Exhibit 10.2


AMENDED AND RESTATED


EMPLOYMENT
AND NONCOMPETITION AGREEMENT


THIS AMENDED AND
RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made and
entered into as of December 13, 2006, by and among Avocent Huntsville Corp., an
Alabama corporation (“Employer”), Avocent Corporation, a Delaware corporation,
and John R. Cooper(the “Employee”).


RECITALS


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


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


WHEREAS, Employee,
Employer, and Avocent Corporation now wish to amend and restate the 2003
Employment Agreement with this Amended and Restated Employment and
Noncompetition Agreement, and Employee is willing to accept employment as
Avocent’s Chief Executive Officer on the terms and subject to the conditions
set forth in this Agreement.


AGREEMENT


THE PARTIES HERETO AGREE AS FOLLOWS:


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


2.             TERM OF EMPLOYMENT.


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


(a)           “TERMINATION FOR CAUSE” shall mean termination by the
Employer or Avocent Corporation of the Employee’s employment with the Employer
or Avocent by reason of the Employee’s willful dishonesty towards, fraud upon,
or deliberate injury or attempted injury to, the Employer or Avocent or by
reason of the Employee’s willful material breach of this Agreement which has
resulted in material injury to the Employer or Avocent.



 1
 









 


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


(c)           “VOLUNTARY TERMINATION” shall mean termination by the
Employee of the Employee’s employment with the Employer or Avocent other than
(i) constructive termination as described in subsection 2.1(b), (ii) “Termination
Upon a Change in Control” as described in Section 2.1(e), and
(iii) termination by reason of the Employee’s disability or death as
described in Sections 2.5 and 2.6.


(d)           “TERMINATION UPON A CHANGE IN CONTROL” shall mean (i) a
termination by the Employee of the Employee’s employment with the Employer or
Avocent within six (6) months following any “Change in Control” or (ii) any
termination by the Employer or Avocent 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.”


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


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


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


(iii)  Avocent Corporation’s stockholders approve:


(1)           any consolidation or merger of Avocent Corporation in
which Avocent Corporation is not the continuing or surviving corporation or
pursuant to which shares of Avocent Corporation common stock would be converted
into cash, securities or other property, other than a merger or consolidation
of Avocent Corporation in which the holders of Avocent Corporation’s common
stock immediately prior to the merger or consolidation have substantially the
same proportionate ownership and voting control of the surviving corporation
immediately after the merger or consolidation; or



 2
 









 


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


Notwithstanding
subparagraphs (e)(iii)(1) and (e)(iii)(2) above, the term “Change in
Control” shall not include a consolidation, merger, or other reorganization if
upon consummation of such transaction all of the outstanding voting stock of
Avocent Corporation is owned, directly or indirectly, by a holding company, and
the holders of Avocent Corporation’s common stock immediately prior to the
transaction have substantially the same proportionate ownership and voting
control of such holding company after such transaction.


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


2.3           TERMINATION FOR CAUSE. 
Termination For Cause may be effected by the Employer at any time during
the term of this Agreement and shall be effected by thirty (30) days written
notification to the Employee from the Board of Directors of Avocent Corporation
stating the reason for termination.  Upon
Termination For Cause, the Employee immediately shall be paid 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 in accordance with the applicable plan), any benefits under any plans of
Employer or Avocent in which the Employee is a participant to the full extent of
the Employee’s rights under such plans, accrued vacation pay and any
appropriate business expenses incurred by the Employee in connection with his
duties hereunder, all to the date of termination, but the Employee shall not be
paid any other compensation or reimbursement of any kind, including without
limitation, severance compensation.


2.4           TERMINATION OTHER THAN FOR CAUSE.  Notwithstanding anything else in this
Agreement, the Employer may effect a Termination Other Than For Cause at any
time upon giving thirty (30) days written notice to the Employee of such
termination.  Upon any Termination Other
Than For Cause, the Employee shall immediately be paid 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 in
accordance with the applicable plan), any benefits under any plans of Employer
or Avocent in which the Employee is a participant to the full extent of the
Employee’s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, and all severance compensation
provided in Section 4.2, but no other compensation or reimbursement of any
kind.


