Exhibit
10.31


 


EMPLOYMENT AND NONCOMPETITION AGREEMENT


 


THIS
EMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made and entered
into as of July 19, 2005, by and among Avocent Huntsville Corp., an
Alabama corporation (“AHC” or “Employer”), Avocent Corporation, a Delaware
corporation, and Edward H. Blankenship (the “Employee”).


 


RECITALS


 


WHEREAS,
Avocent Corporation and its affiliates including Avocent International Ltd.,
Avocent Huntsville Corp., Avocent Redmond Corp., and OSA Technologies, Inc.
(Avocent Corporation and its affiliates are collectively referred to in this
Agreement as “Avocent”) are engaged in the business of designing,
manufacturing, and selling connectivity solutions for enterprise data centers,
service providers, and financial institutions; and


 


WHEREAS,
Employer desires to employ the Employee and the Employee is willing to accept
such employment by Employer on the terms and subject to the conditions set
forth in this Agreement.


 


AGREEMENT


 


THE
PARTIES HERETO AGREE AS FOLLOWS:


 


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


 


2.                                       TERM OF EMPLOYMENT.


 


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


 


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


 


(b)                                 “TERMINATIONS OTHER THAN FOR CAUSE” shall
mean termination by the Employer or Avocent Corporation of the Employee’s
employment with the Employer or Avocent (other than in a Termination for Cause)
and shall include any constructive


 


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termination of the Employee’s employment by reason of
material breach of this Agreement by the Employer or Avocent, such constructive
termination to be effective upon thirty (30) days written notice from the
Employee to the Employer of such constructive termination.


 


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


 


(d)                                 “TERMINATION UPON A CHANGE IN CONTROL” shall
mean (i) a termination by the Employee of the Employee’s employment with
the Employer or Avocent within six (6) months following any “Change in
Control” or (ii) any termination by the Employer or Avocent Corporation of
the Employee’s employment with the Employer or Avocent (other than a
Termination for Cause) within eighteen (18) months following any “Change in
Control.”


 


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


 


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


 


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


 


(iii)                               Avocent Corporation’s stockholders approve:


 


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


 


(2)                                  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.


 


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


 


2.2                                 BASIC TERM. 
The term of employment of the Employee by the Employer shall be for the
period beginning on the date of this Agreement, and ending on December 31,
2007, unless terminated earlier pursuant to this Section 2.  At any time before December 31, 2007,
the Employer and the Employee may by mutual written agreement extend the
Employee’s employment under the terms of this Agreement for such additional
periods as they may agree.


 


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


 


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


 


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


 


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plan), any benefits under
any plans of Employer or Avocent in which the Employee is a participant to the
full extent of the Employee’s rights under such plans (including having the
vesting of any awards granted to the Employee under any AHC or Avocent stock
option plans fully accelerated), accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, with the exception of medical and
dental benefits which shall continue through the expiration of this Agreement,
but the Employee shall not be paid any other compensation or reimbursement of
any kind, including without limitation, severance compensation.


 


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


 


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


 


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


 


3.               SALARY, BENEFITS AND
BONUS COMPENSATION.


 


3.1                                 BASE SALARY. 
Effective January 1, 2005, as payment for the services to be
rendered by the Employee as provided in Section 1 and subject to the terms
and conditions of


 


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Section 2, the Employer
agrees to pay to the Employee a “Base Salary” at the rate of $200,000.00 per
annum, payable in equal bi-weekly installments. 
The Base Salary for each calendar year (or proration thereof) beginning January 1,
2005 shall be determined by the Board of
Directors of Avocent Corporation upon a recommendation of the Compensation Committee of Avocent
Corporation (the “Compensation Committee”), which shall authorize an increase
in the Employee’s Base Salary in an amount which, at a minimum, shall be equal
to the cumulative cost-of-living increment on the Base Salary as reported in
the “Consumer Price Index for All Urban
Consumers(CPI-U), All Items Index” for South Urban Size A, published by the
U.S. Department of Labor (using July 1, 2004, as the base date for
computation prorated for any partial year).  The Employee’s Base Salary shall
be reviewed annually by the Board of Directors and the Compensation Committee
of Avocent Corporation.


