Exhibit 10.22
AMENDED AND RESTATED
EMPLOYMENT AND NONCOMPETITION AGREEMENT
THIS AMENDED
AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT (the “Agreement”) is made
and entered into as of October 10, 2003, by and among Avocent Huntsville
Corp., an Alabama corporation (“AHC” or “Employer”), Avocent Corporation, a
Delaware corporation, and Xxxxxxxxxxx Xxxxxx (the “Employee”).
RECITALS
WHEREAS,
Avocent Corporation and its affiliates including Avocent International Ltd.,
Avocent Huntsville Corp., and Avocent Xxxxxxx Corp. (Avocent Corporation and
its affiliates are collectively referred to in this Agreement as “Avocent”) are
engaged in the business of designing, manufacturing, and selling connectivity
solutions for enterprise data centers, service providers, and financial
institutions; and
WHEREAS,
Employee, Avocent Employment Services Co., and Avocent Corporation entered into
that certain Employment and Noncompetition Agreement dated July 1, 1999,
as amended by that certain First Amendment dated March 7, 2000
(collectively, the “Original Employment Agreement”); and
WHEREAS,
Employee, Employer, and Avocent Corporation now wish to amend and restate the
Original Employment Agreement with this Amended and Restated Employment and
Noncompetition Agreement.
AGREEMENT
THE PARTIES
HERETO AGREE AS FOLLOWS:
1. DUTIES. During the term of this Agreement, the
Employee agrees to be employed by Employer and to serve Avocent as its Senior
Vice President of Engineering. The
Employee shall devote such of his business time, energy, and skill to the
affairs of Avocent and Employer as shall be necessary to perform the duties of
Senior Vice President of Engineering.
The Employee shall report to the President and Chief Executive Officer
and the Executive Vice President of Employer and Avocent Corporation and to the
Boards of Directors of the Employer and Avocent Corporation, and at all times
during the term of this Agreement, the Employee shall have powers and duties at
least commensurate with his position as Senior Vice President of Engineering of
Avocent Corporation.
2. TERM
OF EMPLOYMENT.
2.1 DEFINITIONS. For purposes of this Agreement the following
terms shall have the following meanings:
(a) “TERMINATION
FOR CAUSE” shall mean termination by the Employer or Avocent Corporation of the
Employee’s employment with the Employer or Avocent by reason of the Employee’s
willful dishonesty towards, fraud upon, or deliberate injury or attempted
injury to, the Employer or Avocent or by reason of the Employee’s willful
material breach of this Agreement which has resulted in material injury to the
Employer or Avocent.
(b) “TERMINATIONS
OTHER THAN FOR CAUSE” shall mean termination by the Employer or Avocent
Corporation of the Employee’s employment with the Employer or Avocent (other
than in a Termination for Cause) and shall include any constructive termination
of the Employee’s employment by reason of material breach of this Agreement by
the Employer or Avocent, such constructive termination to be effective upon
thirty (30) days written notice from the Employee to the Employer of such
constructive termination.
(c) “VOLUNTARY
TERMINATION” shall mean termination by the Employee of the Employee’s
employment with 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.
(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 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
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(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 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.
2.2 BASIC
TERM. The term of employment of the
Employee by the Employer shall be for the period beginning on the date of this
Agreement, and ending on December 31, 2007, unless terminated earlier
pursuant to this Section 2. At any
time before December 31, 2007, the Employer and the Employee may by mutual
written agreement extend the Employee’s employment under the terms of this
Agreement for such additional periods as they may agree.
2.3 TERMINATION
FOR CAUSE. Termination For Cause may be
effected by the Employer at any time during the term of this Agreement and
shall be effected by thirty (30) days written notification to the Employee from
the Boards of Directors of Employer and Avocent Corporation stating the reason
for termination. Upon Termination For
Cause, the Employee immediately shall be paid all accrued salary, bonus
compensation to the extent earned, vested deferred compensation, if any (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of Employer
or Avocent in which the Employee is a participant to the full extent of the
Employee’s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, but the Employee shall not be paid
any other compensation or reimbursement of any kind, including without
limitation, severance compensation.
