Exhibit 10.13


 


AVOCENT CORPORATION


 


INDEMNIFICATION AGREEMENT


 


This Indemnification Agreement (“Agreement”) is
made as of                       ,
2008 by and between Avocent Corporation, a Delaware corporation (the “Company”), and [insert name of indemnitee]
(“Indemnitee”).


 


WHEREAS, Indemnitee’s service to the Company substantially benefits the
Company;


 


WHEREAS, competent and experienced individuals are reluctant to serve
as directors or officers of corporations or in certain other capacities unless
they are provided with adequate protection through insurance or indemnification
against the risks of claims and actions against them arising out of such
service;


 


WHEREAS, Indemnitee does not regard the protection currently provided
by applicable law, the Company’s governing documents, and any insurance as
adequate under the present circumstances, and Indemnitee may not be willing to
serve as a director or officer without additional protection;


 


WHEREAS, in order to induce Indemnitee to continue to provide services
to the Company, it is reasonable, prudent, and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses on behalf
of, Indemnitee as permitted by applicable law; and


 


WHEREAS, this Agreement is a supplement to and in furtherance of the
indemnification provided in the Company’s certificate of incorporation and
bylaws, any resolutions adopted pursuant thereto, and any agreement between
Indemnitee and the Company, and this Agreement shall not be deemed a substitute
therefor, nor shall this Agreement be deemed to limit, diminish or abrogate any
rights of Indemnitee thereunder.


 


NOW, THEREFORE, the Company and Indemnitee do hereby agree as follows:


 


1.             Definitions.


 


(a)           A “Change in Control” shall be deemed to occur upon the
earliest to occur after the date of this Agreement of any of the following
events:


 


(i)    Acquisition of Stock by Third Party.  Any Person (as defined below) is or becomes
the Beneficial Owner (as defined below), directly or indirectly, of securities
of the Company representing fifteen percent (15%) or more of the combined
voting power of the Company’s then outstanding securities;


 


(ii)   Change in
Board Composition.  During any
period of two (2) consecutive years (not including any period prior to the
execution of this Agreement), individuals who at the beginning of such period
constitute the Company’s board of directors, and any new directors (other than
a director designated by a person who has entered into an agreement with the
Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or
1(a)(iv)) whose election by the board of directors or nomination for election
by the Company’s stockholders was approved by a vote of at least two-thirds of
the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was 


 


 

















 


previously
so approved, cease for any reason to constitute at least a majority of the
members of the Company’s board of directors;


 


(iii)  Corporate
Transactions.  The effective
date of a merger or consolidation of the Company with any other entity, other
than a merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 50% of the combined
voting power of the voting securities of the surviving entity outstanding
immediately after such merger or consolidation and with the power to elect at
least a majority of the board of directors or other governing body of such
surviving entity;


 


(iv)  Liquidation.  The approval by the stockholders of the
Company of a complete liquidation of the Company or an agreement for the sale
or disposition by the Company of all or substantially all of the Company’s
assets; and


 


(v)   Other
Events.  Any other event of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities Exchange Act of
1934, as amended, whether or not the Company is then subject to such reporting
requirement.


 


For purposes of this Section 1(a), the following terms shall have
the following meanings:


 


(1)           “Person” shall have the meaning as set forth in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended; provided, however, that “Person” shall exclude (i) the Company, (ii) any
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, and (iii) any corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.


 


(2)           “Beneficial Owner” shall have the meaning given to such term
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended; provided, however, that “Beneficial
Owner” shall exclude any Person otherwise becoming a Beneficial
Owner by reason of (i) the stockholders of the Company approving a merger
of the Company with another entity or (ii) the Company’s board of
directors approving a sale of securities by the Company to such Person.


 


(b)           “Corporate Status” describes the status of a person who is or
was a director, trustee, general partner, managing member, officer, employee,
agent, or fiduciary of the Company or any other Enterprise.


 


(c)           “DGCL” means the General Corporation Law of the State of
Delaware.


 


(d)           “Disinterested Director” means a director of the Company who
is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.


 


(e)           “Enterprise” means the Company and any other corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan, or other enterprise of which Indemnitee is or was serving at the request
of the Company as a director, trustee, general partner, managing member,
officer, employee, agent, or fiduciary.


