THIS SECTION 4.2.
SUCH
PRESENT VALUE SHALL BE DETERMINED AS OF THE DATE OF DELIVERY OF THE NOTICE OF
ELECTION BY THE EMPLOYEE AND SHALL BE BASED ON A DISCOUNT RATE EQUAL TO THE
INTEREST RATE ON 90-DAY U.S. TREASURY BILLS, AS REPORTED IN THE WALL STREET
JOURNAL (OR SIMILAR PUBLICATION), ON THE DATE OF DELIVERY OF THE ELECTION
NOTICE.
IF THE EMPLOYEE ELECTS TO RECEIVE A LUMP SUM SEVERANCE PAYMENT, AVOCENT
CORPORATION SHALL CAUSE THE EMPLOYER TO MAKE SUCH PAYMENT TO THE EMPLOYEE WITHIN
TEN (10) DAYS FOLLOWING THE DATE ON WHICH THE EMPLOYEE NOTIFIES THE EMPLOYER OF
THE EMPLOYEE'S ELECTION.
THE EMPLOYEE SHALL ALSO BE ENTITLED TO HAVE THE
VESTING OF ANY AWARDS GRANTED TO THE EMPLOYEE UNDER ANY AVOCENT STOCK OPTION
PLANS FULLY ACCELERATED. THE EMPLOYEE SHALL BE PROVIDED WITH MEDICAL PLAN
BENEFITS UNDER ANY HEALTH PLANS OF AVOCENT OR EMPLOYER IN WHICH THE EMPLOYEE IS
A PARTICIPANT TO THE FULL EXTENT OF THE EMPLOYEE'S RIGHTS UNDER SUCH PLANS FOR A
PERIOD OF TWELVE (12) MONTHS FROM THE DATE OF SUCH TERMINATION OTHER THAN FOR
CAUSE (EVEN IF EMPLOYEE ELECTS TO RECEIVE A LUMP SUM SEVERANCE PAYMENT).
4.3
NO SEVERANCE COMPENSATION UNDER OTHER TERMINATION.
IN THE EVENT
OF A VOLUNTARY TERMINATION, TERMINATION FOR CAUSE, TERMINATION BY REASON OF THE
EMPLOYEE'S DISABILITY PURSUANT TO SECTION 2.5, TERMINATION BY REASON OF THE
EMPLOYEE'S DEATH PURSUANT TO SECTION 2.6, THE EMPLOYEE OR HIS ESTATE SHALL NOT
BE PAID ANY SEVERANCE COMPENSATION.
5.
NON-COMPETITION OBLIGATIONS.
UNLESS WAIVED OR REDUCED BY THE
EMPLOYER OR AVOCENT, DURING THE TERM OF THIS AGREEMENT AND (I) FOR A PERIOD OF
TWENTY-FOUR (24) MONTHS AFTER THE TERMINATION OF THIS AGREEMENT FOR ANY REASON
THAT OCCURS PRIOR TO THE FIFTH (5TH) ANNIVERSARY OF THE MERGER, OR (II) FOR A
PERIOD OF TWELVE (12) MONTHS AFTER TERMINATION OF THIS AGREEMENT FOR ANY REASON
THAT OCCURS SUBSEQUENT TO THE FIFTH (5TH) ANNIVERSARY OF THE MERGER, THE
EMPLOYEE WILL NOT, WITHOUT THE EMPLOYER'S AND AVOCENT CORPORATION'S PRIOR
WRITTEN CONSENT, DIRECTLY OR INDIRECTLY, ALONE OR AS A PARTNER, JOINT VENTURER,
OFFICER, DIRECTOR, EMPLOYEE, CONSULTANT, AGENT, INDEPENDENT CONTRACTOR OR
STOCKHOLDER OF ANY COMPANY OR BUSINESS, ENGAGE IN ANY BUSINESS ACTIVITY IN THE
UNITED STATES, CANADA, EUROPE, OR ASIA WHICH IS SUBSTANTIALLY SIMILAR TO OR IN
DIRECT COMPETITION WITH ANY OF THE BUSINESS ACTIVITIES OF OR SERVICES PROVIDED
BY THE EMPLOYER OR AVOCENT AT SUCH TIME.
NOTWITHSTANDING THE FOREGOING, THE
OWNERSHIP BY THE EMPLOYEE OF NOT MORE THAN FIVE PERCENT (5%) OF THE SHARES OF
STOCK OF ANY CORPORATION HAVING A CLASS OF EQUITY SECURITIES ACTIVELY TRADED ON
A NATIONAL SECURITIES EXCHANGE OR ON THE NASDAQ STOCK MARKET SHALL NOT BE
DEEMED, IN AND OF ITSELF, TO VIOLATE THE PROHIBITIONS OF THIS SECTION 5.
7
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 CERTIFICATE OF INCORPORATION AND
BYLAWS, EACH