2.5           TERMINATION BY REASON OF DISABILITY.  If, during the term of this Agreement, the
Employee, in the reasonable judgment of the Board of Directors of Avocent
Corporation, has failed to perform his duties under this Agreement on account
of illness or physical or mental incapacity, and such illness or incapacity
continues for a period of more than six (6) consecutive months, the Employer
shall have the right to terminate the Employee’s employment hereunder by
delivery of written notice to the Employee at any time after such six month
period and payment to the Employee of all accrued salary, bonus compensation to
the extent earned, additional bonus compensation in an amount equal to the
average annual bonus earned by the Employee as an employee of Avocent
Corporation and its affiliates and predecessors in the two (2) years 



 3
 









 


immediately preceding the date of
termination, vested deferred compensation, if any (other than pension plan or
profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of Employer or Avocent in which
the Employee is a participant to the full extent of the Employee’s rights under
such plans (including having the vesting of any awards granted to the Employee
under any Avocent stock option, restricted stock, performance share, or other
equity plans deemed and treated as fully earned and accelerated), accrued
vacation pay and any appropriate business expenses incurred by the Employee in
connection with his duties hereunder, all to the date of termination, with the
exception of medical and dental benefits which shall continue for a period of
twenty-four (24) months from the date of such notice of termination, but the
Employee shall not be paid any other compensation or reimbursement of any kind,
including without limitation, severance compensation.


2.6           TERMINATION BY REASON OF DEATH.  In the event of the Employee’s death during
the term of this Agreement, the Employee’s employment shall be deemed to have
terminated as of the last day of the month during which his death occurs and
the Employer shall pay to his estate or such beneficiaries as the Employee may
from time to time designate 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 in accordance with the
applicable plan), any benefits under any plans of Employer or Avocent in which
the Employee is a participant to the full extent of the Employee’s rights under
such plans (including having the vesting of any awards granted to the Employee
under any Avocent stock option, restricted stock, performance share, or other
equity plans deemed and treated as fully earned and accelerated), accrued
vacation pay and any appropriate business expenses incurred by the Employee in
connection with his duties hereunder, all to the date of termination, but the
Employee’s estate shall not be paid any other compensation or reimbursement of
any kind, including without limitation, severance compensation.


2.7           VOLUNTARY TERMINATION. 
Notwithstanding anything else in this Agreement, the Employee may effect
a Voluntary Termination at any time upon giving thirty (30) days written notice
to the Employer of such termination.  In
the event of a Voluntary 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 in accordance with the applicable plan), any benefits under
any plans of Employer or Avocent in which the Employee is a participant to the
full extent of the Employee’s rights under such plans, accrued vacation pay and
any appropriate business expenses incurred by the Employee in connection with
his duties hereunder, all to the date of termination, but no other compensation
or reimbursement of any kind, including without limitation, severance
compensation.


2.8           TERMINATION UPON A CHANGE IN CONTROL.  In the event of a Termination Upon a Change
in Control, the Employee shall immediately be paid 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 in accordance
with the applicable plan), any benefits under any plans of Employer or Avocent
in which the Employee is a participant to the full extent of the Employee’s
rights under such plans (including having the vesting of any awards granted to
the Employee under any Avocent stock option, restricted stock, performance
share, or other equity plans deemed and treated as fully earned and
accelerated), accrued vacation pay and any appropriate business expenses
incurred by the Employee in connection with his duties hereunder, all to the
date of termination, and all severance compensation provided in
Section 4.1, but no other compensation or reimbursement of any kind.



 4
 









 


3.     SALARY, BENEFITS AND BONUS
COMPENSATION.


3.1           BASE
SALARY.  Effective January 1, 2006, as
payment for the services to be rendered by the Employee as provided in
Section 1 and subject to the terms and conditions of Section 2, the
Employer agrees to pay to the Employee a “Base Salary” at the rate of $500,000
per annum, payable in equal bi-weekly installments.  The Base Salary for each calendar year (or
proration thereof) beginning January 1, 2006shall
be determined by the Board of Directors of Avocent Corporation upon a
recommendation of the Compensation
Committee of Avocent Corporation (the “Compensation Committee”), which
shall authorize an increase in the Employee’s Base Salary in an amount which,
at a minimum, shall be equal to the cumulative cost-of-living increment on the
Base Salary as reported in the “Consumer
Price Index for All Urban Consumers (CPI-U), All Items Index, for South Urban
Size A” published by the U.S. Department of Labor (using January 1, 2006, as
the base date for computation prorated for any partial year).  The
Employee’s Base Salary shall be reviewed annually by the Board of Directors and
the Compensation Committee of Avocent Corporation.


