**Exhibit10.33**

 

**EmploymentAgreement**

 

THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and enteredinto as of April 7, 2004, by and among OSA Technologies Inc., a Delawarecorporation (“New OSA” or “Employer”), Avocent Corporation, aDelaware corporation, and **Mark Lee** (the “Employee”).

 

**RECITALS**

 

WHEREAS, Avocent Corporation and its affiliates (collectively referredto in this Agreement as “Avocent”) are engaged in the business ofdesigning, manufacturing, and selling wired and wireless connectivity solutionsfor enterprise data centers, service providers, and financial institutions.

 

WHEREAS, on the date of this Agreement, New OSA becamea wholly-owned subsidiary of Avocent under the terms and conditions of thatcertain Agreement and Plan of Merger and Reorganization by and among AvocentCorporation, Otter Delaware Acquisition Corp., OSA Technologies, Inc. (“OldOSA”), and certain other parties dated March 27, 2004 (the “AcquisitionAgreement”).

 

WHEREAS, the Acquisition Agreementprovides for the merger of a wholly-owned subsidiary of Avocent Corporationwith and into Old OSA, pursuant to which Old OSA will become a wholly-ownedsubsidiary of Avocent Corporation (the “First Merger”).  Assoon as practicable thereafter, the surviving corporation shall be merged withand into a wholly-owned subsidiary (“Newco”)of Avocent Corporation, with Newco continuing as the surviving corporation andchanging its name to OSA Technologies Inc. (referred to herein as “New OSA”  or “Employer”) (the “Second Merger”; together with theFirst Merger, the “Merger”).

 

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

 

**AGREEMENT**

** **

THE PARTIES HERETO AGREE AS FOLLOWS:

 

# 1.             DUTIES.  During the term of this Agreement, theEmployee agrees to be employed by Employer and to serve Avocent as its SeniorVice President and as the President of Employer.  The Employee shall devote such of his business time, energy, andskill to the affairs of Avocent and Employer as shall be necessary to performthe duties of his position.  TheEmployee shall report to the President and Chief Executive Officer and theExecutive Vice President of Avocent Corporation and to the Boards of Directorsof the Employer and Avocent Corporation, and at all times during the term ofthis Agreement, the Employee shall have powers and duties at least commensuratewith his position as Senior Vice President of Avocent Corporation and Presidentof Employer.

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# 2.             TERM OF EMPLOYMENT.

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

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### (a)           “TERMINATIONFOR CAUSE” shall mean termination by the Employer or Avocent Corporation of theEmployee’s employment with the Employer or Avocent by reason of the Employee’swillful dishonesty towards, fraud upon, or deliberate injury or attemptedinjury to, the Employer or Avocent or by reason of the Employee’s willfulmaterial breach of this Agreement which has resulted in material injury to theEmployer or Avocent.

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### (b)           “TERMINATIONOTHER THAN FOR CAUSE” shall mean termination by the Employer or AvocentCorporation of the Employee’s employment with the Employer or Avocent (otherthan in a Termination for Cause) and shall include (i) any constructivetermination of the Employee’s employment by reason of material breach of thisAgreement by the Employer or Avocent, such constructive termination to beeffective upon thirty (30) days written notice from the Employee to theEmployer of such constructive termination and (ii) any attempt to relocateoutside of the vicinity of San Jose, California:  (x) the Employee, (y) the Employee’s duties and responsibilities,or (z) the Employer’s office at which Employee is employed.  Notwithstanding the foregoing, Employeeagrees that a change in his duties and responsibilities shall not result in aconstructive termination under this Section 2.1(b) unless such change resultsin a substantial diminution of Employee’s duties and responsibilities.

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### (c)           “VOLUNTARYTERMINATION” shall mean termination by the Employee of the Employee’semployment with the Employer or Avocent other than (i) constructivetermination as described in subsection 2.1(b), (ii) “Termination Upon aChange in Control” as described in Section 2.1(d), and (iii) terminationby reason of the Employee’s disability or death as described inSections 2.5 and 2.6.