 


(f)            “Expenses” include all reasonable attorneys’ fees, retainers,
court costs, transcript costs, fees and costs of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, 


 


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telephone
charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding.  Expenses also include (i) Expenses
incurred in connection with any appeal resulting from any Proceeding, including
without limitation the premium, security for, and other costs relating to any
cost bond, supersedeas bond, or other appeal bond or their equivalent, and (ii) for
purposes of Section 12(d), Expenses incurred by Indemnitee in connection
with the interpretation, enforcement, or defense of Indemnitee’s rights under
this Agreement or under any directors’ and officers’ liability insurance
policies maintained by the Company. 
Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee.


 


(g)           “Independent Counsel” means a law firm, or a partner or
member of a law firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained to
represent (i) the Company or Indemnitee in any matter material to either
such party (other than as Independent Counsel with respect to matters concerning
Indemnitee under this Agreement, or other indemnitees under similar
indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under
the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.


 


(h)           “Proceeding” means any threatened, pending, or completed
action, suit, arbitration, mediation, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing, or proceeding, whether brought
in the right of the Company or otherwise and whether of a civil, criminal,
administrative, or investigative nature, including any appeal therefrom, in
which Indemnitee was, is or will be involved as a party, a potential party, a
non-party witness, or otherwise by reason of (i) the fact that Indemnitee
is or was a director or officer of the Company, (ii) any action taken by
Indemnitee or any action or inaction on Indemnitee’s part while acting as a
director or officer of the Company, or (iii) the fact that he or she is or
was serving at the request of the Company as a director, trustee, general
partner, managing member, officer, employee, agent, or fiduciary of the Company
or any other Enterprise, in each case whether or not serving in such capacity
at the time any liability or Expense is incurred for which indemnification or
advancement of expenses can be provided under this Agreement; except one
initiated by an Indemnitee to enforce his or her rights under this Agreement.


 


(i)            Reference to “other enterprises” shall include employee benefit plans;
references to “fines” shall include any excise
taxes assessed on a person with respect to any employee benefit plan;
references to “serving at the request of the Company”
shall include any service as a director, officer, employee, or agent of the
Company which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner “not opposed to the best
interests of the Company” as referred to in this Agreement.


 


2.             Indemnity in Third-Party
Proceedings.  The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 2
if Indemnitee is, or is threatened to be made, a party to or a participant in
any Proceeding, other than a Proceeding by or in the right of the Company to
procure a judgment in its favor. 
Pursuant to this Section 2, Indemnitee shall be indemnified to the
fullest extent permitted by applicable law against all Expenses, judgments,
fines, and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on his or her behalf in connection with such Proceeding or any
claim, issue, or matter therein, if Indemnitee acted in good faith and in a
manner he or she reasonably 


 


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believed to be in or not
opposed to the best interests of the Company and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her
conduct was unlawful.


 


3.             Indemnity in Proceedings by or
in the Right of the Company.  The
Company shall indemnify Indemnitee in accordance with the provisions of this Section 3
if Indemnitee is, or is threatened to be made, a party to or a participant in
any Proceeding by or in the right of the Company to procure a judgment in its
favor.  Pursuant to this Section 3,
Indemnitee shall be indemnified to the fullest extent permitted by applicable
law against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding or any claim, issue, or
matter therein, if Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Company.  No indemnification for Expenses
shall be made under this Section 3 in respect of any claim, issue, or matter
as to which Indemnitee shall have been adjudged by a court of competent
jurisdiction to be liable to the Company, unless and only to the extent that
the Delaware Court of Chancery or any court in which the Proceeding was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnification for such expenses as the Delaware Court
of Chancery or such other court shall deem proper.


 


4.             Indemnification for Expenses of
a Party Who is Wholly or Partly Successful. 
To the extent that Indemnitee is a party to or a participant in and is
successful (on the merits or otherwise) in defense of any Proceeding or any
claim, issue, or matter therein, the Company shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection therewith.  To the
extent permitted by applicable law, if Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, in defense of one or
more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with (a) each successfully resolved
claim, issue, or matter and (b) any claim, issue, or matter related to any
such successfully resolved claim, issue, or matter.  For purposes of this Section, the termination
of any claim, issue, or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to such claim,
issue, or matter.


