Exhibit
10.9


 


AVOCENT CORPORATION

DEFERRED COMPENSATION PLAN


 

















 


AVOCENT CORPORATION


 


DEFERRED COMPENSATION PLAN


 


Avocent Corporation, a Delaware corporation (the “Company”)
on behalf of itself and Participating Affiliates, hereby establishes this
Deferred Compensation Plan (the “Plan”), effective January 1, 2009, for
the purpose of attracting high quality executives and promoting in its key
executives and directors increased efficiency and an interest in the successful
operation of the Company.  The Plan is
intended to, and shall be interpreted to, comply in all respects with Internal
Revenue Code Section 409A and those provisions of the Employee Retirement
Income Security Act of 1974, as amended, applicable to an unfunded plan
maintained primarily to provide deferred compensation benefits for a select
group of “management or highly compensated employees.”


 


ARTICLE 1

Definitions


 


1.1           “Account(s)” shall mean the account or accounts established
for a particular Participant pursuant to Article 3 of the Plan.


 


1.2           “Administrative Committee” shall mean the Compensation
Committee of the Board of Directors of the Company or such other person or
persons appointed by the Board of Directors of the Company to administer the
Plan pursuant to Article 7 of the Plan.


 


1.3           “Base Salary” shall mean the Participant’s base annual
salary excluding incentive and discretionary bonuses, Commissions and other
non-regular forms of compensation, before reductions for contributions to or
deferrals under any pension, deferred compensation or benefit plans sponsored
by the Employer.


 


1.4           “Beneficiary” shall mean the person(s) or entity
designated as such in accordance with Article 6 of the Plan.


 


1.5           “Bonus” shall mean any amount paid to the Participant by the
Employer in the form of a discretionary or incentive compensation or any other
bonus designated by the Administrative Committee before reductions for
contributions to or deferrals under any pension, deferred compensation or
benefit plans sponsored by the Employer.


 


1.6           “Change in Control” shall mean, with respect to the Company,
after the effective date hereof, any of the following events:


 


(a)         Any person, other than
the Company, or more than one person acting as a group (a “Person”) acquires
beneficial ownership of the Company’s securities and is or thereby becomes when
such ownership is combined with stock held by such Person a beneficial owner of
securities entitling such Person to exercise twenty-five percent (25%) or more
of the combined voting power of the Company’s then outstanding stock.  For purposes of this Plan, “beneficial
ownership” shall be


 

















 


determined in accordance
with Regulation 13D of 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 an Employer’s or the Company’s
securities would be required to be reported under such Regulation 13D or any
similar successor regulation or rule.


 


(b)         Within any twenty-four
(24) month period, the individuals who were Directors of the Company at the
beginning of any such period, together with any other Directors first elected
as directors of the Company 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 the
Company.


 


(c)         The closing of any
transaction involving:


 


i.      any consolidation, merger,
or other reorganization of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the Company’s
common stock would be converted into cash, securities or other property, other
than a merger, consolidation, or other reorganization of the Company in which
the holders of the Company’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


 


ii.     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 the Company.


 


Notwithstanding the foregoing, 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
the Company is owned, directly or indirectly, by a holding company, and the
holders of the Company’s common stock immediately prior to the transaction have
substantially the same proportionate ownership and voting control of such
holding company after such transaction, and no event shall constitute a Change
in Control for purposes of this Plan if it is not a change in the ownership or
effective control of the Company, or in the ownership of a substantial portion
of the assets thereof, within the meaning of Code Section 409A and the
Treasury Regulations promulgated thereunder.


 


1.7           “Code” shall mean the Internal Revenue Code of 1986, as
subsequently amended, as interpreted by regulations, rulings, and applicable
authorities.


 


1.8           “Commissions” shall mean commissions payable to the
Participant for the applicable Plan Year (as determined by the Administrative
Committee in compliance with Code Section 409A) before reductions for
contributions to or deferrals under any pension, deferred compensation or
benefit plans sponsored by the Employer.


 


1.9           “Company” shall mean Avocent Corporation.


 


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1.10         “Company
Contribution” shall mean the contribution by the Employer to
Participant’s Account pursuant to Section 3.2 of the Plan.


 


1.11         “Company
Contribution Account” shall mean the Account established for Company
Contributions pursuant to Article 4 of the Plan.


 


1.12         “Compensation”
shall mean Base Salary, Bonus, Commissions and/or Director Fees eligible for
deferral for a particular Plan Year under Section 3.1.1.


 


1.13         “Crediting Rate” shall mean the notional gains and losses
credited on the Participant’s Account balance which are based on the
Participant’s choice among the investment alternatives made available by the
Administrative Committee pursuant to Article 4 of the Plan.


 


1.14         “Deferral Account”
shall mean the Account established for Participant deferrals pursuant to Article 4
of the Plan.


 


1.15         “Director Fees” shall mean the cash compensation earned by
an Eligible Director for services performed as a member of the Board of
Directors of the Company or Participating Affiliate  such
as retainer fees and meeting fees which are specified by the Administrative
Committee as eligible for deferral under the Plan.  The Administrative Committee, in its complete
and sole discretion, may allow separate deferral elections with respect to different
types of Director’s Fees as specified in Participant Election materials.