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### (d)           “TERMINATIONUPON A CHANGE IN CONTROL” shall mean (i) a termination by the Employee ofthe Employee’s employment with the Employer or Avocent within six (6) monthsfollowing any “Change in Control” or (ii) any termination by the Employer orAvocent 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.”

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### (e)           “CHANGEIN CONTROL” shall mean, after the date of this Agreement, any one of thefollowing events:

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#### (i)            Anyperson (other than Avocent Corporation) acquires beneficial ownership ofEmployer’s, or Avocent Corporation’s securities and is or thereby becomes abeneficial owner of securities entitling such person to exercise twenty-fivepercent (25%) or more of the combined voting power of Employer’s, or AvocentCorporation’s then outstanding stock.  Forpurposes of this Agreement, “beneficial ownership” shall be determined inaccordance with Regulation 13D under the Securities Exchange Act of 1934,or any similar successor regulation or rule; and the term “person” shallinclude any natural person, corporation, partnership, trust or association, orany group or combination thereof, whose ownership of Employer’s, or AvocentCorporation’s securities would be required to be reported under suchRegulation 13D, or any similar successor regulation or rule.

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#### (ii)           Withinany twenty-four (24) month period, the individuals who were Directors ofAvocent Corporation at the beginning of any such period, together with anyother Directors first elected as directors of Avocent Corporation pursuant tonominations approved or ratified by at least two-thirds (2/3) of the Directorsin office immediately prior to any such election, cease to constitute amajority of the Board of Directors of Avocent Corporation.

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#### (iii)          Avocent Corporation’s stockholders approve:

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##### (1)           anyconsolidation or merger of Avocent Corporation in which Avocent Corporation isnot the continuing or surviving corporation or pursuant to which shares ofAvocent Corporation common stock would be converted into cash, securities orother property, other than a merger or consolidation of Avocent Corporation inwhich the holders of Avocent Corporation’s common stock immediately prior tothe merger or consolidation have substantially the same proportionate ownershipand voting control of the surviving corporation immediately after the merger orconsolidation; or

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##### (2)           anysale, lease, exchange, liquidation or other transfer (in one transaction or aseries of transactions) of all or substantially all of the assets of AvocentCorporation.

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Notwithstanding subparagraphs (e)(iii)(1) and(e)(iii)(2) above, the term “Change in Control” shall not include (i) aconsolidation, merger, or other reorganization if upon consummation of suchtransaction all of the outstanding voting stock of Avocent Corporation isowned, directly or indirectly, by a holding company, and the holders of AvocentCorporation’s common stock immediately prior to the transaction havesubstantially the same proportionate ownership and voting control of suchholding company after such transaction or (ii) any transaction contemplated byor described in the Acquisition Agreement and/or resulting from the closing ofthe transactions described in the Acquisition Agreement including, withoutlimitation, the Merger.

 

## 2.2           BASICTERM.  The term of employment of theEmployee by the Employer shall be for the period beginning on the date of thisAgreement, and ending on December 31, 2007, unless terminated earlier pursuantto this Section 2.  At any time beforeDecember 31, 2007, the Employer and the Employee may by mutual writtenagreement extend the Employee’s employment under the terms of this Agreementfor such additional periods as they may agree.

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## 2.3           TERMINATIONFOR CAUSE.  Termination For Cause may beeffected by the Employer at any time during the term of this Agreement andshall be effected by thirty (30) days written notification to the Employee fromthe Boards of Directors of Employer and Avocent Corporation stating the reasonfor termination.  Upon Termination ForCause, the Employee immediately shall be paid all accrued salary, bonuscompensation to the extent earned, vested deferred compensation, if any (otherthan pension plan or profit sharing plan benefits which will be paid inaccordance with the applicable plan), any benefits under any plans of Employeror Avocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans, accrued vacation pay and any appropriatebusiness expenses incurred by the Employee in connection with his dutieshereunder, all to the date of termination, but the Employee shall not be paidany other compensation or reimbursement of any kind, including withoutlimitation, severance compensation.

