Exhibit
10.18


 


EMPLOYMENT
AND NONCOMPETITION AGREEMENT


 


THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (the
“Agreement”) is made and entered into as of January 5, 2004, by and among
Avocent California Corp. (formerly known as Crystal Link Technologies, a California
corporation (“Employer”), Avocent Huntsville Corp., an Alabama corporation
(“AHC”), Avocent Corporation, a Delaware corporation, and Rick Moore (the
“Employee”).


 


RECITALS


 


WHEREAS, Avocent Corporation and its affiliates
including Avocent International Ltd., Avocent Huntsville Corp., and Avocent
Redmond Corp. (Avocent Corporation and its affiliates are collectively referred
to in this Agreement as “Avocent”) are engaged in the business of designing,
manufacturing, and selling wired and wireless connectivity solutions for
enterprise data centers, service providers, and financial institutions; and


 


WHEREAS, on the date of
this Agreement, Employer became a wholly-owned subsidiary of AHC under the
terms and conditions of that certain Agreement and Plan of Reorganization by
and among Avocent Corporation, Avocent California Acquisition Corp., and
Crystal Link Technologies dated November 15, 2003 (the “Reorganization
Agreement”).  Pursuant to the
Reorganization Agreement, (i) Avocent California Acquisition Corp., a
California corporation and a wholly-owned subsidiary of AHC, merged with and
into Crystal Link Technologies (the “Merger”), and upon the Merger, Crystal
Link Technologies became a wholly-owned subsidiary of AHC and changed its name
to Avocent California Corp.


 


WHEREAS, Employer desires
to employ the Employee and the Employee is willing to accept such employment by
Employer on the 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 by
Employer and to serve Avocent as its Senior Vice President of Wireless
Technology.  The Employee shall devote
such of his business time, energy, and skill to the affairs of Avocent and
Employer as shall be necessary to perform the duties of Senior Vice President
of Wireless Technology.  The Employee
shall report to the President and Chief Executive Officer and the Executive
Vice President of Employer and Avocent Corporation and to the Boards of
Directors of the Employer and Avocent Corporation, and at all times during the
term of this Agreement, the Employee shall have powers and duties at least
commensurate with his position as Senior Vice President of Wireless Technology
of Avocent Corporation.


 


2.             TERM OF EMPLOYMENT.


 


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


 

















 


(a)           “TERMINATION FOR CAUSE”
shall mean termination by the Employer or Avocent Corporation of the Employee’s
employment with the Employer or Avocent by reason of the Employee’s willful
dishonesty towards, fraud upon, or deliberate injury or attempted injury to,
the Employer or Avocent or by reason of the Employee’s willful material breach
of this Agreement which has resulted in material injury to the Employer or
Avocent.


 


(b)           “TERMINATIONS OTHER
THAN FOR CAUSE” shall mean termination by the Employer or Avocent Corporation
of the Employee’s employment with the Employer or Avocent (other than in a
Termination for Cause) and shall include (i) any constructive termination of
the Employee’s employment by reason of material breach of this Agreement by the
Employer or Avocent, such constructive termination to be effective upon thirty
(30) days written notice from the Employee to the Employer of such constructive
termination and (ii) any attempt to relocate outside of the vicinity of
Escondido, California:  (x) the
Employee, (y) the Employee’s duties and responsibilities, or (z) the Employer’s
office at which Employee is employed. 
Notwithstanding the foregoing, Employee agrees that a change in his
duties and responsibilities shall not result in a constructive termination
under this Section 2.1(b) unless such change results in a substantial
diminution of Employee’s duties and responsibilities n.


 


(c)           “VOLUNTARY TERMINATION”
shall mean termination by the Employee of the Employee’s employment with the
Employer or Avocent other than (i) constructive termination as described
in subsection 2.1(b), (ii) “Termination Upon a Change in Control” as
described in Section 2.1(e), and (iii) termination by reason of the
Employee’s disability or death as described in Sections 2.5 and 2.6.


