**Exhibit 10.33**

 

**EMPLOYMENT ANDNONCOMPETITION AGREEMENT**

** **

THIS 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 Dudley A. DeVore****(the“Employee”).

 

RECITALS

 

WHEREAS, Avocent Corporation and its affiliatesincluding Avocent International Ltd., Avocent Huntsville Corp., Avocent RedmondCorp., and OSA Technologies, Inc. (Avocent Corporation and its affiliatesare collectively 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, 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 this Agreement, the Employee agrees to be employed byEmployer and to serve Avocent as its Senior Vice President of Branded Markets,Americas.  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 of BrandedMarkets, Americas.  The Employee shallreport to the Executive Vice President – Global Sales of the Employer, andAvocent Corporation 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 Branded Markets, Americas of Avocent Corporation.

#  

# 2.                                       TERM OF EMPLOYMENT.

#  

## 2.1                                 DEFINITIONS. For purposes of this Agreement the following terms shall have thefollowing 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 Employer or Avocent, such constructive termination to be effective uponthirty (30) days written notice from the Employee to the Employer of suchconstructive termination.

###  

### (c)                                  “VOLUNTARYTERMINATION” shall mean termination by the Employee of the Employee’semployment with the Employer or Avocent other than (i) constructivetermination as

 

1

----

 

### described in subsection 2.1(b), (ii) “TerminationUpon a Change in Control” as described in Section 2.1(e), and (iii) terminationby reason of the Employee’s disability or death as described inSections 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,AHC’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, AHC’s, orAvocent Corporation’s then outstanding stock. For purposes of this Agreement, “beneficial ownership” shall bedetermined in accordance with Regulation 13D under the Securities ExchangeAct of 1934, or any similar successor regulation or rule; and the term “person”shall include any natural person, corporation, partnership, trust orassociation, or any group or combination thereof, whose ownership of Employer’s,AHC’s, or Avocent Corporation’s securities would be required to be reportedunder such Regulation 13D, or any 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 of AvocentCorporation common stock would be converted into cash, securities or otherproperty, other than a merger or consolidation of Avocent Corporation in whichthe holders of Avocent Corporation’s common stock immediately prior to themerger or consolidation have substantially the same proportionate ownership andvoting 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.

#####  

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.

 

#### (iv)                              AHC’sstockholders approve:

####  

##### (1)                                  anyconsolidation or merger of AHC in which AHC is not the continuing or survivingcorporation or pursuant to which shares of AHC common stock would be convertedinto cash, securities or other property, other than a merger or consolidationof AHC (including a merger of AHC into Avocent Corporation) in which theholders of AHC’s common stock immediately prior to the merger or consolidationhave substantially the same proportionate ownership and voting control of thesurviving corporation immediately after the merger or consolidation; or

 

2

----

 

##### (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 AHC.

#####  

Notwithstandingsubparagraphs (e)(iv)(1) and (e)(iv)(2) above,the term “Change in Control” shall not include a consolidation, merger, or otherreorganization if upon consummation of such transaction all of the outstandingvoting stock of AHC is owned, directly or indirectly, by a holding company, andthe holders of AHC’s common stock immediately prior to the transaction havesubstantially the same proportionate ownership and voting control of suchholding company after such transaction.

 

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

##  

## 2.3                                 TERMINATION FOR CAUSE.  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                                 TERMINATION OTHER THAN FOR CAUSE.  Notwithstanding anything else in thisAgreement, 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 anyTermination Other Than For Cause, the Employee shall immediately be paid 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, and all severancecompensation provided in Section 4.2, but no other compensation orreimbursement of any kind.

