**SEPARATION AND GENERAL RELEASE AGREEMENT**

 

 

This Separation and General Release Agreement (the “**Agreement**”)is entered into by and among Avocent Corporation (“**Avocent**”), Apex Inc. (“**Apex**”),and Barry L. Harmon (“**Mr. Harmon**”) to set forth the termsand conditions of the termination of Mr. Harmon’s employment with Avocentand Apex.  Avocent and Apex arecollectively referred to as “**Employer**” in this Agreement.

 

**1.**             **Termination of Employment. **Effective at the close ofbusiness on Friday, September 28, 2001, Employer and Mr. Harmonhereby agree that Mr. Harmon will resign as an employee and officer ofEmployer and its affiliates.

 

**2.             Benefits**.  In consideration for (i) the completerelease from Mr. Harmon described in Section 8 of this Agreement and (ii)the extension of Mr. Harmon’s noncompetition obligation described in Section 11of this Agreement, Employer and Mr. Harmon agree that, subject to compliance byMr. Harmon with the terms and conditions of this Agreement and in exchange forMr. Harmon’s signature on this Agreement and on AttachmentsA, Band C, Mr. Harmon will:

 

(a)           throughSeptember 28, 2002, receive a biweekly payment of $9,809.60 (less requiredwithholding and deductions);

 

(b)           on September 28, 2001, vest inoptions to purchase 115,866 shares of common stock of Avocent Corporation (allexercisable at $15.894849 per share) under the terms and conditions of the ApexEmployee Stock Plan (it being acknowledged by the parties that, immediatelyprior to September 28, 2001, Mr. Harmon will also be vested in unexercisedoptions to purchase a total of 265,808 shares pursuant to the Apex EmployeeStock Plan, pursuant to options granted on December 8, 1998 and March 12,1999);

 

(c)           on September 28, 2001, vest inoptions to purchase 110,000 shares of common stock of Avocent Corporation(70,000 exercisable at $52.4375 per share and 40,000 exercisable at $22.36 pershare) under the terms and conditions of the Avocent Corporation 2000 StockOption Plan (it being acknowledged by the parties that, immediately prior toSeptember 28, 2001, Mr. Harmon will also be vested in unexercised optionsto purchase a total of 30,000 shares pursuant to the Avocent Corporation 2000Stock Option Plan, pursuant to options granted on September 18, 2000 and May25, 2001);

 

(d)           onJanuary 2, 2002, receive a payment of $130,496.39 (less required withholdingand deductions), representing $104,447.00 as his average annual bonus for thepreceding two years and $26,049.39 for accrued but unused vacation;

 

(e)           throughSeptember 28, 2002, be eligible for benefits, including life insurance, Section401(k) Plan and cafeteria plans, and employee and dependent coverage underEmployer’s medical and dental plans to the same extent as available to otherEmployer employees; and

 

(f)            throughDecember 28, 2002, be able to exercise vested options (including by means ofcashless exercise with a trade for taxes) under the Apex Employee Stock Planand the Avocent Corporation 2000 Stock Option Plan (including any options thatbecome vested as a result of any acceleration provisions described in theRestated Employment Agreement defined below or in this Section 2).

 

                Other than as expressly set forth herein,Mr. Harmon hereby waives his right to receive a lump sum severance paymentpursuant to Section 4.2 of that certain Amended and Restated Employment andNoncompetition Agreement among Avocent, Apex, and Mr. Harmon dated as ofOctober 31, 2000 (the “**Restated Employment Agreement**”).  Mr. Harmon acknowledges and agrees that thebenefits in this Section 2 include payment for all his wages and all hisaccrued but unused vacation, personal, and sick time through September 28,2001, and Mr. Harmon further acknowledges that he will not accrue anyadditional vacation or be eligible for any additional incentive or bonus paymentsfrom Avocent or Apex for 2001 or thereafter (except amounts previously paid tohim and any matching 401(k) contribution that Employer makes on behalf of alleligible employees for compensation in 2001).

