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.
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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.
4.11
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 THEREAFTER TO THE MAXIMUM EXTENT
PERMITTED UNDER THE CORPORATION LAWS OF THE STATE OF DELAWARE AND ANY OTHER
APPLICABLE STATE LAW, AND SHALL PAY MR. THORNTON'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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment Agreement as
of the day and year first above written.
AVOCENT EMPLOYMENT SERVICES, INC.:
By:
/s/ John R. Cooper
Its:
President
CYBEX COMPUTER PRODUCTS CORPORATION:
By:
/s/ John R. Cooper
Its:
President
AVOCENT CORPORATION:
By:
/s/ John R. Cooper
Its:
President & CEO
MR. THORNTON:
/s/ Stephen F. Thornton
Stephen F. Thornton
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