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 ARTICLES OF INCORPORATION AND BYLAWS, THE EMPLOYER AND
AVOCENT CORPORATION SHALL INDEMNIFY THE EMPLOYEE AT
14
ALL TIMES DURING AND AFTER THE TERM OF THIS AGREEMENT TO THE MAXIMUM EXTENT
PERMITTED UNDER THE 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.
EMPLOYER AND/OR AVOCENT CORPORATION SHALL
PROVIDE EMPLOYEE WITH REASONABLE DIRECTORS' AND OFFICERS' (D&O) INSURANCE
COVERAGE CONSISTENT WITH THE COVERAGE PROVIDED OTHER OFFICERS AND DIRECTORS
6.14
AT-WILL EMPLOYMENT.
THE PARTIES AGREE THAT
EMPLOYEE'S EMPLOYMENT WITH EMPLOYER CONSTITUTES "AT-WILL" EMPLOYMENT AND THAT
SUCH EMPLOYMENT MAY BE TERMINATED AT ANY TIME WITH OR WITHOUT CAUSE OR NOTICE,
AT THE OPTION OF EITHER PARTY.
HOWEVER, AS DESCRIBED IN THIS AGREEMENT,
EMPLOYEE MAY BE ENTITLED TO SEVERANCE BENEFITS DEPENDING UPON THE CIRCUMSTANCES
OF EMPLOYEE'S TERMINATION OF EMPLOYMENT.
EMPLOYEE UNDERSTANDS AND AGREES THAT
NEITHER HIS JOB PERFORMANCE NOR PROMOTIONS, COMMENDATIONS, BONUSES OR THE LIKE
FROM AVOCENT GIVE RISE TO OR IN ANY WAY SERVE AS THE BASIS FOR MODIFICATION,
AMENDMENT, OR EXTENSION, BY IMPLICATION OR OTHERWISE, OF HIS EMPLOYMENT WITH
EMPLOYER.
6.15
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 AGREEMENT (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 PAYABLE BY THE
EMPLOYEE IN CONNECTION WITH