**Exhibit 10.13**

 

**AMENDED AND RESTATEDEMPLOYMENT AND NONCOMPETITION AGREEMENT**

** **

THIS AMENDED AND RESTATEDEMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made and enteredinto as of October 10, 2003, by and among Avocent Huntsville Corp.(formerly known as Cybex Computer Products Corporation), an Alabama corporation(“AHC” or “Employer”), Avocent Corporation, a Delaware corporation, and John R.Cooper****(the“Employee”).

 

RECITALS

 

WHEREAS, AvocentCorporation and its affiliates (collectively referred to in this Agreement as“Avocent”) are engaged in the business of designing, manufacturing, and sellingconnectivity solutions for enterprise data centers, service providers, andfinancial institutions; and

 

WHEREAS, Employee andEmployer entered into that certain Employment and Noncompetition Agreementdated March 4, 2002 (the “Original Employment Agreement”); and

 

WHEREAS, Employer,Employee, and Avocent now wish to amend and restate the Original EmploymentAgreement with this Amended and Restated Employment and NoncompetitionAgreement, and Employee is willing to accept employment as Avocent’s Presidentand Chief Executive Officer on the terms and subject to the conditions setforth in this Agreement.

 

**AGREEMENT**

 

THE PARTIES HERETO AGREEAS FOLLOWS:

 

# 1.                                       DUTIES.  During the term of this Agreement, theEmployee agrees to be employed by Employer and to serve Avocent as itsPresident and Chief Executive Officer. The Employee shall devote such of his business time, energy, and skillto the affairs of Avocent and Employer as shall be necessary to perform theduties of President and Chief Executive Officer.  The Employee shall report only to the Board of Directors ofAvocent Corporation and at all times during the term of this Agreement, theEmployee shall have powers and duties at least commensurate with his positionas President and Chief Executive Officer of Avocent Corporation.

#  

# 2.                                       TERMOF EMPLOYMENT.

#  

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

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### (a)                                  “TERMINATIONFOR CAUSE” shall mean termination by the Employer or Avocent Corporation of theEmployee’s employment with the Employer or Avocent by reason of the Employee’swillful dishonesty towards, fraud upon, or deliberate injury or 

 

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attempted injury to, theEmployer or Avocent or by reason of the Employee’s willful material breach ofthis Agreement which has resulted in material injury to the Employer orAvocent.

###  

### (b)                                 “TERMINATIONSOTHER THAN FOR CAUSE” shall mean termination by the Employer or AvocentCorporation of the Employee’s employment with the Employer or Avocent (otherthan in a Termination for Cause) and shall include any constructive terminationof the Employee’s employment by reason of material breach of this Agreement bythe Employer or Avocent, such constructive termination to be effective uponthirty (30) days written notice from the Employee to the Employer of suchconstructive termination.

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### (c)                                  “VOLUNTARYTERMINATION” shall mean termination by the Employee of the Employee’s employmentwith the Employer or Avocent other than (i) constructive termination asdescribed in subsection 2.1(b), (ii) “Termination Upon a Change inControl” as described in Section 2.1(e), and (iii) termination byreason of the Employee’s disability or death as described in Sections 2.5and 2.6.

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

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

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#### (i)                                     Anyperson (other than Avocent Corporation) acquires beneficial ownership ofEmployer’s or Avocent Corporation’s securities and is or thereby becomes abeneficial owner of securities entitling such person to exercise twenty-fivepercent (25%) or more of the combined voting power of Employer’s or AvocentCorporation’s then outstanding stock. For purposes of this Agreement, “beneficial ownership” shall be determinedin accordance with Regulation 13D under the Securities Exchange Act of1934, 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.

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#### (ii)                                  Withinany twenty-four (24) month period, the individuals who were Directors ofAvocent Corporation at the beginning of any such period, together with anyother Directors first elected as directors of Avocent Corporation pursuant tonominations approved or ratified by at least two-thirds (2/3) of the Directorsin office immediately prior to any such election, cease to constitute amajority of the Board of Directors of Avocent Corporation.

