payment Datewill not be deemed to have occurred, until Employee has a “separation fromservice” within the meaning of Section 409A.  Further, if (x) Employee is a “specifiedemployee” within the meaning of Section 409A at the time of Employee’stermination of employment (or at the time of a later “separation fromservice” within the meaning of 

 

9

----

###  

### Section 409A) other than due to Employee’s death,and (y) some or any portion of the severance payments and benefits payableto Employee, if any, pursuant to this Agreement (including, but not limited to,cash severance, the delivery of shares pursuant to restricted stock units andperformance shares and payments under Section 6.15), when consideredtogether with any other severance payments or separation benefits that areconsidered deferred compensation under Section 409A (together, the “DeferredCompensation Separation Benefits”) that are payable on or within the first six (6) monthperiod following Employee’s termination of employment, then payments andbenefits will instead become payable in a lump sum on the first payroll datethat occurs on or after the date six (6) months and one (1) dayfollowing the date of Employee’s termination of employment (or such longerperiod as is required to avoid the imposition of additional tax under Section 409A),and such date will be the “Severance Payment Date.”  All subsequent Deferred CompensationSeparation Benefits, if any, will be payable in accordance with the paymentschedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended toconstitute separate payments for purposes of Section 1.409A-2(b)(2) ofthe Treasury Regulations.

###  

### (c)                                  Notwithstandinganything herein to the contrary, if Employee dies following his termination ofemployment but prior to the Severance Payment Date, then any payments delayedin accordance with this Section 4.6 will be payable in a lump sum as soonas administratively practicable after the date of Employee’s death and allother Deferred Compensation Separation Benefits will be payable in accordancewith the payment schedule applicable to each payment or benefit.

###  

### (d)                                 Any amount paidunder the Agreement that satisfies the requirements of the “short-term deferral”rule set forth in Section 1.409A-1(b)(4) of the TreasuryRegulations shall not constitute Deferred Compensation Separation Benefits forpurposes of Section 4.6(b) above.

###  

### (e)                                  Anyamount paid under the Agreement that qualifies as a payment made as a result ofan involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) ofthe Treasury Regulations that does not exceed the Section 409A Limit shallnot constitute Deferred Compensation Separation Benefits for purposes of Section 4.6(b) above.  For purposes of this Section 4.6, “Section 409ALimit” shall mean the lesser of two (2) times (A) the Employee’sannualized compensation based upon the annual rate of pay paid to Employeeduring Employer’s taxable year preceding the Employer’s taxable year ofEmployee’s termination of employment as determined under Treasury Regulation1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issuedwith respect thereto; or (B) the maximum amount that may be taken intoaccount under a qualified plan pursuant to Section 401(a)(17) of the Codefor the year in which the Employee’s employment is terminated.

###  

### (f)                                    The foregoing provisions and this Agreementare intended to comply with the requirements of Section 409A so that noneof the severance payments and benefits that may be provided hereunder will besubject to the additional tax imposed under Section 409A, and anyambiguities herein will be interpreted to so comply.  Employer and Employee agree to work togetherin good faith to consider amendments to this Agreement and to take suchreasonable actions which are necessary, appropriate or desirable to avoidimposition of any additional tax or income recognition prior to actual paymentto Employee under Section 409A.

 

10

----

 

5.                                      COVENANTNOT TO COMPETE AND NO SOLICITATION.

##  

## 5.1                                 COVENANTNOT TO COMPETE.  During the term of thisAgreement, and for a period of                    (    ) months immediately following the termination ofEmployee’s relationship with the Employer, whether he resigns voluntarily or isterminated by the Employer, or Avocent Corporation involuntarily, Employee willnot, without the Employer’s or Avocent Corporation’s prior written consent,whether paid or not, directly or indirectly either alone or as a partner,principal, licensor, licensee, affiliate, representative, advisor, promoter,associate, investor, joint venturer, officer, director, employee, consultant,agent, independent contractor or stockholder of any company or business, build,design, finance, acquire, lease, operate manage, control, invest in, work orconsult for or otherwise join, participate in or affiliate himself with, anybusiness whose business, products or operations are substantially similar to orin direct competition with any of the business activities of or servicesprovided by 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. Should Employee obtain other employment during his employment withEmployer or within twelve (12) months immediately following the termination ofhis relationship with Employer for any reason, Employee agrees to providewritten notification to the Employer of the name and address of his newemployer, the position that he expects to hold, and a general description ofhis duties and responsibilities, at least three (3) business days prior tostarting such employment. Notwithstanding the foregoing, Employee is not prohibited from beingemployed by or otherwise associated with an entity with a business, products oroperations substantially similar or in direct competition with any businessactivities or services provided by Employee or Avocent, so long as (i) suchbusiness, products or operations constitute less than five percent of theannual revenues of both such entity and Avocent, and (ii) Employee doesnot, directly or indirectly, render services or assistance to such business,products or operations.

