Exhibit
10.1


 


AMENDED AND RESTATED


EMPLOYMENT AND NONCOMPETITION
AGREEMENT


 


THIS AMENDED AND RESTATED
EMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made and entered
into as of
                               , 2008,
by and among
                        .,
a
                              
corporation (the “Employer”), Avocent Corporation, a Delaware corporation, and
                              
(the “Employee”).


 


RECITALS


 


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


 


WHEREAS, Employee,
Employer, and Avocent Corporation entered into that certain Employment and
Noncompetition Agreement dated
                      
(the “2006 Employment Agreement”); and


 


WHEREAS, Employee,
Employer, and Avocent Corporation now wish to amend and restate the 2006
Employment Agreement with this Amended and Restated Employment and
Noncompetition Agreement, and Employee is willing to accept employment as
Avocent’s                                   
on the terms and subject to the conditions set forth in this Agreement; and


 


WHEREAS, Employee,
Employer, and Avocent Corporation now wish to enter into this Amended and
Restated Employment and Noncompetition Agreement, and Employee is willing to
accept employment as
                                    
of Avocent on the terms and subject to the conditions set forth in this
Agreement.


 


AGREEMENT


 


THE PARTIES HERETO AGREE
AS FOLLOWS:


 


1.             POSITION.  During the term of this Agreement, the
Employee shall be employed by Employer and serve as the
                                                      
of Avocent.  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
                                                
..  The Employee shall report to
                                
and to the Board of Directors of Avocent Corporation (the “Board”), and shall
have powers, duties, authorities, and responsibilities typically associated
with this position in public companies of a similar size and nature and such
other powers, duties, authorities, and responsibilities as are assigned and
delegated to him by                                     
and the Board consistent with his position as
                                    .


 


2.             DEFINITIONS AND TERM
OF EMPLOYMENT.


 


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


 


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(a)           “ACCRUED OBLIGATIONS”
shall mean, collectively as of the date of any termination, all of Employee’s
accrued salary, bonus compensation to the extent earned, vested deferred
compensation, if any, in accordance with the terms of any applicable deferred
compensation plan or arrangement, 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, and accrued but unused vacation pay.


 


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


 


(i)            Any person (other than
Avocent Corporation) or more than one person acting as a group (a “Person”)
acquires beneficial ownership of Avocent Corporation’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 Avocent Corporation’s
then outstanding stock.  For purposes of
this Agreement, “beneficial ownership” shall be determined in accordance with
Regulation 13D under the Securities Exchange Act of 1934, or any similar
successor regulation or rule; and the term “Person” shall include any natural
person, corporation, partnership, trust, or association, or any group or
combination thereof, whose ownership of Employer’s or Avocent Corporation’s
securities would be required to be reported under such Regulation 13D, or
any similar successor regulation or rule.


 


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


 


(iii)          The closing of any
transaction involving:


 


(1)           any consolidation,
merger, or other reorganization 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, consolidation, or other
reorganization 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
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 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.


 


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(c)           “CODE” means the
Internal Revenue Code of 1986, as amended.


 


(d)           “CONSTRUCTIVE
TERMINATION” shall mean Employee’s voluntary termination of Employee’s
employment by reason of (i) a material diminution of Employee’s title,
reporting line, powers, duties, authorities, or responsibilities, (ii) a
reduction in Employee’s base salary or annual bonus target percentage, or
(iii) any other material breach of this Agreement by the Employer or
Avocent Corporation; provided, however that termination shall only constitute
“Constructive Termination” if Employee gives Employer written notice within
ninety (90) days of the occurrence of an event that would constitute
Constructive Termination and Employer has failed to cure such event within
thirty (30) days of receipt of such written notice and such separation from
service occurs during a period not to exceed two (2) years following the
initial existence of the reason giving rise to such Constructive Termination.


 


(e)           “RELEASE” shall mean a
release of any claims against Avocent, Employer that is acceptable in form and
substance to Avocent Corporation.  A
Release must be executed and become effective by the sixtieth (60th) day following termination or within the
shorter time frame provided by such Release (such deadline, the “Release
Deadline”).


 


(f)            “SECTION 409A”
shall mean the Section 409A of the Code and the final regulations and any
guidance promulgated thereunder, as each may be amended from time to time.


 


(g)           “SEVERANCE PAYMENT
DATE” shall mean the date specified in Section 4.6 of this Agreement.