 


1.16         “Disability” shall be interpreted consistent with the
requirements of Code Section 409A and shall mean that the Participant (i) is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than
twelve (12) months, or (ii) is, by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12) months,
receiving income replacement benefits for a period of not less than three
months under an accident and health plan covering employees of the Participant’s
Employer. The Administrative Committee may require that the Participant submit
evidence of such qualification for disability benefits in order to determine
that the Participant is disabled under this Plan.


 


1.17         “Distributable Amount” shall mean the vested balance in the
applicable Account as determined under Article 4.


 


1.18         “Eligible Executive or Director” shall mean a management
level or highly compensated executive  or Director of
the Company or a Participating
Affiliate selected by the Administrative Committee to be eligible to
participate in the Plan.


 


1.19         “Employer” shall mean the Company or Participating Affiliate
for which the relevant Participant performs services and from which such
Participant is entitled to the payment of Base Salary, Bonus, Commission,
and/or Director’s Fees.


 


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1.20         “ERISA” shall mean the Employee Retirement Income Security
Act of 1974, as amended, as interpreted by regulations, rulings and applicable
authorities.


 


1.21         “Hardship Distribution” shall mean a distribution by reason
of an Unforeseeable Emergency pursuant to Section 5.5 of the Plan.


 


1.22         “Involuntary Termination” shall mean a Termination of
Service which is either (a) initiated by the Employer, other than a
Termination for Cause, or (b) initiated by the Participant for good reason
due to a material diminution of the Participant’s title, responsibilities,
position or salary, a significant negative change in the location or conditions
of the Participant’s workplace or any other material breach of the Participant’s
employment or service agreement by the Employer without the Participant’s prior
consent, assuming that the Participant notifies the Employer of such adverse
circumstance within ninety (90) days of the initial occurrence, the Employer
does not cure the problem within thirty (30) days of receipt of such notice,
and Termination of Service is effective within twelve (12) months of such
initial occurrence.


 


1.23         “Participant” shall mean an Eligible Executive or Director
who has elected to participate and has made a Participant Election pursuant to Article 2
of the Plan or has received a Company Contribution.


 


1.24         “Participant Election” shall mean an election regarding
deferrals, Company Contributions and/or distributions submitted by the
Participant to the Administrative Committee on a timely basis pursuant to Article 3
of the Plan, which may include contributions, benefits, terms and conditions
unique to such Participant.  The
Participant Election may take the form of an electronic communication according
to specifications established by the Administrative Committee.


 


1.25         “Participating
Affiliate” shall mean an affiliate of the Company that has been designated and approved by the
Administrative Committee as a Participating Affiliate. In order to become a
Participating Affiliate, such entity shall deliver to the Administrative
Committee a corporate resolution evidencing adoption of the Plan by the Board
of Directors of the Participating Affiliate. 
Each Participating Affiliate, by adopting the Plan, agrees to comply
with any requirements of the Administrative Committee with respect to
administration of the Plan and authorizes the Administrative Committee and/or
the Company to act as its agent in all transactions in which the Administrative
Committee believes such agency will facilitate administration of the Plan,
including amendment or termination of the Plan. 
A Participating Affiliate may independently terminate its participation
in the Plan under the same terms and conditions provided in Section 9.1 of
the Plan.


 


1.26         “Payment Date” shall mean the date by which a lump sum
payment shall be made or the date by which installment payments shall commence.
Unless otherwise specified, the Payment Date shall be the last day of the sixth
(6th) month
commencing after the event triggering the payout occurs. Subsequent
installments shall be made in March of each succeeding Plan Year.  In the case of death, the Administrative
Committee shall be provided with documentation reasonably necessary to
establish the fact of the Participant’s death. 
The Payment Date of a Scheduled Distribution shall be March of the
Plan Year in which the 


 


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distribution is scheduled to commence. 
Notwithstanding the foregoing, the Payment Date shall not be before the
earliest date on which benefits may be distributed under Code Section 409A
without the imposition of excise taxes, as reasonably determined by the
Administrative Committee.


 


1.27         “Plan Year” shall mean the calendar year.


 


1.28         “Retirement” shall mean Termination of Employment on or
after the Retirement Eligibility Date.


 


1.29         “Retirement Eligibility Date” shall mean the date on which
the Participant attains age sixty-five (65).


 


1.30         “Scheduled Distribution” 
shall mean the distribution elected by the Participant pursuant to Section 5.4
of the Plan.


 


1.31         “Scheduled Distribution Account”  shall mean an Account established for amounts
payable in the form of a Scheduled Distribution pursuant to Article 4 of
the Plan.


 


1.32         “Termination of Service” shall mean, with respect to a given
Participant, the date when, for any reason, including by reason of Retirement,
death or Disability, (but excluding approved leaves of absence of six (6) months
or less, or a longer period if the right to return to employment after such
period is protected by law or contract) the level of services provided by such
Participant to the Employer (or any affiliate under common ownership aggregated
with the Company for purposes of Code Section 409A) in any capacity has
permanently decreased to a level equal to no more than 20 percent (20%) of the
average level of services performed by such Participant for the Employer during
the immediately preceding thirty-six (36) month period (or the Participant’s
full period of services to the Employer, if a lesser period).  A Participant who is providing services as a
Director shall be considered terminated when such Participant ceases to be a
member of the Board of Directors of the Employer.  Notwithstanding the foregoing, if
the Participant provides services for the Employer as both an employee and a
Director, to the extent permitted under Code Section 409A and applicable
authorities, the services provided by such Participant as a Director shall not
be taken into account in determining whether the Participant has experienced a
Termination of Service as an employee, and the services provided by such
Participant as an employee shall not be taken into account in determining
whether the Participant has experienced a Termination of Service as a Director.