3.2           BONUSES.  The Employee shall be eligible to receive a
bonus for each calendar year (or portion thereof) during the term of this
Agreement and any extensions thereof, with the actual amount of any such bonus
to be determined in the sole discretion of the Compensation Committee of the
Board of Directors of Avocent Corporation based upon its evaluation of the
Employee’s performance during such year. 
All such bonuses shall be payable during the last month of the fiscal
year or within forty-five (45) days after the end of the fiscal year to which
such bonus relates.  All such bonuses
shall be reviewed annually by the Compensation Committee of Avocent Corporation.


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


(a)           THE EMPLOYEE BENEFITS.  The Employee shall be eligible to participate
in such of Avocent’s benefits and deferred compensation plans as are now
generally available or later made generally available to executive officers of
Avocent, including, without limitation, stock option, restricted stock,
performance share, and other equity plans, Section 401(k) plan, profit sharing
plans, deferred compensation plan, annual physical examinations, dental and
medical plans, personal catastrophe and disability insurance, retirement plans
and supplementary executive retirement plans, if any.  For purposes of establishing the length of
service under any benefit plans or programs of Avocent, the Employee’s
employment with the Employer (or any successor) will be deemed to have
commenced on the date that Employee first commenced employment with Employer,
which was March 4, 2002.


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


(c)           LIFE INSURANCE.  For the term of this Agreement and any
extensions thereof, the Employer shall at its expense procure and keep in
effect term life insurance on the life of the Employee, payable to such
beneficiaries as the Employee may from time to time designate, in an aggregate
amount equal to three times the Employee’s Base Salary.  Such policy 



 5
 









 


shall be owned by the Employee or by any
person or entity with an insurable interest in the life of the Employee.


(d)           REIMBURSEMENT FOR EXPENSES.  During the term of this Agreement, the
Employer or Avocent Corporation shall reimburse the Employee for reasonable and
properly documented out-of-pocket business and/or entertainment expenses
incurred by the Employee in connection with his duties under this Agreement in
accordance with Avocent’s standard reimbursement policies.


4.             SEVERANCE
COMPENSATION.


4.1           SEVERANCE COMPENSATION IN THE EVENT OF A TERMINATION UPON
A CHANGE IN CONTROL.  In the event of a
Termination Upon a Change in Control, the Employee shall be paid as severance
compensation his Base Salary (at the rate payable at the time of such
termination) for a period of twenty-four (24) months from the date of such
Termination Upon a Change in Control, on the dates specified in
Section 3.1, and the Employee shall also be paid an amount equal to the
average annual bonus earned by the Employee as an employee of Avocent Corporation
and its affiliates and predecessors in the two (2) years immediately preceding
the date of termination.  Notwithstanding
anything in this Section 4.1 to the contrary, the Employee may in the
Employee’s sole discretion, by delivery of a notice to the Employer within
thirty (30) days following a Termination Upon a Change in Control, elect to
receive from the Employer a lump sum severance payment by bank cashier’s check
equal to the present value of the flow of cash payments that would otherwise be
paid to the Employee pursuant to this Section 4.1.  Such present value shall be determined as of
the date of delivery of the notice of election by the Employee and shall be
based on a discount rate equal to the interest rate of 90-day U.S.
Treasury bills, as reported in The Wall
Street Journal (or similar publication), on the date of delivery of
the election notice.  If the Employee
elects to receive a lump sum severance payment, Avocent Corporation shall cause
the Employer to make such payment to the Employee within ten (10) days
following the date on which the Employee notifies the Employer of the Employee’s
election.  The Employee shall also be
entitled to have the vesting of any awards granted to the Employee under any
Avocent stock option, restricted stock, performance share, or other equity
plans deemed and treated as fully earned and accelerated.  The Employee shall be provided with medical
plan benefits under any health plans of Avocent or Employer in which the Employee
is a participant to the full extent of the Employee’s rights under such plans
for a period of twenty-four (24) months from the date of such Termination Upon
a Change in Control (even if Employee elects to receive a lump sum severance
payment).