##  

## 2.5                                 TERMINATION BY REASON OF DISABILITY.  If, during the term of this Agreement, theEmployee, in the reasonable judgment of the Board of Directors of AvocentCorporation, has failed to perform his duties under this Agreement on accountof illness or physical or mental incapacity, and such illness or incapacitycontinues for a period of more than six (6) consecutive months, theEmployer shall have the right to terminate the Employee’s employment hereunderby delivery of written notice to the Employee at any time after such six monthperiod and payment to the Employee of all accrued salary, bonus compensation tothe extent earned, additional bonus compensation in 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, vested deferred compensation, ifany (other than pension plan or profit sharing plan benefits which will be paidin 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 (including having the vesting of anyawards granted to the Employee under any AHC or Avocent stock option plansfully accelerated), accrued vacation pay and any appropriate business expensesincurred by the Employee in connection with his duties hereunder, all to thedate of termination, with the exception of medical and dental benefits whichshall continue through the

 

3

----

 

## expirationof this Agreement, but the Employee shall not be paid any other compensation orreimbursement of any kind, including without limitation, severancecompensation.

 

## 2.6                                 TERMINATION BY REASON OF DEATH.  In the event of the Employee’s death duringthe term of this Agreement, the Employee’s employment shall be deemed to haveterminated as of the last day of the month during which his death occurs andthe Employer shall pay to his estate or such beneficiaries as the Employee mayfrom time to time designate all accrued salary, bonus compensation to theextent earned, 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 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 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, but theEmployee’s estate shall not be paid any other compensation or reimbursement ofany kind, including without limitation, severance compensation.

##  

## 2.7                                 VOLUNTARY TERMINATION.  Notwithstanding anything else in thisAgreement, the Employee may effect a VoluntaryTermination at any time upon giving thirty (30) days written notice to theEmployer of such termination.  In theevent 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                                 TERMINATION UPON A CHANGE IN CONTROL.  In the event of a Termination Upon a Changein Control, the Employee shall immediately 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 (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, and all severance compensation provided in Section 4.1,but no other compensation or reimbursement of any kind.

##  

# 3.               SALARY, BENEFITS AND BONUS COMPENSATION.

#  

## 3.1                                 BASE SALARY. Effective January 1, 2005, as payment for the services to berendered by the Employee as provided in Section 1 and subject to the termsand conditions of Section 2, the Employer agrees to pay to the Employee a “BaseSalary” at the rate of $225,000.10 per annum, payable in equal bi-weeklyinstallments.  The Base Salary for eachcalendar year (or proration thereof) beginning January 1, 2005****shall be determined by the Board of Directors of AvocentCorporation upon a recommendation of the Compensation Committee of Avocent Corporation (the “CompensationCommittee”), which shall authorize an increase in the Employee’s Base Salary inan amount which, at a minimum, shall be equal to the cumulative cost-of-livingincrement on the Base Salary as reported in the “Consumer Price Index, Huntsville, Alabama, All Items,” 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.

##  

## 3.2                                 BONUSES. The Employee shall be eligible to receive a bonus for each calendar year(or portion thereof) during the term of this Agreement and any extensionsthereof, with the actual

 

4

----

 

## amount ofany such bonus to be determined in the sole discretion of the Board ofDirectors of Avocent Corporation based upon its evaluation of the Employee’sperformance during such year.  All suchbonuses shall be payable during the last month of the fiscal year or withinforty-five (45) days after the end of the fiscal year to which such bonusrelates.  All such bonuses shall bereviewed annually by the CompensationCommittee of Avocent Corporation.

 

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

##  

### (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 AHC 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 AHC,which was August 30, 2002.

###  

### (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.

###  

### (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.

###  

### (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.

###  

# 4.                                       SEVERANCE COMPENSATION.

#  

## 4.1                                 SEVERANCE COMPENSATION IN THE EVENT OF ATERMINATION UPON A CHANGE IN CONTROL.  Inthe event of a Termination Upon a Change in Control, the Employee shall be paidas severance compensation his Base Salary (at the rate payable at the time ofsuch termination) for a period of twelve (12) months from the date of suchTermination Upon a Change in Control, on the dates specified in Section 3.1,and the Employee shall also be paid an amount equal to the average annual 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 4.1 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 Upon a Change in Control, 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 4.1. 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 of 90-day U.S. Treasury bills, as reported in *The Wall Street Journal* (or similar publication), on thedate of delivery of the election notice. If the Employee elects to receive a lump sum severance payment, AvocentCorporation shall cause the Employer to make such payment to the Employeewithin ten (10) days following the date on which the Employee notifies theEmployer of the Employee’s election.  TheEmployee shall also be entitled to have the vesting of any awards granted tothe

 

5

----

 

## Employeeunder any AHC or Avocent stock option plans fully accelerated.  The Employee shall be provided with medicalplan benefits under any health plans of Avocent or Employer in which theEmployee 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 TerminationUpon a Change in Control (even if Employee elects to receive a lump sumseverance payment).