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## 2.4           TERMINATIONOTHER THAN FOR CAUSE.  Notwithstandinganything else in this Agreement, the Employer may effect a Termination OtherThan For Cause at any time upon giving thirty (30) days written notice to theEmployee of such termination.  Upon any TerminationOther Than For Cause, the Employee shall immediately be paid all accruedsalary, bonus compensation to the extent earned, vested deferred compensation,if any (other than pension plan or profit sharing plan benefits which will bepaid in accordance with the applicable plan), any benefits under any plans ofEmployer or Avocent in which the Employee is a participant to the full extentof the Employee’s rights under such plans, accrued vacation pay and anyappropriate business expenses incurred by the Employee in connection with hisduties hereunder, all to the date of termination, and all severancecompensation provided in Section 4.2, but no other compensation orreimbursement of any kind.

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## 2.5           TERMINATIONBY REASON OF DISABILITY.  If, during theterm of this Agreement, the Employee, in the reasonable judgment of the Boardof Directors of Avocent Corporation, has failed to perform his duties underthis Agreement on account of illness or physical or mental incapacity, and suchillness or incapacity continues for a period of more than six (6) consecutivemonths, the Employer shall have the right to terminate the Employee’semployment hereunder by delivery of written notice to the Employee at any timeafter such six month period and payment to the Employee of all accrued salary,bonus compensation to the extent earned, additional bonus compensation in anamount equal to the average annual bonus earned by the Employee after theMerger as an employee of Avocent Corporation and its affiliates in the two (2)years (or such lesser period following the Merger) immediately preceding thedate of termination, vested deferred compensation, if any (other than pensionplan or profit sharing plan benefits which will be paid in accordance with theapplicable plan), any benefits under any plans of Employer or Avocent in whichthe Employee is a participant to the full extent of the Employee’s rights undersuch plans (including having the vesting of any awards granted to the Employeeunder any Avocent stock option plans fully accelerated), accrued vacation payand any appropriate business expenses incurred by the Employee in connectionwith his duties hereunder, all to the date of termination, with the exceptionof medical and dental benefits which shall continue through the expiration ofthis Agreement, but the Employee shall not be paid any other compensation orreimbursement of any kind, including without limitation, severancecompensation.

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## 2.6           TERMINATIONBY REASON OF DEATH.  In the event of theEmployee’s death during the term of this Agreement, the Employee’s employmentshall be deemed to have terminated as of the last day of the month during whichhis death occurs and the Employer shall pay to his estate or such beneficiariesas the Employee may from time to time designate all accrued salary, bonuscompensation to the extent earned, vested deferred compensation, if any (otherthan pension plan or profit sharing plan benefits which will be paid inaccordance with the applicable plan), any benefits under any plans of Employeror Avocent in which the Employee is a participant to the full extent of theEmployee’s rights under such plans (including having the vesting of any awardsgranted to the Employee under any Avocent stock option plans fullyaccelerated), accrued vacation pay and any appropriate business expensesincurred by the Employee in connection with his duties hereunder, all to thedate of termination, but the Employee’s estate shall not be paid any othercompensation or reimbursement of any kind, including without limitation,severance compensation.

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## 2.7           VOLUNTARYTERMINATION.  Notwithstanding anythingelse in this Agreement, the Employee may effect a Voluntary Termination at anytime upon giving thirty (30)

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## dayswritten notice to the Employer of such termination.  In the event of a Voluntary Termination, the Employer shallimmediately pay all accrued salary, bonus compensation to the extent earned,vested deferred compensation, if any (other than pension plan or profit sharingplan benefits which will be paid in accordance with the applicable plan), anybenefits under any plans of Employer or Avocent in which the Employee is aparticipant to the full extent of the Employee’s rights under such plans,accrued vacation pay and any appropriate business expenses incurred by theEmployee in connection with his duties hereunder, all to the date oftermination, but no other compensation or reimbursement of any kind, includingwithout limitation, severance compensation.