 


1.33         “Unforeseeable Emergency”  shall mean a
severe financial hardship to the Participant resulting from an illness or
accident involving the Participant, the Participant’s spouse, a Beneficiary, or
the Participant’s dependent (as defined in Code Section 152(a)), loss of
the Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstance arising as a result of events beyond the control of
the Participant (but shall in all events correspond to the meaning of the term “unforeseeable
emergency” in Code Section 409A and applicable authorities).


 


1.34         “Valuation Date” shall mean the date through which earnings
are credited and shall be as close to the payout or other event triggering valuation as is
administratively feasible 


 


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but in no event earlier than the last day of
the month preceding the month in which the statement or payment triggering
valuation occurs.


 


ARTICLE 2

Participation


 


2.1           Commencement
of Participation.  An Eligible
Executive or Director shall become a Participant in the Plan by completing and
submitting to the Administrative Committee the appropriate Participant
Elections, including such other documentation and information as the
Administrative Committee may reasonably request, during the enrollment period
established by the Administrative Committee or has received a Company
Contribution to the Plan.


 


2.2           Duration
of Participation.  A Participant
shall continue to be eligible to make deferrals and receive Company
Contributions under Article 3 until the earlier of the Participant’s
Termination of Service or such time as the Administrative Committee shall
determine that the Participant is no longer an Eligible Executive or
Director.  Notwithstanding the foregoing,
the Participant’s deferral elections shall continue in place with respect to
Compensation earned for the Plan Year in which Termination of Service or
termination of eligibility shall occur (excluding any severance benefits). A
terminated Participant’s Accounts shall continue to be credited with notional
earnings as provided in Article 4 until such time as all of the
Participant’s Accounts shall have been fully distributed.


 


ARTICLE 3

Deferrals, Contributions, and Elections


 


3.1           Elections
to Defer Compensation.


 


3.1.1        Form of Elections.  A Participant may only elect to defer
Compensation attributable to services provided after the time an election is
made.  Elections shall take the form of (a) a
flat dollar amount which must be in excess of two thousand dollars ($2,000) for
the Plan Year, (b) a whole percentage of Compensation, (c) a whole
percentage of Compensation up to a maximum dollar amount, or (d) a whole
percentage of that portion of Compensation in excess of a dollar amount for the
Plan Year (in each case, less applicable payroll withholding requirements for
Social Security and income taxes and employee benefit plans, as determined in
the sole and absolute discretion of the Administrative Committee).  Notwithstanding the previous sentence, any
election involving a percentage of Compensation or Compensation in excess of a
dollar amount must satisfy the condition that the amount which would be
deferred, if the Participant’s Compensation for the Plan Year were equal to the
amount of such Participant’s Compensation for the immediately preceding Plan
Year, must be not less than two thousand dollars ($2,000). The Administrative
Committee may further limit the minimum or maximum amount deferred by any
Participant or group of Participants, or waive the foregoing limits for any
Participant or group of Participants, for any reason.


 


3.1.2        Timing and Duration of Deferral Election.  An Eligible Executive or Director shall make
an initial election to defer Compensation during the enrollment period
established by the Administrative Committee prior to the effective date of the
Participant’s commencement of participation in the Plan and shall apply only to
Compensation for services 


 


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performed after such deferral election is processed.  The enrollment period shall generally occur
prior to the beginning of the applicable Plan Year, but the Administrative
Committee may establish a special enrollment period ending no later than thirty
(30) days after an Eligible Executive first becomes eligible to participate in
the Plan, to allow deferrals by such Eligible Executive of amounts earned
during the balance of such Plan Year (as long as such Eligible Executive is not
already a participant in another plan or arrangement which is aggregated with
this Plan for purposes of Code Section 409A).  A Participant may increase, decrease,
terminate or recommence a deferral election with respect to Compensation for
any subsequent Plan Year in which the Participant is eligible to participate in
the Plan by filing a Participant Election during the enrollment period
established by the Administrative Committee prior to the beginning of the Plan
Year in which the applicable services are performed, which election shall be
effective on the first day of the next following Plan Year.  In the absence of an affirmative election by
the Participant to the contrary, the deferral election for the prior Plan Year
shall continue in effect for future Plan Years. 
After the beginning of the Plan Year (or the effective date of a
mid-year commencement of participation), deferral elections with respect to Compensation
for services performed during such Plan Year shall be irrevocable except in the
event of an Unforeseeable Emergency or Disability as specified in Article 5.  Notwithstanding the foregoing, the
Administrative Committee may allow deferral elections to be made or revised no
later than six (6) months before the end of the performance period solely
with respect to any “performance-based compensation” as defined in Code Section 409A
and applicable Treasury Regulations that is based on services performed over a
period of at least twelve (12) months.


 


3.2           Company
Contributions.


 


3.2.1        Discretionary Company Contributions.  The Employer shall have the discretion to
make Company Contributions to the Plan at any time on behalf of any
Participant.  Company Contributions shall
be made in the complete and sole discretion of the Employer and no Participant
shall have the right to receive any Company Contribution in any particular Plan
Year, regardless of whether Company Contributions are made on behalf of other
Participants.