 


(d)           “TERMINATION UPON A
CHANGE IN CONTROL” shall mean (i) a termination by the Employee of the
Employee’s employment with the Employer or Avocent within six (6) months
following any “Change in Control” or (ii) any termination by the Employer or
Avocent Corporation of the Employee’s employment with the Employer or
Avocent(other than a Termination for Cause) within eighteen (18) months
following any “Change in Control.”


 


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


 


(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 a beneficial owner
of securities entitling such person to exercise twenty-five percent (25%) or
more of the combined voting power of Employer’s, AHC’s, or Avocent
Corporation’s then outstanding stock. 
For purposes of this Agreement, “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
Employer’s, AHC’s, or 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


 


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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 (e)(iii)(1) and (e)(iii)(2) above, the term “Change in
Control” shall not include (i) 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 or (ii) any transaction
contemplated by or described in the Reorganization Agreement and/or resulting
from the closing of the transactions described in the Reorganization Agreement including,
without limitation, the Merger.


 


2.2           BASIC TERM.  The term of employment of the Employee by
the Employer shall be for the period 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 the
Employee’s employment under the terms of this Agreement for such additional
periods as they may agree.


 


2.3           TERMINATION FOR
CAUSE.  Termination For Cause may be
effected by the Employer at any time during the term of this Agreement and
shall be effected by thirty (30) days written notification to the Employee from
the Boards of Directors of Employer and Avocent Corporation stating the reason
for termination.  Upon Termination For
Cause, the Employee immediately shall be paid all accrued salary, bonus
compensation to the extent earned, vested deferred compensation, if any (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of Employer
or Avocent in which the Employee is a participant to the full extent of the
Employee’s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, but the Employee shall not be paid
any other compensation or reimbursement of any kind, including without
limitation, severance compensation.


 


2.4           TERMINATION OTHER THAN
FOR CAUSE.  Notwithstanding anything
else in this Agreement, the Employer may effect a Termination Other Than For
Cause at any time


 


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upon giving thirty (30) days written notice to the Employee of such
termination.  Upon any Termination Other
Than For Cause, the Employee shall immediately be paid all accrued salary,
bonus compensation to the extent earned, vested deferred compensation, if any
(other than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of Employer
or Avocent in which the Employee is a participant to the full extent of the
Employee’s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, and all severance compensation
provided in Section 4.2, but no other compensation or reimbursement of any
kind.


 


2.5           TERMINATION BY REASON
OF DISABILITY.  If, during the term of
this Agreement, the Employee, in the reasonable judgment of the Board of
Directors of Avocent Corporation, has failed to perform his duties under this
Agreement on account of illness or physical or mental incapacity, and such
illness or incapacity continues for a period of more than six (6) consecutive
months, the Employer shall have the right to terminate the Employee’s
employment hereunder by delivery of written notice to the Employee at any time
after such six month period and payment to the Employee of all accrued salary,
bonus compensation to the extent earned, additional bonus compensation in an
amount equal to the average annual bonus earned by the Employee after the
Merger as an employee of Avocent Corporation and its affiliates in the two (2)
years (or such lesser period following the Merger) immediately preceding the
date of termination, vested deferred compensation, if any (other than pension
plan or profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of Employer or Avocent in which
the Employee is a participant to the full extent of the Employee’s rights under
such plans (including having the vesting of any awards granted to the Employee
under any AHC or Avocent stock option plans fully accelerated), accrued
vacation pay and any appropriate business expenses incurred by the Employee in
connection with his duties hereunder, all to the date of termination, with the
exception of medical and dental benefits which shall continue through the
expiration of this Agreement, but the Employee shall not be paid any other
compensation or reimbursement of any kind, including without limitation,
severance compensation.


 


2.6           TERMINATION BY REASON
OF DEATH.  In the event of the
Employee’s death during the term of this Agreement, the Employee’s employment
shall be deemed to have terminated as of the last day of the month during which
his death occurs and the Employer shall pay to his estate or such beneficiaries
as the Employee may from time to time designate all accrued salary, bonus
compensation to the extent earned, vested deferred compensation, if any (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of Employer
or Avocent in which the Employee is a participant to the full extent of the
Employee’s rights under such plans (including having the vesting of any awards
granted to the Employee under any AHC or Avocent stock option plans fully
accelerated), accrued vacation pay and any appropriate business expenses
incurred by the Employee in connection with his duties hereunder, all to the
date of termination, but the Employee’s estate shall not be paid any other
compensation or reimbursement of any kind, including without limitation,
severance compensation.


