**Exhibit10.2.2**

 

**RETIREMENTAND GENERAL RELEASE AGREEMENT**

 

This Retirement andGeneral Release Agreement (the “Agreement”) is entered into this 23rd day ofJanuary, 2008, by and among Avocent Huntsville Corp. (“Employer”), AvocentCorporation, and John R. Cooper (“Mr. Cooper”) to set forth theterms and conditions of the termination of Mr. Cooper’s employment withAvocent Huntsville Corp. and its affiliates, including without limitationAvocent Corporation.  Avocent HuntsvilleCorp. and Avocent Corporation are collectively referred to as “Employer” in this Agreement.

 

**1.**                                      **Termination****of Employment; Resignation as Chairman. **Employer and Mr. Cooper hereby agree that,effective at the close of business on March 31, 2008 (the “EffectiveDate”), Mr. Cooper will resign as a Director and as the Chief ExecutiveOfficer and employee of Avocent Corporation and of each of its affiliates,which resignations are hereby accepted by Avocent Corporation on behalf ofitself and each affiliate.  Mr. Cooperand Employer agree that Mr. Cooper’s termination of employment shall bedeemed a “Termination Other Than For Cause” as defined in Sections 2.4 and 4.2of that certain Amended and Restated Employment and Noncompetition Agreementamong Mr. Cooper, Avocent Huntsville Corp., and Avocent Corporation dated December 13, 2006(the “Employment Agreement”) and that the benefits described in this Agreementare pursuant to the terms of that Employment Agreement.  Effective immediately, Mr. Cooper herebyresigns as the Chairman of the Board of Directors of Avocent Corporation.

 

**2.**                                      **Benefits**.  Mr. Coopershall be entitled to receive his current pay ($523,000 per annum) and benefitsthrough March 31, 2008.  Thereafter,in consideration forthe release from Mr. Cooper described in Section 8 of this Agreementand in lieu of any other benefits otherwise due to Mr. Cooper under law orby agreement, Employer and Mr. Cooper agree that, subject to compliance byMr. Cooper with the terms and conditions of the Employment Agreement andthis Agreement (including the noncompetition and confidentiality provisionsdescribed in Section 11) and in exchange for Mr. Cooper’s signatureon this Agreement and on AttachmentsA and B, Mr. Cooperwill:

 

(a)           On October 2, 2008, receive a lump sum payment of OneMillion Three Hundred Eighty One Thousand One Hundred Fifty-Three Dollars andSeventy Cents ($1,381,153.70), less required withholding and deductions(including without limitation amounts determined by Employer as theemployee-paid premium for the health plan coverage described in Section 2(d) below).

 

(b)           Be able to exercise the following vested options topurchase Avocent Corporation shares on or before the following specifiedexercise dates under the terms and conditions of the various stock option plansof Avocent Corporation and its affiliates under which Mr. Cooper haspreviously been granted options:

 

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| **Grant Date** | ** ** | **Exercise Date** | ** ** | **Shares** | ** ** | **Exercise Price** | ** ** |
|---------------------|------------|------------------------|------------|------------|------------|-------------------------|------------|
| 9/18/00             |       | 9/17/2010              |       | 40,000     |       | $                       | 52.4375    |   |
| 2/22/02             |       | 9/30/2010              |       | 130,000    |       | $                       | 21.5600    |   |
| 3/7/03              |       | 9/30/2010              |       | 112,500    |       | $                       | 27.2500    |   |
| 2/5/04              |       | 9/30/2010              |       | 75,000     |       | $                       | 40.9800    |   |
| 6/30/05             |       | 9/30/2010              |       | 28,000     |       | $                       | 26.1400    |   |

 

**Mr. Cooperacknowledges that he must exercise all vested options by the Exercise Dates setforth above under the terms and conditions specified in the stock option plansof Avocent Corporation and its affiliates or these options will terminate andexpire.**

 