 


3.3           Distribution
Elections.


 


3.3.1        Initial Election.  At the time of making a deferral election
under the Plan, the Participant shall designate the time and form of
distribution of deferrals made pursuant to such election (together with any
earnings credited thereon) from among the alternatives specified in Section 5.1
or 5.2.


 


3.3.2        Modification of Election.  A new distribution election may be made at
the time of subsequent deferral elections with respect to deferrals in Plan
Years beginning after the election is made. 
However, a distribution election with respect to previously deferred
amounts may only be changed under the terms and conditions specified in Code Section 409A.  Except as expressly provided in Article 5
(or otherwise permitted under Code Section 409A and applicable authorities),
no acceleration of a distribution is permitted. 
A subsequent election that delays payment or changes the form of payment
shall be permitted if, and only if, all of the following requirements are met:


 


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3.3.2.1     the new election does not take effect until at
least twelve (12) months after the date on which the new election is made;


 


3.3.2.2     in the case of payments made on account of
Termination of Service (other than by reason of death or Disability), a Change
in Control or a Scheduled Distribution, the new election delays payment for at
least five (5) years from the date that payment would otherwise have been
made, absent the new election; and


 


3.3.2.3     in the case of payments made according to a
Scheduled Distribution, the new election is made not less than twelve (12)
months before the date on which payment would have been made (or, in the case
of installment payments, the first installment payment would have been made)
absent the new election.


 


For
purposes of application of the above change limitations, installment payments
shall be treated as a single payment and changes shall be made separately with
respect to each Account.  Election
changes made pursuant to this Section shall be made in accordance with rules established
by the Administrative Committee, and shall comply with all requirements of Code
Section 409A and applicable authorities.


 


ARTICLE 4

Accounts, Crediting and Vesting


 


4.1           Accounts.  Solely for recordkeeping purposes at least
two bookkeeping Accounts shall be maintained for each Participant under the
Plan, a Deferral Account and a Company Contributions Account.  The Deferral Account shall be maintained for
the Participant and credited with the Participant’s deferrals as directed in
the applicable Participant Election for such the applicable deferral Plan Year.  A separate Company Contribution Account shall be
maintained for the Participant and shall be credited with any Company
Contributions credited on behalf of such Participant at the time specified by
the Administrative Committee.  In
addition, a Participant may also establish one or more Scheduled Distribution
Accounts at the time of making a deferral election which shall be credited with
the Participant’s deferrals directed to such Account(s) at the time such
amounts would otherwise have been paid to the Participant.  Each Account may be further divided
into separate subaccounts for investment purposes (“investment fund subaccounts”)
to accommodate the direction of investments as provided in Section 4.2.


 


4.2           Investment
Direction and Crediting Rate. 
Amounts in a Participant’s Accounts shall be credited with notional
earnings or losses based on the Participant’s choice among the investment
alternatives or “funds” made available from time to time by the Administrative
Committee. The Administrative Committee shall establish a procedure by which a
Participant may choose between investment funds specified by the Administrative
Committee and may change investment elections at least quarterly, subject to
administrative feasibility.  The
Participant’s Account balance shall reflect the earnings or losses on the
investment funds selected by the Participant. 
If an investment fund selected by a Participant sustains a loss, the
Participant’s Account shall be reduced to reflect such loss.  If the Participant fails to elect an
investment alternative for a particular Account or investment subaccount, the
Crediting Rate shall be based on the default investment alternative selected
for this purpose by the 


 


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Administrative Committee.  The
Participant’s choice among investments shall be solely for purposes of
calculation of a notional Crediting Rate on a Participant’s Accounts.  The Employer shall have no obligation to set
aside or invest funds as directed by the Participant and, if the Employer
elects to invest funds as directed by the Participant, the Participant shall
have no more right to such investments than any other unsecured general
creditor.  During payout, the Participant’s
Account shall continue to be credited at the Crediting Rate selected by the
Participant from among the investment alternatives or rates made available by
the Administrative Committee for such purpose. 
Installment payments shall be recalculated annually by dividing the
account balance by the number of payments remaining, without regard to
anticipated earnings or in any other reasonable manner as may be determined
from time to time by the Administrative Committee.


 


4.3           Crediting
of Accounts.  A Participant’s
Accounts shall be credited as follows:


 


4.3.1        Participant Deferrals.  On or before the third (3rd) business day after amounts would
otherwise have been paid to the Participant, the Administrative Committee shall
credit the Participant’s applicable Account with an amount equal to
Compensation deferred by the Participant and shall allocate such amount to
investment subaccounts in accordance with the Participant’s election under Section 4.2;


 


4.3.2        Company Contributions.  On the date specified by the Administrative
Committee for the crediting of a Company Contribution to the Plan on behalf of
a Participant, the Administrative Committee shall credit the Participant’s
Company Contributions Account with an amount equal to the Company Contribution
and shall allocate such amount to investment subaccounts in accordance with the
Participant’s election under Section 4.2.


 


4.3.3        Distributions.  Distributions shall be deducted by the
Administrative Committee from the applicable Account as of the end of the day
on which such distributions are made.


 


4.3.4        Notional Earnings or Losses.  Each business day, each investment fund
subaccount of each of a Participant’s Accounts shall be credited with earnings
or losses in an amount equal to that determined by multiplying the balance
credited to such investment fund subaccount as of the prior day, less any
distributions valued as of the end of the prior day, by the earnings rate for
the corresponding fund as determined by the Administrative Committee.