 

**3.             Performanceof Duties; Pay**.  Mr.Harmon agrees that, through the close of business on September 28, 2001, hewill help Employer transition the duties he formerly performed as Senior VicePresident of West Coast Operations. Effective on September 7, 2001, Mr. Harmon will be relieved ofhis regular, day-to-day responsibilities with Employer, and he agrees that,through September 28, 2002, he will be reasonably available upon reasonableadvance notice to confer and consult with Employer on matters with which he isfamiliar.  Mr. Harmon’s obligationspursuant to this Section 3 shall, from and after September 7, 2001,amend and supersede Mr. Harmon’s obligations pursuant to Section 1 ofthe Restated Employment Agreement. Mr. Harmon acknowledges that he will be entitled to receive theconsideration specified in Section 2 of this Agreement only if he is not inmaterial breach of this Agreement (including the obligation to provide theservices described in this Section 3 and the confidentiality and noncompetitionobligations described in Section 11 of this Agreement), and only if he signsand 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. Harmon signs this Agreement.  Mr. Harmon also understands and agreesthat, as an additional condition to receiving or retaining the consideration(including any Avocent shares received on the exercise of stock options)provided for in Section 2 of this Agreement, Mr. Harmon must execute andreturn to Employer the Confirmation of Separation and General Release Agreementattached as Attachment B, which may not be signed any earlier thanSeptember 28, 2002.  In the event thatAvocent determines that Mr. Harmon is in material breach of hisobligations pursuant to this Section 3, Avocent will, not less than five(5) business days prior to withholding any consideration specified in Section 2of this Agreement, provide Mr. Harmon with written notice of such materialbreach.

 

**4.             MedicalInsurance**.  Pursuantto his rights under the federal COBRA statute and regulations and subject tothe conditions of COBRA, Mr. Harmon and his eligible dependents have theopportunity to continue group medical insurance after September 28, 2002,through Employer for a period of 18 months at his expense.

 

**5.**             **MutualNondisparagement**. Mr. Harmon agrees that he will not make any disparaging orderogatory remarks about Avocent or Apex, their affiliates, or any of theirofficers, directors, employees, or products. Avocent, Apex, and their officers, directors, and employees agree not tomake any disparaging or derogatory remarks about Mr. Harmon or hisperformance at Employer.

 

**6.**             **Return ofProperty.**  Mr. Harmon agreesto return all of Employer’s property in his possession or under his control, including,but not limited to, laptop computer, files, documents of any kind, creditcards, access codes to software and the telephone system, and keys; provided,however, that Mr. Harmon shall be entitled to retain possession and use ofhis cell phone through September 28, 2002. Such property shall be returned no later than September 7, 2001.

 

**7.**             **Covenant Notto Sue**.  Mr. Harmonrepresents that he has not filed any complaints, charges, or lawsuits againstAvocent or Apex or any of their affiliates, and Mr. Harmon agrees that hewill not do so at any time hereafter other than to enforce the terms of thisAgreement.  Employer represents that ithas not filed any complaints, charges, or lawsuits against Mr. Harmon and that,on the date of this Agreement, its executive officers have no actual knowledgeof any basis for doing so.

 

**8.**             **CompleteRelease**.  In consideration ofthe payments and other benefits (including the extension of the period duringwhich his stock options may be exercised) described in Section 2, some of whichMr. Harmon is not otherwise entitled to receive and which are given to himspecifically in exchange for this release (and for the extension of thenoncompetition provision as described in Section 11) as a result ofnegotiations between himself and Employer, Mr. Harmon, on behalf of himself andhis heirs, successors, and assigns, releases and discharges Avocent, Apex, andtheir affiliated and predecessor organizations, their employee benefit plans,their current and former directors, officers, agents, employees, and attorneys,and each of their respective successors and assigns (the “**Released Parties**”), from anyand all claims, charges, causes of action, and damages (including attorneys’fees and costs actually incurred), known and unknown (“**Claims**”), including thoseClaims related in any way to Mr. Harmon’s employment with Employer or thetermination of his employment relationship with Employer arising prior to theeffective date of this Agreement.  Mr.Harmon specifically acknowledges and agrees that the payments and otherbenefits described in this Agreement are a full and complete satisfaction ofall obligations owed by Employer to him under the terms and conditions of theRestated Employment Agreement, and Mr. Harmon hereby waives and release anyrights under such Restated Employment Agreement.