 


(h)           “TERMINATION FOR CAUSE”
shall mean termination by the Employer or Avocent Corporation of the Employee’s
employment with the Employer by reason of:  (i) the Employee’s
willful dishonesty towards, fraud upon, or deliberate injury or attempted
injury to, the Employer or Avocent which has resulted in material injury to
Employer or Avocent; (ii) the Employee’s willful material breach of this
Agreement which, if curable, is not cured within thirty (30) days after the
Employer or Avocent provides Employee with written notice describing in detail
the material breach; or (iii) the Employee’s conviction of or pleading
guilty or nolo contendere to any
felony or misdemeanor involving, theft, embezzlement, dishonesty, or moral
turpitude.


 


(i)            “TERMINATION OTHER
THAN FOR CAUSE” shall mean termination by the Employer or Avocent Corporation
of the Employee’s employment with the Employer (other than a Termination for
Cause or a termination by reason of Disability or death as described in
Sections 2.5 and 2.6) and shall include any Constructive Termination.


 


(j)            “TERMINATION UPON A
CHANGE IN CONTROL” shall mean (i) a termination by the Employee of the
Employee’s employment with the Employer or Avocent or Employee’s death 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 within eighteen (18) months following any “Change
in Control” (other than a termination by reason of Employee’s death as
described in Section 2.6 more than six (6) months following any
Change in Control, a Termination for Cause as described in Section 2.4, or
a termination by reason of Disability as described in Section 2.5).


 


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(k)           “VOLUNTARY TERMINATION”
shall mean termination by the Employee of the Employee’s employment with the
Employer other than (i) Constructive Termination as described in
subsection 2.1(d), (ii) “Termination Upon a Change in Control” as
described in Section 2.1(j), and (iii) termination by reason of the
Employee’s Disability or death as described in Sections 2.5 and 2.6


 


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 terminates or is terminated under any of the
provisions of this Agreement.


 


2.3           TERMINATION FOR
CAUSE.  Termination For Cause may be
effected by the Employer or Avocent Corporation 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 stating the reason for termination.  Upon Termination For Cause, the Employee
immediately shall be paid (i) on the last date of employment, all Accrued
Obligations to the date of termination except that any deferred compensation
plan or arrangement shall be paid at the time(s) and on the terms and
conditions specified in any such deferred compensation plan or arrangement and
(ii) upon receipt of proper documentation in accordance with Avocent’s
standard reimbursement policies, reimbursement of any appropriate business
expenses incurred by the Employee in connection with his duties hereunder on or
prior to the date of termination of employment, but no other compensation or
reimbursement of any kind, including without limitation, severance
compensation.  Reimbursements will be
made as soon as administratively practicable following the approval of the reimbursement
in accordance with Company policies, but in no event will taxable
reimbursements be made later than the last date permitted by Section 409A
such that the reimbursements are not subject to any additional taxation
pursuant to Section 409A.


 


2.4           TERMINATION OTHER THAN
FOR CAUSE.  Notwithstanding anything else
in this Agreement, the Employer or Avocent Corporation 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 on the last date of employment (i) all Accrued
Obligations, all to the date of termination except that any deferred compensation
plan or arrangement shall be paid at the time(s) and on the terms and
conditions specified in any such deferred compensation plan or arrangement,
(ii) upon receipt of proper documentation in accordance with Avocent’s
standard reimbursement policies, reimbursement of any appropriate business
expenses incurred by the Employee in connection with his duties hereunder on or
prior to the date of termination of employment, and (iii) all severance
compensation provided in Section 4.2, but no other compensation or
reimbursement of any kind. 
Reimbursements will be made as soon as administratively practicable
following the approval of the reimbursement in accordance with Company
policies, but in no event will taxable reimbursements be made later than the
last date permitted by Section 409A such that the reimbursements are not
subject to any additional taxation pursuant to Section 409A.


 


2.5           TERMINATION BY REASON
OF DISABILITY.  If, during the term of
this Agreement, the Employee, in the reasonable judgment of the Board is unable
to perform the essential functions of his job, with or without accommodation,
because of a mental or physical illness, disease or condition (such illness,
disease and incapacity referred to as, a “Disability”) and the Employee has not
performed the powers, duties, authorities, and responsibilities typically
associated with his position in public companies of a similar size and nature,
the Employer shall 


 


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have the right to
terminate the Employee’s employment for Disability hereunder by delivery of
written notice to the Employee at any time and the Employee shall immediately
be paid on the last date of employment (i) all Accrued Obligations, all to
the date of termination except that any deferred compensation plan or
arrangement shall be paid at the time(s) and on the terms and conditions
specified in any such deferred compensation plan or arrangement, (ii) upon
receipt of proper documentation in accordance with Avocent’s standard
reimbursement policies, reimbursement of any appropriate business expenses
incurred by the Employee in connection with his duties hereunder on or prior to
the date of termination of employment, and (iii) all severance
compensation provided in Section 4.3, but no other compensation or
reimbursement of any kind.  Reimbursements
will be made as soon as administratively practicable following the approval of
the reimbursement in accordance with Company policies, but in no event will
taxable reimbursements be made later than the last date permitted by
Section 409A such that the reimbursements are not subject to any
additional taxation pursuant to Section 409A.