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## 2.8           TERMINATIONUPON A CHANGE IN CONTROL.  In the eventof a Termination Upon a Change in Control, the Employee shall immediately bepaid all accrued salary, bonus compensation to the extent earned, vesteddeferred compensation, if any (other than pension plan or profit sharing planbenefits which will be paid in accordance with the applicable plan), anybenefits under any plans of Employer or Avocent in which the Employee is aparticipant to the full extent of the Employee’s rights under such plans (includinghaving the vesting of any awards granted to the Employee under any Avocentstock option plans fully accelerated), accrued vacation pay and any appropriatebusiness expenses incurred by the Employee in connection with his dutieshereunder, all to the date of termination, and all severance compensationprovided in Section 4.1, but no other compensation or reimbursement of anykind.

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# 3.             SALARY, BENEFITS ANDBONUS COMPENSATION.

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## 3.1           BASESALARY.  Effective on the date of theMerger, as payment for the services to be rendered by the Employee as providedin 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$190,000 per annum, payable in equal bi-weekly installments.  The Base Salary for each calendar year (orproration thereof) beginning April 7, 2004****shall be determined by the Board ofDirectors of Avocent Corporation upon a recommendation of the Compensation Committee of AvocentCorporation (the “Compensation Committee”), which shall authorize anincrease in the Employee’s Base Salary in an amount which, at a minimum, shallbe equal to the cumulative cost-of-living increment on the Base Salary asreported in the “Consumer Price Indexfor All Urban Consumers (CPI-U), All Items Index, for San Jose, CA” publishedby the U.S. Department of Labor (using January 1, 2003, as the base date forcomputation prorated for any partial year).* *TheEmployee’s Base Salary shall be reviewed annually by the Board of Directors andthe Compensation Committee of Avocent Corporation.

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## 3.2           BONUSES.  The Employee shall be eligible to receive abonus for each calendar year (or portion thereof) during the term of thisAgreement and any extensions thereof, with the actual amount of any such bonusto be determined in the sole discretion of the Board of Directors of AvocentCorporation based upon its evaluation of the Employee’s performance during suchyear.  All such bonuses shall be payableduring the last month of the fiscal year or within forty-five (45) days afterthe end of the fiscal year to which such bonus relates.  All such bonuses shall be reviewed annuallyby the Compensation Committee ofAvocent Corporation.

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## 3.3           ADDITIONALBENEFITS.  During the term of thisAgreement, the Employee shall be entitled to the following fringe benefits:

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### (a)           THEEMPLOYEE BENEFITS.  The Employee shallbe eligible to participate in such of Avocent’s benefits and deferredcompensation plans as are now generally

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### availableor later made generally available to executive officers or Avocent, including,without limitation, stock option plans, Section 401(k) plan, profit sharingplans, deferred compensation plan, annual physical examinations, dental andmedical plans, personal catastrophe and disability insurance, retirement plansand supplementary executive retirement plans, if any.  For purposes of establishing the length of service under anybenefit plans or programs of Avocent, the Employee’s employment with theEmployer (or any successor) will be deemed to have commenced on the date thatEmployee first commenced employment with Old OSA, which was August 1, 2000.

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

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### (c)           LIFEINSURANCE.  For the term of thisAgreement and any extensions thereof, the Employer shall at its expense procureand keep in effect term life insurance on the life of the Employee, payable tosuch beneficiaries as the Employee may from time to time designate, in anaggregate amount equal to three times the Employee’s Base Salary.  Such policy shall be owned by the Employeeor by any person or entity with an insurable interest in the life of theEmployee.

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### (d)           REIMBURSEMENTFOR EXPENSES.  During the term of thisAgreement, the Employer or Avocent Corporation shall reimburse the Employee forreasonable and properly documented out-of-pocket business and/or entertainmentexpenses incurred by the Employee in connection with his duties under thisAgreement in accordance with Avocent’s standard reimbursement policies.

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# 4.             SEVERANCECOMPENSATION.