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#### (iii)                               AvocentCorporation’s stockholders approve:

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##### (1)                                  anyconsolidation or merger of Avocent Corporation in which Avocent Corporation isnot the continuing or surviving corporation or pursuant to which shares ofAvocent Corporation common stock would be converted into cash, securities orother property, other than a merger or consolidation of Avocent Corporation inwhich the holders of 

 

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Avocent Corporation’scommon stock immediately prior to the merger or consolidation havesubstantially the same proportionate ownership and voting control of thesurviving corporation immediately after the merger or consolidation; or

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##### (2)                                  anysale, lease, exchange, liquidation or other transfer (in one transaction or aseries of transactions) of all or substantially all of the assets of AvocentCorporation.

#####  

Notwithstandingsubparagraphs (e)(iii)(1) and (e)(iii)(2) above, the term “Change inControl” shall not include a consolidation, merger, or other reorganization ifupon consummation of such transaction all of the outstanding voting stock ofAvocent Corporation is owned, directly or indirectly, by a holding company, andthe holders of Avocent Corporation’s common stock immediately prior to thetransaction have substantially the same proportionate ownership and votingcontrol of such holding company after such transaction.

 

## 2.2                                 BASICTERM.  The term of employment of theEmployee by the Employer under this Agreement shall be for the period beginningon the date of this Agreement, and ending on December 31, 2007,unless terminated earlier pursuant to this Section 2.  At any time before December 31, 2007,the Employer and the Employee may by mutual written agreement extend theEmployee’s employment under the terms of this Agreement for such additionalperiods as they may agree.

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## 2.3                                 TERMINATIONFOR CAUSE.  Termination For Cause may beeffected by the Employer at any time during the term of this Agreement andshall be effected by thirty (30) days written notification to the Employee fromthe Board of Directors of Avocent Corporation stating the reason fortermination.  Upon Termination ForCause, the Employee immediately shall be paid all accrued salary, bonuscompensation to the extent earned, vested deferred compensation, if any (otherthan pension plan or profit sharing plan benefits which will be paid inaccordance with the applicable plan), any benefits under any plans of Employeror Avocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans, accrued vacation pay and any appropriatebusiness expenses incurred by the Employee in connection with his dutieshereunder, all to the date of termination, but the Employee shall not be paidany other compensation or reimbursement of any kind, including withoutlimitation, severance compensation.

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## 2.4                                 TERMINATIONOTHER THAN FOR CAUSE.  Notwithstandinganything else in this Agreement, the Employer may effect a Termination OtherThan For Cause at any time upon giving thirty (30) days written notice to theEmployee of such termination.  Upon anyTermination Other Than For Cause, the Employee shall immediately be paid 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, accrued vacation pay and anyappropriate business expenses incurred by the Employee in connection with hisduties hereunder, all to the date of termination, and all severancecompensation provided in Section 4.2, but no other compensation orreimbursement of any kind.

 

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## 2.5                                 TERMINATIONBY REASON OF DISABILITY.  If, during theterm of this Agreement, the Employee, in the reasonable judgment of the Boardof Directors of Avocent Corporation, has failed to perform his duties underthis Agreement on account of illness or physical or mental incapacity, and suchillness or incapacity continues for a period of more than six (6) consecutivemonths, the Employer shall have the right to terminate the Employee’semployment hereunder by delivery of written notice to the Employee at any timeafter such six month period and payment to the Employee of all accrued salary,bonus compensation to the extent earned, additional bonus compensation in anamount equal to the average annual bonus earned by the Employee as an employeeof Avocent Corporation and its affiliates in the two (2) years immediatelypreceding the date of termination, vested deferred compensation, if any (otherthan pension plan or profit sharing plan benefits which will be paid inaccordance with the applicable plan), any benefits under any plans of Employeror Avocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans (including having the vesting of any awardsgranted to the Employee under any AHC or Avocent stock option plans fullyaccelerated), accrued vacation pay and any appropriate business expensesincurred by the Employee in connection with his duties hereunder, all to thedate of termination, with the exception of medical and dental benefits whichshall continue through the expiration of this Agreement, but the Employee shallnot be paid any other compensation or reimbursement of any kind, includingwithout limitation, severance compensation.

