MR. THORNTON WILL NOT, WITHOUT THE
PRIOR
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WRITTEN CONSENT OF AVOCENT, 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, OR EUROPE WHICH IS SUBSTANTIALLY SIMILAR TO OR IN
DIRECT COMPETITION WITH ANY OF THE BUSINESS ACTIVITIES OF OR SERVICES PROVIDED
BY AVOCENT OR ITS AFFILIATES AT SUCH TIME.
NOTWITHSTANDING THE FOREGOING, THE
OWNERSHIP BY MR. THORNTON 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 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
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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