Exhibit 10.31


 


AMENDMENT TO OPTION AGREEMENT


 


THIS AMENDMENT
TO OPTION AGREEMENT (the “Amendment”) is made and entered into as of this
     day of
                    ,
2003, by and between Avocent Corporation, a Delaware corporation (“Avocent”),
and                          (“Optionee”).  


 


RECITALS


 


WHEREAS,
Optionee has been a director of Avocent [and one of its predecessors, Apex
Inc./Apex PC Solutions, Inc. (now known as Avocent Huntsville Corp.)] since
                  ;


 


WHEREAS,
Optionee has received certain stock option grants from Avocent [and Apex];
and  


 


WHEREAS,
Avocent and Optionee now wish to amend each existing Option Agreement between
Optionee and Avocent [and Apex] to provide for the immediate vesting and
acceleration of all outstanding options in the event of a Change of Control (as
defined below) of Avocent.


 


AGREEMENT


 


NOW,
THEREFORE, Option and Avocent hereby agree as follows:


 


1.                                       DEFINITIONS.  For purposes of this Amendment, the
following terms shall have the following meanings:


 


(a)                                  “TERMINATION
UPON A CHANGE IN CONTROL” shall mean that Optionee ceases to be a member of the
Board of Directors of Avocent at any time following any “Change in Control.”


 


(b)                                 “CHANGE
IN CONTROL” shall mean, after the date of this Amendment, any one of the following
events:


 


(i)                                     Any
person acquires beneficial ownership of Avocent Corporation’s securities and is
or thereby becomes a beneficial owner of securities entitling such person to
exercise twenty-five percent (25%) or more of the combined voting power of
Avocent Corporation’s then outstanding stock. 
For purposes of this Amendment, “beneficial ownership” shall be
determined in accordance with Regulation 13D under the Securities Exchange Act
of 1934, or any similar successor regulation or rule; and the term “person”
shall include any natural person, corporation, partnership, trust, or
association, or any group or combination thereof, whose ownership of Avocent
Corporation’s securities would be required to be reported under such Regulation
13D, or any similar successor regulation or rule.


 


(ii)                                  Within
any twenty-four (24) month period, the individuals who were Directors of
Avocent Corporation at the beginning of any such period, together with any
other Directors first elected as directors of Avocent Corporation pursuant to
nominations approved or ratified by at least two-thirds (2/3) of the Directors
in office immediately prior to any such election, cease to constitute a
majority of the Board of Directors of Avocent Corporation.


 

















 


(iii)                               Avocent
Corporation’s stockholders approve:


 


(1)                                  any
consolidation or merger of Avocent Corporation in which Avocent Corporation is
not the continuing or surviving corporation or pursuant to which shares of
Avocent Corporation common stock would be converted into cash, securities or
other property, other than a merger or consolidation of Avocent Corporation in
which the holders of Avocent Corporation’s common stock immediately prior to
the merger or consolidation have substantially the same proportionate ownership
and voting control of the surviving corporation immediately after the merger or
consolidation; or


 


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


 


Notwithstanding
subparagraphs (b)(iii)(1) and (b)(iii)(2) above, the term “Change in Control”
shall not include a consolidation, merger, or other reorganization if upon
consummation of such transaction all of the outstanding voting stock of Avocent
Corporation is owned, directly or indirectly, by a holding company, and the
holders of Avocent Corporation’s common stock immediately prior to the
transaction have substantially the same proportionate ownership and voting
control of such holding company after such transaction.


 


2.                                       ACCELERATED
VESTING.  Effective on the date of this
Amendment, Avocent and Optionee hereby agree that, in the event of a “Change of
Control,” any and all outstanding option grants to Optionee will become fully
vested and immediately available for exercise, and each and every Stock Option
Agreement between Optionee and Avocent [and Apex] is hereby amended to that
effect. 


 


3.                                       INDEMNIFICATION
FOR SECTION 4999 EXCISE TAXES.  In
the event that it shall be determined that any payment or other benefit paid by
Avocent Corporation to or for the benefit of Optionee under this Amendment (the
“Payments”) would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code (the “Excise Tax”), then Avocent Corporation shall indemnify
Optionee for such Excise Tax in accordance with the following:


 


(a)                                  Optionee
shall be entitled to receive an additional payment from Avocent Corporation
equal to (i) one hundred percent (100%) of any Excise Tax actually paid or
finally or payable by Optionee in connection with the Payments, plus (ii) an
additional payment in such amount that after all taxes, interest and penalties
incurred in connection with all payments under this Section 3(a), Optionee
retains an amount equal to one hundred percent (100%) of the Excise Tax.


 


(b)                                 All
determinations required to be made under this Section shall be made by
Avocent Corporation’s primary independent public accounting firm, or any other
nationally recognized accounting firm reasonably acceptable to Avocent
Corporation and Optionee (the “Accounting Firm”).  Avocent Corporation shall cause the Accounting Firm to provide
detailed supporting calculations of its determinations to Optionee.  All fees and expenses of the Accounting Firm
shall be borne solely by Avocent Corporation. 
For purposes of making the calculations required by this Section, the
Accounting Firm may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations


 


2

















 


concerning the
application of Sections 280G and 4999 of the Internal Revenue Code, provided
the Accounting Firm’s determinations must be made with substantial authority
(within the meaning of Section 6662 of the Internal Revenue Code). The
payments to which Optionee is entitled pursuant to this Section shall be
paid by Avocent Corporation to Optionee in cash and in full not later than
thirty (30) calendar days following the date Optionee becomes subject to the
Excise Tax.


 


4.                                       MISCELLANEOUS.


 


4.1                                 ENTIRE
AGREEMENT; MODIFICATIONS.  Except as
otherwise provided herein, this Amendment represents the entire understanding
among the parties with respect to the subject matter hereof, and this Amendment
supersedes any and all prior understandings, agreements, plans and
negotiations, whether written or oral with respect to the subject matter
hereof.  All modifications to this
Amendment must be in writing and signed by the party against whom enforcement
of such modification is sought.


 


4.2                                 SEVERABILITY.  If a court or other body of competent
jurisdiction determines that any provision of this Amendment is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, and all other provisions of this Amendment
shall be deemed valid and enforceable to the extent possible.


 


4.3                                 COUNTERPARTS.  This Amendment may be executed in one or
more counterparts, all of which taken together shall constitute one and the
same Amendment.


 


4.4                                 REMAINING
TERMS UNCHANGED.  Except as specifically
set forth in this Amendment, the remaining terms and conditions of each and
every Stock Option Agreement between Optionee and Avocent [and Apex] shall
remain unchanged and in full force and effect


 


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


 


	
   

  	
  AVOCENT CORPORATION on behalf of itself and
  its wholly owned subsidiary Avocent Redmond Corp. (formerly known as Apex.
  Inc. and Apex PC Solutions, Inc.):

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OPTIONEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


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