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, RESTRICTED STOCK, PERFORMANCE SHARE, OR OTHER EQUITY
PLANS DEEMED AND TREATED AS FULLY EARNED AND 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.
4.4
SECTION 409A COMPLIANCE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS AGREEMENT, ANY CASH SEVERANCE PAYMENTS OTHERWISE DUE TO EMPLOYEE
PURSUANT TO SECTION 4 OR OTHERWISE ON OR WITHIN THE SIX-MONTH PERIOD FOLLOWING
EMPLOYEE'S TERMINATION WILL ACCRUE DURING SUCH SIX-MONTH PERIOD AND WILL BECOME
PAYABLE IN A LUMP SUM PAYMENT ON THE DATE SIX (6) MONTHS AND ONE (1) DAY
FOLLOWING THE DATE OF EMPLOYEE'S TERMINATION, PROVIDED, THAT SUCH CASH SEVERANCE
PAYMENTS WILL BE PAID EARLIER, AT THE TIMES AND ON THE TERMS SET FORTH IN THE
APPLICABLE PROVISIONS OF SECTION 4, IF EMPLOYER REASONABLY DETERMINES THAT THE
IMPOSITION OF ADDITIONAL TAX UNDER SECTION 409A OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, WILL NOT APPLY TO AN EARLIER PAYMENT OF SUCH CASH SEVERANCE
PAYMENTS.
IN ADDITION, THIS AGREEMENT WILL BE DEEMED AMENDED IN EMPLOYER'S
REASONABLE DISCRETION TO THE EXTENT NECESSARY TO AVOID IMPOSITION OF ANY
ADDITIONAL TAX OR INCOME RECOGNITION PRIOR TO ACTUAL PAYMENT TO EMPLOYEE UNDER
CODE SECTION 409A AND ANY TEMPORARY, PROPOSED OR FINAL TREASURY REGULATIONS AND
GUIDANCE PROMULGATED THEREUNDER AND THE PARTIES AGREE TO COOPERATE WITH EACH
OTHER AND TO TAKE REASONABLY NECESSARY STEPS IN THIS REGARD SO AS NOT TO REDUCE
THE BENEFITS PROVIDED TO EMPLOYEE UNDER THIS AGREEMENT.
EMPLOYER AGREES TO
NOTIFY EMPLOYEE OF ANY SUCH PROPOSED AMENDMENTS PRIOR TO IMPLEMENTING ANY SUCH
AMENDMENT.
5.
NON-COMPETITION OBLIGATIONS.
UNLESS WAIVED OR REDUCED BY THE
EMPLOYER OR AVOCENT, DURING THE TERM OF THIS AGREEMENT AND FOR A PERIOD OF
TWELVE (12) MONTHS
7
THEREAFTER, THE EMPLOYEE WILL NOT, WITHOUT THE EMPLOYER'S AND AVOCENT
CORPORATION'S PRIOR WRITTEN CONSENT, DIRECTLY OR INDIRECTLY:.
(A)
EITHER 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 WORLD WIDE WHICH IS SUBSTANTIALLY
SIMILAR TO OR IN DIRECT COMPETITION WITH ANY OF THE BUSINESS ACTIVITIES OF OR