**Exhibit 10.32**

 

**AMENDED AND RESTATED**

**EMPLOYMENT ANDNONCOMPETITION AGREEMENT**

** **

THISAMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”)is made and entered into as of February 8, 2005, by and among AvocentHuntsville Corp., an Alabama corporation (“AHC” or “Employer”), AvocentCorporation, a Delaware corporation, and Stephen M. Daly****(the“Employee”).

 

**RECITALS**

 

WHEREAS, Employee, AHC, and Avocent Utah Corp. (formerly known asSoronti, Inc.) entered into that certain Employment and NoncompetitionAgreement dated November 4, 2003 (the “Original Employment Agreement”) inconnection with the acquisition by AHC of Soronti, Inc. (now known asAvocent Utah Corp.) on November 4, 2003 (the “Soronti Acquisition Date”);and

 

WHEREAS,Avocent Corporation and its affiliates including Avocent International Ltd.,Avocent Huntsville Corp., Avocent Redmond Corp., Avocent Utah Corp., and OSATechnologies, Inc. (Avocent Corporation and its affiliates arecollectively referred to in this Agreement as “Avocent”) are engaged in thebusiness of designing, manufacturing, and selling connectivity solutions forenterprise data centers, service providers, and financial institutions; and

 

WHEREAS,Employee, Employer, and Avocent Corporation now wish to amend and restate theOriginal Employment Agreement with this Amended and Restated Employment andNoncompetition Agreement.

 

**AGREEMENT**

** **

THEPARTIES HERETO AGREE AS FOLLOWS:

 

1.                                       DUTIES. During the term of this Agreement, the Employee agrees to be employed byEmployer and to serve Avocent as its Senior Vice President of CorporateStrategy.  The Employee shall devote suchof his business time, energy, and skill to the affairs of Avocent and Employeras shall be necessary to perform the duties of Senior Vice President ofCorporate Strategy.  The Employee shallreport to the Chief Executive Officer of the Employer and Avocent Corporationand to the Boards of Directors of the Employer and Avocent Corporation, and atall times during the term of this Agreement, the Employee shall have powers andduties at least commensurate with his position as Senior Vice President ofCorporate Strategy of Avocent Corporation.

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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 attempted

 

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### injury to, theEmployer or Avocent or by reason of the Employee’s willful material breach ofthis Agreement which has resulted in material injury to the Employer orAvocent.

 

### (b)                                 “TERMINATIONSOTHER 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 any constructive terminationof the Employee’s employment by reason of material breach of this Agreement bythe Employer or Avocent, such constructive termination to be effective uponthirty (30) days written notice from the Employee to the Employer of suchconstructive termination.

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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 a Change in Control” as described in Section 2.1(e),and (iii) termination by reason of the Employee’s disability or death asdescribed in Sections 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 Employeror Avocent Corporation of the Employee’s employment with the Employer orAvocent (other than a Termination for Cause) within eighteen (18) monthsfollowing any “Change in Control.”

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### (e)                                  “CHANGE INCONTROL” shall mean, after the date of this Agreement, any one of the followingevents:

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#### (i)                                     Any person(other than Avocent Corporation) acquires beneficial ownership of Employer’s orAvocent Corporation’s securities and is or thereby becomes a beneficial ownerof securities entitling such person to exercise twenty-five percent (25%) ormore of the combined voting power of Employer’s or Avocent Corporation’s thenoutstanding stock.  For purposes of thisAgreement, “beneficial ownership” shall be determined in accordance withRegulation 13D under the Securities Exchange Act of 1934, or any similarsuccessor regulation or rule; and the term “person” shall include any naturalperson, corporation, partnership, trust or association, or any group orcombination thereof, whose ownership of Employer’s or Avocent Corporation’ssecurities would be required to be reported under such Regulation 13D, orany similar successor regulation or rule.

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#### (ii)                                  Within anytwenty-four (24) month period, the individuals who were Directors of AvocentCorporation at the beginning of any such period, together with any otherDirectors 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)                               AvocentCorporation’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 to themerger or consolidation have

 

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##### substantially the sameproportionate ownership and voting control of the surviving corporationimmediately after the merger or consolidation; or

 

##### (2)                                  any sale, lease,exchange, liquidation or other transfer (in one transaction or a series oftransactions) of all or substantially all of the assets of Avocent Corporation.

#####  

Notwithstandingsubparagraphs (e)(iii)(1) and (e)(iii)(2) above, the term “Changein Control” shall not include a consolidation, merger, or other reorganizationif upon consummation of such transaction all of the outstanding voting stock ofAvocent Corporation is owned, directly or indirectly, by a holding company, andthe holders of Avocent Corporation’s common stock immediately prior to thetransaction have substantially the same proportionate ownership and votingcontrol of such holding company after such transaction.

