AND OF ITSELF, TO VIOLATE THE PROHIBITIONS OF THIS SECTION 3.
4.
MISCELLANEOUS.
4.1
WITHHOLDINGS.
ALL COMPENSATION AND BENEFITS TO MR. THORNTON UNDER
THIS AMENDMENT AGREEMENT SHALL BE REDUCED BY ALL FEDERAL, STATE, LOCAL, AND
OTHER WITHHOLDINGS AND SIMILAR TAXES AND PAYMENTS REQUIRED BY APPLICABLE LAW.
4.2
WAIVER.
THE WAIVER OF THE BREACH OF ANY PROVISION OF THIS
AMENDMENT AGREEMENT SHALL NOT OPERATE OR BE CONSTRUED AS A WAIVER OF ANY
SUBSEQUENT BREACH OF THE SAME OR OTHER PROVISION HEREOF.
4.3
ENTIRE AGREEMENT; MODIFICATIONS.
EXCEPT AS OTHERWISE PROVIDED
HEREIN, THIS AMENDMENT AGREEMENT REPRESENTS THE ENTIRE UNDERSTANDING AMONG THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND THIS AMENDMENT AGREEMENT
SUPERSEDES ANY AND ALL PRIOR UNDERSTANDINGS, AGREEMENTS, PLANS AND NEGOTIATIONS,
WHETHER WRITTEN OR ORAL WITH RESPECT TO THE SUBJECT MATTER HEREOF INCLUDING,
WITHOUT LIMITATION, MR. THORNTON'S AMENDED AND RESTATED EMPLOYMENT AND
NONCOMPETITION DATED OCTOBER 31, 2000, AND ANY UNDERSTANDINGS, AGREEMENTS OR
OBLIGATIONS RESPECTING ANY PAST OR FUTURE COMPENSATION, BONUSES, REIMBURSEMENTS,
OR OTHER PAYMENTS TO MR. THORNTON FROM EMPLOYER OR AVOCENT CORPORATION.
ALL
MODIFICATIONS TO THIS AMENDMENT AGREEMENT MUST BE IN WRITING AND SIGNED BY THE
PARTY AGAINST WHOM ENFORCEMENT OF SUCH MODIFICATION IS SOUGHT.
4.4
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS UNDER THIS
AMENDMENT 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
AVOCENT OR MR. THORNTON, 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:
Chief Executive Officer
With a copy to
Avocent Corporation
9911 Willows Road N.E.
Redmond, WA 98052
Attn:
General Counsel
3
If to Mr. Thornton:
Stephen F. Thornton
Any party may change such party's address for notices by notice duly given
pursuant to this Section 4.4.
4.5
HEADINGS.
THE SECTION HEADINGS HEREIN ARE INTENDED FOR REFERENCE
AND SHALL NOT BY THEMSELVES DETERMINE THE CONSTRUCTION OR INTERPRETATION OF THIS
AMENDMENT AGREEMENT.
4.6
GOVERNING LAW; VENUE.
THIS AMENDMENT AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA.
MR.
THORNTON AND EMPLOYER EACH HEREBY EXPRESSLY CONSENTS TO THE EXCLUSIVE VENUE OF
THE STATE AND FEDERAL COURTS LOCATED IN HUNTSVILLE, MADISON COUNTY, ALABAMA, FOR
ANY LAWSUIT ARISING FROM OR RELATING TO THIS AMENDMENT AGREEMENT.
4.7
ARBITRATION.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING
TO THIS AMENDMENT AGREEMENT, OR BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION
IN HUNTSVILLE, ALABAMA, 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