##  

## 5.2                                 NON-SOLICITATIONOF CUSTOMERS.  During the term of thisAgreement, and for a period of                (    ) months immediately following the termination ofEmployee’s relationship with the Employer, whether he resigns voluntarily or isterminated by the Employer or Avocent Corporation involuntarily, Employee willnot, without the Employer’s or Avocent Corporation’s prior written consent,whether paid or not, directly or indirectly, solicit, take away, or engage inbusiness with any customer that is competitive with or similar to that of theEmployer or Avocent.  During the sameperiod of time, Employee further agrees not to contact or cause to be contactedany customer for the purposes of conducting business that is competitive orsimilar to that of the Employer or Avocent or for the purpose of disadvantagingthe Employer’s or Avocent’s business in any way.  Employee acknowledges and agrees that theEmployer’s and Avocent’s customers did not use or inquire of the Employer’s orAvocent’s services solely as a result of his efforts, and that the efforts ofthe Employer’s and/or Avocent’s personnel and resources are responsible for theEmployer’s and Avocent’s relationship with their customers.  Employee further acknowledge and agree thatthe identity of the Employers and Avocent’s customers is not readilyascertainable or discoverable through public sources, and that Employer’s andAvocent’s lists of customers were cultivated with great effort and securedthrough the expenditure of considerable time and money by the Employer andAvocent.

##  

## 5.3                                 NON-SOLICITATIONOF EMPLOYEES AND CONSULTANTS.  During theterm of this Agreement, and for a period of                  (    ) months immediately following the

 

11

----

##  

## terminationof Employee’s relationship with the Employer, whether he resigns voluntarily oris terminated by the Employer or Avocent Corporation involuntarily, Employeewill not, without the Employer’s or Avocent Corporation’s prior writtenconsent, whether paid or not, directly or indirectly, hire, solicit or recruitemployees or consultants of the Employer or Avocent to leave the Employer orAvocent, contact any employee or consultant of the Employer or Avocent or causeany employee or consultant of the Employer or Avocent to be contacted for thepurpose of leaving their employment or consultancy arrangement or providingservices for Employee or any other entity, employ any employee or receiveservices from any consultant who is employed by or providing consultingservices for the Employer or Avocent or who has been employed by or providedconsulting services for the Employer or Avocent in the prior six month period.

##  

## 5.4                                 ACKNOWLEDGEMENTS.  Employee acknowledges that the Employer andAvocent will provide him with their proprietary and confidential information toenable him to optimize the performance of his duties to the Employer, and that hewill derive significant value from such disclosures.  Employee further acknowledges that hisfulfillment of his obligations not to compete and not to solicit contained inSections 5.1, 5.2, and 5.3 above, are necessary to protect the Employer’s andAvocent’s proprietary and confidential information and, consequently, topreserve the value and goodwill of the Employer and Avocent.  Employee also acknowledges that theparameters of his obligations under Section 5.1, 5.2, and 5.3 above arefair and reasonable in all respects, especially in light of the Employer’s andAvocent’s need to protect their proprietary and confidential Information andthe international scope and nature of the Employer’s and Avocent’s business,and that he will not be precluded from gainful employment if he is obligatednot to compete with the Employer or Avocent or solicit their employees,customers or others during the period described above.

 

6.                                      MISCELLANEOUS.

##  

## 6.1                                 PAYMENT OBLIGATIONS.  If litigation after a Change in Control shallbe brought to enforce or interpret any provision contained herein, the Employerand Avocent Corporation, to the extent permitted by applicable law and theEmployer’s and Avocent Corporation’s Articles of Incorporation and Bylaws, eachhereby indemnifies the Employee for the Employee’s reasonable attorneys’ feesand disbursements incurred in such litigation.

##  

## 6.2                                 GUARANTEE. Avocent Corporation hereby unconditional and irrevocable guarantees allpayment obligations of the Employer under this Agreement, including, withoutlimitation, the Employer’s obligations under Sections 2, 3, 4, and 6 hereof.

##  

## 6.3                                 WITHHOLDINGS. All compensation, payments (including severance payments under Section 4),benefits, and the delivery of shares to the Employee under this Agreement shallbe reduced by all federal, state, local, and other withholdings and deductionsand similar taxes and payments required by applicable law.

##  

## 6.4                                 WAIVER. The waiver of the breach of any provision of this Agreement shall notoperate or be construed as a waiver of any subsequent breach of the same orother provision hereof.