 

## 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 earlierpursuant to this Section 2.  At anytime before December 31, 2007, the Employer and the Employee may by mutualwritten agreement extend the Employee’s employment under the terms of thisAgreement for such additional periods as they may agree.

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## 2.3                                 TERMINATION FORCAUSE.  Termination ForCause may be effected by the Employer at any time during the term of thisAgreement and shall be effected by thirty (30) days written notification to theEmployee from the Boards of Directors of Employer and Avocent Corporationstating the reason for termination.  UponTermination For Cause, the Employee immediately shall 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, but the Employee shall not bepaid any 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 effecta Termination Other Than For Cause at any time upon giving thirty (30) dayswritten notice to the Employee of such termination.  Upon any Termination Other Than For Cause,the Employee shall immediately be paid all accrued salary, bonus compensationto the extent earned, 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, accrued vacation pay and any appropriate business expenses incurredby the Employee in connection with his duties hereunder, all to the date oftermination, and all severance compensation provided in Section 4.2, butno other compensation or reimbursement of any kind.

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## 2.5                                 TERMINATION BYREASON 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

 

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## ormental incapacity, and such illness or incapacity continues for a period ofmore than six (6) consecutive months, the Employer shall have the right toterminate the Employee’s employment hereunder by delivery of written notice tothe Employee at any time after such six month period and payment to theEmployee of all accrued salary, bonus compensation to the extent earned,additional bonus compensation in an amount equal to the average annual bonusearned by the Employee as an employee of Avocent Corporation and its affiliatesand predecessors in the two (2) years immediately preceding the date oftermination, vested deferred compensation, if any (other than pension plan orprofit sharing plan benefits which will be paid in accordance with theapplicable plan), any benefits under any plans of Employer or Avocent in which theEmployee 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 AHC or Avocent stock option plans fully accelerated), accruedvacation pay and any appropriate business expenses incurred by the Employee inconnection with his duties hereunder, all to the date of termination, with theexception of medical and dental benefits which shall continue through theexpiration of this Agreement, but the Employee shall not be paid any othercompensation or reimbursement of any kind, including without limitation,severance compensation.

 

## 2.6                                 TERMINATION BYREASON 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 AHC or 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 aVoluntary Termination at any time upon giving thirty (30) days written noticeto the Employer of such termination.  Inthe event of a Voluntary Termination, the Employer shall immediately pay allaccrued salary, bonus compensation to the extent earned, vested deferredcompensation, if any (other than pension plan or profit sharing plan benefitswhich will be paid in accordance with the applicable plan), any benefits underany plans of Employer or Avocent in which the Employee is a participant to thefull extent of the Employee’s rights under such plans, accrued vacation pay andany appropriate business expenses incurred by the Employee in connection withhis duties hereunder, all to the date of termination, but no other compensationor reimbursement of any kind, including without limitation, severancecompensation.

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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(including having the vesting of any awards

 

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## grantedto the Employee under any AHC or Avocent stock option plans fully accelerated),accrued vacation pay and any appropriate business expenses incurred by theEmployee in connection with his duties hereunder, all to the date oftermination, and all severance compensation provided in Section 4.1, butno other compensation or reimbursement of any kind.

 

## 2.9                                 REIMBURSEMENT OF RELOCATIONEXPENSES.  If Employee is terminated forany reason (other than a Termination for Cause as defined in Section 2.1(a) ora Voluntary Termination as defined in Section 2.1(c)) at any time prior toSeptember 1, 2007, Avocent agrees reimburse Employee for the reasonablemoving and relocation expenses actually incurred by Employee in relocating fromHuntsville, Alabama, to the Salt Lake City, Utah, area in an amount not toexceed Fifty Thousand Dollars ($50,000).

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3.                                       SALARY, BENEFITS AND BONUS COMPENSATION.

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## 3.1                                 BASE SALARY.  Effective January 1, 2005, as paymentfor the services to be rendered by the Employee as provided in Section 1and subject to the terms and conditions of Section 2, the Employer agreesto pay to the Employee a “Base Salary” at the rate of $180,000.00 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 ofDirectors of Avocent Corporation upon a recommendation of the Compensation Committee of AvocentCorporation (the “Compensation Committee”), which shall authorize an increasein the Employee’s Base Salary in an amount which, at a minimum, shall be equalto the cumulative cost-of-living increment on the Base Salary as reported inthe “Consumer Price Index for All UrbanConsumers (CPI-U), All Items Index” for South Urban Size A, published by theU.S. Department of Labor (using July 1, 2004, as the base date forcomputation prorated for any partial year).* *The Employee’s Base Salary shallbe reviewed annually by the Board of Directors and the Compensation Committeeof 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)                                  THE EMPLOYEEBENEFITS.  The Employee shall be eligibleto participate in such of Avocent’s benefits and deferred compensation plans asare now generally available or later made generally available to executiveofficers or Avocent, including, without limitation, stock option plans, Section 401(k)plan, profit sharing plans, deferred compensation plan, annual physicalexaminations, dental and medical plans, personal catastrophe and disabilityinsurance, retirement plans and supplementary executive retirement plans, if any.  For purposes of establishing the length ofservice under any benefit plans or programs of AHC or Avocent, the Employee’semployment with the Employer (or any successor) will be deemed to havecommenced on the date that Employee first commenced employment with AHC, whichwas October 9, 2002.