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## 2.6                                 TERMINATIONBY REASON OF DEATH.  In the event of theEmployee’s death during the term of this Agreement, the Employee’s employmentshall be deemed to have terminated as of the last day of the month during whichhis death occurs and the Employer shall pay to his estate or such beneficiariesas the Employee may from time to time designate all accrued salary, bonuscompensation to the extent earned, vested deferred compensation, if any (otherthan pension plan or profit sharing plan benefits which will be paid inaccordance with the applicable plan), any benefits under any plans of Employeror Avocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans (including having the vesting of any awardsgranted to the Employee under any AHC or Avocent stock option plans fullyaccelerated), accrued vacation pay and any appropriate business expensesincurred by the Employee in connection with his duties hereunder, all to thedate of termination, but the Employee’s estate shall not be paid any othercompensation or reimbursement of any kind, including without limitation,severance compensation.

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## 2.7                                 VOLUNTARYTERMINATION.  Notwithstanding anythingelse in this Agreement, the Employee may effect a Voluntary Termination at anytime upon giving thirty (30) days written notice to the Employer of suchtermination.  In the event of aVoluntary Termination, the Employer shall immediately pay all accrued salary,bonus compensation to the extent earned, vested deferred compensation, if any(other than pension plan or profit sharing plan benefits which will be paid inaccordance with the applicable plan), any benefits under any plans of Employeror Avocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans, accrued vacation pay and any appropriatebusiness expenses incurred by the Employee in connection with his dutieshereunder, all to the date of termination, but no other compensation orreimbursement of any kind, including without limitation, severancecompensation.

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## 2.8                                 TERMINATIONUPON A CHANGE IN CONTROL.  In the eventof a Termination Upon a Change in Control, the Employee shall immediately bepaid all accrued 

 

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salary, bonuscompensation to the extent earned, vested deferred compensation, if any (otherthan pension plan or profit sharing plan benefits which will be paid inaccordance with the applicable plan), any benefits under any plans of Employeror Avocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans (including having the vesting of any awardsgranted to the Employee under any AHC or Avocent stock option plans fully accelerated),accrued vacation pay and any appropriate business expenses incurred by theEmployee in connection with his duties hereunder, all to the date oftermination, and all severance compensation provided in Section 4.1, butno other compensation or reimbursement of any kind.

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# 3.                                       SALARY,BENEFITS AND BONUS COMPENSATION.

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## 3.1                                 BASESALARY.  Effective January 1, 2003,as payment for the services to be rendered by the Employee as provided inSection 1 and subject to the terms and conditions of Section 2, theEmployer agrees to pay to the Employee a “Base Salary” at the rate of $400,000per annum, payable in equal bi-weekly installments.  The Base Salary for each calendar year (or proration thereof)beginning January 1, 2004****shall be determined by the Board ofDirectors of Avocent Corporation upon a recommendation of the Compensation Committee of AvocentCorporation (the “Compensation Committee”), which shall authorize an increasein the Employee’s Base Salary in an amount which, at a minimum, shall be equalto the cumulative cost-of-living increment on the Base Salary as reported inthe “Consumer Price Index for All UrbanConsumers (CPI-U), All Items Index, for South Urban Size A (More Than1,500,000)” published by the U.S. Department of Labor (using January 1,2003, as the base date for computation prorated for any partial year).* *The Employee’s Base Salary shallbe reviewed annually by the Board of Directors and the Compensation Committeeof Avocent Corporation.

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## 3.2                                 BONUSES.  The Employee shall be eligible to receive abonus for each calendar year (or portion thereof) during the term of thisAgreement and any extensions thereof, with the actual amount of any such bonusto be determined in the sole discretion of the Board of Directors of AvocentCorporation based upon its evaluation of the Employee’s performance during suchyear.  All such bonuses shall be payableduring the last month of the fiscal year or within forty-five (45) days afterthe end of the fiscal year to which such bonus relates.  All such bonuses shall be reviewed annuallyby the Compensation Committee ofAvocent Corporation.

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

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### (a)                                  THEEMPLOYEE BENEFITS.  The Employee shallbe eligible to participate in such of Avocent’s benefits and deferredcompensation plans as are now generally available or later made generallyavailable to executive officers of Avocent, including, without limitation,stock option plans, Section 401(k) plan, profit sharing plans, deferredcompensation plan, annual physical examinations, dental and medical plans,personal catastrophe and disability insurance, retirement plans andsupplementary executive retirement plans, if any.  For purposes of establishing the length of service under anybenefit plans or programs of AHC or Avocent, the Employee’s employment with theEmployer (or any successor) will be deemed to have commenced on March 4,2002.