 


5.             Indemnification for Expenses of
a Witness.  Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
or her Corporate Status, a witness in any Proceeding to which Indemnitee is not
a party, Indemnitee shall be indemnified to the fullest extent permitted by
applicable law against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection therewith.


 


6.             Additional
Indemnification.


 


(a)           Notwithstanding any
limitation in Sections 2, 3 or 4, the Company shall indemnify Indemnitee
to the fullest extent permitted by applicable law if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding (including
a Proceeding by or in the right of the Company to procure a judgment in its
favor) against all Expenses, judgments, fines, and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on his or her behalf in
connection with the Proceeding or any claim, issue, or matter therein.


 


(b)           For purposes of Section 6(a),
the meaning of the phrase “to the fullest extent permitted
by applicable law” shall include, but not be limited to:


 


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(i)    the
fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL; and


 


(ii)   the
fullest extent authorized or permitted by any amendments to or replacements of
the DGCL adopted after the date of this Agreement that increase the extent to
which a corporation may indemnify its officers and directors.


 


7.             Exclusions.  Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement to make any
indemnity in connection with any Proceeding (or any part of any Proceeding):


 


(a)           for which payment
has actually been made to or on behalf of Indemnitee under any statute,
insurance policy, indemnity provision, vote or otherwise, except with respect
to any excess beyond the amount paid;


 


(b)           for an accounting or
disgorgement of profits pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of federal, state, or
local statutory law or common law, if Indemnitee is held liable therefor
(including pursuant to any settlement arrangements);


 


(c)           for any
reimbursement of the Company by Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits realized by
Indemnitee from the sale of securities of the Company, as required in each case
under the Securities Exchange Act of 1934, as amended (including any such
reimbursements that arise from an accounting restatement of the Company
pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of
profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held
liable therefor (including pursuant to any settlement arrangements);


 


(d)           initiated by
Indemnitee, including any Proceeding (or any part of any Proceeding) initiated
by Indemnitee against the Company or its directors, officers, employees, agents
or other indemnitees, unless (i) the Company’s board of directors
authorized the Proceeding (or the relevant part of the Proceeding) prior to its
initiation, (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable law, (iii) otherwise
authorized in Section 12(d) or (iv) otherwise required by
applicable law; or


 


(e)           if prohibited by
applicable law.


 


8.             Advances of Expenses.  The Company shall advance, to the extent not
prohibited by law, the Expenses incurred by Indemnitee in connection with any
Proceeding, and such advancement shall be made as soon as reasonably
practicable, but in any event no later than thirty (30) days, after the receipt
by the Company of a written statement or statements requesting such advances
from time to time (which shall include invoices received by Indemnitee in
connection with such Expenses but, in the case of invoices in connection with
legal services, any references to legal work performed or to expenditure made
that would cause Indemnitee to waive any privilege accorded by applicable law
shall not be included with the invoice).  Advances shall be unsecured and
interest free and made without regard to Indemnitee’s ability to repay such
advances.  Indemnitee hereby undertakes
to repay any advance to the extent that it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company.  This Section 8 shall not apply to any
claim made by Indemnitee for which indemnity is excluded pursuant to this
Agreement.


 


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9.             Procedure for
Notification and Defense of Claim.


 


(a)           Indemnitee shall
notify the Company in writing of any matter with respect to which Indemnitee
intends to seek indemnification or advancement of Expenses as soon as
reasonably practicable following the receipt by Indemnitee of written notice
thereof.  The written notification to the
Company shall include a description of the nature of the Proceeding and the
facts underlying the Proceeding.  The
failure by Indemnitee to notify the Company will not relieve the Company from
any liability which it may have to Indemnitee hereunder or otherwise than under
this Agreement, and any delay in so notifying the Company shall not constitute
a waiver by Indemnitee of any rights, except to the extent that such failure or
delay materially prejudices the Company.