2.4 TERMINATION
OTHER THAN FOR CAUSE. Notwithstanding
anything else in this Agreement, the Employer may effect a Termination Other
Than For Cause at any time upon giving thirty (30) days written notice to the
Employee of such termination. Upon any
Termination Other Than For Cause, the Employee shall immediately be paid all
accrued salary, bonus compensation to the extent earned, vested deferred
compensation, if any (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of Employer or Avocent in which the Employee is a participant to the
full extent of the Employee’s rights under such plans, accrued vacation pay and
any appropriate business expenses incurred by the Employee in connection with
his duties hereunder, all to the date of termination, and all severance
compensation provided in Section 4.2, but no other compensation or
reimbursement of any kind.
2.5 TERMINATION
BY REASON OF DISABILITY. If, during the
term of this Agreement, the Employee, in the reasonable judgment of the Board
of Directors of Avocent Corporation, has failed to perform his duties under
this Agreement on account of illness or physical or mental incapacity, and such
illness or incapacity continues for a period of more than six (6) consecutive
months, the Employer shall have the right to terminate the Employee’s
employment hereunder by delivery of written notice to the Employee at any time
after such six month period and payment to the Employee of all accrued salary,
bonus compensation to the extent earned, additional
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bonus
compensation in an amount equal to the average annual bonus earned by the
Employee as an employee of Avocent Corporation and its affiliates and
predecessors in the two (2) years immediately preceding the date of
termination, vested deferred compensation, if any (other than pension plan or
profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of Employer or Avocent in which
the Employee is a participant to the full extent of the Employee’s rights under
such plans (including having the vesting of any awards granted to the Employee
under any AHC or Avocent stock option plans fully accelerated), accrued
vacation pay and any appropriate business expenses incurred by the Employee in
connection with his duties hereunder, all to the date of termination, with the
exception of medical and dental benefits which shall continue through the
expiration of this Agreement, but the Employee shall not be paid any other
compensation or reimbursement of any kind, including without limitation,
severance compensation.
2.6 TERMINATION
BY REASON OF DEATH. In the event of the
Employee’s death during the term of this Agreement, the Employee’s employment
shall be deemed to have terminated as of the last day of the month during which
his death occurs and the Employer shall pay to his estate or such beneficiaries
as the Employee may from time to time designate all accrued salary, bonus
compensation to the extent earned, vested deferred compensation, if any (other
than pension plan or profit sharing plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of Employer or Avocent
in which the Employee is a participant to the full extent of the Employee’s
rights under such plans (including having the vesting of any awards granted to
the Employee under any AHC or Avocent stock option plans fully accelerated),
accrued vacation pay and any appropriate business expenses incurred by the
Employee in connection with his duties hereunder, all to the date of
termination, but the Employee’s estate shall not be paid any other compensation
or reimbursement of any kind, including without limitation, severance
compensation.
2.7 VOLUNTARY
TERMINATION. Notwithstanding anything
else in this Agreement, the Employee may effect a Voluntary Termination at any
time upon giving thirty (30) days written notice to the Employer of such
termination. In the event of a
Voluntary Termination, the Employer shall immediately pay all accrued salary,
bonus compensation to the extent earned, vested deferred compensation, if any
(other than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of Employer
or Avocent in which the Employee is a participant to the full extent of the
Employee’s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, but no other compensation or
reimbursement of any kind, including without limitation, severance
compensation.
2.8 TERMINATION
UPON A CHANGE IN CONTROL. In the event
of a Termination Upon a Change in Control, the Employee shall immediately be
paid all accrued salary, bonus compensation to the extent earned, vested
deferred compensation, if any (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of Employer or Avocent in which the Employee is a
participant to the full extent of the Employee’s rights under such plans
(including having the vesting of any awards granted to the Employee under any
AHC or Avocent stock option plans fully accelerated), accrued vacation pay and
any appropriate business expenses incurred by the Employee in connection with
his duties hereunder, all to the date of termination, and all severance
compensation provided in Section 4.1, but no other compensation or
reimbursement of any kind.
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3. SALARY,
BENEFITS AND BONUS COMPENSATION.