##  

## 6.5                                 ENTIRE AGREEMENT; MODIFICATIONS.  Except as otherwise provided herein, thisAgreement represents the entire understanding among the parties with respect tothe

 

12

----

##  

## subject matter hereof, andthis Agreement supersedes any and all contemporaneous or prior understandings,agreements (including the 2006 Employment Agreement), plans and negotiations,whether written or oral with respect to the subject matter hereof,**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 the Agreementmust be in writing and signed by the party against whom enforcement of suchmodification is sought.  Withrespect to each Equity Award granted prior to the date hereof, the accelerationof vesting and timing of payment requirements provided herein will be deemed toamend and modify the Equity Award agreement relating to such Equity Award; tothe extent not amended hereby, such Equity Award agreement will remain in fullforce and effect.  With respect to Equity Awards granted on orafter the date hereof, the acceleration of vesting and timing of paymentrequirements provided herein will apply to such awards except to the extentotherwise explicitly provided in the applicable Equity Award agreement, whichprovision must include a reference to this Agreement.

##  

## 6.6                                 NOTICES. All notices and other communications under this Agreement shall be inwriting and shall be given by hand delivery or first class mail, certified orregistered with return receipt requested, and shall be deemed to have been dulygiven upon hand delivery to an officer of the Employer or the Employee, as thecase may be, or upon three (3) days after mailing to the respectivepersons named below:

##  

| If to the Employer/Avocent: |   | Avocent Corporation                      |
|-----------------------------|--------|------------------------------------------|
|                        |   | 4991 Corporate Drive                     |
|                        |   | Huntsville, AL 35805                     |
|                        |   | Attn: Chairman of the Board of Directors |
|                        |   |                                     |
|                        |   | With copy to:                            |
|                        |   | Avocent Corporation                      |
|                        |   | 9911 Willows Road NE                     |
|                        |   | Redmond, WA 98052                        |
|                        |   | Attn: General Counsel                    |
|                        |   |                                     |
| If to the Employee:         |   |                                     |
|                        |   |                                     |
|                        |   |                                     |

 

Any party may change such party’s address fornotices by notice duly given pursuant to this Section 6.6.

##  

## 6.7                                 HEADINGS. The Section headings herein are intended for reference and shallnot by themselves determine the construction or interpretation of thisAgreement.

##  

## 6.8                                 GOVERNING LAW; VENUE.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of                          .  The Employee, the Employer, and AvocentCorporation each hereby expressly consents to the exclusive venue of the stateand federal courts located in                                      for any lawsuit arising from or relating to this Agreement.

 

13

----

##  

## 6.9                                 ARBITRATION. Employee, Employer, and AvocentCorporation agree that any and all controversies, claims, or disputes with theEmployer or Avocent Corporation or any of their respective employees, officers,directors, stockholders, or benefit plans in their capacity as such orotherwise arising out of, relating to, or resulting from the Employee’s serviceto the Employer under this Agreement or otherwise or the termination of theEmployee’s service with the Employer, including any breach of this Agreement,shall be subject to binding arbitrationin                                                      ,under the arbitration rules setforth by the Judicial Arbitration and Mediation Services (“JAMS”).  Judgment upon any award rendered by thearbitrator may be entered in any court having jurisdiction thereof.  Disputeswhich the Employee agrees to arbitrate, and thereby agrees to waive any rightto a trial by jury, include, to the extent permissible by law, any statutoryclaims under state or federal law, including, but not limited to, claims underTitle VII of the Civil Rights Act of 1964, the Americans with Disabilities Actof 1990, the Age Discrimination in Employment Act of 1967, the Older WorkersBenefit Protection Act, claims of harassment, discrimination or wrongfultermination and any other statutory, contract, tort and other claims.  The arbitrator shall have the power to decideany motions brought by any party to the arbitration, including motions forsummary judgment and/or adjudication and motions to dismiss, prior to anyarbitration hearing.  The arbitratorshall have the power to award any remedies, and shall award attorneys’ fees andcosts to the prevailing party unless prohibited by law.  Eachparty shall pay the fees of the arbitrator selected by him and of his ownattorneys, and the expenses of his witnesses and all other expenses connectedwith the presentation of his case.  Thecost of the arbitration, including the cost of the record or transcriptsthereof, if any, administrative fees, and all other fees and costs shall beborne equally by the parties.

##  

## 6.10                           SEVERABILITY. If a court or other body of competent jurisdiction determines that anyprovision of this Agreement is excessive in scope or otherwise invalid orunenforceable, such provision shall be adjusted rather than voided, ifpossible, and all other provisions of this Agreement shall be deemed valid andenforceable to the extent possible.