 


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 date of death and the Employer shall, as
soon as administratively practicable, pay to his estate or such beneficiaries
as the Employee may from time to time designate (i) all Accrued
Obligations, all to the date of termination except that any deferred
compensation plan or arrangement shall be paid at the time(s) and on the
terms and conditions specified in any such deferred compensation plan or
arrangement, (ii) upon receipt of proper documentation in accordance with
Avocent’s standard reimbursement policies, reimbursement of any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder on or prior to the date of termination of employment, and
(iii) all severance compensation provided in Section 4.4, but the
Employee’s estate and beneficiaries shall not be paid any other compensation or
reimbursement of any kind.  For the
avoidance of doubt, amounts payable under any life insurance policies shall be
paid in accordance with their terms. 
Reimbursements will be made as soon as administratively practicable
following the approval of the reimbursement in accordance with Company
policies, but in no event will taxable reimbursements be made later than the
last date permitted by Section 409A such that the reimbursements are not
subject to any additional taxation pursuant to Section 409A.


 


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 (i) all Accrued
Obligations, all to the date of termination except that any deferred
compensation plan or arrangement shall be paid at the time(s) and on the
terms and conditions specified in any such deferred compensation plan or
arrangement, and (ii) upon receipt of proper documentation in accordance
with Avocent’s standard reimbursement policies, reimbursement of any
appropriate business expenses incurred by the Employee in connection with
Employee’s duties hereunder on or prior to the date of termination of
employment, but no other compensation or reimbursement of any kind, including
without limitation, severance compensation. 
Reimbursements will be made as soon as administratively practicable
following the approval of the reimbursement in accordance with Company
policies, but in no event will taxable reimbursements be made later than the
last date permitted by Section 409A such that the reimbursements are not
subject to any additional taxation pursuant to Section 409A.


 


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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
(i) all Accrued Obligations, all to the date of termination except that
any deferred compensation plan or arrangement shall be paid at the
time(s) and on the terms and conditions specified in any such deferred
compensation plan or arrangement, (ii) upon receipt of proper
documentation in accordance with Avocent’s standard reimbursement policies,
reimbursement of any appropriate business expenses incurred by the Employee in
connection with his duties hereunder on or prior to the date of termination of
employment, and (iii) all severance compensation provided in
Section 4.1, but no other compensation or reimbursement of any kind.  Reimbursements will be made as soon as
administratively practicable following the approval of the reimbursement in accordance
with Company policies, but in no event will taxable reimbursements be made
later than the last date permitted by Section 409A such that the
reimbursements are not subject to any additional taxation pursuant to
Section 409A.


 


3.     SALARY, BENEFITS AND BONUS
COMPENSATION.


 


3.1           BASE SALARY.  Effective
                   , 200  
(the “Effective Date”), 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
                                                    
Thousand Dollars
($                  .00)
per annum, payable in equal bi-weekly installments in accordance with
Employer’s normal payroll practices.  The
Base Salary for each calendar year (or proration thereof) beginning
January 1, 2009 shall be determined by the Compensation Committee of the
Board (the “Compensation Committee”).  The Employee’s Base Salary shall
be reviewed annually by the Board and the Compensation Committee.


 


3.2           BONUSES.  The Employee shall be eligible to earn 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 based
upon its evaluation of the Employee’s performance during such year, with the
annual target for each calendar year being at least
                
percent (    %) of Base Salary for that year and the annual
bonus opportunity for each calendar year being at least
                  
percent (    %) of the Base Salary for that year.  Employee must be employed by Avocent on the
last day of the fiscal year (or other period determined by the Compensation
Committee) to which the bonus relates. 
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 (or other
period determined by the Compensation Committee) to which such bonus
relates.  In no event will any such bonus
be paid later than March 15th of the year following the fiscal year in which
the bonus is earned.  All such bonuses
shall be reviewed annually by the Compensation Committee.


 


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


 


(a)           THE EMPLOYEE
BENEFITS.  The Employee shall be eligible
to participate in such of Avocent’s benefits and deferred compensation plans as
are now generally available or later made generally available to executive
officers of Avocent, including, without limitation, equity plans,
Section 401(k) plan, profit sharing plans, deferred compensation
plan, annual physical examinations, dental and medical plans, personal catastrophe
and disability insurance, retirement plans and supplementary executive
retirement plans, if any, in each case in 


 


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accordance with
the terms and provisions of the relevant plan and as such plans, policies, and
arrangements may exist from time to time. 
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                                 .  Avocent retains the right to modify or terminate
any and all benefit plans and programs at any time and for any reason.