 


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


 


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


 


(a)                                  THE EMPLOYEE BENEFITS.  The Employee shall be eligible to participate
in such of Avocent’s benefits and deferred compensation plans as are now
generally available or later made generally available to executive officers or
Avocent, including, without limitation, stock option plans, Section 401(k)
plan, profit sharing plans, deferred compensation plan, annual physical
examinations, dental and medical plans, personal catastrophe and disability
insurance, retirement plans and supplementary executive retirement plans, if
any.  For purposes of establishing the
length of service under any benefit plans or programs of AHC or Avocent, the
Employee’s employment with the Employer (or any successor) will be deemed to
have commenced on the date that Employee first commenced employment with AHC,
which was July 25, 2002.


 


(b)                                 VACATION. 
The Employee shall be entitled to vacation in accordance with the
Avocent Corporation’s vacation policy but in no event less than three (3) weeks
during each year of this Agreement.


 


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


 


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


 


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4.                                       SEVERANCE COMPENSATION.


 


4.1                                 SEVERANCE COMPENSATION IN THE EVENT OF A
TERMINATION UPON A CHANGE IN CONTROL.  In
the event of a Termination Upon a Change in Control, the Employee shall be paid
as severance compensation his Base Salary (at the rate payable at the time of
such termination) for a period of twelve (12) months from the date of such
Termination Upon a Change in Control, on the dates specified in Section 3.1,
and the Employee shall also be paid an amount equal to the average annual bonus
earned by the Employee as an employee of Avocent Corporation and its affiliates
and predecessors in the two (2) years immediately preceding the date of
termination.  For any bonus calculation
using the 2003 and/or 2004 calendar year bonus(es)
(which were paid in 2004 and 2005, respectively), the bonus paid to Employee
for such year(s) shall be doubled for purposes of this average bonus
calculation.  Notwithstanding anything in
this Section 4.1 to the contrary, the Employee may in the Employee’s sole
discretion, by delivery of a notice to the Employer within thirty (30) days
following a Termination Upon a Change in Control, elect to receive from the
Employer a lump sum severance payment by bank cashier’s check equal to the
present value of the flow of cash payments that would otherwise be paid to the
Employee pursuant to this Section 4.1. 
Such present value shall be determined as of the date of delivery of the
notice of election by the Employee and shall be based on a discount rate equal
to the interest rate of 90-day U.S. Treasury bills, as reported in The Wall Street Journal (or similar publication), on the
date of delivery of the election notice. 
If the Employee elects to receive a lump sum severance payment, Avocent
Corporation shall cause the Employer to make such payment to the Employee
within ten (10) days following the date on which the Employee notifies the
Employer of the Employee’s election.  The
Employee shall also be entitled to have the vesting of any awards granted to
the Employee under any AHC or Avocent stock option plans fully
accelerated.  The Employee shall be
provided with medical plan benefits under any health plans of Avocent or
Employer in which the Employee is a participant to the full extent of the
Employee’s rights under such plans for a period of twelve (12) months from the
date of such Termination Upon a Change in Control (even if Employee elects to
receive a lump sum severance payment).


 


4.2                                 SEVERANCE COMPENSATION IN THE EVENT OF A TERMINATION
OTHER THAN FOR CAUSE.  In the event of a
Termination Other Than for Cause, the Employee shall be paid as severance
compensation his Base Salary (at the rate payable at the time of such
termination) for a period of twelve (12) months from the date of such
termination, on the dates specified in Section 3.1, and Employee shall
also be paid an amount equal to the average annual bonus earned by the Employee
as an employee of Avocent Corporation and its affiliates and predecessors in
the two (2) years immediately preceding the date of termination. For any
bonus calculation using the 2003 and/or 2004 calendar year bonus(es)
(which were paid in 2004 and 2005, respectively), the bonus paid to Employee
for such year(s) shall be doubled for purposes of this average bonus
calculation.  Notwithstanding anything in
this Section 4.2 to the contrary, the Employee may in the Employee’s sole
discretion, by delivery of a notice to the Employer within thirty (30) days
following a Termination Other Than for Cause, elect to receive from the
Employer a lump sum severance payment by bank cashier’s check equal to the
present value of the flow of cash payments that would otherwise be paid to the
Employee pursuant to this Section 4.2. 
Such present value shall be determined as of the date of delivery of the
notice of election by the Employee and shall be based on a discount rate equal
to the interest rate on 90-day U.S. Treasury bills, as reported in The Wall Street Journal (or similar publication), on the
date of delivery of the election notice. 
If the Employee elects to receive a lump sum severance payment, Avocent
Corporation shall cause the Employer to make such payment to the Employee
within ten (10) days following the date on which the Employee notifies the
Employer of the Employee’s election.  The