(c)           On the Effective Date, vest in the following unvestedrestricted stock units and earned performance shares, and on such date and onthe subsequent delivery date, the minimum statutorily required federal, state,and local withholding taxes with respect to such restricted stock units andearned performance shares will be paid by reducing the number of vestedrestricted stock units (which are payable in Avocent shares) and earnedperformance shares actually delivered to Mr. Cooper, which such sharesshall be delivered to Mr. Cooper with any restrictive legends required bythe applicable securities laws and regulations on October 2, 2008:

 
| ** **                 | ** ** | **Unvested** | ** ** |
|----------------------------|------------|--------------|------------|
|                       |       |         |       |
| **2006  Awards**           |       |         |       |
| 2 year RSUs                |       | 0            |       |
| 3 year RSUs                |       | 8,602        |       |
| Earned  Performance Shares |       | 6,366        |       |
| 2006 Total                 |       | 14,968       |       |
|                       |       |         |       |
| **2007  Awards**           |       |         |       |
| 3 year RSUs                |       | 17,205       |       |
| Earned  Performance Shares |       | 0            |       |
| 2007 Total                 |       | 17,205       |       |
|                       |       |         |       |
| TOTAL                      |       | 32,173       |       |

 

(d)           Through March 31, 2010, beeligible for employee and dependent coverage under Employer’s medical(including annual visits to the Cooper Clinic), dental, Section 125medical reimbursement, and supplemental long-term disability plans in which Mr. Cooperis a participant to the same extent as available to him prior to the EffectiveDate.

 

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Mr. Cooper further acknowledges and agrees that the benefits inthis Section 2 include payment for all his wages and accrued but unusedvacation, personal, sick leave, and other paid-time off through March 31, 2008,and Mr. Cooper also acknowledges that he will not accrue any additionalvacation or be eligible for any other incentive, bonus, or commission paymentsfrom Employer for 2007 or 2008 (except amounts previously paid to him and anymatching 401(k) contribution that Employer makes on behalf of all eligibleemployees for compensation in 2008).

 

**3.             Duties**.  Mr. Cooper agrees that, from the date ofthis Agreement through the Effective Date he will actively assist the Board ofDirectors of Avocent Corporation in assuring an orderly transition of hisexecutive and management responsibilities, and thereafter, he will bereasonably available upon advance notice to confer and consult with Employer onmatters with which he is familiar.

 

**4.             Performanceof Duties, Pay.**  Mr. Cooperacknowledges that he will be entitled to receive the consideration specified inSection 2 of this Agreement only if (i) at the time any suchconsideration is payable, he is not in material breach of this Agreement(including the obligation to provide the services described in Section 3of this Agreement and the confidentiality and noncompetition obligations describedin his Employment Agreement and in Section 11 this Agreement), and (ii) hesigns and returns Attachment A confirming that he does not revoke theAgreement, and provided that Attachment A is signed not fewer than eight(8) calendar days after Mr. Cooper signs this Agreement.  Mr. Cooper also understands and agreesthat, as an additional condition to receiving or retaining the consideration(including any Avocent shares received on the acceleration of the vesting ofrestricted stock units or performance shares) provided for in Section 2 ofthis Agreement, Mr. Cooper must execute and return to Employer theConfirmation of Retirement and General Release Agreement attached as AttachmentB, which may not be signed any earlier than April 1, 2008.

 

**5.**             **Medical Insurance**.  Pursuant to his rights under the federalCOBRA statute and regulations and subject to the conditions of COBRA, Mr. Cooperand his eligible dependents will have the opportunity to continue group medicalinsurance through Employer after March 31, 2010, for a period ofeighteen (18) months at his expense.

 

**6.**             **Return of Property.**  Mr. Cooper will not have an office atEmployer after the Effective Date.  Onthe Effective Date, he agrees to return all other Employer property in hispossession or under his control, including, but not limited to, files,documents of any kind, notebooks, lab books, laptop computer, cell phone,credit cards, keys and access cards to Employer, including all copies ofEmployer information in any form or media, and not to delete any Employerinformation which may be contained on any Employer computers or on electronicmedia prior to returning such items to the Employer.

 

**7.**             **Covenant Not to Sue**.  Mr. Cooper represents that he has notfiled any complaints, charges, or lawsuits against Employer, or any of theiraffiliates, and Mr. Cooper agrees that he will not do so at any timehereafter other than to enforce the terms of this Agreement.  Employer represents that it has not filed anycomplaints, charges, or lawsuits against 

 

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Mr. Cooper and that, on the date of this Agreement,the members of Avocent Corporation’s Board of Directors have no actualknowledge of any basis for doing so.