 

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

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

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

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# 4.                                       SEVERANCECOMPENSATION.

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## 4.1                                 SEVERANCECOMPENSATION IN THE EVENT OF A TERMINATION UPON A CHANGE IN CONTROL.  In the event of a Termination Upon a Changein Control, the Employee shall be paid as severance compensation his BaseSalary (at the rate payable at the time of such termination) for a period oftwenty-four (24) 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 in the two (2) yearsimmediately preceding the date of termination. Notwithstanding anything in this Section 4.1 to the contrary, theEmployee may in the Employee’s sole discretion, by delivery of a notice to theEmployer within thirty (30) days following a Termination Upon a Change inControl, elect to receive from the Employer a lump sum severance payment bybank cashier’s check equal to the present value of the flow of cash paymentsthat would otherwise be paid to the Employee pursuant to thisSection 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 of90-day U.S. Treasury bills, as reported in *The Wall Street Journal* (or similarpublication), on the date of delivery of the election notice.  If the Employee elects to receive a lump sumseverance payment, Avocent Corporation shall cause the Employer to make suchpayment to the Employee within ten (10) days following the date on which theEmployee notifies the Employer of the Employee’s election.  The Employee shall also be entitled to havethe vesting of any awards granted to the Employee under any AHC or Avocentstock option plans fully accelerated. The Employee shall be provided with medical plan benefits under anyhealth plans of Avocent or Employer in which the Employee is a participant tothe full extent of the Employee’s rights under such plans for period oftwenty-four (24) months from the date of such Termination Upon a Change inControl (even if Employee elects to receive a lump sum severance payment).

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## 4.2                                 SEVERANCECOMPENSATION IN THE EVENT OF A TERMINATION OTHER THAN FOR CAUSE.  In the event of a Termination Other Than forCause, the Employee shall be paid as severance compensation his Base Salary (atthe rate payable 

 

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at the time of suchtermination) for the severance payout period specified in the following tablefrom the date of such Termination Other Than for Cause, on the dates specifiedin Section 3.1:

 
| **Date of  Termination Other Than for Cause**                  |   | **Severance Payout Period** |
|----------------------------------------------------------------|--------|-----------------------------|
| After March 4, 2002 but before March 4,  2003        |   | Twelve (12) Months          |
| On or after March 4, 2003, but before  March 4, 2004 |   | Eighteen (18) Months        |
| On or after March 4, 2004, but before  March 4, 2005 |   | Twenty-One (21) Months      |
| On or after March 4, 2005                                 |   | Twenty-Four (24) Months     |

 

## In the event of a Termination Other Than for Cause,Employee shall also be paid an amount equal to the average annual bonus earnedby the Employee as an employee of Avocent Corporation and its affiliates in thetwo (2) years immediately preceding the date of termination.  Notwithstanding anything in thisSection 4.2 to the contrary, the Employee may in the Employee’s solediscretion, by delivery of a notice to the Employer within thirty (30) daysfollowing a Termination Other Than for Cause, elect to receive from theEmployer a lump sum severance payment by bank cashier’s check equal to thepresent value of the flow of cash payments that would otherwise be paid to theEmployee pursuant to this Section 4.2. Such present value shall be determined as of the date of delivery of thenotice of election by the Employee and shall be based on a discount rate equalto the interest rate on 90-day U.S. Treasury bills, as reported in *The WallStreet Journal* (or similar publication), on the date of delivery ofthe election notice.  If the Employeeelects to receive a lump sum severance payment, Avocent Corporation shall causethe Employer to make such payment to the Employee within ten (10) daysfollowing the date on which the Employee notifies the Employer of theEmployee’s election.  The Employee shallalso be entitled to have the vesting of any awards granted to the Employeeunder any AHC or Avocent stock option plans fully accelerated.  The Employee shall be provided with medicalplan benefits under any health plans of Avocent or Employer in which theEmployee is a participant to the full extent of the Employee’s rights undersuch plans for the applicable severance payout period specified in thisSection 4.2 from the date of such Termination Other Than for Cause (evenif Employee elects to receive a lump sum severance payment).