 


(b)           If, at the time of
the receipt of a notice of a Proceeding pursuant to the terms hereof, the
Company has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of the Proceeding to the insurers
in accordance with the procedures set forth in the respective policies.  The Company shall thereafter take all
reasonably necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such Proceeding in
accordance with the terms of such policies.


 


(c)           In the event the
Company may be obligated to make any indemnity in connection with a Proceeding,
the Company shall be entitled to assume the
defense of such Proceeding with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of its election to do so.  After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company,
the Company will not be liable to Indemnitee for any fees or expenses of
counsel subsequently incurred by Indemnitee with respect to the same
Proceeding.  Notwithstanding the Company’s assumption of the defense of
any such Proceeding, the Company shall be obligated to pay the fees and
expenses of Indemnitee’s counsel to the extent (i) the employment of
counsel by Indemnitee is authorized by the Company, (ii) counsel for the
Company or Indemnitee shall have reasonably concluded that there is a conflict
of interest between the Company and Indemnitee in the conduct of any such
defense such that Indemnitee needs to be separately represented, (iii) the
Company is not financially or legally able to perform its indemnification
obligations or (iv) the Company shall not have retained, or shall not
continue to retain, such counsel to defend such Proceeding.  The Company shall have the right to conduct
such defense as it sees fit in its sole discretion.  Regardless of any provision in this
Agreement, Indemnitee shall have the right to employ Indemnitee’s counsel in
any Proceeding at Indemnitee’s personal expense.  The Company shall not be entitled, without
the consent of Indemnitee, to assume the defense of any claim brought by or in
the right of the Company.


 


(d)           Indemnitee shall give
the Company such information and cooperation in connection with the Proceeding
as may be reasonably appropriate.


 


(e)           The Company shall
not be liable to indemnify Indemnitee for any settlement of any Proceeding (or
any part thereof) without the Company’s prior written consent, which shall not
be unreasonably withheld.


 


(f)            The Company shall
have the right to settle any Proceeding (or any part thereof) without the
consent of Indemnitee.


 


10.           Procedure upon
Application for Indemnification.


 


(a)           To obtain indemnification,
Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee 


 


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and
as is reasonably necessary to determine whether and to what extent Indemnitee
is entitled to indemnification following the final disposition of such
Proceeding.  The Company shall, as soon
as reasonably practicable after receipt of such a request for indemnification,
advise the board of directors that Indemnitee has requested indemnification.


 


(b)           Upon written request
by Indemnitee for indemnification pursuant
to Section 10(a), a determination, if required by
applicable law, with respect to Indemnitee’s entitlement thereto shall be made
in the specific case (i) if a Change in Control shall have occurred, by
Independent Counsel in a written opinion to the Company’s board of directors, a
copy of which shall be delivered to Indemnitee or (ii) if a Change in
Control shall not have occurred, (A) by a majority vote of the
Disinterested Directors, even though less than a quorum of the Company’s board
of directors, (B) by a committee of Disinterested Directors designated by
a majority vote of the Disinterested Directors, even though less than a quorum
of the Company’s board of directors, (C) if there are no such
Disinterested Directors or, if such Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Company’s board of directors, a
copy of which shall be delivered to Indemnitee or (D) if so directed by
the Company’s board of directors, by the stockholders of the Company.  If it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within thirty (30) days after such determination.  Indemnitee shall cooperate with the person,
persons, or entity making such determination with respect to Indemnitee’s
entitlement to indemnification, including providing to such person, persons, or
entity upon reasonable advance request any documentation or information which
is not privileged or otherwise protected from disclosure and which is
reasonably available to Indemnitee and reasonably necessary to such
determination.  Any costs or expenses
(including attorneys’ fees and disbursements) reasonably incurred by Indemnitee
in so cooperating with the person, persons, or entity making such determination
shall be borne by the Company, to the extent permitted by applicable law.