 


4.3.5        Separate Accounting for Scheduled
Distributions.  In the event that a
Participant elects a Scheduled Distribution for a given Plan Year’s deferral of
Compensation, all amounts attributed to the deferral of Compensation for such
Plan Year shall be accounted for in a manner which allows separate accounting
for the deferral of Compensation and investment gains and losses associated
with amounts allocated to each such separate Scheduled Distribution.


 


4.4           Vesting.  The Participant shall be vested at all times
in amounts credited to the Participant’s Deferral Account. Each Company
Contribution and earnings credited thereon shall vest over a period of five (5) Plan
Years unless otherwise specified by the Administrative Committee at the time
such Company Contribution is credited. 
Each annual Company Contribution, unless otherwise specified by the
Administrative Committee at the time such


 


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Company
Contribution is credited, shall vest over the five (5) Plan Years
commencing with the Plan Year for which the Company Contribution is made
according to the following vesting schedule:


 


	
  Plan Year

  	
   

  	
  Percentage of

  	
   

  
	
  Of Contribution

  	
   

  	
  Contribution Vested

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1st

  	
   

  	
  20

  	
  %

  
	
  2nd

  	
   

  	
  40

  	
  %

  
	
  3rd

  	
   

  	
  60

  	
  %

  
	
  4th

  	
   

  	
  80

  	
  %

  
	
  5th

  	
   

  	
  100

  	
  %

  



 


The prior vesting
schedule shall be accelerated and the Participant shall be fully vested in his
or her total Company Contribution Account balance in the event of the
Participant’s death, Disability or Retirement.


 


4.5          Statement
of Accounts.  The Administrative
Committee shall make available to each Participant electronic statements at
least quarterly setting forth the Participant’s Account balances as of the end
of each calendar quarter.


 


ARTICLE 5


Distributions and Benefits


 


5.1          Retirement
Distributions.  Except as otherwise
provided herein, in the event of a Participant’s Retirement, the Distributable
Amount credited to the Participant’s Deferral Account and Company Contributions
Account shall be paid to the Participant in substantially equal installments
over ten (10) years commencing on the Payment Date following the
Participant’s Termination of Service, unless the Participant has made an
alternative benefit election on a timely basis pursuant to Section 3.3 to
receive the Retirement and/or Disability benefits in the form of a single lump
sum or in substantially equal annual installments over up to twenty (20) years.


 


5.2          Termination
Distributions.  Except as provided in
Section 5.4, in the event of a Participant’s Termination of Service by
reason of Disability or Termination of Service other than by reason of
Retirement or death, the Distributable Amount credited to all of the
Participant’s Deferral Account and Company Contributions Account shall be paid
in a single lump sum on the Payment Date following the Retirement Eligibility
Date.


 


5.3          Death
Benefits.  In the event of the
Participant’s death prior to the complete payment of all benefits payable under
the Plan, the Employer shall pay to the Participant’s Beneficiary a death
benefit equal to the Distributable Amount of all of the Participant’s Accounts
in a single lump sum on the Payment Date following the Participant’s death.


 


5.4          Scheduled
Distributions.


 


5.4.1        Scheduled
Distribution Election.  Each
Participant shall be entitled to elect in accordance with Section 3.3 to
establish one or more Scheduled Distribution Accounts to 


 


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receive a
Scheduled Distribution of Participant deferrals (but not Company Contributions)
in January of any specified Plan Year. The Participant shall receive the
Scheduled Distribution in a single lump sum. 
A Participant’s Scheduled Distribution commencement date with respect to
a Scheduled Distribution Account shall be no earlier than two (2) years
from the last day of the Plan Year in which deferrals are credited to such
Account. After a Scheduled Distribution Account has been established,
additional deferrals may be allocated to such Account for any Plan Year that
precedes the Plan Year in which distributions from such Account as scheduled to
commence.  A Participant may delay
payment of a Scheduled Distribution Account, provided such extension complies
with the change requirements of Section 3.3.


 


5.4.2        Termination of
Service.  In the event of a
Participant’s Termination of Service prior to commencement of a Scheduled
Distribution, the Scheduled Distributions shall continue to be paid at the same
time and in the same form as they would have been paid to the Participant had
the Participant not terminated service. 
Notwithstanding the forgoing, in the event of the Participants death
prior to the commencement of a Scheduled Distribution, benefits payable from
such Account shall be distributed in the form applicable to such death under
Service under Section 5.3 above.


 


5.5          Hardship
Distribution.  Upon a finding that
the Participant (or, after the Participant’s death, a Beneficiary) has suffered
an Unforeseeable Emergency, subject to compliance with Code Section 409A
the Administrative Committee may, at the request of the Participant or
Beneficiary, approve a complete cessation of current deferrals under the Plan
or accelerate distribution of benefits in the amount reasonably necessary to
alleviate such Financial Hardship subject to the following conditions:


 


5.5.1        Form of
Request.  The request to take a
Hardship Distribution shall be made by filing a form provided by and filed with
the Administrative Committee prior to the end of any calendar month.


 


5.5.2        Amount of
Distribution.  The amount distributed
pursuant to this Section with respect to an Unforeseeable Emergency shall
not exceed the amount necessary to satisfy such financial emergency plus
amounts necessary to pay taxes reasonably anticipated as a result of the
distribution, after taking into account the extent to which such hardship is or
may be relieved through reimbursement or compensation by insurance or otherwise
or by liquidation of the Participant’s assets (to the extent the liquidation of
such assets would not itself cause severe financial hardship).