 


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Employee shall also be
entitled to have the vesting of any awards granted to the Employee under any
AHC or Avocent stock option plans fully accelerated. The Employee shall be provided
with medical plan benefits under any health plans of Avocent or Employer in
which the Employee is a participant to the full extent of the Employee’s rights
under such plans for a period of twelve (12) months from the date of such
Termination Other Than for Cause (even if Employee elects to receive a lump sum
severance payment).


 


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


 


5.                                       NON-COMPETITION
OBLIGATIONS.  Unless waived or reduced by
the Employer or Avocent, during the term of this Agreement and for a period of
twelve (12) months thereafter, the Employee will not, without the Employer’s
and Avocent Corporation’s prior written consent, directly or indirectly, alone
or as a partner, joint venturer, officer, director, employee, consultant,
agent, independent contractor or stockholder of any company or business, engage
in any business activity in the United States, Canada, Europe, or Asia which is
substantially similar to or in direct competition with any of the business
activities of or services provided by the 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.


 


6.                                       MISCELLANEOUS.


 


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


 


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


 


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


 


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


 


6.5                                 ENTIRE AGREEMENT; MODIFICATIONS.  Except as otherwise provided herein, this
Agreement represents the entire understanding among the parties with respect to
the subject matter hereof, and this Agreement supersedes any and all prior
understandings, agreements, plans and negotiations, whether written or oral
with respect to the subject matter hereof, 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.


 


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All modifications to the
Agreement must be in writing and signed by the party against whom enforcement
of such modification is sought.


 


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


 


	
  If to the Employer/Avocent:

  	
  Avocent Corporation

  
	
   

  	
  4991 Corporate Drive

  
	
   

  	
  Huntsville, AL 35805

  
	
   

  	
  ATTN: President

  
	
   

  	
   

  
	
  With copy to:

  	
  Avocent Corporation

  
	
   

  	
  9911 Willows Road N.E.

  
	
   

  	
  Redmond, WA 98052

  
	
   

  	
  ATTN: General Counsel

  
	
   

  	
   

  
	
  If to the Employee:

  	
  Edward H. Blankenship

  



 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)                                 All determinations required to be made under
this Section shall be made by the Avocent Corporation’s primary independent
public accounting firm, or any other nationally recognized accounting firm
reasonably acceptable to Avocent Corporation and the Employee (the “Accounting
Firm”).  Avocent Corporation shall cause
the Accounting Firm to provide detailed supporting calculations of its
determinations to the Employer and the Employee.  All fees and expenses of the Accounting Firm
shall be borne solely by the Employer. 
For purposes of making the calculations required by this Section, the
Accounting Firm may make reasonable assumptions and approximations concerning
applicable taxes


 


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and may
rely on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Internal Revenue Code, provided the Accounting
Firm’s determinations must be made with substantial authority (within the
meaning of Section 6662 of the Internal Revenue Code). The payments to
which the Employee is entitled pursuant to this Section shall be paid by
the Employer and/or Avocent Corporation to the Employee in cash and in full not
later than thirty (30) calendar days following the date the Employee becomes
subject to the Excise Tax.


 


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


 


 


	
   

  	
  AVOCENT HUNTSVILLE CORP.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Cooper

  	
   

  
	
   

  	
  Its:

  	
  Chairman and CEO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AVOCENT CORPORATION:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Cooper

  	
   

  
	
   

  	
  Its:

  	
  Chairman and CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Edward H. Blankenship

  	
   

  
	
   

  	
  Edward H. Blankenship

  	
   

  
						



 


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