 


2.7           VOLUNTARY
TERMINATION.  Notwithstanding anything
else in this Agreement, the Employee may effect a Voluntary Termination at any
time upon giving thirty (30) days written notice to the Employer of such
termination.  In the event of a
Voluntary Termination,


 


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the Employer shall immediately pay all accrued salary, bonus
compensation to the extent earned, vested deferred compensation, if any (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of Employer
or Avocent in which the Employee is a participant to the full extent of the
Employee’s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, but no other compensation or
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 Change in Control, the Employee shall immediately be paid
all accrued salary, bonus compensation to the extent earned, vested deferred
compensation, if any (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of Employer or Avocent in which the Employee is a participant to the
full extent of the Employee’s rights under such plans (including having the
vesting of any awards granted to the Employee under any AHC or Avocent stock
option plans fully accelerated), accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date 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 on the date of the
Merger, as payment for the services to be rendered by the Employee as provided
in Section 1 and subject to the terms and conditions of Section 2,
the Employer agrees to pay to the Employee a “Base Salary” at the rate of
$150,000 per annum, payable in equal bi-weekly installments.  The Base Salary for each calendar year (or
proration thereof) beginning January 1, 2004  shall be determined by the
Board of Directors of Avocent Corporation upon a recommendation of the Compensation Committee of Avocent
Corporation (the “Compensation Committee”), which shall authorize an increase
in the Employee’s Base Salary in an amount which, at a minimum, shall be equal
to the cumulative cost-of-living increment on the Base Salary as reported in
the “Consumer Price Index for All Urban
Consumers (CPI-U), All Items Index, for San Diego, CA” published by the U.S.
Department of Labor (using January 1, 2003, as the base date for computation
prorated for any partial year).  The
Employee’s Base Salary shall be reviewed annually by the Board of Directors and
the Compensation Committee of 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 extensions thereof, with the actual amount of any such bonus
to be determined in the sole discretion of the Board of Directors of Avocent
Corporation based upon its evaluation of the Employee’s performance during such
year.  All such bonuses shall be payable
during the last month of the fiscal year or within forty-five (45) days after
the end of the fiscal year to which such bonus relates.  All such bonuses shall be reviewed annually
by the Compensation Committee of
Avocent Corporation.


 


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


 


(a)           THE EMPLOYEE
BENEFITS.  The Employee shall be
eligible to participate in such of Avocent’s benefits and deferred compensation
plans as are now generally available or later made generally available to
executive officers or Avocent, including, without limitation, stock option
plans, Section 401(k) plan, profit sharing plans, deferred compensation plan, annual
physical examinations, dental and medical plans, personal catastrophe and
disability insurance, retirement plans and supplementary executive retirement
plans, if any.  For purposes of
establishing the length of service under any benefit plans or programs of AHC
or Avocent, the Employee’s employment with the Employer (or any successor) will
be deemed to have commenced on the date that Employee first commenced
employment with Crystal Link Technologies, which was August 3, 2001.


 


(b)           VACATION.  The Employee shall be entitled to vacation
in accordance with the Avocent Corporation’s vacation policy but in no event
less than three (3) weeks during each year of this Agreement.


 


(c)           LIFE INSURANCE.  For the term of this Agreement and any
extensions thereof, the Employer shall at its expense procure and keep in
effect term life insurance on the life of the Employee, payable to such
beneficiaries as the Employee may from time to time designate, in an aggregate
amount equal to three times the Employee’s Base Salary.  Such policy shall be owned by the Employee
or by any person or entity with an insurable interest in the life of the
Employee.