 


(b)           VACATION.  During the term of this Agreement, the
Employee shall be entitled to not less than three (3) weeks of paid
vacation during each calendar year in accordance with the Avocent Corporation’s
vacation policy, with the timing and duration of specific vacations mutually
and reasonably agreed to by the parties hereto.


 


(c)           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.  Requests for reimbursement must be submitted
in accordance with Avocent’s reimbursement policies, as in effect from time to
time.  Reimbursements will be made as
soon as administratively practicable following approval of the reimbursement,
but in no event later than March 15th of the year
following the Employee’s taxable year in which the expenses are incurred.


 


(e)           EQUITY AWARDS.


 


(i)             Employee has in the
past been granted restricted stock units and performance shares under one or
more of Avocent’s (and/or its affiliates’ or predecessors’) equity incentive
plans, and Employee shall be eligible to participate in any long-term incentive
and equity-based arrangements generally available to senior executives of
Employer or Avocent and shall receive such awards as the Compensation Committee
in its discretion shall grant to Employee (all such past and future equity
awards, the “Equity Awards”).


 


(ii)            Any Equity Awards
described in Section 3.3(e)(i) of this Agreement shall be earned and
vest as set forth in Employee’s Restricted Stock Unit Agreement(s),
Notice(s) of Grant of Performance Shares, or other documentation of such
awards, but upon the termination of Employee’s employment with Employer, any
such Equity Awards shall be deemed and treated as earned and/or the vesting of
such awards shall be accelerated as to the extent set forth in Section 4
of this Agreement.  In the event that
(i) there is a “Change of Control” as defined in the Avocent Corporation
2005 Equity Incentive Plan (the “2005 Plan”) 
or any new equity plan approved by Avocent Corporation’s stockholders
(the “New Plan,” and collectively with the 2005 Plan, the “Stock Plans”) and
Employee is employed by Employer or a successor at the time of such Change of
Control event, (ii) any of Employee’s then-outstanding Equity Awards
constitute “deferred compensation” within the meaning of Section 409A, and
(iii) such Equity Awards are accelerated by application of Section 19
of the 2005 Plan or any comparable section of a New Plan (as a result of such
awards not being assumed or substituted for), then if such “Change of Control,”
event is not also a “change in control” within the meaning of
Section 409A, such accelerated awards, though vested, will nonetheless be
paid out to Employee on the award’s original vesting schedule, unless
(x) Avocent Corporation determines in good faith that an earlier payout
would not result in the imposition of additional taxation to Employee under Section 409A
or (y) there is a subsequent termination of Employee’s employment in a
manner that would otherwise (without 


 


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application of
Section 19 or any comparable section of the applicable Stock Plan) trigger
vesting pursuant to Section 4 of this Agreement, in which case the payment
of such awards will be made at the time(s) and pursuant to the terms and
conditions specified in Section 4 of this Agreement, which shall then
become applicable.  All Equity Awards that
constitute “deferred compensation” within the meaning of Section 409A will
otherwise be paid on the later of (i) the end of the calendar year in
which such Equity Awards vest, or (ii) two and one-half (21⁄2) months
following the vesting of such Equity Awards. 
Notwithstanding the foregoing, the delay of the payment of such awards
pursuant to the prior sentence will cease upon Employee’s death and such
payment will be made as soon as practicable after the date of Employee’s
death.  Avocent and the Employee hereby
agree that the provisions of this Section shall supersede any conflicting
provisions of the applicable Stock Plan and any equity-based compensation award
agreement of the Employee.


 


(f)            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 (3) 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.


 


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, and contingent on Employee’s Release becoming effective by the
Release Deadline, the Employee shall be entitled to the severance payments and
benefits in this Section 4.1.  The
Employee shall be paid as severance compensation a lump sum amount equal to
            
(    ) times his annual Base Salary (calculated at the rate
payable at the time of such termination) on the Severance Payment Date, and on
the Severance Payment Date, the Employee shall also be paid a lump sum amount
equal to the average annual bonus earned by the Employee as an employee of
Employer and Avocent and its predecessors in the two (2) years immediately
preceding the date of termination.  The
Employee shall also be entitled to have the vesting of any then-outstanding
Equity Awards deemed and treated as fully earned and accelerated, and all such
shares under any such Equity Awards shall be delivered to Employee on the
Severance Payment Date.  If Employee
timely elects continuation of Employee’s medical, dental and vision coverage
under a group health plan of Avocent or Employer pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within the
time period prescribed pursuant to COBRA, Employer shall provide such
continuation coverage under such plans for a period of eighteen (18) months
from the date of such Termination Upon a Change in Control at no cost to
Employee.