 


5.5.3        Form and
Timing of Payment.  The amount
determined by the Administrative Committee as a Hardship Distribution shall be
paid in a single cash lump sum as soon as practicable after the end of the calendar
month in which the Hardship Distribution election is made and approved by the
Administrative Committee.


 


5.6          Small
Benefit Exception.  Notwithstanding
the foregoing and the provisions of Article 5, in the event the sum of all
benefits payable to the Participant from all of the Participant’s Accounts at
the time of the Participant’s Termination of Service is less than Five Thousand
Dollars ($5,000) for the calendar year of payment, the Administrative Committee
may, in its complete and sole discretion, either (a)  pay all benefits to
the Participant under the 


 


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Plan in a single
lump sum on the Settlement Date following Termination of Employment or (b) charge
a reasonable yearly administrative fee against the Participant’s Accounts for
maintaining such Accounts.


 


5.7          Distribution
on Change in Control.  In the event
that the Participant has made a timely election in accordance with Section 3.3
to receive an accelerated distribution from a particular Account upon a Change
in Control, then  if a Change in
Control occurs before the applicable Account has been fully distributed, the
remaining balance of such Account shall be distributed in the form of a single
lump sum payable in the fifteenth (15th) month following the month in which such
Change in Control occurs, unless the Participant makes a timely election during
the first three (3) months following the Change in Control in compliance
with Section 3.3 to delay commencement of benefits from such Account by a minimum
of five (5) years and to receive the benefits in the form of a single lump
sum or over a period of up to fifteen (15) years.


 


ARTICLE
6


Payee
Designations and Limitations


 


6.1          Beneficiaries.


 


6.1.1        Beneficiary
Designation.  The Participant shall
have the right, at any time, to designate any person(s), entity or trust as
Beneficiary (both primary and contingent) to whom payment under the Plan shall
be made in the event of the Participant’s death.  The Beneficiary designation shall be
effective when it is submitted to and acknowledged by the Administrative
Committee during the Participant’s lifetime in the format prescribed by the
Administrative Committee.


 


6.1.2        Absence of Valid
Designation.  If a Participant fails
to designate a Beneficiary as provided above, or if every person designated as
Beneficiary predeceases the Participant or dies prior to complete distribution
of the Participant’s benefits, then the Administrative Committee shall direct
the distribution of such benefits to the Participant’s estate.


 


6.2          Payments
to Minors.  In the event any amount
is payable under the Plan to a minor, payment shall not be made to the minor,
but instead be paid (a) to that person’s living parent(s) to act as
custodian, (b) if that person’s parents are then divorced, and one parent
is the sole custodial parent, to such custodial parent, to act as custodian, or
(c) if no parent of that person is then living, to a custodian selected by
the Administrative Committee to hold the funds for the minor under the Uniform
Transfers or Gifts to Minors Act in effect in the jurisdiction in which the
minor resides.  If no parent is living
and the Administrative Committee decides not to select another custodian to
hold the funds for the minor, then payment shall be made to the duly appointed
and currently acting guardian of the estate for the minor or, if no guardian of
the estate for the minor is duly appointed and currently acting within sixty
(60) days after the date the amount becomes payable, payment shall be deposited
with the court having jurisdiction over the estate of the minor.


 


6.3          Payments
on Behalf of Persons Under Incapacity. 
In the event that any amount becomes payable under the Plan to a person
who, in the sole judgment of the Administrative 


 


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Committee, is
considered by reason of physical or mental condition to be unable to give a
valid receipt therefore, the Administrative Committee may direct that such
payment be made to any person found by the Administrative Committee, in its
sole judgment, to have assumed the care and guardianship of such person.  Any payment made pursuant to such
determination shall constitute a full release and discharge of any and all
liability of the Administrative Committee and the Company under the Plan.


 


6.4          Inability
to Locate Payee.  In the event that
the Administrative Committee is unable to locate a Participant or Beneficiary
within two (2) years following the scheduled Payment Date, the amount
allocated to the Participant’s Deferral Account shall be forfeited.  If, after such forfeiture, the Participant or
Beneficiary later claims such benefit, such benefit shall be reinstated without
interest or earnings.


 


ARTICLE
7


Administration/Claims
Procedures


 


7.1          Administration.  The Plan shall be administered by the
Administrative Committee, which shall have the exclusive right and full
discretion (i) to appoint agents to act on its behalf, (ii) to
interpret the Plan, (iii) to decide any and all matters arising hereunder
(including the right to remedy possible ambiguities, inconsistencies, or
omissions), (iv) to make, amend and rescind such rules as it deems
necessary for the proper administration of the Plan and (v) to make all
other determinations and resolve all questions of fact necessary or advisable
for the administration of the Plan, including determinations regarding
eligibility for benefits payable under the Plan.  All interpretations by the Administrative
Committee with respect to any matter hereunder shall be final, conclusive and
binding on all persons affected thereby. 
No member of the Administrative Committee or agent thereof shall be
liable for any determination, decision, or action made in good faith with
respect to the Plan.  Each Employer and
Participating Affiliate and the Company will indemnify and hold harmless the
members of the Administrative Committee from and against any and all
liabilities, costs, and expenses incurred by such persons as a result of any
act or omission, in connection with the performance of such persons’ duties,
responsibilities, and obligations under the Plan, other than such liabilities,
costs, and expenses as may result from the bad faith, willful misconduct, or
criminal acts of such persons.


