Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AND NONCOMPETITION
AGREEMENT
THIS AMENDED AND
RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT (the
“Agreement”) is made and entered into as of December
13, 2006, by and among Avocent Huntsville Corp., an Alabama
corporation (“Employer”), Avocent Corporation, a
Delaware corporation, and John R. Cooper (the
“Employee”).
RECITALS
WHEREAS, Avocent
Corporation and its affiliates (collectively referred to in this
Agreement as “Avocent”) are engaged in the business of
designing, manufacturing, and selling connectivity and centralized
management of information technology infrastructure solutions for
enterprise data centers, branch offices, and small to medium size
businesses worldwide;
WHEREAS, Employee,
Employer, and Avocent Corporation entered into that certain Amended
and Restated Employment and Noncompetition Agreement dated October
10, 2003 (the “2003 Employment Agreement”);
and
WHEREAS, Employee,
Employer, and Avocent Corporation now wish to amend and restate the
2003 Employment Agreement with this Amended and Restated Employment
and Noncompetition Agreement, and Employee is willing to accept
employment as Avocent’s Chief Executive Officer on the terms
and subject to the conditions set forth in this
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 Chief
Executive Officer. 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 Chief
Executive Officer. The Employee shall report only to the
Board of Directors of 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 Chief Executive
Officer 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.
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(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
TERM. The term of employment of the Employee by the Employer
under this Agreement shall begin on the date of this Agreement, and
end when such employment is terminated under any of the provisions
of this Agreement.
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 Board of Directors of 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
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
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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 Avocent
stock option, restricted stock, performance share, or other equity
plans deemed and treated as fully earned and 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 for a period of twenty-four (24) months from
the date of such notice of termination, 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 Avocent stock option, restricted stock,
performance share, or other equity plans deemed and treated as
fully earned and 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 Avocent stock option, restricted stock, performance
share, or other equity plans deemed and treated as fully earned and
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, 2006, as payment for the
services to be rendered by the Employee as provided in
Section 1 and subject to the terms a
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