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## 4.3                                 NOSEVERANCE COMPENSATION UNDER OTHER TERMINATION.  In the event of a Voluntary Termination, Termination For Cause,termination by reason of the Employee’s disability pursuant toSection 2.5, or termination by reason of the Employee’s death pursuant toSection 2.6, the Employee or his estate shall not be paid any severancecompensation.

 

# 5.                                       NON-COMPETITIONOBLIGATIONS.  Unless waived or reducedby the Employer or Avocent, during the term of this Agreement and for a periodof thirty-six (36) months thereafter, the Employee will not, without theEmployer’s and Avocent Corporation’s prior written consent, directly orindirectly, alone or as a partner, joint venturer, officer, director, employee,consultant, agent, independent contractor or stockholder of any company orbusiness, engage in any business activity in the United States, Canada, Europe,or Asia which is substantially similar to or in direct competition with any ofthe business activities of or services provided by the 

 

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Employer or Avocent atsuch time.  Notwithstanding theforegoing, the ownership by the Employee of not more than five percent (5%) ofthe shares of stock of any corporation having a class of equity securitiesactively traded on a national securities exchange or on The Nasdaq Stock Marketshall not be deemed, in and of itself, to violate the prohibitions of thisSection 5.

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# 6.                                       MISCELLANEOUS.

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## 6.1                                 PAYMENTOBLIGATIONS.  If litigation after aChange in Control shall be brought to enforce or interpret any provisioncontained herein, the Employer and Avocent Corporation, to the extent permittedby applicable law and the Employer’s and Avocent Corporation’s Articles ofIncorporation and Bylaws, each hereby indemnifies the Employee for the Employee’sreasonable attorneys’ fees and disbursements incurred in such litigation.

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## 6.2                                 GUARANTEE.  Avocent Corporation hereby unconditional andirrevocable guarantees all payment obligations of the Employer under thisAgreement, including, without limitation, the Employer’s obligations underSections 2, 3, 4, and 6 hereof.

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## 6.3                                 WITHHOLDINGS.  All compensation and benefits to theEmployee hereunder shall be reduced by all federal, state, local, and otherwithholdings and similar taxes and payments required by applicable law.

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## 6.4                                 WAIVER.  The waiver of the breach of any provision ofthis Agreement shall not operate or be construed as a waiver of any subsequentbreach of the same or other provision hereof.

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## 6.5                                 ENTIREAGREEMENT; MODIFICATIONS.  Except as otherwiseprovided herein, this Agreement represents the entire understanding among theparties with respect to the subject matter hereof, and this Agreementsupersedes any and all prior understandings, agreements (including the OriginalEmployment Agreement), plans and negotiations, whether written or oral withrespect to the subject matter hereof,**andany understandings, agreements (including the Original Employment Agreement),or obligations respecting any past or future compensation, bonuses,reimbursements or other payments to the Employee from the Employer or AvocentCorporation.  All modifications to thisAgreement must be in writing and signed by the party against whom enforcementof such modification is sought.

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## 6.6                                 NOTICES.  All notices and other communications underthis Agreement shall be in writing and shall be given by hand delivery or firstclass mail, certified or registered with return receipt requested, and shall bedeemed to have been duly given upon hand delivery to an officer of the Employeror the Employee, as the case may be, or upon three (3) days after mailing tothe respective persons named below:

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

 

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| If to the Employee: | John R. Cooper |
|---------------------|----------------|
|                |           |

 

Any party may change suchparty’s address for notices by notice duly given pursuant to thisSection 6.6.

 

## 6.7                                 HEADINGS.  The Section headings herein areintended for reference and shall not by themselves determine the constructionor interpretation of this Agreement.

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## 6.8                                 GOVERNINGLAW; VENUE.  This Agreement shall begoverned by and construed in accordance with the laws of the State of Alabama.  The Employee, the Employer, and AvocentCorporation each hereby expressly consents to the exclusive venue of the stateand federal courts located in Huntsville, Madison County, Alabama, for anylawsuit arising from or relating to this Agreement.