 

**8.**             **Complete Release**.  In consideration for the continuation ofemployment through the Effective Date, the payment of benefits to Mr. Cooper,and other benefits set forth in this Agreement, John R. Cooper, on behalf ofhimself, his marital community, and his and their heirs, successors, andassigns, releases and discharges Avocent Corporation, Avocent Huntsville Corp,and their affiliated and predecessor corporations, their employee benefitplans, their current and former directors, officers, agents, employees, andattorneys, and each of their respective successors and assigns (the “ReleasedParties”), from any and all claims, charges, causes of action, and damages(including attorneys’ fees and costs actually incurred), known and unknown (“Claims”),including those Claims related in any way to Mr. Cooper’s employment withEmployer and their affiliates or the termination of his employment relationshipwith Employer and their affiliates arising prior to the date of this Agreement.

 

Forthe purposes of implementing a full and complete release and discharge ofAvocent Huntsville Corp., Avocent Corporation, their affiliates, and the otherReleased Parties, and each of them, Mr. Cooper expressly acknowledges thatthis Retirement and General Release Agreement is intended to include in itseffect, without limitation, all Claims which he does not know or suspect toexist in his favor at the time he signs this Agreement, and that this Agreementis intended to fully and finally resolve any such Claim or Claims.

 

ThisRelease specifically includes but is not limited to rights and claims under thelocal, state or federal laws prohibiting discrimination in employment,including the Civil Rights Acts, The Americans with Disabilities Act, any state(including Alabama) antidiscriminationact or laws, The Age Discrimination in Employment Act, the Family andMedical Leave Act, the Employee Retirement Income Security Act, as well as anyother state or federal laws or common law theories relating to discriminationin employment, the termination of employment, or personal injury, includingwithout limitation all claims for breach of contract, fraud, defamation, lossof consortium, infliction of emotional distress, additional compensation, backpay or benefits (other than as provided for in this Agreement).

 

**9.**             **Voluntary Agreement; FullUnderstanding; Revocation Right; Advice of Counsel**.  Mr. Cooper  specifically agrees and acknowledges:  (A) that his waiver of rights under thisAgreement is knowing and voluntary as required under the Older Workers BenefitProtection Act; (B) that he understands the terms of this Agreement; (C) thathe has been advised in writing by the Employer to consult with an attorneyprior to executing this Agreement; (D) that the Employer has given him aperiod of up to twenty-one (21) days within which to consider this Agreement; (E) that,following execution of this Agreement he has seven (7) days in which torevoke his signature on this Agreement by providing the General Counsel of theEmployer written notice of such revocation within such 7-day time period; and (F) nothingin this Agreement shall be construed to prohibit Mr. Cooper from filing acharge or complaint, including a challenge to the validity of the waiverprovision of this Agreement, with the Equal Employment Opportunity Commissionor participating in any investigation conducted by the 

 

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Equal Employment Opportunity Commission.  Employee further specifically agrees thatmodifications to this Agreement, whether material or immaterial, do not restartthe running of the twenty-one (21) day consideration period. Mr. Cooperalso acknowledges that he has been given full opportunity to review andnegotiate this Agreement, and that he executes this Agreement only after fullreflection and analysis.

 

**10.**          **Nonadmission**.  This Retirement and General Release Agreementshall not be construed as an admission of wrongdoing by Employer (or any oftheir affiliates) or by Mr. Cooper.