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## 4.1           SEVERANCECOMPENSATION IN THE EVENT OF A TERMINATION UPON A CHANGE IN CONTROL.  In the event of a Termination Upon a Changein Control, the Employee shall be paid as severance compensation his BaseSalary (at the rate payable at the time of such termination) for a period oftwelve (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 paidan amount equal to the average annual bonus earned by the Employee after theMerger as an employee of Avocent Corporation and its affiliates in the two (2)years (or such lesser period following the Merger) immediately preceding thedate of termination.  Notwithstandinganything in this Section 4.1 to the contrary, the Employee may in theEmployee’s sole discretion, by delivery of a notice to the Employer withinthirty (30) days following a Termination Upon a Change in Control, elect toreceive from the Employer a lump sum severance payment by bank cashier’s checkequal to the present value of the flow of cash payments that would otherwise bepaid to the Employee pursuant to this Section 4.1.  Such present value shall be determined as ofthe date of delivery of the notice of election by the Employee and shall bebased on a discount rate equal to the interest rate of 90-day U.S.Treasury bills, as reported in *The Wall Street Journal* (or similarpublication), on the date of delivery of the election notice.  If the Employee elects to receive a lump sumseverance payment, Avocent Corporation shall cause the Employer to make suchpayment to the Employee within ten (10) days following the date on which theEmployee notifies the Employer of the Employee’s election.  The Employee shall also be entitled to havethe vesting of any awards granted to the Employee under any Avocent stockoption plans fully accelerated.  TheEmployee shall be provided with medical plan benefits under any health plans ofAvocent or Employer in which the Employee is a participant to the full extentof the Employee’s rights under such plans for a period of

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## twelve(12) months from the date of such Termination Upon a Change in Control (even ifEmployee elects to receive a lump sum severance payment).

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## 4.2           SEVERANCECOMPENSATION IN THE EVENT OF A TERMINATION OTHER THAN FOR CAUSE.  In the event of a Termination Other Than forCause, the Employee shall be paid as severance compensation his Base Salary (atthe 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 inSection 3.1, and Employee shall also be paid an amount equal to theaverage annual bonus earned by the Employee after the Merger as an employee ofAvocent Corporation and its affiliates in the two (2) years (or such lesserperiod following the Merger) immediately preceding the date oftermination.  Notwithstanding anythingin this Section 4.2 to the contrary, the Employee may in the Employee’ssole discretion, by delivery of a notice to the Employer within thirty (30)days following a Termination Other Than for Cause, elect to receive from theEmployer a lump sum severance payment by bank cashier’s check equal to thepresent value of the flow of cash payments that would otherwise be paid to theEmployee pursuant to this Section 4.2. Such present value shall be determined as of the date of delivery of thenotice of election by the Employee and shall be based on a discount rate equalto the interest rate on 90-day U.S. Treasury bills, as reported in *The WallStreet Journal* (or similar publication), on the date of delivery ofthe election notice.  If the Employeeelects to receive a lump sum severance payment, Avocent Corporation shall causethe Employer to make such payment to the Employee within ten (10) daysfollowing the date on which the Employee notifies the Employer of theEmployee’s election.  The Employee shallalso be entitled to have the vesting of any awards granted to the Employeeunder any Avocent stock option plans fully accelerated. The Employee shall be providedwith medical plan benefits under any health plans of Avocent or Employer inwhich the Employee is a participant to the full extent of the Employee’s rightsunder such plans for a period of twelve (12) months from the date of suchTermination Other Than for Cause (even if Employee elects to receive a lump sumseverance payment).

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## 4.3           NOSEVERANCE 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, theEmployee or his estate shall not be paid any severance compensation.

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# 5.             NON-COMPETITIONOBLIGATIONS.  Unless waived or reducedby the Employer or Avocent, during the term of this Agreement and (i) for a period of twenty-four (24) months after the termination ofthis Agreement for any reason that occurs prior to the fifth (5th)anniversary of the Merger, or (ii) for a period of twelve (12) monthsafter termination of this Agreement for any reason that occurs subsequent tothe fifth (5th) anniversary of the Merger, the Employee willnot, 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 ofany company or business, engage in any business activity in the United States,Canada, Europe, or Asia which is substantially similar to or in directcompetition with any of the business activities of or services provided by theEmployer or Avocent at such time. Notwithstanding the foregoing, the ownership by the Employee of not morethan five percent (5%) of the shares of stock of any corporation having a classof equity securities actively traded on a national securities exchange or onThe Nasdaq Stock Market shall not be deemed, in and of itself, to violate theprohibitions of this Section 5.