 


(c)           In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 10(b), the Independent Counsel shall be
selected as provided in this Section 10(c).  If a Change in Control shall not have
occurred, the Independent Counsel shall be selected by the Company’s board of
directors, and the Company shall give written notice to Indemnitee advising him
or her of the identity of the Independent Counsel so selected.  If a Change in Control shall have occurred,
the Independent Counsel shall be selected by Indemnitee (unless Indemnitee
shall request that such selection be made by the Company’s board of directors,
in which event the preceding sentence shall apply), and Indemnitee shall give
written notice to the Company advising it of the identity of the Independent
Counsel so selected.  In either event,
Indemnitee or the Company, as the case may be, may, within ten (10) days
after such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to such
selection; provided, however,
that such objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of “Independent Counsel” as
defined in Section 1 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion.  Absent a proper and timely objection, the
person so selected shall act as Independent Counsel.  If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. 
If, within twenty (20) days after the later of (i) submission by
Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof
and (ii) the final disposition of the Proceeding, the parties have not
agreed upon an Independent Counsel, either the Company or Indemnitee may
petition a court of competent jurisdiction for resolution of any objection which
shall have been made by the Company or Indemnitee to the other’s selection of
Independent Counsel and for the appointment as Independent Counsel of a person
selected by the court or by such other person as the court shall designate, and
the person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 10(b) hereof.  Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 12(a) of this
Agreement, the Independent Counsel shall be 


 


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discharged
and relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).


 


(d)           The Company agrees to
pay the reasonable fees and expenses of any Independent Counsel and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.


 


11.           Presumptions and
Effect of Certain Proceedings.


 


(a)           In making a
determination with respect to entitlement to indemnification hereunder, the
person, persons, or entity making such determination shall, to the fullest
extent not prohibited by law, presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with Section 10(a) of this Agreement,
and the Company shall, to the fullest extent not prohibited by law, have the
burden of proof to overcome that presumption in connection with the making by
such person, persons or entity of any determination contrary to that
presumption.


 


(b)           The termination of
any Proceeding or of any claim, issue, or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo  contendere or its equivalent, shall not (except as otherwise
expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Company or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that his
or her conduct was unlawful.


 


(c)           For purposes of any
determination of good faith, Indemnitee shall be deemed to have acted in good
faith to the extent Indemnitee relied in good faith on (i) the records or
books of account of the Enterprise, including financial statements, (ii) information
supplied to Indemnitee by the officers of the Enterprise in the course of their
duties, (iii) the advice of legal counsel for the Enterprise or its board
of directors or counsel selected by any committee of the board of directors or (iv) information
or records given or reports made to the Enterprise by an independent certified
public accountant, an appraiser, investment banker or other expert selected
with reasonable care by the Enterprise or its board of directors or any
committee of the board of directors.  The
provisions of this Section 11(c) shall not be deemed to be exclusive
or to limit in any way the other circumstances in which Indemnitee may be
deemed to have met the applicable standard of conduct set forth in this
Agreement.


 


(d)           Neither the
knowledge, actions nor failure to act of any other director, officer, agent or
employee of the Enterprise shall be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.


 


12.           Remedies of
Indemnitee.


 


(a)           Subject to Section 12(e),
in the event that (i) a determination is made pursuant to Section 10
of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made
pursuant to Section 8 or 12(d) of this
Agreement, (iii) no determination of entitlement to indemnification shall
have been made pursuant to Section 10 of this Agreement within ninety (90)
days after receipt by the Company of the request for indemnification, (iv) payment
of indemnification pursuant to this Agreement is not made (A) within
thirty (30) days after a determination has been made that Indemnitee is
entitled to indemnification or (B) with respect to indemnification
pursuant to Sections 4, 5 and 12(d) of this Agreement, within thirty
(30) days after receipt by the Company of a written request therefor, or (v) the
Company or any other person or entity takes or threatens to take any action to
declare this Agreement void or unenforceable, or institutes any litigation or
other action 


 


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or
proceeding designed to deny, or to recover from, Indemnitee
the benefits provided or intended to be provided to Indemnitee hereunder,
Indemnitee shall be entitled to an adjudication by a court of his or her
entitlement to such indemnification or advancement of Expenses.  Alternatively, Indemnitee, at his or her
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association.  The
Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration in accordance with this Agreement.


