Exhibit 10.3


 


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 Stephen M. Daly(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 February 8, 2005 (the “2005 Employment
Agreement”); and


WHEREAS, Employee, Employer, and Avocent Corporation now wish to
amend and restate the 2005 Employment Agreement with this Amended and Restated Employment and Noncompetition
Agreement, and Employee is willing to accept employment as Avocent’s Senior
Vice President of Corporate Strategy (and, effective January 1, 2007 and
subject to Board approval, as Executive Vice President and General Manager of
Avocent’s LANDesk Division) 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 Senior
Vice President of Corporate Strategy (and, effective January 1, 2007 and
subject to Board approval, as Executive Vice President and General Manager of
Avocent’s LANDesk Division).  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 Senior Vice President of Corporate
Strategy (and Executive Vice President and General Manager of Avocent’s
LANDesk Division).  The Employee shall report to the Chief
Executive Officer of Avocent Corporation and 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 Avocent’s Senior Vice President of Corporate Strategy (and Executive
Vice President and General Manager of Avocent’s LANDesk Division).


2.             TERM
OF EMPLOYMENT.


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



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(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.


(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 



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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)           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 



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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 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
twelve (12) 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 



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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.


2.9           REIMBURSEMENT OF RELOCATION EXPENSES.  If Employee is terminated for any reason
(other than a Termination for Cause as defined in Section 2.1(a) or a Voluntary
Termination as defined in Section 2.1(c)) at any time prior to September 1,
2007, Avocent agrees to reimburse Employee for the reasonable moving and
relocation expenses actually incurred by Employee in relocating from
Huntsville, Alabama, to the Salt Lake City, Utah, area in an amount not to
exceed Fifty Thousand Dollars ($50,000).


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
$220,000.00 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 July 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 or Avocent, including,
without limitation, stock option, restricted stock, performance share, and
other equity plans, Section 401(k) plan, profit sharing plans, deferred
compensation plan, annual physical examinations, dental and medical plans,
personal catastrophe and disability insurance, retirement plans and
supplementary 



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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 Avocent, which was October 9, 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 three (3) 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 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
twelve (12) months from the date of such Termination Upon a Change in Control,
on the dates specified in Section 3.1, and the Employee shall also be 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 twelve (12) months from the
date of such Termination Upon a Change in Control (even if Employee elects to
receive a lump sum severance payment).



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4.2           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 twelve (12)
months from the date of such termination, on the dates specified in
Section 3.1, and Employee shall also be paid an amount equal to the
average annual 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 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 twelve (12) 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,
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
twelve (12) months 



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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
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 2005
Employment Agreement), plans and negotiations, whether written or oral with
respect to the subject matter hereof,and any
understandings, agreements (including the 2005 Employment Agreement) or
obligations respecting any past or future compensation, bonuses, reimbursements
or other payments to the Employee from the Employer or Avocent Corporation; 



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provided, however, that the terms and conditions of the Confidential
Information, Invention Assignment, Noncompetition and Arbitration Agreement
with Employer (then known as Bear River Digital Corporation) relating to
confidential information and assignment of inventions (but not the other
provisions thereof) shall remain
in full force in effect.  All
modifications to the 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:


If to the Employer/Avocent:                                           Avocent
Corporation

4991 Corporate Drive

Huntsville, AL 35805

Attn:  President
Copy to:  General Counsel


If to the Employee:                                                                                            Stephen M. Daly


 


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 



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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 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 



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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.


Signature
page follows



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


 


	
  

  	
  AVOCENT HUNTSVILLE CORP.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Cooper

  	
   

  
	
   

  	
  Its:

  	
  Chairman

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AVOCENT CORPORATION:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Cooper

  	
   

  
	
   

  	
  Its:

  	
  Chairman

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Stephan M. Daly

  	
   

  
	
   

  	
  Stephan M. Daly

  	
   

  
						



 



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