3.1 BASE
SALARY. Effective January 1, 2003,
as payment for the services to be rendered by the Employee as provided in
Section 1 and subject to the terms and conditions of Section 2, the
Employer agrees to pay to the Employee a “Base Salary” at the rate of $210,000.00
per annum, payable in equal bi-weekly installments. The Base Salary for each calendar year (or proration thereof)
beginning January 1, 2004 shall
be determined by the Board of Directors of Avocent Corporation upon a
recommendation of the Compensation Committee of Avocent Corporation (the
“Compensation Committee”), which shall authorize an increase in the Employee’s
Base Salary in an amount which, at a minimum, shall be equal to the cumulative
cost-of-living increment on the Base Salary as reported in the “Consumer Price
Index, Huntsville, Alabama, All Items,” published by the U.S. Department of
Labor (using July 1, 2003, as the base date for computation prorated for
any partial year). The Employee’s Base Salary shall be reviewed annually
by the Board of Directors and the Compensation Committee of Avocent
Corporation.
3.2 BONUSES. The Employee shall be eligible to receive a
bonus for each calendar year (or portion thereof) during the term of this
Agreement and any extensions thereof, with the actual amount of any such bonus
to be determined in the sole discretion of the Board of Directors of Avocent
Corporation based upon its evaluation of the Employee’s performance during such
year. All such bonuses shall be payable
during the last month of the fiscal year or within forty-five (45) days after
the end of the fiscal year to which such bonus relates. All such bonuses shall be reviewed annually
by the Compensation Committee of Avocent Corporation.
3.3 ADDITIONAL
BENEFITS. During the term of this
Agreement, the Employee shall be entitled to the following fringe benefits:
(a) THE
EMPLOYEE BENEFITS. The Employee shall
be eligible to participate in such of Avocent’s benefits and deferred
compensation plans as are now generally available or later made generally
available to executive officers or Avocent, including, without limitation,
stock option plans, Section 401(k) plan, profit sharing plans, deferred
compensation plan, annual physical examinations, dental and medical plans,
personal catastrophe and disability insurance, retirement plans and
supplementary executive retirement plans, if any. For purposes of establishing the length of service under any
benefit plans or programs of AHC or Avocent, the Employee’s employment with the
Employer (or any successor) will be deemed to have commenced on the date that
Employee first commenced employment with AHC, which was February 2,
1995.
(b) VACATION. The Employee shall be entitled to vacation
in accordance with the Avocent Corporation’s vacation policy but in no event
less than three (3) weeks during each year of this Agreement.
(c) LIFE
INSURANCE. For the term of this
Agreement and any extensions thereof, the Employer shall at its expense procure
and keep in effect term life insurance on the life of the Employee, payable to
such beneficiaries as the Employee may from time to time designate, in an
aggregate amount equal to three times the Employee’s Base Salary. Such policy shall be owned by the Employee
or by any person or entity with an insurable interest in the life of the
Employee.
(d) REIMBURSEMENT
FOR EXPENSES. During the term of this
Agreement, the Employer or Avocent Corporation shall reimburse the Employee for
reasonable and
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properly documented out-of-pocket business and/or entertainment
expenses incurred by the Employee in connection with his duties under this
Agreement in accordance with Avocent’s standard reimbursement policies.
4. SEVERANCE
COMPENSATION.
4.1 SEVERANCE
COMPENSATION IN THE EVENT OF A TERMINATION UPON A CHANGE IN CONTROL. In the event of a Termination Upon a Change
in Control, the Employee shall be paid as severance compensation his Base
Salary (at the rate payable at the time of such termination) for a period of
twelve (12) months from the date of such Termination Upon a Change in Control,
on the dates specified in Section 3.1, and the Employee shall also be paid
an amount equal to the average annual bonus earned by the Employee as an
employee of Avocent Corporation and its affiliates and predecessors in the two
(2) years immediately preceding the date of termination. Notwithstanding anything in this
Section 4.1 to the contrary, the Employee may in the Employee’s sole
discretion, by delivery of a notice to the Employer within thirty (30) days
following a Termination Upon a Change in Control, elect to receive from the
Employer a lump sum severance payment by bank cashier’s check equal to the
present value of the flow of cash payments that would otherwise be paid to the
Employee pursuant to this Section 4.1.
