THE EMPLOYER OR AVOCENT OTHER THAN
(I) CONSTRUCTIVE TERMINATION AS DESCRIBED IN SUBSECTION 2.1(B),
(II) "TERMINATION UPON A CHANGE IN CONTROL" AS DESCRIBED IN SECTION 2.1(E), AND
(III) TERMINATION BY REASON OF THE EMPLOYEE'S DISABILITY OR DEATH AS DESCRIBED
IN SECTIONS 2.5 AND 2.6. "VOLUNTARY TERMINATION" SHALL ALSO INCLUDE EMPLOYER'S
TERMINATION OF EMPLOYEE IF EMPLOYEE HAS NOT COMMENCED LIVING (IN TEMPORARY
ACCOMMODATIONS) IN THE HUNTSVILLE, ALABAMA AREA BY JANUARY 14, 2008, AND
COMPETED HER PHYSICAL RELOCATION TO THE HUNTSVILLE, ALABAMA AREA BY
MAY 31, 2008.
(D)
"TERMINATION UPON A CHANGE IN CONTROL" SHALL MEAN (I) A
TERMINATION BY THE EMPLOYEE OF THE EMPLOYEE'S EMPLOYMENT WITH THE EMPLOYER OR
AVOCENT WITHIN SIX (6) MONTHS FOLLOWING ANY "CHANGE IN CONTROL" OR (II) ANY
TERMINATION BY THE EMPLOYER OR AVOCENT CORPORATION OF THE EMPLOYEE'S EMPLOYMENT
WITH THE EMPLOYER OR AVOCENT (OTHER THAN A TERMINATION FOR CAUSE) WITHIN
EIGHTEEN (18) MONTHS FOLLOWING ANY "CHANGE IN CONTROL."
(E)
"CHANGE IN CONTROL" SHALL MEAN, AFTER THE DATE OF THIS AGREEMENT,
ANY ONE OF THE FOLLOWING EVENTS:
(I)
ANY PERSON (OTHER THAN AVOCENT CORPORATION) ACQUIRES BENEFICIAL
OWNERSHIP OF EMPLOYER'S OR AVOCENT CORPORATION'S SECURITIES AND IS OR THEREBY
BECOMES A BENEFICIAL OWNER OF SECURITIES ENTITLING SUCH PERSON TO EXERCISE
TWENTY-FIVE PERCENT (25%) OR MORE OF THE COMBINED VOTING POWER OF EMPLOYER'S OR
AVOCENT CORPORATION'S THEN OUTSTANDING STOCK. FOR PURPOSES OF THIS AGREEMENT,
"BENEFICIAL OWNERSHIP" SHALL BE DETERMINED IN ACCORDANCE WITH REGULATION 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934, OR ANY SIMILAR SUCCESSOR REGULATION
OR RULE; AND THE TERM "PERSON" SHALL INCLUDE ANY NATURAL PERSON, CORPORATION,
PARTNERSHIP, TRUST OR ASSOCIATION, OR ANY GROUP OR COMBINATION THEREOF, WHOSE
OWNERSHIP OF EMPLOYER'S OR AVOCENT CORPORATION'S SECURITIES WOULD BE REQUIRED TO
BE REPORTED UNDER SUCH REGULATION 13D, OR ANY SIMILAR SUCCESSOR REGULATION OR
RULE.
(II)
WITHIN ANY TWENTY-FOUR (24) MONTH PERIOD, THE INDIVIDUALS WHO
WERE DIRECTORS OF AVOCENT CORPORATION AT THE BEGINNING OF ANY SUCH PERIOD,
TOGETHER WITH ANY OTHER DIRECTORS FIRST ELECTED AS DIRECTORS OF AVOCENT
CORPORATION PURSUANT TO NOMINATIONS APPROVED OR RATIFIED BY AT LEAST TWO-THIRDS
(2/3) OF THE DIRECTORS IN OFFICE IMMEDIATELY PRIOR TO ANY SUCH ELECTION, CEASE
TO CONSTITUTE A MAJORITY OF THE BOARD OF DIRECTORS OF AVOCENT CORPORATION.
(III)
AVOCENT CORPORATION'S STOCKHOLDERS APPROVE:
(1)
ANY CONSOLIDATION OR MERGER OF AVOCENT CORPORATION IN WHICH
AVOCENT CORPORATION IS NOT THE CONTINUING OR SURVIVING CORPORATION OR PURSUANT
TO WHICH SHARES OF AVOCENT CORPORATION COMMON STOCK WOULD BE CONVERTED INTO
CASH, SECURITIES OR OTHER PROPERTY, OTHER THAN A MERGER OR CONSOLIDATION OF
AVOCENT CORPORATION IN WHICH THE HOLDERS OF
2
AVOCENT CORPORATION'S COMMON STOCK IMMEDIATELY PRIOR TO THE MERGER OR
CONSOLIDATION HAVE SUBSTANTIALLY THE SAME PROPORTIONATE OWNERSHIP AND VOTING
CONTROL OF THE SURVIVING CORPORATION IMMEDIATELY AFTER THE MERGER OR
CONSOLIDATION; OR
(2)
ANY SALE, LEASE, EXCHANGE, LIQUIDATION OR OTHER TRANSFER (IN ONE
TRANSACTION OR A SERIES OF TRANSACTIONS) OF ALL OR SUBSTANTIALLY ALL OF THE
ASSETS OF AVOCENT CORPORATION.
Notwithstanding subparagraphs (e)(iii)(1) and (e)(iii)(2) above, the term
"Change in Control" shall not include a consolidation, merger, or other
reorganization