 

## 4.2                                 SEVERANCE COMPENSATION IN THE EVENT OF ATERMINATION OTHER THAN FOR CAUSE.  In theevent of a Termination Other Than for Cause, the Employee shall be paid asseverance compensation his Base Salary (at the rate payable at the time of suchtermination) for a period of twelve (12) months from the date of suchtermination, on the dates specified in Section 3.1, and Employee shallalso be paid an amount equal to the average annual bonus earned by the Employeeas an employee of Avocent Corporation and its affiliates and predecessors inthe two (2) years immediately preceding the date of termination.  Notwithstanding anything in this Section 4.2to the contrary, the Employee may in the Employee’s sole discretion, bydelivery of a notice to the Employer within thirty (30) days following aTermination Other Than for Cause, elect to receive from the Employer a lump sumseverance payment by bank cashier’s check equal to the present value of theflow of cash payments that would otherwise be paid to the Employee pursuant tothis Section 4.2.  Such presentvalue shall be determined as of the date of delivery of the notice of electionby the Employee and shall be based on a discount rate equal to the interestrate 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 the Employee’selection.  The Employee shall also beentitled to have the vesting of any awards granted to the Employee under anyAHC 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 SEVERANCE COMPENSATION UNDER OTHERTERMINATION.  In the event of a VoluntaryTermination, Termination For Cause, termination byreason of the Employee’s disability pursuant to Section 2.5, terminationby reason of the Employee’s death pursuant to Section 2.6, the Employee orhis estate shall not be paid any severance compensation.

##  

# 5.                                       NON-COMPETITION OBLIGATIONS.  Unless waived or reduced by the Employer orAvocent, during the term of this Agreement and for a period of twelve (12)months thereafter, the Employee will not, without the Employer’s and Avocent Corporation’sprior written consent, directly or indirectly, alone or as a partner, jointventurer, officer, director, employee, consultant, agent, independentcontractor or stockholder of any company or business, engage in any businessactivity in the United States, Canada, Europe, or Asia which is substantiallysimilar to or in direct competition with any of the business activities of orservices provided by the Employer or Avocent at such time.  Notwithstanding the foregoing, the ownershipby the Employee of not more than five percent (5%) of the shares of stock ofany corporation having a class of equity securities actively traded on anational securities exchange or on The Nasdaq Stock Market shall not be deemed,in and of itself, to violate the prohibitions of this Section 5.

#  

# 6.                                       MISCELLANEOUS.

#  

## 6.1                                 PAYMENT OBLIGATIONS.  If litigation after a Change in Control shallbe brought to enforce or interpret any provision contained herein, the Employerand Avocent Corporation, to the extent permitted by applicable law and theEmployer’s and Avocent Corporation’s Articles of Incorporation and Bylaws, eachhereby indemnifies the Employee for the Employee’s reasonable attorneys’ feesand disbursements incurred in such litigation.

 

6

----

 

## 6.2                                 GUARANTEE. Avocent Corporation hereby unconditional and irrevocable guarantees allpayment obligations of the Employer under this Agreement, including, withoutlimitation, the Employer’s obligations under Sections 2, 3, 4, and 6 hereof.

##  

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

##  

## 6.4                                 WAIVER. The waiver of the breach of any provision of this Agreement shall notoperate or be construed as a waiver of any subsequent breach of the same orother provision hereof.

