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, PAYMENTS
(INCLUDING SEVERANCE PAYMENTS UNDER SECTION 4), BENEFITS, AND THE DELIVERY OF
SHARES TO THE EMPLOYEE UNDER THIS AGREEMENT SHALL BE REDUCED BY ALL FEDERAL,
STATE, LOCAL, AND OTHER WITHHOLDINGS AND DEDUCTIONS 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
12
SUBJECT MATTER HEREOF, AND THIS AGREEMENT SUPERSEDES ANY AND ALL CONTEMPORANEOUS
OR PRIOR UNDERSTANDINGS, AGREEMENTS (INCLUDING THE 2006 EMPLOYMENT AGREEMENT),
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.
WITH RESPECT TO EACH EQUITY AWARD GRANTED PRIOR TO
THE DATE HEREOF, THE ACCELERATION OF VESTING AND TIMING OF PAYMENT REQUIREMENTS
PROVIDED HEREIN WILL BE DEEMED TO AMEND AND MODIFY THE EQUITY AWARD AGREEMENT
RELATING TO SUCH EQUITY AWARD; TO THE EXTENT NOT AMENDED HEREBY, SUCH EQUITY
AWARD AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT.
WITH RESPECT TO EQUITY
AWARDS GRANTED ON OR AFTER THE DATE HEREOF, THE ACCELERATION OF VESTING AND
TIMING OF PAYMENT REQUIREMENTS PROVIDED HEREIN WILL APPLY TO SUCH AWARDS EXCEPT
TO THE EXTENT OTHERWISE EXPLICITLY PROVIDED IN THE APPLICABLE EQUITY AWARD
AGREEMENT, WHICH PROVISION MUST INCLUDE A REFERENCE TO THIS AGREEMENT.
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
Attn: Chairman of the Board of Directors
With copy to:
Avocent Corporation
9911 Willows Road NE
Redmond, WA 98052
Attn: General Counsel
If to the Employee:
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