 


4.2           SEVERANCE COMPENSATION
IN THE EVENT OF A TERMINATION OTHER THAN FOR CAUSE.  In the event of a Termination Other Than for
Cause that does not also constitute a Termination upon a Change in Control, and
contingent on Employee’s Release becoming effective by the Release Deadline,
the Employee shall be entitled to the severance payments and benefits in this
Section 4.2.  The Employee shall be
paid as severance compensation a lump sum amount equal to
            
(    ) times his annual Base Salary (calculated at the rate
payable at the time of such termination) on the Severance Payment Date, and on
the Severance Payment Date, the Employee shall also be paid a lump sum amount
equal to the average annual bonus earned by the Employee as an employee of
Employer and its predecessors in the two (2) years immediately


 


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preceding the date of
termination.  The Employee shall also be
entitled to have the vesting of any then-outstanding Equity Awards deemed and
treated as fully earned and accelerated, and all such shares under any such
Equity Awards shall be delivered to Employee on the Severance Payment
Date.  If Employee timely elects
continuation of Employee’s medical, dental and vision coverage under a group
health plan of Avocent or Employer pursuant to COBRA, within the time period
prescribed pursuant to COBRA, Employer shall provide such continuation coverage
under such plans for a period of eighteen (18) months from the date of such
Termination Other than for Cause at no cost to Employee.


 


4.3                                SEVERANCE COMPENSATION UNDER TERMINATION BY
REASON OF DISABILITY.  In the event that
the Employee is terminated by Employer or Avocent by reason of Disability, and
contingent on Employee’s Release becoming effective by the Release Deadline,
the Employee shall be entitled to the severance payments and benefits in this Section 4.3.  On the Severance Payment Date, the Employee
shall be paid as severance compensation a lump sum amount equal to the average
annual bonus earned by the Employee as an employee of Employer and Avocent and
its affiliates predecessors in the two (2) years immediately preceding the
date of termination.  The Employee shall
also be entitled to have the vesting of any then-outstanding Equity Awards
deemed and treated as fully earned and accelerated, and all such shares under
any such Equity Awards shall be delivered to Employee on the Severance Payment
Date.  If Employee timely elects
continuation of Employee’s medical, dental and vision coverage under a group
health plan of Avocent or Employer pursuant to COBRA, within the time period
prescribed pursuant to COBRA, Employer shall provide such continuation coverage
under such plans for a period of eighteen (18) months from the date of such
termination by reason of Disability at no cost to Employee.


 


4.4                                SEVERANCE COMPENSATION UPON DEATH.  In the event that the Employee’s employment
terminates by reason of the death of Employee, and contingent on the Employee’s
Estate signing and not revoking a Release, the Employee’s estate shall be
entitled to the severance payments and benefits in this Section 4.4.  The Employee’s estate shall be entitled to
have the vesting of any then-outstanding Equity Awards deemed and treated as
fully earned and accelerated, and all such shares under any such Equity Awards
shall be delivered to Employee’s estate on the Severance Payment Date.


 


4.5                                NO SEVERANCE COMPENSATION UNDER OTHER
TERMINATION.  In the event of a Voluntary
Termination or a Termination For Cause, the Employee shall not be paid any
severance compensation.


 


4.6                                SEVERANCE
PAYMENT DATE AND SECTION 409A
COMPLIANCE.


 


(a)                                  Except as provided in this Section 4.6,
the “Severance Payment Date” shall be the sixtieth (60th)
day following Employee’s termination of employment, provided the Release has
become effective by the Release Deadline.


 


(b)                                 Notwithstanding anything to the contrary in
this Agreement, Deferred Compensation Separation Benefits (as defined below)
will not become payable under this Agreement, and the Severance Payment Date
will not be deemed to have occurred, until Employee has a “separation from
service” within the meaning of Section 409A.  Further, if (x) Employee is a “specified
employee” within the meaning of Section 409A at the time of Employee’s
termination of employment (or at the time of a later “separation from
service” within the meaning of 


 


