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 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 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.
4.8
SEVERABILITY.
IF A COURT OR OTHER BODY OF COMPETENT JURISDICTION
DETERMINES THAT ANY PROVISION OF THIS AMENDMENT 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 AMENDMENT AGREEMENT
SHALL BE DEEMED VALID AND ENFORCEABLE TO THE EXTENT POSSIBLE.
4.9
SURVIVAL OF OBLIGATIONS.
AVOCENT'S OBLIGATIONS UNDER THIS AMENDMENT
AGREEMENT SHALL NOT BE TERMINATED BY REASON OF ANY LIQUIDATION, DISSOLUTION,
BANKRUPTCY, CESSATION OF BUSINESS, OR SIMILAR EVENT RELATING TO AVOCENT.
THIS
AMENDMENT AGREEMENT SHALL NOT BE TERMINATED BY ANY MERGER OR CONSOLIDATION OR
OTHER REORGANIZATION OF 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 AMENDMENT AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE SURVIVING OR RESULTING
CORPORATION OR PERSON.
THIS AMENDMENT 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 AMENDMENT AGREEMENT SHALL NOT BE ASSIGNABLE EITHER BY AVOCENT (EXCEPT TO AN
AFFILIATE IN WHICH AVOCENT SHALL REMAIN LIABLE IF THE AFFILIATE FAILS TO MEET
ANY OBLIGATIONS TO MAKE PAYMENTS OR PROVIDE BENEFITS OR OTHERWISE) OR BY MR.
THORNTON.
4.10
COUNTERPARTS.
THIS AMENDMENT AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
AMENDMENT AGREEMENT.
4
4.11
INDEMNIFICATION.
IN ADDITION TO ANY RIGHTS TO INDEMNIFICATION TO WHICH
MR. THORNTON IS ENTITLED TO UNDER THE AVOCENT'S ARTICLES OF INCORPORATION AND
BYLAWS, AND CONSISTENT WITH THE INDEMNIFICATION AGREEMENT BETWEEN MR. THORNTON
AND AVOCENT, AVOCENT SHALL INDEMNIFY MR. THORNTON AT ALL TIMES DURING HIS
MEMBERSHIP ON THE BOARD OF DIRECTORS AND