Attn:
President
Copy to:
General Counsel
If to the Employee:
C. David Perry
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 TEXAS.
THE EMPLOYEE, THE
EMPLOYER, AND AVOCENT CORPORATION EACH HEREBY EXPRESSLY CONSENTS TO THE
EXCLUSIVE VENUE OF THE STATE AND FEDERAL COURTS LOCATED IN AUSTIN, TEXAS, FOR
ANY LAWSUIT ARISING FROM OR RELATING TO THIS AGREEMENT.
6.9
ARBITRATION.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION IN AUSTIN,
TEXAS, 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.
6.10
SEVERABILITY.
IF A COURT OR OTHER BODY OF COMPETENT JURISDICTION
DETERMINES THAT ANY PROVISION OF THIS 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 AGREEMENT SHALL BE DEEMED
VALID AND ENFORCEABLE TO THE EXTENT POSSIBLE.
6.11
SURVIVAL OF EMPLOYER'S OBLIGATIONS.
THE EMPLOYER'S AND AVOCENT
CORPORATION'S OBLIGATIONS HEREUNDER SHALL NOT BE TERMINATED BY REASON OF ANY
LIQUIDATION, DISSOLUTION, BANKRUPTCY, CESSATION OF BUSINESS, OR SIMILAR EVENT
RELATING TO THE EMPLOYER OR AVOCENT CORPORATION.
THIS AGREEMENT SHALL NOT BE
TERMINATED BY ANY MERGER OR CONSOLIDATION OR OTHER REORGANIZATION OF THE
EMPLOYER OR AVOCENT CORPORATION.
IN THE EVENT ANY SUCH MERGER,
9
CONSOLIDATION OR REORGANIZATION SHALL 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