 

**11.****         ****Confidentiality and Noncompetition Obligations**.

 

(a)           Mr. Cooperacknowledges that current proprietary information and confidentialityagreements between him and Avocent Huntsville Corp. (formerly known as CybexComputer Products Corporations) and between him and Avocent Corporation (the “ConfidentialityAgreements”) and Section 5 of his Employment Agreement remain in fullforce and effect.  Mr.  Cooperfurther acknowledges that under Section 5 of his Employment Agreement, Mr. Cooperhas agreed that for a period of thirty-six (36) months thereafter, the Employeewill not, without Avocent Corporation’s prior written consent, directly orindirectly:

 

### **“(a)         either alone or as a partner, joint venturer, officer,director, employee, consultant, agent, independent contractor or stockholder ofany company or business, engage in any business activity world wide which issubstantially similar to or in direct competition with any of the businessactivities of or services provided by Employer or Avocent at such time.  Notwithstanding the foregoing, the ownership bythe Employee of not more than five percent (5%) of the shares of stock of anycorporation having a class of equity securities actively traded on a nationalsecurities exchange or on The Nasdaq Stock Market shall not be deemed, in andof itself, to violate the prohibitions of this Section 5; or**

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### **(b)           solicit, in any way encourage, take away, or engage inbusiness with customers of Employer or Avocent (or any current or futureparent, affiliate, or subsidiary of any of them) for his own benefit in amanner competitive with the business of Employer or Avocent or for the benefitof any person competing with the business of Employer or Avocent worldwide; or**

### ** **

### **(c)           solicit, in any way encourage, take away, or employpresent or future employees or present or future consultants of Employer or Avocent(or employees or consultants of any current or future parent, affiliate orsubsidiary of any of them) for his own benefit or for the benefit of any otherperson.”**

### ** **

Mr. Cooper hereby reaffirm his confidentiality and noncompetitionobligations under the terms and conditions specified in his ConfidentialityAgreements and Employment Agreement.

 

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(b)           The parties agree tokeep the terms of this Agreement confidential, and not to disclose them toanyone other than their respective accountants, attorneys, tax authorities andother agents with a need to know and, in the case of Mr. Cooper, hisimmediate family.  Notwithstanding theforegoing, Avocent may disclose the terms of this Agreement and file it withthe Securities and Exchange Commission (“SEC”) to the extent necessary tocomply with applicable laws, rules, and regulations, in particular those of theSEC.  After any such filing with the SEC,the terms so disclosed shall no longer be subject to the confidentiality obligationsof this Section 11.  Mr. Cooperalso agrees to keep confidential any proprietary or confidential information hehas regarding Avocent and its affiliates which he has obtained during hisemployment with Employer, and not to disclose any such information without theprior written approval of Employer. Notwithstanding the foregoing, Mr. Cooper and Employer agree andacknowledge that Employer will issue a press release (the “Press Release”), andmay engage in communications with shareholders and analysts, relating to Mr. Cooper’sresignation.  Mr. Cooper andEmployer agree to cooperate in the preparation of the Press Release and incommunications with shareholders and analysts. Mr. Cooper and Employer agree that any conversations withshareholders and analysts will not be inconsistent with the Press Release.  Mr. Cooper agrees that he will notconvey to shareholders or analysts any proprietary or confidential informationof Avocent or its affiliates

 

**12.          ApplicableLaw**.  This Agreement shall be interpretedin accordance with the laws of the State of Alabama.  Language in this Agreement shall in all casesbe construed as a whole, according to its fair meaning, and not strictly for oragainst either party.

 

**13.          Notices.**  All notices andother communications required or permitted hereunder shall be in writing, shallbe effective when given, and shall in any event be deemed to be given uponreceipt or, if earlier, (a) one business day after the business day ofdeposit with Federal Express, UPS, DHL, or similar overnight courier, freightprepaid or (b) one business day after the business day of facsimile orelectronic transmission (including by email), if delivered by facsimile orelectronic transmission with copy by first class mail, postage prepaid, and shallbe addressed (i) if to Mr. Cooper, at his address as set forthbeneath his signature to this Agreement, and (ii) if to Avocent(attention:  Mr. Edwin L. Harper,Chairman), 4991 Corporate Drive, Huntsville, Alabama 35805 with a copy toAvocent (attention: Samuel F. Saracino, General Counsel), 9911 Willows Road N.E.,Redmond, Washington 98052, or at such other address as a party may designate bythree days’ advance written notice to the other party pursuant to theprovisions above.