 


(b)           Neither (i) the
failure of the Company, its board of directors, any committee or subgroup of
the board of directors, Independent Counsel, or stockholders to have made a
determination that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor (ii) an actual
determination by the Company, its board of directors, any committee or subgroup
of the board of directors, Independent Counsel, or stockholders that Indemnitee
has not met the applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has or has not met the
applicable standard of conduct.  In the
event that a determination shall have been made pursuant to Section 10 of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 12 shall be
conducted in all respects as a de novo trial,
or arbitration, on the merits and Indemnitee shall not be prejudiced by reason
of that adverse determination.  In any
judicial proceeding or arbitration commenced pursuant to this Section 12,
the Company shall, to the fullest extent not prohibited by law, have the burden
of proving Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.


 


(c)           If a determination
shall have been made pursuant to Section 10 of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 12, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee’s
statements not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law.


 


(d)           The Company shall
indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee, shall (as soon as reasonably practicable, but in any event no later
than thirty (30) days, after receipt by the Company of a written request
therefor) advance such Expenses to Indemnitee, that are incurred by Indemnitee
in connection with any action for indemnification or advancement of Expenses
from the Company under this Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company, to the extent
Indemnitee is successful in such action and to the extent not prohibited by
law.


 


(e)           Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification shall be required to be made prior to the final disposition
of the Proceeding.


 


13.           Contribution.  To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee, the Company, in lieu of indemnifying Indemnitee,
shall contribute to the amount incurred by Indemnitee, whether for Expenses,
judgments, fines, or amounts paid or to be paid in settlement, in connection
with any claim relating to an indemnifiable event under this Agreement, in such
proportion as is deemed fair and reasonable in light of all of the
circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the event(s) and
transaction(s) giving rise to such Proceeding and (ii) the relative
fault of Indemnitee and the Company (and its other directors, officers,
employees and agents) in connection with such event(s) and transaction(s).


 


9

















 


14.           Non-exclusivity.  The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Company’s certificate of incorporation or bylaws, any
agreement, a vote of stockholders or a resolution of directors, or
otherwise.  No amendment, alteration, or
repeal of this Agreement shall adversely affect any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in
his or her Corporate Status prior to such amendment, alteration or repeal.  To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the Company’s
certificate of incorporation and bylaws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change, subject to the restrictions expressly set
forth herein or therein.  Except as
expressly set forth herein, no right or remedy herein conferred is intended to
be exclusive of any other right or remedy, and every other right and remedy
shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.


 


15.           No Duplication of Payments.  The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder (or
for which advancement is provided hereunder) if and to the extent that
Indemnitee has otherwise actually received payment for such amounts under any
insurance policy, contract, agreement or otherwise.


 


16.           Insurance.  To the extent that the Company maintains an
insurance policy or policies providing liability insurance for directors,
trustees, general partners, managing members, officers, employees, agents, or
fiduciaries of the Company or any other Enterprise, Indemnitee shall be covered
by such policy or policies to the same extent as the most favorably-insured
persons under such policy or policies in a comparable position.


 


17.           Subrogation.  In the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all papers required
and take all action necessary to secure such rights, including execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.


 


18.           Services to the Company.  Indemnitee agrees to serve as a director or
officer of the Company or, at the request of the Company, as a director,
trustee, general partner, managing member, officer, employee, agent, or
fiduciary of another Enterprise, for so long as Indemnitee is duly elected or
appointed or until Indemnitee tenders his or her resignation.  Indemnitee may at any time and for any reason
resign from such position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the Company shall have
no obligation under this Agreement to continue Indemnitee in such
position.  This Agreement shall not be
deemed an employment contract between the Company (or any of its subsidiaries
or any Enterprise) and Indemnitee. 
Indemnitee specifically acknowledges that any employment with the
Company (or any of its subsidiaries or any Enterprise) is at will, and
Indemnitee may be discharged at any time for any reason, with or without cause,
with or without notice, except as may be otherwise expressly provided in any
executed, written employment contract between Indemnitee and the Company (or
any of its subsidiaries or any Enterprise), any existing formal severance
policies adopted by the Company’s board of directors or, with respect to
service as a director or officer of the Company, the Company’s certificate of
incorporation or bylaws or the DGCL.