 


7.2          Claims
Procedure.  Any Participant, former
Participant or Beneficiary may file a written claim with the Administrative
Committee setting forth the nature of the benefit claimed, the amount thereof,
and the basis for claiming entitlement to such benefit.  The Administrative Committee shall determine
the validity of the claim and communicate a decision to the claimant promptly
and, in any event, not later than ninety (90) days after the date of the
claim.  The claim may be deemed by the
claimant to have been denied for purposes of further review described below in
the event a decision is not furnished to the claimant within such ninety (90)
day period.  If additional information is
necessary to make a determination on a claim, the claimant shall be advised of
the need for such additional information within forty-five (45) days after the
date of the claim.  The claimant shall
have up to one hundred and eighty (180) days to supplement the claim
information, and the claimant shall be advised of the decision on the claim
within forty-five (45) days after the earlier of the date the supplemental
information is supplied or the end of the one hundred and eighty (180) day
period.  Every claim for benefits that is
denied shall be 


 


13

















 


denied by written
notice setting forth in a manner calculated to be understood by the claimant (i) the
specific reason or reasons for the denial, (ii) specific reference to any
provisions of the Plan (including any internal rules, guidelines, protocols,
criteria, etc.) on which the denial is based, (iii) description of any
additional material or information that is necessary to process the claim, and (iv) an
explanation of the procedure for further reviewing the denial of the claim and
shall include an explanation of the claimant’s right to submit the claim for
binding arbitration in the event of an adverse determination on review.


 


7.3          Review
Procedures.  Within sixty (60) days
after the receipt of a denial on a claim, a claimant or his/her authorized
representative may file a written request for review of such denial.  Such review shall be undertaken by the
Administrative Committee and shall be a full and fair review. The claimant
shall have the right to review all pertinent documents.  The Administrative Committee shall issue a
decision not later than sixty (60) days after receipt of a request for review
from a claimant unless special circumstances, such as the need to hold a
hearing, require a longer period of time, in which case a decision shall be
rendered as soon as possible but not later than one hundred and twenty (120)
days after receipt of the claimant’s request for review.  The decision on review shall be in writing
and shall include specific reasons for the decision written in a manner
calculated to be understood by the claimant with specific reference to any
provisions of the Plan on which the decision is based and shall include an
explanation of the claimant’s right to submit the claim for binding arbitration
in the event of an adverse determination on review.


 


ARTICLE
8


Conditions
Related to Benefits


 


8.1          Nonassignability.  The benefits provided under the Plan may not
be alienated, assigned, transferred, pledged or hypothecated by any person, at
any time, or to any person whatsoever. 
Those benefits shall be exempt from the claims of creditors or other
claimants of the Participant or Beneficiary and from all orders, decrees,
levies, garnishments or executions to the fullest extent allowed by law.


 


8.2          No
Right to Employer or Company Assets. 
The benefits paid under the Plan shall be paid from the general funds of
the Employer, and the Participant and any Beneficiary shall be no more than
unsecured general creditors of the Employer with no special or prior right to
any assets of the Employer, the Company or any Participating Affiliate for payment
of any obligations hereunder.


 


8.3          Protective
Provisions.  The Participant shall
cooperate with the Employer by furnishing any and all information requested by
the Administrative Committee, in order to facilitate the payment of benefits
hereunder, taking such physical examinations as the Administrative Committee
may deem necessary, consenting to insurance coverage and taking such other
actions as may be requested by the Administrative Committee.  If the Participant refuses to so cooperate,
the Employer shall have no further obligation to the Participant under the
Plan.


 


8.4          Withholding.  The Participant shall make appropriate
arrangements with the Employer for satisfaction of any federal, state or local
income tax withholding requirements, 


 


14

















 


Social Security
and other employee tax or other requirements applicable to the deferral,
crediting, vesting or payment of benefits under the Plan.  There shall be deducted from each payment
made under the Plan or any other Compensation (including Company Contributions)
payable to the Participant (or Beneficiary) all taxes which are required to be
withheld by the Employer in respect to such payment or this Plan.  The Employer shall have the right to reduce
any payment (or other Compensation) by the amount of cash sufficient to provide
the amount of said taxes.


 


8.5          Receipt
or Release.  Any payment made in good
faith to a Participant or the Participant’s Beneficiary shall, to the extent
thereof, be in full satisfaction of all claims against the Administrative
Committee, its members, the Employer, any Participating Affiliates and the
Company.  The Administrative Committee
may require such Participant or Beneficiary, as a condition precedent to such
payment, to execute a receipt and release to such effect.


 


8.6          Trust.  The Employer shall be responsible for the
payment of all benefits under the Plan. 
At its discretion, the Employer may establish one or more grantor trusts
for the purpose of providing for the payment of benefits under the Plan.  Such trust or trusts may be irrevocable, but
the assets thereof shall be subject to the claims of the Employer’s
creditors.  Neither such trust or trusts,
nor the assets thereof, however, shall be located outside of the United States.  Benefits paid to the Participant from any
such trust or trusts shall be considered paid by the Employer for purposes of
meeting the obligations of the Employer under the Plan.