4.2           SEVERANCE COMPENSATION IN THE EVENT OF A TERMINATION OTHER
THAN FOR CAUSE.  In the event of a
Termination Other Than for Cause, the Employee shall be paid as severance
compensation his Base Salary (at the rate payable at the time of such
termination) for a period of twenty-four (24) months from the date of such
termination, on the dates specified in Section 3.1, and:


Employee shall also be paid an amount equal
to the average annual bonus earned by the Employee as an employee of Avocent
Corporation and its affiliates and predecessors in the two (2) years
immediately preceding the date of termination. 
Notwithstanding anything in this Section 4.2 to the contrary, the
Employee may in the Employee’s sole discretion, by delivery of a notice to the
Employer within thirty (30) days following a Termination Other Than for Cause,
elect to receive 



 6
 









 


from the Employer a lump sum severance
payment by bank cashier’s check equal to the present value of the flow of cash
payments that would otherwise be paid to the Employee pursuant to this
Section 4.2.  Such present value
shall be determined as of the date of delivery of the notice of election by the
Employee and shall be based on a discount rate equal to the interest rate on 90-day
U.S. Treasury bills, as reported in The Wall
Street Journal (or similar publication), on the date of delivery of
the election notice.  If the Employee
elects to receive a lump sum severance payment, Avocent Corporation shall cause
the Employer to make such payment to the Employee within ten (10) days following
the date on which the Employee notifies the Employer of the Employee’s
election.  The Employee shall also be
entitled to have the vesting of any awards granted to the Employee under any
Avocent stock option, restricted stock, performance share, or other equity
plans deemed and treated as fully earned and accelerated.  The Employee shall be provided with medical
plan benefits under any health plans of Avocent or Employer in which the
Employee is a participant to the full extent of the Employee’s rights under
such plans for a period of twenty-four (24) months from the date of such
Termination Other Than for Cause (even if Employee elects to receive a lump sum
severance payment).


4.3           NO SEVERANCE COMPENSATION UNDER OTHER TERMINATION.  In the event of a Voluntary Termination,
Termination For Cause, termination by reason of the Employee’s disability
pursuant to Section 2.5, or termination by reason of the Employee’s death
pursuant to Section 2.6, the Employee or his estate shall not be paid any
severance compensation.


4.4           SECTION 409A COMPLIANCE.  Notwithstanding anything to the contrary in
this Agreement, any cash severance payments otherwise due to Employee pursuant
to Section 4 or otherwise on or within the six-month period following Employee’s
termination will accrue during such six-month period and will become payable in
a lump sum payment on the date six (6) months and one (1) day following the
date of Employee’s termination, provided, that such cash severance payments
will be paid earlier, at the times and on the terms set forth in the applicable
provisions of Section 4, if Employer reasonably determines that the imposition
of additional tax under Section 409A of the Internal Revenue Code of 1986, as
amended, will not apply to an earlier payment of such cash severance payments.  In addition, this Agreement will be deemed
amended in Employer’s reasonable discretion to the extent necessary to avoid
imposition of any additional tax or income recognition prior to actual payment
to Employee under Code Section 409A and any temporary, proposed or final
Treasury Regulations and guidance promulgated thereunder and the parties agree
to cooperate with each other and to take reasonably necessary steps in this
regard so as not to reduce the benefits provided to Employee under this
Agreement.  Employer agrees to notify
Employee of any such proposed amendments prior to implementing any such
amendment.


5.             NON-COMPETITION OBLIGATIONS.  Unless waived or reduced by the Employer or
Avocent, during the term of this Agreement and for a period of thirty-six (36)
months thereafter, the Employee will not, without the Employer’s and Avocent
Corporation’s prior written consent, directly or indirectly:


(a)          either alone or as a
partner, joint venturer, officer, director, employee, consultant, agent,
independent contractor or stockholder of any company or business, engage in any
business activity world wide which is substantially similar to or in direct
competition with any of the business activities of or services provided by
Employer or Avocent at such time. 
Notwithstanding the foregoing, the ownership by the Employee of not more
than five percent (5%) of the shares of stock of any corporation having a class
of equity securities actively traded on a 



 7
 









 


national securities exchange or on The Nasdaq
Stock Market shall not be deemed, in and of itself, to violate the prohibitions
of this Section 5; or


(b)           solicit, in any way encourage, take away, or
engage in business with customers of Employer or Avocent (or any current or
future parent, affiliate, or subsidiary of any of them) for his own benefit in
a manner competitive with the business of Employer or Avocent or for the
benefit of any person competing with the business of Employer or Avocent
worldwide; or


(c)           solicit, in any way encourage, take
away, or employ present or future employees or present or future consultants of Employer or
Avocent (or employees or consultants of any current or future
parent, affiliate or subsidiary of any of them) for his own benefit or for the
benefit of any other person.


