DEEMED, IN AND OF ITSELF, TO VIOLATE THE PROHIBITIONS OF THIS
SECTION 5; OR
(B)
SOLICIT, IN ANY WAY ENCOURAGE, TAKE AWAY, OR ENGAGE IN BUSINESS WITH
CUSTOMERS OF EMPLOYER OR AVOCENT (OR ANY CURRENT OR FUTURE PARENT, AFFILIATE, OR
SUBSIDIARY OF ANY OF THEM) FOR HER OWN BENEFIT IN A MANNER COMPETITIVE WITH THE
BUSINESS OF EMPLOYER OR AVOCENT OR FOR THE BENEFIT OF ANY PERSON COMPETING WITH
THE BUSINESS OF EMPLOYER OR AVOCENT WORLDWIDE; OR
(C)
SOLICIT, IN ANY WAY ENCOURAGE, TAKE AWAY, OR EMPLOY PRESENT OR FUTURE
EMPLOYEES OR PRESENT OR FUTURE CONSULTANTS OF EMPLOYER OR AVOCENT (OR EMPLOYEES
OR CONSULTANTS OF ANY CURRENT OR FUTURE PARENT, AFFILIATE OR SUBSIDIARY OF ANY
OF THEM) FOR HER OWN BENEFIT OR FOR THE BENEFIT OF ANY OTHER PERSON.
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, 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:
8
If to the Employer/Avocent:
Avocent Corporation
4991 Corporate Drive
Huntsville, AL 35805
Attn: President
Copy to: General Counsel
If to the Employee:
Kay E. Kienast
Any party may change such party's address for notices by notice duly given
pursuant to this Section 6.6.