Such present value shall be determined as of the date of delivery of the
notice of election by the Employee and shall be based on a discount rate equal
to the interest rate of 90-day U.S. Treasury bills, as reported in The Wall Street Journal (or similar
publication), on the date of delivery of the election notice. If the Employee elects to receive a 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 AHC or Avocent
stock option plans fully 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 Upon a Change in Control
(even if Employee elects to receive a lump sum severance payment).
4.2 SEVERANCE
COMPENSATION IN THE EVENT OF A TERMINATION OTHER THAN FOR CAUSE. In the event of a Termination Other Than for
Cause, the Employee shall be paid as severance compensation his Base Salary (at
the rate payable at the time of such termination) for a period of twelve (12)
months from the date of such termination, on the dates specified in
Section 3.1, and Employee shall also be paid an amount equal to the
average annual bonus earned by the Employee as an employee of Avocent
Corporation and its affiliates and predecessors in the two (2) years
immediately preceding the date of termination.
Notwithstanding anything in this Section 4.2 to the contrary, the
Employee may in the Employee’s sole discretion, by delivery of a notice to the
Employer within thirty (30) days following a Termination Other Than for Cause,
elect to receive from the Employer a lump sum severance payment by bank cashier’s
check equal to the present value of the flow of cash payments that would
otherwise be paid to the Employee pursuant to this Section 4.2. Such present value shall be determined as of
the date of delivery of the notice of election by the Employee and shall be
based on a discount rate equal to the interest rate on 90-day U.S. Treasury
bills, as reported in The Wall Street
Journal (or similar publication), on the date of delivery of the
election notice. If the Employee elects
to receive a 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
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of the
Employee’s election. The Employee shall
also be entitled to have the vesting of any awards granted to the Employee
under any AHC or Avocent stock option plans fully 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.
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 thereafter, the Employee will not, without the Employer’s
and Avocent Corporation’s prior written consent, 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, Europe, or Asia which is
substantially similar to or in direct competition with any of the business
activities of or services provided by the Employer or Avocent at such
time. Notwithstanding the foregoing,
the ownership by the Employee 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 5.
6. MISCELLANEOUS.
6.1 PAYMENT
OBLIGATIONS. If litigation after a
Change in Control shall be brought to enforce or interpret any provision
contained herein, the Employer and Avocent Corporation, to the extent permitted
by applicable law and the Employer’s and Avocent Corporation’s Articles of
Incorporation and Bylaws, each hereby indemnifies the Employee for the
Employee’s reasonable attorneys’ fees and disbursements incurred in such
litigation.
6.2 GUARANTEE. Avocent Corporation hereby unconditional and
irrevocable guarantees all payment obligations of the Employer under this
Agreement, including, without limitation, the Employer’s obligations under
Sections 2, 3, 4, and 6 hereof.
6.3 WITHHOLDINGS. All compensation and benefits to the
Employee hereunder shall be reduced by all federal, state, local, and other
withholdings and similar taxes and payments required by applicable law.
6.4 WAIVER. The waiver of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or other provision hereof.
6.5 ENTIRE
AGREEMENT; MODIFICATIONS. Except as
otherwise provided herein, this Agreement represents the entire understanding
among the parties with respect to the subject matter hereof, and this 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, the Original Employment Agreement, and any understandings, agreements or
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obligations
respecting any past or future compensation, bonuses, reimbursements or other
payments to the Employee from the Employer or Avocent Corporation. All modifications to the Agreement must be
in writing and signed by the party against whom enforcement of such
modification is sought.
6.6 NOTICES. All notices and other communications under
this 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 the Employer
or the Employee, as the case may be, or upon three (3) days after mailing to
the respective persons named below:
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If to the
Employer/Avocent:
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Avocent
Corporation
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0000
Xxxxxxxxx Xxxxx
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Xxxxxxxxxx,
XX 00000
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Attn:
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Executive
Vice President
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Copy to:
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General
Counsel
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If to the Employee:
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Xxxxxxxxxxx
Xxxxxx
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Any party may
change such party’s address for notices by notice duly given pursuant to this
Section 6.6.
6.7 HEADINGS. The Section headings herein are
intended for reference and shall not by themselves determine the construction
or interpretation of this Agreement.