##  

## 6.11                           SURVIVAL OF EMPLOYER’S OBLIGATIONS.  The Employer’s and Avocent Corporation’sobligations hereunder shall not be terminated by reason of any liquidation,dissolution, bankruptcy, cessation of business, or similar event relating tothe Employer or Avocent Corporation. This Agreement shall not be terminated by any merger or consolidation orother reorganization of the Employer or Avocent Corporation.  In the event any such merger, consolidationor reorganization shall be accomplished by transfer of stock or by transfer ofassets or otherwise, the provisions of this Agreement shall be binding upon andinure to the benefit of the surviving or resulting corporation or person.  This Agreement shall be binding upon andinure to the benefit of the executors, administrators, heirs, successors andassigns of the parties; provided, however, that except as herein expresslyprovided, this Agreement shall not be assignable either by the Employer (exceptto an affiliate of the Employer (including Avocent Corporation) in which eventthe Employer shall remain liable if the affiliate fails to meet any obligationsto make payments or provide benefits or otherwise) or by the Employee.

##  

## 6.12                           COUNTERPARTS. This Agreement may be executed in one or more counterparts, all of whichtaken together shall constitute one and the same Agreement.

##  

## 6.13                           INDEMNIFICATION.  In addition to any rights to indemnificationto which the Employee is entitled to under the Employer’s or AvocentCorporation’s Articles of Incorporation and Bylaws, the Employer and AvocentCorporation shall indemnify the Employee at

 

14

----

##  

## 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.  Employer and/or AvocentCorporation shall provide Employee with reasonable directors’ and officers’(D&O) insurance coverage consistent with the coverage provided otherofficers and directors

##  

## 6.14                          AT-WILLEMPLOYMENT.  The parties agree thatEmployee’s employment with Employer constitutes “at-will” employment and thatsuch employment may be terminated at any time with or without cause or notice,at the option of either party.  However,as described in this Agreement, Employee may be entitled to severance benefitsdepending upon the circumstances of Employee’s termination of employment.  Employee understands and agrees that neitherhis job performance nor promotions, commendations, bonuses or the like fromAvocent give rise to or in any way serve as the basis for modification,amendment, or extension, by implication or otherwise, of his employment withEmployer.

##  

## 6.15                          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 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 alltaxes, interest and penalties incurred in connection with all payments underthis Section 2(a), the Employee retains an amount equal to one hundredpercent (100%) of the Excise Tax.

###  

### (b)                                 Alldeterminations required to be made under this Section shall be made by theAvocent Corporation’s primary independent public accounting firm, or any othernationally recognized accounting firm reasonably acceptable to AvocentCorporation and the Employee (the “Accounting Firm”).  Avocent Corporation shall cause theAccounting Firm to provide detailed 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 and approximations concerningapplicable taxes and may rely on reasonable, good faith interpretationsconcerning the application of Sections 280G and 4999 of the Internal RevenueCode, provided the Accounting Firm’s determinations must be made withsubstantial authority (within the meaning of Section 6662 of the InternalRevenue Code). The payments to which the Employee is entitled pursuant to this Section shallbe paid by the Employer and/or Avocent Corporation to the Employee in cash andin full as soon as reasonably practicable after the Payments become subject tothe Excise Tax, but in no event later than the end of the calendar year nextfollowing the calendar year in which the Employee remits such Excise Tax.

 

15

----

 

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

 

 
|       | **                                                                    ** | **.:**     |
|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|
|       |                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
|       |                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
|       | By:                                                                                                                                                                                                                                                                                                                                                                                                                          |       |
|       | Its:                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
|       |                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
|       | ** **                                                                                                                                                                                                                                                                                                                                                                                                                   |
|       | **AVOCENT  CORPORATION:**                                                                                                                                                                                                                                                                                                                                                                                                    |
|       | ** **                                                                                                                                                                                                                                                                                                                                                                                                                   |
|       |                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
|       | By:                                                                                                                                                                                                                                                                                                                                                                                                                          |       |
|       | Its:                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
|       |                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
|       |                                                                                                                                                                                                                                                                                                                                                                                                                         | ** ** |
|       | **EMPLOYEE:**                                                                                                                                                                                                                                                                                                                                                                                                                |
| ** ** |                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
| ** ** |                                                                                                                                                                                                                                                                                                                                                                                                                         |       |
| ** ** |                                                                                                                                                                                                                                                                                                                                                                                                                         |
| ** ** |                                                                                                                                                                                                                                                                                                                                                                                                                         |
|            |                                                                                                                                                                                                                                                                                                                                                                                                                              |            |  |

 

16

----