Exhibit 10.33
EMPLOYMENT AND NONCOMPETITION
AGREEMENT
THIS EMPLOYMENT AND NONCOMPETITION
AGREEMENT (the “Agreement”) is made and entered into as
of February 8, 2005, by and among Avocent Huntsville Corp., an
Alabama corporation (“AHC” or “Employer”),
Avocent Corporation, a Delaware corporation, and Dudley A. DeVore
(the “Employee”).
RECITALS
WHEREAS, Avocent Corporation and its
affiliates including Avocent International Ltd., Avocent Huntsville
Corp., Avocent Redmond Corp., and OSA Technologies, Inc.
(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, Employer desires to employ
the Employee and the Employee is willing to accept such employment
by Employer 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 Senior Vice
President of Branded Markets, Americas. 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 Branded Markets, Americas. The
Employee shall report to the Executive Vice President –
Global Sales of the 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 Branded Markets, Americas 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
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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, AHC’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,
AHC’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, AHC’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
(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.
(iv)
AHC’s
stockholders approve:
(1)
any consolidation or merger of AHC
in which AHC is not the continuing or surviving corporation or
pursuant to which shares of AHC common stock would be converted
into cash, securities or other property, other than a merger or
consolidation of AHC (including a merger of AHC into Avocent
Corporation) in which the holders of AHC’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
AHC.
Notwithstanding
subparagraphs (e)(iv)(1) and (e)(iv)(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 AHC is
owned, directly or indirectly, by a holding company, and the
holders of AHC’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 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
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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,
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