Exhibit 10.4


 


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 International Ltd.,
an Irish corporation (“Employer”), Avocent Corporation, a Delaware corporation,
and Kieran MacSweeney (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, 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 Senior Vice President and the General Manager of the Avocent Desktop
Solutions Division and Managing Director of Avocent International 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 and the General Manager of the Avocent Desktop Solutions
Division and Managing Director of Avocent International.  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 and the
General Manager of the Avocent Desktop Solutions Division and Managing Director
of Avocent International.  The Employee
shall report to the Chief Executive Officer and to the President 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 Senior Vice President and the
General Manager of the Avocent Desktop Solutions Division and Managing Director
of Avocent International.


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 (i) 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 and (ii) any attempt to relocate
outside of the vicinity of Shannon, Ireland: 
(x) the Employee, (y) the Employee’s duties and responsibilities, or (z)
the Employer’s office at which Employee is employed.  Notwithstanding the foregoing, Employee
agrees that a change in his duties and responsibilities shall not result in a
constructive termination under this Section 2.1(b) unless such change results
in a substantial diminution of Employee’s duties and responsibilities.


(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



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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)           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



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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
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



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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.


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 €245,327 per annum, payable in equal bi-weekly
installments.  The Base Salary for each
calendar year (or proration thereof) beginning January 1, 2006 shall 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 Ireland as published by the Central Statistics Office of
Ireland (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 or Avocent, including, without limitation, stock option,
restricted stock, performance share, and other equity plans, Section 401(k)
plan or agreed equivalent plan, profit sharing plans, deferred compensation
plan, annual physical examinations, dental and medical plans, personal
catastrophe and disability insurance, retirement



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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 Avocent
International Ltd., which was October 29, 1996.


(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, plans and
negotiations, whether written or oral with respect to the subject matter hereof
(including the 2003 Employment Agreement),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.



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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:

  	
  Kieran MacSweeney

  






 


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 Ireland.  The Employee, the Employer, and Avocent
Corporation each hereby expressly consents to the exclusive venue of the
located in Shannon (Limerick), Ireland, 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 Shannon (Limerick), Ireland, 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.



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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 mo
re 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



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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.


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


	
  

  	
  AVOCENT INTERNATIONAL LTD.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Cooper

  
	
   

  	
  Its:

  	
  Chairman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVOCENT CORPORATION:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Cooper

  
	
   

  	
  Its:

  	
  Chairman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Kieran MacSweeney

  
	
   

  	
  Kieran MacSweeney

  



 



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