 

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### (b)                                 VACATION.  The Employee shall be entitled to vacation inaccordance with the Avocent Corporation’s vacation policy but in no event lessthan 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 Employee orby any person or entity with an insurable interest in the life of the Employee.

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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.                                       SEVERANCE COMPENSATION.

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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 Change inControl, 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 thedates specified in Section 3.1, and the Employee shall also be paid anamount equal to the average annual bonus earned by the Employee as an employeeof Avocent Corporation and its affiliates and predecessors in the two (2) yearsimmediately preceding the date of termination. Notwithstanding anything in this Section 4.1 to the contrary, theEmployee may in the Employee’s sole discretion, by delivery of a notice to theEmployer within thirty (30) days following a Termination Upon a Change inControl, elect to receive from the Employer a lump sum severance payment bybank cashier’s check equal to the present value of the flow of cash paymentsthat would otherwise be paid 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 similar publication), 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 whichthe Employee 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 AHC or Avocentstock option plans fully accelerated. The Employee shall be provided with medical plan benefits under anyhealth plans of Avocent or Employer in which the Employee is a participant tothe full extent of the Employee’s rights under such plans for a period oftwelve (12) months from the date of such Termination Upon a Change in Control(even if Employee elects to receive a lump sum severance payment).

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## 4.2                                 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 

 

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## specifiedin Section 3.1, and Employee shall also be paid an amount equal to theaverage annual bonus earned by the Employee as an employee of AvocentCorporation and its affiliates and predecessors in the two (2) yearsimmediately preceding the date of termination. Notwithstanding anything in this Section 4.2 to the contrary, theEmployee may in the Employee’s sole discretion, by delivery of a notice to theEmployer 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’scheck equal to the present value of the flow of cash payments that wouldotherwise be paid to the Employee pursuant to this Section 4.2.  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 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 sumseverance payment, Avocent Corporation shall cause the Employer to make suchpayment to the Employee within ten (10) days following the date on whichthe Employee 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 AHC or Avocentstock option plans fully accelerated. The Employee shall be provided withmedical plan benefits under any health plans of Avocent or Employer in whichthe Employee is a participant to the full extent of the Employee’s rights undersuch plans for a period of twelve (12) months from the date of such TerminationOther Than for Cause (even if Employee elects to receive a lump sum severancepayment).

 

## 4.3                                 NO SEVERANCECOMPENSATION UNDER OTHER TERMINATION.  Inthe event of a Voluntary Termination, Termination ForCause, 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-COMPETITION OBLIGATIONS.  Unless waived or reduced by the Employer orAvocent, during the term of this Agreement, including any extensions orrenewals hereof, and (i) fora period of twenty-four (24) months after the termination of this Agreement forany reason that occurs prior to the fifth (5th) anniversary of theSoronti Acquisition Date, or (ii) fora period of twelve (12) months after the termination of this Agreement for anyreason that occurs after the fifth (5th) anniversary of the SorontiAcquisition Date, the Employee will not, without the Employer’s and AvocentCorporation’s prior written consent, directly or indirectly, alone or as apartner, joint venturer, officer, director, employee, consultant, agent,independent contractor or stockholder of any company or business, engage in anybusiness activity in the United States, Canada, Europe, or Asia which issubstantially similar to or in direct competition with any of the businessactivities of or services provided by the Employer or Avocent at suchtime.  Notwithstanding the foregoing, theownership by the Employee of not more than five percent (5%) of the shares ofstock of any corporation having a class of equity securities actively traded ona national securities exchange or on The Nasdaq Stock Market shall not bedeemed, in and of itself, to violate the prohibitions 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 Articles ofIncorporation and Bylaws, each hereby indemnifies the Employee for the Employee’sreasonable attorneys’ fees and disbursements incurred in such litigation.

 

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## 6.2                                 GUARANTEE.  Avocent Corporation hereby unconditional andirrevocable 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 the Employeehereunder shall be reduced by all federal, state, local,and other withholdings and similar taxes and payments required by applicablelaw.

