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: President
With copy to:
Avocent Corporation
9911 Willows Road N.E.
Redmond, WA 98052
ATTN: General Counsel
If to the Employee:
Thomas J. Miller
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 TEXAS.
THE EMPLOYEE, THE EMPLOYER, AND AVOCENT CORPORATION EACH HEREBY EXPRESSLY
CONSENTS TO THE EXCLUSIVE VENUE OF THE STATE AND FEDERAL COURTS LOCATED IN
AUSTIN, TEXAS, 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 AUSTIN, TEXAS, 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
8
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