 

For the purposes of implementing a full and completerelease and discharge of Employer and the other Released Parties, and each ofthem, Mr. Harmon expressly acknowledges that this Separation and GeneralRelease Agreement is intended to include in its effect, without limitation, allClaims which he does not know or suspect to exist in his favor at the time hesigns this Agreement, and that this Agreement is intended to fully and finallyresolve any such Claim or Claims.

 

This Release specifically includes but is not limitedto rights and claims under the local, state or federal laws prohibitingdiscrimination in employment, including the Civil Rights Acts, The Americanswith Disabilities Act, the Washington Law Against Discrimination (or any otherstate or local law against discrimination), The Age Discrimination inEmployment Act, the Family and Medical Leave Act, the Employee RetirementIncome Security Act, as well as any other state or federal laws or common lawtheories relating to discrimination in employment, the termination ofemployment, or personal injury, including without limitation all claims forbreach of contract, fraud, defamation, loss of consortium, infliction ofemotional distress, additional compensation, back pay or benefits (other thanas provided for in this Agreement).

 

**                9.**             **Voluntary Agreement; Full Understanding;Advice of Counsel**. Mr. Harmon understands and acknowledges the significance of thisAgreement and acknowledges that this Agreement is voluntary and has not beengiven as a result of any coercion. Mr. Harmon acknowledges that he has been given at least twenty-one(21) days after receipt of this document during which to consider whether hewanted to sign it (but that he need not wait 21 days if he so desires).  Mr. Harmon also acknowledges that he hasbeen given full opportunity to review and negotiate this Agreement, that he hasconsulted with his legal counsel, and that he executes this Agreement onlyafter full reflection and analysis.

 

**                10.**          **Nonadmission**.  This Separation and General Release Agreement shall not beconstrued as an admission of wrongdoing by Employer or by Mr. Harmon.

 

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

(a)           The parties agree to keep the termsof this Agreement confidential, and not to disclose them to anyone other thantheir respective accountants, attorneys, tax authorities and other agents witha need to know and, in the case of Mr. Harmon, his immediate family.  Notwithstanding the foregoing, Avocent maydisclose the terms of this Agreement to the extent necessary to comply withapplicable laws, rules and regulations, in particular those of the Securitiesand Exchange Commission.  After anydisclosure of information deemed confidential pursuant to this Agreement by aparty hereto, the terms so disclosed shall no longer be subject to theconfidentiality obligations of this Section 11.  Mr. Harmon also agrees to keep confidential any proprietary orconfidential information he has regarding Avocent and Apex and their affiliateswhich he has obtained during his employment with Employer, and not to discloseany such information without the prior written approval of Employer.  Notwithstanding the foregoing, Mr. Harmon andEmployer agree and acknowledge that Employer will issue a press release (the “**PressRelease**”), and may engage in communications with shareholders andanalysts, relating to Mr. Harmon’s resignation.  Mr. Harmon and Employer agree to cooperate in the preparation ofthe Press Release and in communications with shareholders and analysts.  Mr. Harmon and Employer agree that anyconversations with shareholders and analysts will not be inconsistent with thePress Release.  Mr. Harmon agrees thathe will not convey to shareholders or analysts any proprietary or confidentialinformation of Avocent, Apex or their affiliates.

                                (b)           In consideration of the payments andother benefits (including the extension of the exercise period for his stockoptions) described in Section 2, some of which Mr. Harmon is not otherwiseentitled to receive and which are given to him specifically in exchange forthis extension of the noncompetition provision (and for the complete release asdescribed in Section 8) as a result of negotiations between himself andEmployer, Mr. Harmon acknowledges and agrees as follows:

                                                (i)            through September 28, 2002, Mr.Harmon shall not, directly or indirectly, alone or as a partner, jointventurer, officer, director, employee, consultant, agent, independentcontractor, or stockholder of any company or business, engage in any businessactivity in the United States, Canada or Europe which is substantially similarto or in direct competition with any of the business activities of or servicesprovided by Avocent, Apex, or any subsidiaries of Avocent or Apex.  Mr. Harmon acknowledges that Employer’scurrent business consists of designing, manufacturing and selling console (KVM)switching systems, digital connectivity solutions, serial connectivity devices,extension and remote access products, and display products.