6.             MISCELLANEOUS.


6.1           PAYMENT OBLIGATIONS. 
If litigation after a Change in Control shall be brought to enforce or
interpret any provision contained herein, the Employer and Avocent Corporation,
to the extent permitted by applicable law and the Employer’s and Avocent
Corporation’s Articles of Incorporation and Bylaws, each hereby indemnifies the
Employee for the Employee’s reasonable attorneys’ fees and disbursements
incurred in such litigation.


6.2           GUARANTEE.  Avocent
Corporation hereby unconditional and irrevocable guarantees all payment
obligations of the Employer under this Agreement, including, without
limitation, the Employer’s obligations under Sections 2, 3, 4, and 6 hereof.


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


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


6.5           ENTIRE AGREEMENT; MODIFICATIONS.  Except as otherwise provided herein, this
Agreement represents the entire understanding among the parties with respect to
the subject matter hereof, and this Agreement supersedes any and all prior
understandings, agreements (including the 2003 Employment Agreement), plans and
negotiations, whether written or oral with respect to the subject matter
hereof,and any
understandings, agreements (including the 2003 Employment Agreement), or obligations
respecting any past or future compensation, bonuses, reimbursements or other
payments to the Employee from the Employer or Avocent Corporation.  All modifications to this Agreement must be
in writing and signed by the party against whom enforcement of such
modification is sought.


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



 8
 









 




	
  If to the Employer/Avocent:

  	
  Avocent Corporation

  	
   

  
	
   

  	
  4991 Corporate
  Drive

  	
   

  
	
   

  	
  Huntsville, AL
  35805

  	
   

  
	
   

  	
  Attn:

  	
  President

  	
   

  
	
   

  	
  Copy to:

  	
  General Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  If to the Employee:

  	
  John R. Cooper

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					






 


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


6.7           HEADINGS.  The
Section headings herein are intended for reference and shall not by themselves
determine the construction or interpretation of this Agreement.


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


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


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


6.11         SURVIVAL OF EMPLOYER’S OBLIGATIONS.  The Employer’s and Avocent Corporation’s
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business, or similar event relating to
the Employer or Avocent Corporation. 
This Agreement shall not be terminated by any merger or consolidation or
other reorganization of the Employer or Avocent Corporation.  In the event any such merger, consolidation
or reorganization shall be accomplished by transfer of stock or by transfer of
assets or otherwise, the provisions of this Agreement shall be binding upon and
inure to the benefit of the surviving or resulting corporation or person.  This Agreement 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 be assignable either by 



 9
 









 


the Employer (except to an affiliate of the
Employer (including Avocent Corporation) in which event the Employer shall
remain liable if the affiliate fails to meet any obligations to 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 which taken
together shall constitute one and the same Agreement.


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


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


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


(b)   All determinations required to be made under this Section shall be
made by the Avocent Corporation’s primary independent public accounting firm,
or any other nationally recognized accounting firm reasonably acceptable to
Avocent Corporation and the Employee (the “Accounting Firm”).  Avocent Corporation shall cause the
Accounting Firm to provide detailed supporting calculations of its
determinations to the Employer and the Employee.  All fees and expenses of the Accounting Firm
shall be borne solely by the Employer. 
For purposes of making the calculations required by this Section, the
Accounting Firm may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Internal Revenue
Code, provided the Accounting Firm’s determinations must be made with
substantial authority (within the meaning of Section 6662 of the Internal
Revenue Code). The payments to which the Employee is entitled pursuant to this
Section shall be paid by the Employer and/or Avocent Corporation to the
Employee in cash and in full not later than thirty (30) calendar days following
the date the Employee becomes subject to the Excise Tax.



 10
 









 


IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.


	
  

  	
  AVOCENT HUNTSVILLE CORP.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Doyle C. Weeks

  	
   

  
	
   

  	
  Its:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AVOCENT CORPORATION:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Doyle C. Weeks

  	
   

  
	
   

  	
  Its:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ John R. Cooper

  	
   

  
	
   

  	
  John R. Cooper

  	
   

  
						



 


 



 11