 


ARTICLE
9


Miscellaneous


 


9.1          Amendment
or Termination of Plan.  The Employer
may, at any time, direct the Administrative Committee to amend or terminate the
Plan, except that no such amendment or termination may reduce a Participant’s
Account balances.  If the Employer
terminates the Plan, no further amounts shall be deferred hereunder, and
amounts previously deferred or contributed to the Plan shall be fully vested
and shall be paid in accordance with the provisions of the Plan as scheduled
prior to the Plan termination. 
Notwithstanding the foregoing, to the extent permitted under Code Section 409A
and applicable authorities, the Employer may, in its complete and sole
discretion, accelerate distributions under the Plan in the event of a “change
in ownership” or change in “effective control” of the Company or a “change in
ownership of a substantial portion of assets” or under such other terms and
conditions as may be specifically authorized under Code Section 409A and
applicable authorities.


 


9.2          Errors
in Account Statements, Deferrals or Distributions.  In the event an error is made in an Account
statement, such error shall be corrected on the next statement following the
date such error is discovered.  In the
event of an error in deferral amount, consistent with and as permitted by any
correction procedures established under Code Section 409A, the error shall
be corrected immediately upon discovery by, in the case of an excess deferral,
distribution of the excess amount to the Participant, or, in the case of an
under deferral, reduction of other compensation payable to the Participant.  In the event of an error in a distribution,
the over or under payment shall be corrected by payment to or collection from
the Participant consistent with any correction procedures established under
Code Section 409A, immediately upon the discovery of such error.  In the event of an overpayment, the Employer
may, at its discretion, 


 


15

















 


offset other
amounts payable to the Participant from the Employer (including but not limited
to salary, bonuses, expense reimbursements, severance benefits or other
employee compensation benefit arrangements, as allowed by law and subject to
compliance with Code Section 409A) to recoup the amount of such
overpayment(s).


 


9.3          Employment
Not Guaranteed.  Nothing contained in
the Plan nor any action taken hereunder shall be construed as a contract of
employment or for services, or as giving any Participant any right to continue
the provision of services in any capacity whatsoever to the Employer, any
Participating Affiliate, or the Company.


 


9.4          Successors
of the Company.  The rights and
obligations of the Employer under the Plan shall inure to the benefit of, and
shall be binding upon, the successors and assigns of the Employer.


 


9.5          Notice.  Any notice or filing required or permitted to
be given to the Employer or the Participant under this Agreement shall be
sufficient if in writing and hand-delivered, or sent by registered or certified
mail to, in the case of the Employer, the principal office of the Company,
directed to the attention of the Administrative Committee, and in the case of
the Participant, to the last known address of the Participant indicated on the
employment records of the Employer.  Such
notice shall be deemed given as of the date of delivery or, if delivery is made
by mail, as of the date shown on the postmark on the receipt for registration
or certification.  Notices to the Company
may be permitted by electronic communication according to specifications
established by the Administrative Committee.


 


9.6          Headings.  Headings and subheadings in this Plan are
inserted for convenience of reference only and are not to be considered in the
construction of the provisions hereof.


 


9.7          Gender,
Singular and Plural.  All pronouns
and any variations thereof shall be deemed to refer to the masculine, feminine,
or neuter, as the identity of the person or persons may require.  As the context may require, the singular may
be read as the plural and the plural as the singular.


 


9.8          Validity.  In the event any provision of the Plan is
held invalid, void or unenforceable, the same shall not affect, in any respect
whatsoever, the validity of any other provisions of the Plan.


 


9.9          Waiver
of Breach.  The waiver by the
Employer of any breach of any provision of the Plan shall not operate or be
construed as a waiver of any subsequent breach by that Participant or any other
Participant.


 


9.10        Governing
Law.  The Plan is intended to be an
unfunded plan maintained primarily to provide deferred compensation benefits
for a select group of “management or highly compensated employees” within the
meaning of Sections 201, 301 and 401 of ERISA and therefore to be exempt from
Parts 2, 3 and 4 of Title I of ERISA.  In
the event any provision of, or legal issue relating to, this Plan is not fully
preempted by federal law, such issue or provision shall be governed by the laws
of the State of Delaware.


 


16

















 


9.11        Mediation/Arbitration.  Any claim, dispute or other matter in
question of any kind relating to this Plan which is not resolved by the claims
procedures under this Plan shall be subject to non-binding mediation in
accordance with the applicable employment dispute resolution rules of JAMS
in the county in which the Company has its principle place of business, which
mediation will occur in said county, and be presided over by a
mediator/arbitrator who is listed on the JAMS List of Mediators/Arbitrators for
said county office at the time the demand for mediation is made.  Notice of demand for mediation shall be made
in writing to the opposing party and to JAMS within a reasonable time after the
claim, dispute or other matter in question has arisen.  In no event shall a demand for mediation be
made after the date when the applicable statute of limitations would bar the
institution of a legal or equitable proceeding based on such claim, dispute or
other matter in question.  In the event
that the dispute is not solved by mediation, it shall be submitted to binding
arbitration in accordance with the applicable employment dispute resolution rules of
JAMS in said location.  The decision of
the arbitrators shall be final and binding and may be enforced in any court of
competent jurisdiction.


 


IN WITNESS WHEREOF, the Board of Directors of the
Company has approved the adoption of this Plan as of the Effective Date and has
caused the Plan to be executed by its duly authorized representative this 31st
day of December 2008.


 


 




	
   

  	
   

  	
  AVOCENT
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
     /s/ Samuel F. Saracino

  
	
   

  	
   

  	
  Title:   Secretary

  






 


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