 


19.           Duration.  This Agreement shall continue until and
terminate upon the later of (a) ten (10) years after the date that
Indemnitee shall have ceased to serve as a director or officer of the Company
or as a director, trustee, general partner, managing member, officer, employee,
agent, or fiduciary of any other 


 


10

















 


Enterprise, as applicable;
or (b) one (1) year after the final termination of any Proceeding,
including any appeal, then pending in respect of which Indemnitee is granted
rights of indemnification or advancement of Expenses hereunder and of any
proceeding commenced by Indemnitee pursuant to Section 12 of this
Agreement relating thereto.


 


20.           Successors.  This Agreement shall be binding upon the
Company and its successors and assigns, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company, and shall inure to
the benefit of Indemnitee and Indemnitee’s heirs, executors and
administrators.  The Company shall
require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company, by written agreement, expressly to assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.


 


21.           Severability.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal, or unenforceable for any reason
whatsoever: (a) the validity, legality, and enforceability of the
remaining provisions of this Agreement (including without limitation, each
portion of any Section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby
and shall remain enforceable to the fullest extent permitted by law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.


 


22.           Enforcement.  The Company expressly confirms and agrees
that it has entered into this Agreement and assumed the obligations imposed on
it hereby in order to induce Indemnitee to serve as a director or officer of
the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director or officer of the Company.


 


23.           Entire Agreement.  This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral, written, and
implied, between the parties hereto with respect to the subject matter hereof; provided, however, that
this Agreement is a supplement to and in furtherance of the Company’s
certificate of incorporation and bylaws and applicable law.


 


24.           Modification and Waiver.  No supplement, modification, or amendment to
this Agreement shall be binding unless executed in writing by the parties
hereto.  No waiver of any of the
provisions of this Agreement shall constitute or be deemed a waiver of any
other provision of this Agreement nor shall any waiver constitute a continuing
waiver.


 


25.           Notices.  All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given if (a) delivered by hand and receipted for by the
party to whom said notice or other communication shall have been directed, (b) mailed
by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed, or (c) mailed by reputable
overnight courier and receipted for by the party to whom said notice or other
communication shall have been directed:


 


11

















 


(a)           If to Indemnitee, at
such address as indicated on the signature page of this Agreement, or such
other address as Indemnitee shall provide to the Company.


 


	
  (b)

  	
   

  	
  If
  to the Company to:

  	
   

  	
  with a copy to

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Avocent Corporation

  	
   

  	
  Avocent Corporation

  
	
   

  	
   

  	
  4991 Corporate Drive

  	
   

  	
  9911 Willows Road

  
	
   

  	
   

  	
  Huntsville, Alabama 35805

  	
   

  	
  Redmond, Washington 98052

  
	
   

  	
   

  	
  Attention: Chief Executive Officer

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  or to any other current
  address as may have been furnished to Indemnitee by the Company.

  



 


26.           Applicable Law and Consent to
Jurisdiction.  This Agreement and the
legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to its conflict of laws rules.  Except
with respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of
this Agreement, the Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or
in connection with this Agreement shall be brought only in the Delaware Court
of Chancery, and not in any other state or federal court in the United States
of America or any court in any other country, (ii) consent to submit to
the exclusive jurisdiction of the Delaware Court of Chancery for purposes of
any action or proceeding arising out of or in connection with this Agreement, (iii) appoint,
to the extent such party is not otherwise subject to service of process in the
State of Delaware, National Registered Agents, Inc., 160 Greentree Drive, Suite 101,
Dover, DE 19904, as its agent in the State of Delaware as such party’s agent
for acceptance of legal process in connection with any such action or
proceeding against such party with the same legal force and validity as if
served upon such party personally within the State of Delaware, (iv) waive
any objection to the laying of venue of any such action or proceeding in the
Delaware Court of Chancery, and (v) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought in the Delaware
Court of Chancery has been brought in an improper or inconvenient forum.


 


27.           Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.  Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.


 


28.           Captions.  The headings of the paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.


 


(signature page follows)


 


12

















 


IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
as of the day and year first above written.


 


	
   

  	
   

  	
  AVOCENT CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Print name)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Title)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [INSERT
  INDEMNITEE NAME]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Print name)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Street
  address)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (City,
  State and ZIP)

  



 


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