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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 as otherwiseprovided herein, this Agreement represents the entire understanding among theparties with respect to the subject matter hereof, and this Agreementsupersedes any and all prior understandings, agreements (including the OriginalEmployment Agreement), plans and negotiations, whether written or oral withrespect to the subject matter hereof,**andany understandings, agreements or obligations respecting any past or futurecompensation, bonuses, reimbursements or other payments to the Employee fromthe Employer or Avocent Corporation; provided, however, that (i) theNoncompetition Agreement dated November 4, 2004 among Avocent Corporation,AHC, and Employee and (ii) the terms and conditions of the Confidential Information, InventionAssignment, Noncompetition and Arbitration Agreement with AHC (then known asBear River Digital Corporation) relating to confidential information andassignment of inventions (but not the other provisions thereof) shall remain infull force in effect.  All modificationsto the Agreement must be in writing and signed by the party against whomenforcement 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 mailingto the respective persons named below:

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| 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:         | Stephen M.  Daly        |

 

Anyparty may change such party’s address for notices by notice duly given pursuantto this Section 6.6.

 

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

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## 6.8                                 GOVERNING LAW;VENUE.  This Agreement shall be governedby and construed in accordance with the laws of the State of Alabama.  The Employee, the Employer, and Avocent Corporationeach hereby expressly consents to the exclusive venue of the state and federalcourts located in Huntsville, Alabama, for any lawsuit arising from or relatingto 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 Huntsville, Alabama, 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 thirdarbitrator to be selected by the two (2) arbitrators so chosen.  To the extent permitted by the Rules ofthe American Arbitration Association, the selected arbitrators may grantequitable relief.  Each party shall paythe fees of the arbitrator selected by him and of his own attorneys, and theexpenses of his witnesses and all other expenses connected with thepresentation of his case.  The cost ofthe arbitration including the cost of the record or transcripts thereof, ifany, administrative fees, and all other fees and costs shall be borne equallyby the parties.

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## 6.10                           SEVERABILITY.  If a court or other body of competent jurisdictiondetermines that any provision of this Agreement is excessive in scope orotherwise invalid or unenforceable, such provision shall be adjusted ratherthan voided, if possible, and all other provisions of this Agreement shall bedeemed valid and enforceable to the extent possible.

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## 6.11                           SURVIVAL OFEMPLOYER’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 by anymerger 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 as herein expressly provided, this Agreement shall not beassignable either by the Employer (except to an affiliate of the Employer(including Avocent Corporation) in which event the Employer shall remain liableif the affiliate fails to meet any obligations to make payments or providebenefits or otherwise) or by the Employee.

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## 6.12                           COUNTERPARTS.  This Agreement may be executed in one or morecounterparts, all of which taken together shall constitute one and the sameAgreement.

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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 Articles 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 corporation laws ofthe State of Delaware and any other applicable state law, and shall pay theEmployee’s expenses in defending any civil or criminal action, suit, or proceedingin advance of the final

 

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## disposition of suchaction, suit, or proceeding, to the maximum extent permitted under suchapplicable state laws.

 

## 6.14                           INDEMNIFICATIONFOR SECTION 4999 EXCISE TAXES.  Inthe event that it shall be determined that any payment or other benefit paid bythe Employer 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 subject to theexcise tax imposed by Section 4999 of the Internal Revenue Code (the “ExciseTax”), then the Employer and Avocent Corporation shall indemnify the Employeefor such Excise Tax in accordance with the following:

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

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### (b)  All determinations required to be made underthis Section shall be made by the Avocent Corporation’s primaryindependent public accounting firm, or any other nationally recognizedaccounting firm reasonably acceptable to the Avocent Corporation and theEmployee (the “Accounting Firm”). Avocent Corporation shall cause the Accounting Firm to provide detailedsupporting calculations of its determinations to the Employer and theEmployee.  All fees and expenses of theAccounting Firm shall be borne solely by the Employer.  For purposes of making the calculations requiredby this Section, the Accounting Firm may make reasonable assumptions andapproximations concerning applicable taxes and may rely on reasonable, goodfaith interpretations concerning the application of Sections 280G and 4999 ofthe Internal Revenue Code, provided the Accounting Firm’s determinations mustbe made with substantial authority (within the meaning of Section 6662 ofthe Internal Revenue Code). The payments to which the Employee is entitledpursuant to this Section shall be paid by the Employer and/or AvocentCorporation to the Employee in cash and in full not later than thirty (30)calendar days following the date the Employee becomes subject to the ExciseTax.

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*Signature page follows*

 

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INWITNESS WHEREOF, the parties hereto have executed this Agreement as of the dayand 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/ Stephen M. Daly            |   |
|       | Stephen M. Daly                |
|            |                                |  |  |  |

 

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