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# 6.             MISCELLANEOUS.

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## 6.1           PAYMENTOBLIGATIONS.  If litigation after aChange in Control shall be brought to enforce or interpret any provisioncontained herein, the Employer and Avocent Corporation, to the extent permittedby applicable law and the Employer’s and Avocent Corporation’s Certificate ofIncorporation and Bylaws, each hereby indemnifies the Employee for theEmployee’s reasonable attorneys’ fees and disbursements incurred in suchlitigation.

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## 6.2           GUARANTEE.  Avocent Corporation hereby unconditionallyand irrevocably guarantees all payment obligations of the Employer under thisAgreement, including, without limitation, the Employer’s obligations underSections 2, 3, 4, and 6 hereof.

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## 6.3           WITHHOLDINGS.  All compensation and benefits to theEmployee hereunder shall be reduced by all federal, state, local, and otherwithholdings and similar taxes and payments required by applicable law.

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

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## 6.5           ENTIREAGREEMENT; MODIFICATIONS.  Except asotherwise provided herein, this Agreement represents the entire understandingamong the parties with respect to the subject matter hereof, and this Agreementsupersedes any and all prior understandings, agreements, plans andnegotiations, whether written or oral with respect to the subject matter hereofincluding without limitation, the employment agreement between Employee and OldOSA dated                             and any understandings, agreements or obligations respecting any past or futurecompensation, bonuses, reimbursements or other payments to the Employee fromthe Employer or Avocent Corporation. All modifications to the Agreement must be in writing and signed by theparty against whom enforcement of such modification is sought.

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

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If to Employer/Avocent:                     AvocentCorporation

4991 Corporate Drive

Huntsville, AL 35805

Attn:               Executive VicePresident

*Copy to*:         General Counsel

 

If to the Employee:                               MarkLee

2001 Gateway Place

Suite 520W

San Jose, California 95110-1065

 

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

 

## 6.7           HEADINGS.  The Section headings herein are intended forreference and shall not by themselves determine the construction orinterpretation of this Agreement.

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## 6.8           GOVERNINGLAW; VENUE.  This Agreement shall begoverned by and construed in accordance with the laws of the State ofCalifornia.  The Employee, the Employer,and Avocent Corporation each hereby expressly consents to the exclusive venueof the state and federal courts located in San Jose, California, for anylawsuit arising from or relating to this Agreement.

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## 6.9           ARBITRATION.  Any controversy or claim arising out of orrelating to this Agreement, or breach thereof, shall be settled by arbitrationin San Jose, California, in accordance with the Rules of the AmericanArbitration Association, and judgment upon any proper award rendered by thearbitrators 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 beselected by the two (2) arbitrators so chosen. To the extent permitted by the Rules of the American ArbitrationAssociation, the selected arbitrators may grant equitable relief.  Each party shall pay the fees of thearbitrator selected by him and of his own attorneys, and the expenses of hiswitnesses and all other expenses connected with the presentation of hiscase.  The cost of the arbitrationincluding the cost of the record or transcripts thereof, if any, administrativefees, and all other fees and costs shall be borne equally by the parties.

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## 6.10         SEVERABILITY.  If a court or other body of competentjurisdiction determines that any provision of this Agreement is excessive inscope or otherwise invalid or unenforceable, such provision shall be adjustedrather than voided, if possible, and all other provisions of this Agreementshall be deemed valid and enforceable to the extent possible.