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Section 409A) other than due to Employee’s death,
and (y) some or any portion of the severance payments and benefits payable
to Employee, if any, pursuant to this Agreement (including, but not limited to,
cash severance, the delivery of shares pursuant to restricted stock units and
performance shares and payments under Section 6.15), when considered
together with any other severance payments or separation benefits that are
considered deferred compensation under Section 409A (together, the “Deferred
Compensation Separation Benefits”) that are payable on or within the first six (6) month
period following Employee’s termination of employment, then payments and
benefits will instead become payable in a lump sum on the first payroll date
that occurs on or after the date six (6) months and one (1) day
following the date of Employee’s termination of employment (or such longer
period as is required to avoid the imposition of additional tax under Section 409A),
and such date will be the “Severance Payment Date.”  All subsequent Deferred Compensation
Separation Benefits, if any, will be payable in accordance with the payment
schedule applicable to each payment or benefit. 
Each payment and benefit payable under this Agreement is intended to
constitute separate payments for purposes of Section 1.409A-2(b)(2) of
the Treasury Regulations.


 


(c)                                  Notwithstanding
anything herein to the contrary, if Employee dies following his termination of
employment but prior to the Severance Payment Date, then any payments delayed
in accordance with this Section 4.6 will be payable in a lump sum as soon
as administratively practicable after the date of Employee’s death and all
other Deferred Compensation Separation Benefits will be payable in accordance
with the payment schedule applicable to each payment or benefit.


 


(d)                                 Any amount paid
under the Agreement that satisfies the requirements of the “short-term deferral”
rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations shall not constitute Deferred Compensation Separation Benefits for
purposes of Section 4.6(b) above.


 


(e)                                  Any
amount paid under the Agreement that qualifies as a payment made as a result of
an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of
the Treasury Regulations that does not exceed the Section 409A Limit shall
not constitute Deferred Compensation Separation Benefits for purposes of Section 4.6(b) above.  For purposes of this Section 4.6, “Section 409A
Limit” shall mean the lesser of two (2) times (A) the Employee’s
annualized compensation based upon the annual rate of pay paid to Employee
during Employer’s taxable year preceding the Employer’s taxable year of
Employee’s termination of employment as determined under Treasury Regulation
1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued
with respect thereto; or (B) the maximum amount that may be taken into
account under a qualified plan pursuant to Section 401(a)(17) of the Code
for the year in which the Employee’s employment is terminated.


 


(f)                                    The foregoing provisions and this Agreement
are intended to comply with the requirements of Section 409A so that none
of the severance payments and benefits that may be provided hereunder will be
subject to the additional tax imposed under Section 409A, and any
ambiguities herein will be interpreted to so comply.  Employer and Employee agree to work together
in good faith to consider amendments to this Agreement and to take such
reasonable actions which are necessary, appropriate or desirable to avoid
imposition of any additional tax or income recognition prior to actual payment
to Employee under Section 409A.


 


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5.                                      COVENANT
NOT TO COMPETE AND NO SOLICITATION.


 


5.1                                 COVENANT
NOT TO COMPETE.  During the term of this
Agreement, and for a period of
                    
(    ) months immediately following the termination of
Employee’s relationship with the Employer, whether he resigns voluntarily or is
terminated by the Employer, or Avocent Corporation involuntarily, Employee will
not, without the Employer’s or Avocent Corporation’s prior written consent,
whether paid or not, directly or indirectly either alone or as a partner,
principal, licensor, licensee, affiliate, representative, advisor, promoter,
associate, investor, joint venturer, officer, director, employee, consultant,
agent, independent contractor or stockholder of any company or business, build,
design, finance, acquire, lease, operate manage, control, invest in, work or
consult for or otherwise join, participate in or affiliate himself with, any
business whose business, products or operations are 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. 
Should Employee obtain other employment during his employment with
Employer or within twelve (12) months immediately following the termination of
his relationship with Employer for any reason, Employee agrees to provide
written notification to the Employer of the name and address of his new
employer, the position that he expects to hold, and a general description of
his duties and responsibilities, at least three (3) business days prior to
starting such employment. 
Notwithstanding the foregoing, Employee is not prohibited from being
employed by or otherwise associated with an entity with a business, products or
operations substantially similar or in direct competition with any business
activities or services provided by Employee or Avocent, so long as (i) such
business, products or operations constitute less than five percent of the
annual revenues of both such entity and Avocent, and (ii) Employee does
not, directly or indirectly, render services or assistance to such business,
products or operations.