 


(d)           REIMBURSEMENT FOR
EXPENSES.  During the term of this
Agreement, the Employer or Avocent Corporation shall reimburse the Employee for
reasonable and properly documented out-of-pocket business and/or entertainment
expenses incurred by the Employee in connection with his duties under this
Agreement in accordance with Avocent’s standard reimbursement policies.


 


4.             SEVERANCE COMPENSATION.


 


4.1           SEVERANCE COMPENSATION
IN THE EVENT OF A TERMINATION UPON A CHANGE IN CONTROL.  In the event of a Termination Upon a Change
in Control, the Employee shall be paid as severance compensation his Base
Salary (at the rate payable at the time of such termination) for a period of
twelve (12) months from the date of such Termination Upon a Change in Control,
on the dates specified in Section 3.1, and the Employee shall also be paid
an amount equal to the average annual bonus earned by the Employee after the
Merger as an employee of Avocent Corporation and its affiliates in the two (2)
years (or such lesser period following the Merger) immediately preceding the
date of termination.  Notwithstanding
anything in this Section 4.1 to the contrary, the Employee may in the
Employee’s sole discretion, by delivery of a notice to the Employer within
thirty (30) days following a Termination Upon a Change in Control, elect to
receive from the Employer a lump sum severance payment by bank cashier’s check
equal to the present value of the flow of cash payments that would otherwise be
paid to the Employee pursuant to this Section 4.1.  Such present value shall be determined as of
the date of delivery of the notice of election by the Employee and shall be
based on a discount rate equal to the interest rate of


 


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90-day U.S. Treasury bills, as reported in The Wall Street Journal (or
similar publication), on the date of delivery of the election notice.  If the Employee elects to receive a lump sum
severance payment, Avocent Corporation shall cause the Employer to make such
payment to the Employee within ten (10) days following the date on which the
Employee notifies the Employer of the Employee’s election.  The Employee shall also be entitled to have
the vesting of any awards granted to the Employee under any AHC or Avocent
stock option plans fully accelerated. 
The Employee shall be provided with medical plan benefits under any health
plans of Avocent or Employer in which the Employee is a participant to the full
extent of the Employee’s rights under such plans for a period of twelve (12)
months from the date of such Termination Upon a Change in Control (even if
Employee elects to receive a lump sum severance payment).


 


4.2           SEVERANCE COMPENSATION
IN THE EVENT OF A TERMINATION OTHER THAN FOR CAUSE.  In the event of a Termination Other Than for Cause, the Employee
shall be paid as severance compensation his Base Salary (at the rate payable at
the time of such termination) for a period of twelve (12) months from the date
of such termination, on the dates specified in Section 3.1, and Employee
shall also be paid an amount equal to the average annual bonus earned by the
Employee after the Merger as an employee of Avocent Corporation and its
affiliates in the two (2) years (or such lesser period following the Merger)
immediately preceding the date of termination. 
Notwithstanding anything in this Section 4.2 to the contrary, the
Employee may in the Employee’s sole discretion, by delivery of a notice to the
Employer within thirty (30) days following a Termination Other Than for Cause,
elect to receive from the Employer a lump sum severance payment by bank
cashier’s check equal to the present value of the flow of cash payments that would
otherwise be paid to the Employee pursuant to this Section 4.2.  Such present value shall be determined as of
the date of delivery of the notice of election by the Employee and shall be
based on a discount rate equal to the interest rate on 90-day U.S.
Treasury bills, as reported in The Wall Street Journal (or similar
publication), on the date of delivery of the election notice.  If the Employee elects to receive a lump sum
severance payment, Avocent Corporation shall cause the Employer to make such
payment to the Employee within ten (10) days following the date on which the
Employee notifies the Employer of the Employee’s election.  The Employee shall also be entitled to have
the vesting of any awards granted to the Employee under any AHC or Avocent stock
option plans fully accelerated. The Employee shall be provided with medical
plan benefits under any health plans of Avocent or Employer in which the
Employee is a participant to the full extent of the Employee’s rights under
such plans for a period of twelve (12) months from the date of such Termination
Other Than for Cause (even if Employee elects to receive a lump sum severance
payment).


