Exhibit
10.33


 


Employment
Agreement


 


THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered
into as of April 7, 2004, by and among OSA Technologies Inc., a Delaware
corporation (“New OSA” or “Employer”), Avocent Corporation, a
Delaware corporation, and Mark Lee (the “Employee”).


 


RECITALS


 


WHEREAS, Avocent Corporation and its affiliates (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.


 


WHEREAS, on the date of this Agreement, New OSA became
a wholly-owned subsidiary of Avocent under the terms and conditions of that
certain Agreement and Plan of Merger and Reorganization by and among Avocent
Corporation, Otter Delaware Acquisition Corp., OSA Technologies, Inc. (“Old
OSA”), and certain other parties dated March 27, 2004 (the “Acquisition
Agreement”).


 


WHEREAS, the Acquisition Agreement
provides for the merger of a wholly-owned subsidiary of Avocent Corporation
with and into Old OSA, pursuant to which Old OSA will become a wholly-owned
subsidiary of Avocent Corporation (the “First Merger”).  As
soon as practicable thereafter, the surviving corporation shall be merged with
and into a wholly-owned subsidiary (“Newco”)
of Avocent Corporation, with Newco continuing as the surviving corporation and
changing its name to OSA Technologies Inc. (referred to herein as “New OSA”  or “Employer”) (the “Second Merger”; together with the
First Merger, the “Merger”).


 


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 and as the President of Employer.  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 his position.  The
Employee shall report to the President and Chief Executive Officer and the
Executive Vice President of 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 Avocent Corporation and President
of Employer.


 

















 


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)           “TERMINATION
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 San Jose, 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.


 


(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(d), 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, 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, 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, or Avocent
Corporation’s securities would be required to be reported under such
Regulation 13D, or any similar successor regulation or rule.


 


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(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 (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 Acquisition Agreement and/or resulting from the closing of
the transactions described in the Acquisition 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.


 


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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 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 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 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)


 


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days
written notice to the Employer of such termination.  In the event of a Voluntary Termination, 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 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
$190,000 per annum, payable in equal bi-weekly installments.  The Base Salary for each calendar year (or
proration thereof) beginning April 7, 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 Jose, 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.


 


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


 


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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 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 Old OSA, which was August 1, 2000.


 


(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 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 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


 


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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 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 termination of this Agreement for any reason that occurs subsequent to
the fifth (5th) anniversary of 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, 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.


 


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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 Certificate 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 unconditionally
and irrevocably 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 employment agreement between Employee and Old
OSA dated                             
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 Employer/Avocent:                     Avocent
Corporation


4991 Corporate Drive


Huntsville, AL 35805


Attn:               Executive Vice
President


Copy to:         General Counsel


 


If to the Employee:                               Mark
Lee


2001 Gateway Place


Suite 520W


San Jose, California 95110-1065


 


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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 Jose, 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 Jose, 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 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 Certificate 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 


 


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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 Employment
Agreement as of the day and year first above written.


 


	
   

  	
  OSA TECHNOLOGIES INC.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Cooper

  
	
   

  	
  Its:

  	
  Chairman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AVOCENT
  CORPORATION:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John R. Cooper

  
	
   

  	
  Its:

  	
  President and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
  /s/ Mark Lee

  
	
   

  	
  Mark Lee

  
				



 


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