POWER OF 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)
THE CLOSING OF ANY TRANSACTION INVOLVING:
(1)
ANY CONSOLIDATION, MERGER, OR OTHER REORGANIZATION 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,
CONSOLIDATION, OR OTHER REORGANIZATION OF AVOCENT CORPORATION IN WHICH THE
HOLDERS OF 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 the foregoing, the term "Change in Control" shall not include a
consolidation, merger, or other reorganization if upon consummation of such
transaction all of the outstanding voting stock of Avocent Corporation is owned,
directly or indirectly, by a holding company, and the holders of Avocent
Corporation's common stock immediately prior to the transaction have
substantially the same proportionate ownership and voting control of such
holding company after such transaction.
2
(C)
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
(D)
"CONSTRUCTIVE TERMINATION" SHALL MEAN EMPLOYEE'S VOLUNTARY
TERMINATION OF EMPLOYEE'S EMPLOYMENT BY REASON OF (I) A MATERIAL DIMINUTION OF
EMPLOYEE'S TITLE, REPORTING LINE, POWERS, DUTIES, AUTHORITIES, OR
RESPONSIBILITIES, (II) A REDUCTION IN EMPLOYEE'S BASE SALARY OR ANNUAL BONUS
TARGET PERCENTAGE, OR (III) ANY OTHER MATERIAL BREACH OF THIS AGREEMENT BY THE
EMPLOYER OR AVOCENT CORPORATION; PROVIDED, HOWEVER THAT TERMINATION SHALL ONLY
CONSTITUTE "CONSTRUCTIVE TERMINATION" IF EMPLOYEE GIVES EMPLOYER WRITTEN NOTICE
WITHIN NINETY (90) DAYS OF THE OCCURRENCE OF AN EVENT THAT WOULD CONSTITUTE
CONSTRUCTIVE TERMINATION AND EMPLOYER HAS FAILED TO CURE SUCH EVENT WITHIN
THIRTY (30) DAYS OF RECEIPT OF SUCH WRITTEN NOTICE AND SUCH SEPARATION FROM
SERVICE OCCURS DURING A PERIOD NOT TO EXCEED TWO (2) YEARS FOLLOWING THE INITIAL
EXISTENCE OF THE REASON GIVING RISE TO SUCH CONSTRUCTIVE TERMINATION.
(E)
"RELEASE" SHALL MEAN A RELEASE OF ANY CLAIMS AGAINST AVOCENT,
EMPLOYER THAT IS