 


4.3           NO SEVERANCE
COMPENSATION UNDER OTHER TERMINATION. 
In the event of a Voluntary Termination, Termination For Cause,
termination by reason of the Employee’s disability pursuant to Section 2.5,
termination by reason of the Employee’s death pursuant to Section 2.6, the
Employee or his estate shall not be paid any severance compensation.


 


5.             NON-COMPETITION OBLIGATIONS.  Unless waived or reduced by the Employer or
Avocent, during the term of this Agreement and (i) for a period of twenty-four (24) months after
the termination of this Agreement for any reason that occurs prior to the fifth
(5th) anniversary of the Merger, or (ii) for a period of
twelve (12) months after the Merger,
the Employee will not, without the Employer’s and Avocent Corporation’s prior
written consent, directly or indirectly, alone or as a partner, joint venturer,
officer, director, employee, consultant, agent,


 


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independent contractor or stockholder of any company or business,
engage in any business activity in the United States, Canada, Europe, or Asia
which is substantially similar to or in direct competition with any of the
business activities of or services provided by the Employer or Avocent at such
time.  Notwithstanding the foregoing,
the ownership by the Employee of not more than five percent (5%) of the shares
of stock of any corporation having a class of equity securities actively traded
on a national 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 shall be brought to enforce or interpret any provision
contained herein, the Employer and Avocent Corporation, to the extent permitted
by applicable law and the Employer’s and Avocent Corporation’s Articles of
Incorporation and Bylaws, each hereby indemnifies the Employee for the
Employee’s reasonable attorneys’ fees and disbursements incurred in such
litigation.


 


6.2           GUARANTEE.  Avocent Corporation hereby unconditional and
irrevocable guarantees all payment obligations of the Employer under this
Agreement, including, without limitation, 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 reduced by all federal, state, local, and other
withholdings and similar taxes and payments required by applicable law.


 


6.4           WAIVER.  The waiver of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or other provision hereof.


 


6.5           ENTIRE AGREEMENT;
MODIFICATIONS.  Except as otherwise
provided herein, this Agreement represents the entire understanding among the
parties with respect to the subject matter hereof, and this Agreement
supersedes any and all prior understandings, agreements, plans and
negotiations, whether written or oral with respect to the subject matter hereof
including without limitation, the Original Employment Agreement,  and any understandings, agreements or
obligations respecting any past or future compensation, bonuses, reimbursements
or other payments to the Employee from the Employer or Avocent
Corporation.  All modifications to the
Agreement must be in writing and signed by the party against whom enforcement
of such modification is sought.


 


6.6           NOTICES.  All notices and other communications under
this Agreement shall be in writing and shall be given by hand delivery or first
class mail, certified or registered with return receipt requested, and shall be
deemed to have been duly given upon hand delivery to an officer of the Employer
or the Employee, as the case may be, or upon three (3) days after mailing to
the respective persons named below:


 


	
  If to the
  Employer/Avocent:

  	
  Avocent Corporation

  
	
   

  	
  4991 Corporate Drive

  
	
   

  	
  Huntsville, AL 35805

  



 


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  Attn:

  	
  Executive Vice
  President

  
	
   

  	
  Copy to:

  	
  General Counsel

  
	
   

  	
   

  
	
  If to the Employee:

  	
  Rick Moore

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


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


 


6.7           HEADINGS.  The Section headings herein are intended for
reference and shall not by themselves determine the construction or
interpretation of this Agreement.


 


6.8           GOVERNING LAW;
VENUE.  This Agreement shall be governed
by and construed in accordance with the laws of the State of California.  The Employee, the Employer, and Avocent
Corporation each hereby expressly consents to the exclusive venue of the state
and federal courts located in San Diego, California, for any lawsuit arising
from or relating to 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 San Diego, California, in accordance with the Rules of the American Arbitration
Association, and judgment upon any proper award rendered by the arbitrators may
be entered in any court having jurisdiction thereof.  There shall be three (3) arbitrators, one (1) to be chosen
directly by each party at will, and the third arbitrator to be selected by the
two (2) arbitrators so chosen.  To the
extent permitted by the Rules of the American Arbitration Association, the
selected arbitrators may grant equitable relief.  Each party shall pay the fees of the arbitrator selected by him
and of his own attorneys, and the expenses of his witnesses and all other
expenses connected with the presentation of his case.  The cost of the arbitration including the cost of the record or
transcripts thereof, if any, administrative fees, and all other fees and costs
shall be borne equally by the parties.