##  

## 6.5                                 ENTIRE AGREEMENT; MODIFICATIONS.  Except as otherwise provided herein, thisAgreement represents the entire understanding among the parties with respect tothe subject matter hereof, and this Agreement supersedes any and all priorunderstandings, agreements, plans and negotiations, whether written or oralwith respect to the subject matter hereof including without limitation, theOriginal Employment Agreement,**andany understandings, agreements or obligations respecting any past or futurecompensation, bonuses, reimbursements or other payments to the Employee fromthe Employer or Avocent Corporation.  Allmodifications to the Agreement must be in writing and signed by the partyagainst whom enforcement of such modification is sought.

##  

## 6.6                                 NOTICES. All notices and other communications under this Agreement shall be inwriting and shall be given by hand delivery or first class mail, certified orregistered with return receipt requested, and shall be deemed to have been dulygiven upon hand delivery to an officer of the Employer or the Employee, as thecase may be, or upon three (3) days after mailing to the respective personsnamed below:

 
| If to the  Employer/Avocent: | Avocent  Corporation    |
|------------------------------|-------------------------|
|                         | 4991  Corporate Drive   |
|                         | Huntsville,  AL 35805   |
|                         | ATTN:  President        |
|                         |                    |
| With copy  to:               | Avocent  Corporation    |
|                         | 9911 Willows  Road N.E. |
|                         | Redmond, WA  98052      |
|                         | ATTN:  General Counsel  |
|                         |                    |
| If to the  Employee:         | Dudley A.  DeVore       |

 

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

 

## 6.7                                 HEADINGS. The Section headings herein are intended for reference and shallnot by themselves determine the construction or interpretation of thisAgreement.

##  

## 6.8                                 GOVERNING LAW; VENUE.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of Alabama.  The Employee, the Employer, and AvocentCorporation each hereby expressly consents to the exclusive venue of the stateand federal courts located in Alabama, for any lawsuit arising from or relatingto this Agreement.

##  

## 6.9                                 ARBITRATION. Any controversy or claim arising out of or relating to this Agreement,or breach thereof, shall be settled by arbitration in Alabama, in accordancewith the Rules of the American Arbitration Association, and judgment uponany proper award rendered by the arbitrators may be entered in any court havingjurisdiction thereof.  There shall bethree (3) arbitrators, one (1) to be chosen

 

7

----

 

## directlyby each party at will, and the third arbitrator to be selected by the two (2) arbitratorsso chosen.  To the extent permitted bythe Rules of the American Arbitration Association, the selectedarbitrators may grant equitable relief. Each party shall pay the fees of the arbitrator selected by him and ofhis own attorneys, and the expenses of his witnesses and all other expensesconnected with the presentation of his case. The cost of the arbitration including the cost of the record ortranscripts thereof, if any, administrative fees, and all other fees and costsshall be borne equally by the parties.

 

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

##  

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

##  

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

##  

## 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.

##  

## 6.14                           INDEMNIFICATION FOR SECTION 4999 EXCISETAXES.  In the event that it shall bedetermined that any payment or other benefit paid by the Employer or AvocentCorporation to or for the benefit of the Employee under this Agreement orotherwise, but determined without regard to any additional payments requiredunder this Amendment (the “Payments”) would be subject to the excise taximposed by Section 4999 of the Internal Revenue Code (the “Excise Tax”),then the Employer and Avocent Corporation shall indemnify the Employee for suchExcise Tax in accordance with the following:

##  

### (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 penalties incurred in connection with all payments underthis Section 2(a), the Employee retains an amount equal to one hundredpercent (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 Avocent Corporationand the Employee (the

 

8

----

 

### “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, theAccounting Firm may make reasonable assumptions and approximations concerningapplicable taxes and may rely on reasonable, good faith interpretationsconcerning the application of Sections 280G and 4999 of the Internal RevenueCode, provided the Accounting Firm’s determinations must be made withsubstantial authority (within the meaning of Section 6662 of the InternalRevenue Code). The payments 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.

 

IN WITNESS WHEREOF, theparties hereto have executed this Agreement as of the day and year first abovewritten.

 

 
| ** ** | **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/ Dudley  A. DeVore          |   |
|       | Dudley A.  DeVore              |   |
|            |                                |  |  |  |

 

9

----