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## 6.9                                 ARBITRATION.  Any controversy or claim arising out of orrelating to this Agreement, or breach thereof, shall be settled by arbitrationin Huntsville, Alabama, in accordance with the Rules of the American ArbitrationAssociation, and judgment upon any proper award rendered by the arbitrators maybe entered in any court having jurisdiction thereof.  There shall be three (3) arbitrators, one (1) to be chosendirectly by each party at will, and the third arbitrator to be selected by thetwo (2) arbitrators so chosen.  To theextent permitted by the Rules of the American Arbitration Association, theselected arbitrators may grant equitable relief.  Each party shall pay the fees of the arbitrator selected by himand of his own attorneys, and the expenses of his witnesses and all otherexpenses connected with the presentation of his case.  The cost of the arbitration including the cost of the record ortranscripts thereof, if any, administrative fees, and all other fees and costsshall be borne equally by the parties.

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## 6.10                           SEVERABILITY.  If a court or other body of competentjurisdiction determines that any provision of this Agreement is excessive inscope or otherwise invalid or unenforceable, such provision shall be adjustedrather than voided, if possible, and all other provisions of this Agreementshall be deemed valid and enforceable to the extent possible.

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## 6.11                           SURVIVALOF EMPLOYER’S OBLIGATIONS.  TheEmployer’s and Avocent Corporation’s obligations hereunder shall not beterminated by reason of any liquidation, dissolution, bankruptcy, cessation ofbusiness, or similar event relating to the Employer or AvocentCorporation.  This Agreement shall notbe terminated by any merger or consolidation or other reorganization of theEmployer or Avocent Corporation.  In theevent any such merger, consolidation or reorganization shall be accomplished bytransfer of stock or by transfer of assets or otherwise, the provisions of thisAgreement shall be binding upon and inure to the benefit of the surviving orresulting corporation or person.  ThisAgreement shall be binding upon and inure to the benefit of the executors,administrators, heirs, successors and assigns of the parties; provided,however, that except as herein expressly provided, this Agreement shall not beassignable either by the Employer (except to an affiliate of the Employer(including Avocent Corporation) in which event the Employer shall remain liableif the affiliate fails to meet any obligations to make payments or providebenefits or otherwise) or by the Employee.

 

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

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## 6.13                           INDEMNIFICATION.  In addition to any rights to indemnificationto which the Employee is entitled to under the Employer’s or AvocentCorporation’s Articles of Incorporation and Bylaws, the Employer and AvocentCorporation shall indemnify the Employee at all times during and after the termof this Agreement to the maximum extent permitted under the corporation laws ofthe State of Delaware and any other applicable state law, and shall pay theEmployee’s expenses in defending any civil or criminal action, suit, orproceeding in advance of the final disposition of such action, suit, orproceeding, to the maximum extent permitted under such applicable state laws.

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

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### (a)                                  TheEmployee shall be entitled to receive an additional payment from the Employerand/or Avocent Corporation equal to (i) one hundred percent (100%) of anyExcise Tax actually paid or finally or payable by the Employee in connectionwith the Payments, 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.

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### (b)                                 Alldeterminations required to be made under this Section shall be made by theAvocent Corporation’s primary independent public accounting firm, or any othernationally recognized accounting firm reasonably acceptable to the AvocentCorporation and the Employee (the “Accounting Firm”).  Avocent Corporation shall cause the Accounting Firm to providedetailed supporting calculations of its determinations to the Employer and theEmployee.  All fees and expenses of theAccounting Firm shall be borne solely by the Employer.  For purposes of making the calculationsrequired by this Section, the Accounting Firm may make reasonable assumptionsand approximations 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.

 

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

 

 
|   | **AVOCENT  HUNTSVILLE CORP. (formerly  know as Cybex Computer Products Corporation)** |
|--------|---------------------------------------------------------------------------------------|
|   |                                                                                  |   |
|   |                                                                                  |   |
|   | By:                                                                                   | /s/  Doyle C. Weeks |
|   | Its:                                                                                  | Vice  President |
|   |                                                                                  |   |
|   |                                                                                  |   |
|   | **AVOCENT  CORPORATION:**                                                             |
|   |                                                                                  |   |
|   |                                                                                  |   |
|   | By:                                                                                   | /s/  Edwin L. Harper |
|   | Its:                                                                                  | Chairman  of the Compensation Committee |
|   |                                                                                  |   |
|   |                                                                                  |   |
|   | **EMPLOYEE:**                                                                         |
|   |                                                                                  |   |
|   |                                                                                  |   |
|   | /s/  John R. Cooper                                                                   |
|   | John  R. Cooper                                                                       |

 

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