 


6.10         SEVERABILITY.  If a court or other body of competent
jurisdiction determines that any provision of this Agreement 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 Agreement
shall be deemed valid and enforceable to the extent possible.


 


6.11         SURVIVAL OF EMPLOYER’S
OBLIGATIONS.  The Employer’s and Avocent
Corporation’s obligations hereunder shall not be terminated by reason of any
liquidation, dissolution, bankruptcy, cessation of business, or similar event
relating to the Employer or Avocent Corporation.  This Agreement shall not be terminated by any merger or
consolidation or other reorganization of the Employer or Avocent Corporation.  In the event any such merger, consolidation
or reorganization shall be accomplished by transfer of stock or by transfer of
assets or otherwise, the provisions of this Agreement shall be binding upon and
inure to the benefit of the surviving or resulting corporation or person.  This Agreement shall be binding upon and
inure to the benefit of the executors, administrators, heirs, successors and
assigns of the parties; provided, however, that except as herein expressly
provided, this Agreement shall not be assignable either by the Employer (except
to an affiliate of the Employer (including Avocent Corporation) in which


 


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event the Employer shall remain liable if the affiliate fails to meet
any obligations to 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 which taken together shall constitute one and the
same Agreement.


 


6.13         INDEMNIFICATION.  In addition to any rights to indemnification
to which the Employee is entitled to under the Employer’s or Avocent
Corporation’s Articles of Incorporation and Bylaws, the Employer and Avocent
Corporation shall indemnify the Employee at all times during and after the term
of this Agreement to the maximum extent permitted under the corporation laws of
the State of Delaware and any other applicable state law, and shall pay the
Employee’s expenses in defending any civil or criminal action, suit, or
proceeding in advance of the final disposition of such action, suit, or
proceeding, to the maximum extent permitted under such applicable state laws.


 


6.14         INDEMNIFICATION FOR
SECTION 4999 EXCISE TAXES.  In the event
that it shall be determined that any payment or other benefit paid by the
Employer or Avocent Corporation to or for the benefit of the Employee under
this Agreement or otherwise, but determined without regard to any additional
payments required 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 the Employer and Avocent Corporation shall indemnify the Employee
for such Excise Tax in accordance with the following:


 


(a)           The Employee shall be
entitled to receive an additional payment from the Employer and/or Avocent
Corporation equal to (i) one hundred percent (100%) of any Excise Tax actually
paid or finally or payable by the Employee 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 2(a),
the Employee 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 the Avocent
Corporation’s primary independent public accounting firm, or any other
nationally recognized accounting firm reasonably acceptable to the Avocent
Corporation and the Employee (the “Accounting Firm”).  Avocent Corporation shall cause the Accounting Firm to provide
detailed supporting calculations of its determinations to the Employer and the
Employee.  All fees and expenses of the
Accounting Firm shall be borne solely by the Employer.  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 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 the Employee is entitled pursuant
to this Section shall be paid by the Employer and/or Avocent Corporation to the
Employee in cash and in full not later than thirty (30) calendar days following
the date the Employee becomes subject to the Excise Tax.


 


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


 


	
   

  	
  AVOCENT
  CALIFORNIA CORP.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas E. Pritchett

  	
   

  
	
   

  	
  Its:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AVOCENT
  HUNTSVILLE CORP.:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas E. Pritchett

  	
   

  
	
   

  	
  Its:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AVOCENT
  CORPORATION:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas E. Pritchett

  	
   

  
	
   

  	
  Its:

  	
  Senior
  Vice President – Finance and Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/
  Rick Moore

  	
   

  
	
   

  	
  Rick Moore

  	
   

  



 


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