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## 6.11         SURVIVALOF EMPLOYER’S OBLIGATIONS.  The Employer’sand Avocent Corporation’s obligations hereunder shall not be terminated byreason of any liquidation, dissolution, bankruptcy, cessation of business, orsimilar event relating to the Employer or Avocent Corporation.  This Agreement shall not be terminated byany merger or consolidation or other reorganization of the Employer or AvocentCorporation.  In the event any suchmerger, consolidation or reorganization shall be accomplished by transfer ofstock or by transfer of assets or otherwise, the provisions of this Agreementshall be binding upon and inure to the benefit of the surviving or resultingcorporation or person.  This Agreementshall be binding upon and inure to the benefit of the executors, administrators,heirs, successors and assigns of the parties; provided, however, that except asherein expressly provided, this Agreement shall not be assignable either by theEmployer (except to an affiliate of the Employer (including AvocentCorporation) in which event the Employer shall remain liable if the affiliatefails to meet any obligations to make payments or provide benefits orotherwise) or by the Employee.

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## 6.12         COUNTERPARTS.  This Agreement may be executed in one ormore counterparts, all of which taken together shall constitute one and thesame Agreement.

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## 6.13         INDEMNIFICATION.  In addition to any rights to indemnificationto which the Employee is entitled to under the Employer’s or AvocentCorporation’s Certificate of Incorporation and Bylaws, the Employer and AvocentCorporation shall indemnify the Employee at all times during and after the termof this Agreement to the maximum extent permitted under the 

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## corporationlaws of the State of Delaware and any other applicable state law, and shall paythe Employee’s expenses in defending any civil or criminal action, suit, orproceeding in advance of the final disposition of such action, suit, orproceeding, to the maximum extent permitted under such applicable state laws.

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## 6.14         INDEMNIFICATIONFOR SECTION 4999 EXCISE TAXES.  In theevent that it shall be determined that any payment or other benefit paid by theEmployer or Avocent Corporation to or for the benefit of the Employee underthis Agreement or otherwise, but determined without regard to any additionalpayments required under this Amendment (the “Payments”) would be subjectto the excise tax imposed by Section 4999 of the Internal Revenue Code (the “ExciseTax”), then the Employer and Avocent Corporation shall indemnify theEmployee for such Excise Tax in accordance with the following:

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### (a)           TheEmployee shall be entitled to receive an additional payment from the Employerand/or Avocent Corporation equal to (i) one hundred percent (100%) of anyExcise Tax actually paid or finally or payable by the Employee in connectionwith the Payments, plus (ii) an additional payment in such amount that afterall taxes, interest and penalties incurred in connection with all paymentsunder this Section 2(a), the Employee retains an amount equal to one hundred percent(100%) of the Excise Tax.

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### (b)           Alldeterminations required to be made under this Section shall be made by theAvocent Corporation’s primary independent public accounting firm, or any othernationally recognized accounting firm reasonably acceptable to the AvocentCorporation and the Employee (the “Accounting Firm”).  Avocent Corporation shall cause theAccounting Firm to provide detailed supporting calculations of itsdeterminations to the Employer and the Employee.  All fees and expenses of the Accounting Firm shall be bornesolely by the Employer.  For purposes ofmaking the calculations required by this Section, the Accounting Firm may makereasonable assumptions and approximations concerning applicable taxes and mayrely on reasonable, good faith interpretations concerning the application ofSections 280G and 4999 of the Internal Revenue Code, provided the AccountingFirm’s determinations must be made with substantial authority (within themeaning of Section 6662 of the Internal Revenue Code). The payments to whichthe Employee is entitled pursuant to this Section shall be paid by the Employerand/or Avocent Corporation to the Employee in cash and in full not later thanthirty (30) calendar days following the date the Employee becomes subject to theExcise Tax.

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

 
|   | **OSA TECHNOLOGIES INC.:** |
|--------|----------------------------|
|   |                       |
|   |                       |
|   | By:                        | /s/ John R. Cooper |
|   | Its:                       | Chairman |
|   |                       |
|   |                       |
|   | **AVOCENT  CORPORATION:**  |
|   |                       |
|   |                       |
|   | By:                        | /s/ John R. Cooper |
|   | Its:                       | President and CEO |
|   |                       |
|   |                       |
|   | **EMPLOYEE:**              |
|   |                       |
|   | /s/ Mark Lee               |
|   | Mark Lee                   |
|        |                            |  |  |

 

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