**Exhibit 10.35**

 

**EMPLOYMENT ANDNONCOMPETITION AGREEMENT**

** **

THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT(the “Agreement”) is made and entered into as of February 8, 2005, by andamong Avocent Redmond Corp., an Washington corporation(“ARC” or “Employer”), Avocent Corporation, a Delaware corporation, and EugeneF. Mulligan****(the “Employee”).

 

RECITALS

 

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

 

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

 

**AGREEMENT**

** **

THE PARTIES HERETO AGREE AS FOLLOWS:

 

# 1.                                       DUTIES.  During the term of thisAgreement, the Employee agrees to be employed by Employer and to serve Avocentas its Senior Vice President of Operations, Redmond.  The Employee shall devote such of hisbusiness time, energy, and skill to the affairs of Avocent and Employer asshall be necessary to perform the duties of Senior Vice President ofOperations, Redmond.  The Employee shallreport to the President and Chief Operating Officer of the Employer and AvocentCorporation and to the Boards of Directors of the Employer and AvocentCorporation, and at all times during the term of this Agreement, the Employeeshall have powers and duties at least commensurate with his position as SeniorVice President of Operations, Redmond of Avocent Corporation.

#  

# 2.                                       TERM OF EMPLOYMENT.

#  

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

##  

### (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.

###  

### (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

 

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### Employer or Avocent, such constructive terminationto be effective upon thirty (30) days written notice from the Employee to theEmployer of such constructive termination.

 

### (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.

###  

### (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.”

###  

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

###  

#### (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.

####  

#### (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.

####  

#### (iii)                     AvocentCorporation’s stockholders approve:

####  

##### (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

#####  

##### (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.

 

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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, orother reorganization if upon consummation of such transaction all of theoutstanding voting stock of Avocent Corporation is owned, directly orindirectly, by a holding company, and the holders of Avocent Corporation’scommon stock immediately prior to the transaction have substantially the sameproportionate ownership and voting control of such holding company after suchtransaction.

 

## 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.

##  

## 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.

##  

## 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.

##  

## 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 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 as an employeeof Avocent Corporation and its affiliates and predecessors in the two (2) yearsimmediately preceding the date of termination, vested deferred compensation, ifany (other than

 

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## 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 ARC 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 ARC 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.

##  

## 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, severance compensation.

##  

## 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 granted to the Employee under anyARC or Avocent stock option plans fully accelerated), accrued vacation pay andany appropriate business expenses incurred by the Employee in connection withhis duties hereunder, all to the date of termination, and all severancecompensation provided in Section 4.1, but no other compensation orreimbursement of any kind.

 

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# 3.                                       SALARY, BENEFITS AND BONUS COMPENSATION.

#  

## 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 $175,000.00 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 AllConsumers (CPI-U), All Items Index” for Seattle-Tacoma-Bremerton, Washington,published by the U.S. Department of Labor (using July 1, 2004, as the basedate for computation prorated for any partial year).* *The Employee’s Base Salary shallbe reviewed annually by the Board of Directors and the Compensation Committeeof Avocent Corporation.

##  

## 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, ifany.  For purposes of establishing thelength of service under any benefit plans or programs of ARC or Avocent, theEmployee’s employment with the Employer (or any successor) will be deemed tohave commenced on the date that Employee first commenced employment with ARC,which was April 3, 2000.

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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.

#  

## 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 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. Treasurybills, 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 such paymentto 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 ARC or 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 twelve (12) monthsfrom the date of such Termination Upon a Change in Control (even if Employeeelects 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 in Section 3.1,and Employee shall also be paid 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.  Notwithstanding anything inthis Section 4.2 to the contrary, the Employee may in the Employee’s solediscretion, by delivery of a notice to the Employer within thirty (30) daysfollowing 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 Wall Street Journal* (or similar

 

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## publication), on the date of deliveryof the 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 the Employee’selection.  The Employee shall also beentitled to have the vesting of any awards granted to the Employee under anyARC or Avocent stock option plans fully accelerated. The Employee shall beprovided with medical plan benefits under any health plans of Avocent orEmployer in which the Employee is a participant to the full extent of theEmployee’s rights under such plans for a period of twelve (12) months from thedate of such Termination Other Than for Cause (even if Employee elects toreceive a lump sum severance payment).

 

## 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.  Unlesswaived or reduced by the Employer or Avocent, during the term of this Agreementand 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 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 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                                 ENTIRE AGREEMENT;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, plans and negotiations,whether written or oral with respect to the subject matter hereof,**and any understandings, agreements orobligations respecting any past or future compensation, bonuses, reimbursementsor other payments to the Employee from the Employer or AvocentCorporation.  All modifications to theAgreement must be in writing and signed by the party against whom enforcementof 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:         | Eugene F.  Mulligan     |

 

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

 

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

##  

## 6.8                                 GOVERNING LAW;VENUE.  This Agreement shall be governedby and construed in accordance with the laws of the State of Washington.  The Employee, the Employer, and AvocentCorporation each hereby expressly consents to the exclusive venue of the stateand federal courts located in Seattle, Washington, for any lawsuit arising fromor relating to this Agreement.

##  

## 6.9                                 ARBITRATION.  Any controversy or claim arising out of orrelating to this Agreement, or breach thereof, shall be settled by arbitrationin Seattle, Washington, 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

 

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## fees of the arbitrator selectedby him and of his own attorneys, and the expenses of his witnesses and allother expenses connected with the presentation of his case.  The cost of the arbitration including thecost of the record or transcripts thereof, if any, administrative fees, and allother fees and costs shall be borne equally by the parties.

 

## 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.

##  

## 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, 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.  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 Employeeshall be entitled to receive an additional payment from the Employer and/orAvocent Corporation equal to (i) one hundred percent (100%) of any ExciseTax actually paid or finally or payable by the Employee in connection with thePayments, plus (ii) an additional payment in such amount that after alltaxes, interest and 

 

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### penalties incurred in connection withall payments under this Section 2(a), the Employee retains an amount equalto one hundred percent (100%) of the Excise Tax.

 

### (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 Firmshall be borne solely by the Employer. For purposes of making the calculations required by this Section, the AccountingFirm may make reasonable assumptions and approximations concerning applicabletaxes and may rely on reasonable, good faith interpretations concerning theapplication of Sections 280G and 4999 of the Internal Revenue Code, providedthe Accounting Firm’s determinations must be made with substantial authority(within the meaning of Section 6662 of the Internal Revenue Code). Thepayments to which the Employee is entitled pursuant to this Section shallbe paid by the Employer and/or Avocent Corporation to the Employee in cash andin full not later than thirty (30) calendar days following the date theEmployee becomes subject to the Excise Tax.

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

 

 
|   | **AVOCENT  REDMOND CORP.:** |
|--------|-----------------------------|
|   |                        |
|   |                        |
|   | By:                         | /s/ John R.  Cooper |   |
|   | Its:                        | Chairman and  CEO |   |
|   |                        |
|   |                        |
|   | **AVOCENT  CORPORATION:**   |
|   |                        |
|   |                        |
|   | By:                         | /s/ John R.  Cooper |   |
|   | Its:                        | Chairman and  CEO |   |
|   |                        |
|   |                        |
|   | **EMPLOYEE:**               |
|   |                        |
|   |                        |
|   | /s/ Eugene  F. Mulligan     |   |
|   | Eugene F.  Mulligan         |   |
|        |                             |  |  |  |

 

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