6.8 GOVERNING
LAW; VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Alabama. The Employee, the Employer,
and Avocent Corporation each hereby expressly consents to the exclusive venue
of the state and federal courts located in Huntsville, Alabama, for any lawsuit
arising from or relating to this Agreement.
6.9 ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, shall be settled by arbitration
in Huntsville, Alabama, in accordance with the Rules of the American
Arbitration Association, and judgment upon any proper award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. There shall be three (3) arbitrators, one
(1) to be chosen directly by each party at will, and the third arbitrator to be
selected by the two (2) arbitrators so chosen.
To the extent permitted by the Rules of 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.
6.10 SEVERABILITY. If a court or other body of competent
jurisdiction determines that any provision of this 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 Agreement
shall be deemed valid and enforceable to the extent possible.
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6.11 SURVIVAL
OF EMPLOYER’S OBLIGATIONS. The
Employer’s and Avocent Corporation’s obligations hereunder shall not be
terminated by reason of any liquidation, dissolution, bankruptcy, cessation of
business, or similar event relating to the Employer or Avocent
Corporation. This Agreement shall not
be terminated by any merger or consolidation or other reorganization of the
Employer or 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
Agreement shall be binding upon and inure to the benefit of the surviving or
resulting corporation or person. This
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 Agreement shall not be
assignable either by the Employer (except to an affiliate of the Employer
(including Avocent Corporation) in which event the Employer shall remain liable
if the affiliate fails to meet any obligations to make payments or provide
benefits or otherwise) or by the Employee.
6.12 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the
same Agreement.
6.13 INDEMNIFICATION. In addition to any rights to indemnification
to which the Employee is entitled to under the Employer’s or Avocent
Corporation’s Articles of Incorporation and Bylaws, the Employer and Avocent
Corporation shall indemnify the Employee at all times during and after the term
of this Agreement to the maximum extent permitted under the corporation laws of
the State of Delaware and any other applicable state law, and shall pay the
Employee’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.
6.14 INDEMNIFICATION
FOR SECTION 4999 EXCISE TAXES. In
the event that it shall be determined that any payment or other benefit paid by
the Employer or Avocent Corporation to or for the benefit of the Employee under
this Agreement or otherwise, but determined without regard to any additional
payments required under this Amendment (the “Payments”) would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code (the
“Excise Tax”), then the Employer and Avocent Corporation shall indemnify the
Employee for such Excise Tax in accordance with the following:
(a) The
Employee shall be entitled to receive an additional payment from the Employer
and/or Avocent Corporation equal to (i) one hundred percent (100%) of any
Excise Tax actually paid or finally or payable by the Employee in connection
with the Payments, plus (ii) an additional payment in such amount that after
all taxes, interest and penalties incurred in connection with all payments
under this Section 2(a), the Employee retains an amount equal to one
hundred percent (100%) of the Excise Tax.
(b) All
determinations required to be made under this Section shall be made by the
Avocent Corporation’s primary independent public accounting firm, or any other
nationally recognized accounting firm reasonably acceptable to the Avocent
Corporation and the Employee (the “Accounting Firm”). Avocent Corporation shall cause the Accounting Firm to provide
detailed supporting calculations of its determinations to the Employer and the
Employee. All fees and expenses of the
Accounting Firm shall be borne solely by the Employer. For purposes of making the calculations
required by this Section, the Accounting Firm may make reasonable assumptions
and approximations concerning
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applicable
taxes and may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Internal Revenue Code, provided
the Accounting Firm’s determinations must be made with substantial authority
(within the meaning of Section 6662 of the Internal Revenue Code). The
payments to which the Employee is entitled pursuant to this Section shall
be paid by the Employer and/or Avocent Corporation to the Employee in cash and
in full not later than thirty (30) calendar days following the date the
Employee becomes subject to the Excise Tax.
IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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AVOCENT HUNTSVILLE CORP.:
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By:
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/s/ Xxxxx X.
Xxxxx
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Its:
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Vice
President
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AVOCENT CORPORATION:
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By:
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/s/ Xxxx X.
Xxxxxx
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Its:
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President
and Chief Executive Officer
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EMPLOYEE:
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/s/
Xxxxxxxxxxx Xxxxxx
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Xxxxxxxxxxx
Xxxxxx
|
10