 

**14.**          **Arbitration**.  Any and all disputes arising out of orrelating to the interpretation or application of this Agreement or the breachthereof shall be resolved by arbitration in Huntsville, Alabama, using a singlearbitrator, administered by the American Arbitration Association under itsNational Rules for the Resolution of Employment Disputes.  The award shall be in writing.  Judgment on the award rendered by thearbitrator may be entered in any court having jurisdiction thereof.  In the event it is necessary for either partyto commence arbitration in connection with this Agreement or its breach, theprevailing party in such arbitration shall be entitled to reimbursement for itsreasonable costs and attorneys’ fees incurred.

 

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**15.          Severability**.  If any portion of this Agreement is held tobe invalid or unenforceable for any reason, the remaining covenants shallremain in full force and effect to the maximum extent permitted by law.

 

**16.          Entire Agreement**. ThisAgreement, along with theEmployment Agreement, the Confidentiality Agreements and the Employer’s variousbenefit plan documents, constitutes the entire agreement ofthe parties with respect to the matters covered in this Agreement andsupersedes any previous agreements, whether written or oral. Mr. Cooperwarrants that no promise or inducement has been offered for this Agreementother than as set forth herein and that this Agreement is executed withoutreliance upon any other promises or representations, oral or written.  Any modification of this Agreement must bemade in writing and be signed by Mr. Cooper and the Employer.

 

**PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES**

**A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.**

 
|   | **AVOCENT HUNTSVILLE CORP.** |
|--------|------------------------------|
|   |                         |
|   |                         |
|   | By:                          | /s/ Doyle C. Weeks |
|   | Its:                         | President |
|   |                         |   |
|   | **AVOCENT CORPORATION:**     |
|   |                         |   |
|   |                         |   |
|   | By:                          | /s/ Doyle C. Weeks |
|   | Its:                         | President |
|   |                         |   |
|   | **EMPLOYEE:**                |   |
|   |                         |   |
|   |                         |   |
|   | /s/ John R. Cooper           |
|   | John R. Cooper               |   |
|        |                              |  |  |

 

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ATTACHMENT A

 

**STATEMENT OF NON-REVOCATION**

**AS OF THE DATE SHOWN ON THIS FORM**

 

Bysigning below, I hereby verify that I have chosen not to revoke my agreement toand execution of the Retirement and General Release Agreement.  My signature confirms my renewed agreement tothe terms of that Agreement, including the release, waiver, and discharge ofAvocent Corporation, Avocent Huntsville Corp., and their affiliated andpredecessor corporations, their employee benefit plans, their current andformer directors, officers, agents, employees, and attorneys, and each of theirrespective successors and assigns from any and all claims relating to myemployment with Avocent Corporation, Avocent Huntsville Corp., and theiraffiliates and/or the termination of that employment.

 

 
|            |   |   |
|-----------------|--------|--------|
| John  R. Cooper |   | Date   |

 

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***DO NOT SIGN, DATE OR RETURN THIS DOCUMENT UNTIL EIGHT (8) DAYSAFTER YOU SIGN THE RETIREMENT AND GENERAL RELEASE AGREEMENT.**

 

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ATTACHMENT B

 

**CONFIRMATION OF RETIREMENT AND GENERAL RELEASE**

 

Bysigning below, I hereby acknowledge and confirm my agreement to all the termsof the Resignation and General Release Agreement (“Agreement”).  I also agree that, as of the date I sign thisdocument, I release and waive any and all additional employment claims (e.g.,statutory employment claims, wrongful discharge types of claims or relatedclaims, breach of employment contract types of claims, but not claims forbreach of the Agreement itself) I may have against Avocent Huntsville Corp.,Avocent Corporation, their affiliated and predecessor corporations, theiremployee benefit plans, their current and former directors, officers, agents,employees, and attorneys, and each of their respective successors and assignsrelating to my employment with Avocent Corporation, Avocent Huntsville Corp.,and their affiliates and/or the termination of that employment which I wouldnot have but for my being an employee of Avocent Corporation, AvocentHuntsville Corp., and their affiliates since the time I signed the Agreement,as well as releasing and waiving any and all other claims referenced in Section 8of the Agreement to the extent permitted by law.

 
|            |   |   |
|-----------------|--------|--------|
| John  R. Cooper |   | Date*  |

 

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***DO NOT SIGN, DATE OR RETURN THIS DOCUMENT**

**BEFORE APRIL 1, 2008**

 

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