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 HIS 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 (INCLUDING THE 2003 EMPLOYMENT AGREEMENT),
PLANS AND NEGOTIATIONS, WHETHER WRITTEN OR ORAL WITH RESPECT TO THE SUBJECT
MATTER HEREOF,AND ANY UNDERSTANDINGS, AGREEMENTS (INCLUDING THE 2003 EMPLOYMENT
AGREEMENT), 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 THIS 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:
John R. Cooper
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 ALABAMA.
THE EMPLOYEE,
THE EMPLOYER, AND AVOCENT CORPORATION EACH HEREBY EXPRESSLY CONSENTS TO THE
EXCLUSIVE VENUE OF THE STATE AND FEDERAL COURTS LOCATED IN HUNTSVILLE, ALABAMA,
FOR ANY LAWSUIT ARISING FROM OR RELATING