 


5.2                                 NON-SOLICITATION
OF CUSTOMERS.  During the term of this
Agreement, and for a period of
                
(    ) months immediately following the termination of
Employee’s relationship with the Employer, whether he resigns voluntarily or is
terminated by the Employer or Avocent Corporation involuntarily, Employee will
not, without the Employer’s or Avocent Corporation’s prior written consent,
whether paid or not, directly or indirectly, solicit, take away, or engage in
business with any customer that is competitive with or similar to that of the
Employer or Avocent.  During the same
period of time, Employee further agrees not to contact or cause to be contacted
any customer for the purposes of conducting business that is competitive or
similar to that of the Employer or Avocent or for the purpose of disadvantaging
the Employer’s or Avocent’s business in any way.  Employee acknowledges and agrees that the
Employer’s and Avocent’s customers did not use or inquire of the Employer’s or
Avocent’s services solely as a result of his efforts, and that the efforts of
the Employer’s and/or Avocent’s personnel and resources are responsible for the
Employer’s and Avocent’s relationship with their customers.  Employee further acknowledge and agree that
the identity of the Employers and Avocent’s customers is not readily
ascertainable or discoverable through public sources, and that Employer’s and
Avocent’s lists of customers were cultivated with great effort and secured
through the expenditure of considerable time and money by the Employer and
Avocent.


 


5.3                                 NON-SOLICITATION
OF EMPLOYEES AND CONSULTANTS.  During the
term of this Agreement, and for a period of
                  
(    ) months immediately following the


 


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termination
of Employee’s relationship with the Employer, whether he resigns voluntarily or
is terminated by the Employer or Avocent Corporation involuntarily, Employee
will not, without the Employer’s or Avocent Corporation’s prior written
consent, whether paid or not, directly or indirectly, hire, solicit or recruit
employees or consultants of the Employer or Avocent to leave the Employer or
Avocent, contact any employee or consultant of the Employer or Avocent or cause
any employee or consultant of the Employer or Avocent to be contacted for the
purpose of leaving their employment or consultancy arrangement or providing
services for Employee or any other entity, employ any employee or receive
services from any consultant who is employed by or providing consulting
services for the Employer or Avocent or who has been employed by or provided
consulting services for the Employer or Avocent in the prior six month period.


 


5.4                                 ACKNOWLEDGEMENTS.  Employee acknowledges that the Employer and
Avocent will provide him with their proprietary and confidential information to
enable him to optimize the performance of his duties to the Employer, and that he
will derive significant value from such disclosures.  Employee further acknowledges that his
fulfillment of his obligations not to compete and not to solicit contained in
Sections 5.1, 5.2, and 5.3 above, are necessary to protect the Employer’s and
Avocent’s proprietary and confidential information and, consequently, to
preserve the value and goodwill of the Employer and Avocent.  Employee also acknowledges that the
parameters of his obligations under Section 5.1, 5.2, and 5.3 above are
fair and reasonable in all respects, especially in light of the Employer’s and
Avocent’s need to protect their proprietary and confidential Information and
the international scope and nature of the Employer’s and Avocent’s business,
and that he will not be precluded from gainful employment if he is obligated
not to compete with the Employer or Avocent or solicit their employees,
customers or others during the period described above.


 


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, payments (including severance payments under Section 4),
benefits, and the delivery of shares to the Employee under this Agreement shall
be reduced by all federal, state, local, and other withholdings and deductions
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


 


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subject matter hereof, and
this Agreement supersedes any and all contemporaneous or prior understandings,
agreements (including the 2006 Employment Agreement), plans and negotiations,
whether written or oral with respect to the subject matter hereof,  and any understandings, agreements, or
obligations respecting any past or future compensation, bonuses, reimbursements
or other payments to the Employee from the Employer or Avocent
Corporation.  All modifications to the Agreement
must be in writing and signed by the party against whom enforcement of such
modification is sought.  With
respect to each Equity Award granted prior to the date hereof, the acceleration
of vesting and timing of payment requirements provided herein will be deemed to
amend and modify the Equity Award agreement relating to such Equity Award; to
the extent not amended hereby, such Equity Award agreement will remain in full
force and effect.  With respect to Equity Awards granted on or
after the date hereof, the acceleration of vesting and timing of payment
requirements provided herein will apply to such awards except to the extent
otherwise explicitly provided in the applicable Equity Award agreement, which
provision must include a reference to this Agreement.


 


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: Chairman of the Board of Directors

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With copy to:

  
	
   

  	
   

  	
  Avocent Corporation

  
	
   

  	
   

  	
  9911 Willows Road NE

  
	
   

  	
   

  	
  Redmond, WA 98052

  
	
   

  	
   

  	
  Attn: General Counsel

  
	
   

  	
   

  	
   

  
	
  If to the Employee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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


 


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


 


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


 


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6.9                                 ARBITRATION. 
Employee, Employer, and Avocent
Corporation agree that any and all controversies, claims, or disputes with the
Employer or Avocent Corporation or any of their respective employees, officers,
directors, stockholders, or benefit plans in their capacity as such or
otherwise arising out of, relating to, or resulting from the Employee’s service
to the Employer under this Agreement or otherwise or the termination of the
Employee’s service with the Employer, including any breach of this Agreement,
shall be subject to binding arbitration
in
                                                      ,
under the arbitration rules set
forth by the Judicial Arbitration and Mediation Services (“JAMS”).  Judgment upon any award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.  Disputes
which the Employee agrees to arbitrate, and thereby agrees to waive any right
to a trial by jury, include, to the extent permissible by law, any statutory
claims under state or federal law, including, but not limited to, claims under
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act
of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers
Benefit Protection Act, claims of harassment, discrimination or wrongful
termination and any other statutory, contract, tort and other claims.  The arbitrator shall have the power to decide
any motions brought by any party to the arbitration, including motions for
summary judgment and/or adjudication and motions to dismiss, prior to any
arbitration hearing.  The arbitrator
shall have the power to award any remedies, and shall award attorneys’ fees and
costs to the prevailing party unless prohibited by law.  Each
party shall pay the fees of the arbitrator selected by him and of his own
attorneys, and the expenses of his witnesses and all other expenses connected
with the presentation of his case.  The
cost of the arbitration, including the cost of the record or transcripts
thereof, if any, administrative fees, and all other fees and costs shall be
borne equally by the parties.


 


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


 


6.11                           SURVIVAL OF EMPLOYER’S OBLIGATIONS.  The Employer’s and Avocent Corporation’s
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business, or similar event relating to
the Employer or Avocent Corporation. 
This Agreement shall not be terminated by any merger or consolidation or
other reorganization of the Employer or Avocent Corporation.  In the event any such merger, consolidation
or reorganization shall be accomplished by transfer of stock or by transfer of
assets or otherwise, the provisions of this Agreement shall be binding upon and
inure to the benefit of the surviving or resulting corporation or person.  This Agreement shall be binding upon and
inure to the benefit of the executors, administrators, heirs, successors and
assigns of the parties; provided, however, that except as herein expressly
provided, this Agreement shall not be assignable either by the Employer (except
to an affiliate of the Employer (including Avocent Corporation) in which event
the Employer shall remain liable if the affiliate fails to meet any obligations
to make payments or provide benefits or otherwise) or by the Employee.


 


6.12                           COUNTERPARTS. 
This Agreement may be executed in one or more counterparts, all of which
taken together shall constitute one and the same Agreement.


 


6.13                           INDEMNIFICATION.  In addition to any rights to indemnification
to which the Employee is entitled to under the Employer’s or Avocent
Corporation’s Articles of Incorporation and Bylaws, the Employer and Avocent
Corporation shall indemnify the Employee at


 


14

















 


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.  Employer and/or Avocent
Corporation shall provide Employee with reasonable directors’ and officers’
(D&O) insurance coverage consistent with the coverage provided other
officers and directors


 


6.14                          AT-WILL
EMPLOYMENT.  The parties agree that
Employee’s employment with Employer constitutes “at-will” employment and that
such employment may be terminated at any time with or without cause or notice,
at the option of either party.  However,
as described in this Agreement, Employee may be entitled to severance benefits
depending upon the circumstances of Employee’s termination of employment.  Employee understands and agrees that neither
his job performance nor promotions, commendations, bonuses or the like from
Avocent give rise to or in any way serve as the basis for modification,
amendment, or extension, by implication or otherwise, of his employment with
Employer.


 


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


 


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


 


(b)                                 All
determinations required to be made under this Section shall be made by the
Avocent Corporation’s primary independent public accounting firm, or any other
nationally recognized accounting firm reasonably acceptable to Avocent
Corporation and the Employee (the “Accounting Firm”).  Avocent Corporation shall cause the
Accounting Firm to provide detailed supporting calculations of its
determinations to the Employer and the Employee.  All fees and expenses of the Accounting Firm
shall be borne solely by the Employer. 
For purposes of making the calculations required by this Section, the
Accounting Firm may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Internal Revenue
Code, provided the Accounting Firm’s determinations must be made with
substantial authority (within the meaning of Section 6662 of the Internal
Revenue Code). The payments to which the Employee is entitled pursuant to this Section shall
be paid by the Employer and/or Avocent Corporation to the Employee in cash and
in full as soon as reasonably practicable after the Payments become subject to
the Excise Tax, but in no event later than the end of the calendar year next
following the calendar year in which the Employee remits such Excise Tax.


 


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


 


 


	
   

  	
                                                                      

  	
  .:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVOCENT
  CORPORATION:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
				



 


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