                                                (ii)           through September 28, 2003, Mr.Harmon shall not, directly or indirectly, become an officer, partner, director,employee, consultant, agent, independent contractor, or stockholder of RaritanComputer Inc., Rose Electronics, CCC Network Systems, Inc., Belkin Components(each, a “**Competitor**”)or any corporation or partnership that controls, is controlled by or is undercommon control with a Competitor.

 

**12.          ApplicableLaw**.  This Agreementshall be interpreted in accordance with the laws of the State of Washington,without giving effect to any conflicts of law principles.

 

**13.          Notice. **All notices and othercommunications required or permitted hereunder shall be in writing, shall beeffective when given, and shall in any event be deemed to be given upon receiptor, if earlier, (a) one business day after the business day of deposit withFederal Express or similar overnight courier, freight prepaid or (b) onebusiness day after the business day of facsimile transmission, if delivered by facsimiletransmission with copy by first class mail, postage prepaid, and shall beaddressed (i) if to Mr. Harmon, at his address as set forth beneath hissignature to this Agreement, and (ii) if to Avocent, at the address of itsprincipal corporate offices at 4991 Corporate Drive, Huntsville, Alabama 35805(attention:  Mr. Doyle Weeks) witha copy to Avocent (attention:  GeneralCounsel), 9911 Willows Road N.E., Redmond, Washington 98052, or at such otheraddress as a party may designate by ten days' advance written notice to theother party pursuant to the provisions above.

**                14.**          **Arbitration**.  Any and all disputes arising out of or relating to theinterpretation or application of this Agreement or the breach thereof shall beresolved by arbitration in King County, Washington using a single arbitrator,administered by the American Arbitration Association under its National Rulesfor the Resolution of Employment Disputes. The award shall be in writing. Judgment on the award rendered by the arbitrator may be entered in anycourt having jurisdiction thereof.  Inthe event it is necessary for either party to commence arbitration inconnection with this Agreement or its breach, the prevailing party in sucharbitration shall be entitled to reimbursement for its reasonable costs andattorneys’ fees incurred.

 

 

**PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES**

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

 

 
| Avocent Corporation                  |   | Barry L. Harmon              |   |
|--------------------------------------|--------|------------------------------|--------|
|                                 |   |                         |   |
|                                 |   |                         |   |
| By:  /s/  Doyle C. Weeks        |   | /s/ Barry L. Harmon          |   |
| Its:   Executive Vice President |   | Date:  August  28, 2001 |   |
| Date:  August  28, 2001         |   |                         |   |
|                                 |   | Address:                     |   |
|                                 |   |                         |   |
| Apex Inc.                            |   |                         |   |
|                                 |   |                         |   |
|                                 |   |                         |   |
| By:  /s/  Doyle C. Weeks        |   |                         |   |
| Its:   Executive Vice President |   |                         |   |
| Date: August 28, 2001                |   |                         |   |
|                                 |   |                         |   |

## **ATTACHMENTA**

 

**STATEMENT OF NON-REVOCATION**

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

 

 

                By signing below,I hereby verify that I have chosen not to revoke my agreement to and execute ofthe Separation and General Release Agreement. My signature confirms my renewed agreement to the terms of that Agreement,including the release and waiver of any and all claims relating to myemployment with Apex Inc./Avocent Corporation and/or the termination of thatemployment.

 

 

 
| _______________________________ |   | _______________________________ |
|---------------------------------|--------|---------------------------------|
| Name (Please Print)             |   | Social Security Number          |
|                            |   |                            |
|                            |   |                            |
| _______________________________ |   | _______________________________ |
| Signature*                      |   | Date*                           |

 

 

 

***DO NOTSIGN, DATE OR RETURN THIS DOCUMENT UNTIL EIGHT (8) DAYS AFTER YOU SIGN THISSEPARATION AND GENERAL RELEASE AGREEMENT.**

### **ATTACHMENT B**

 

**CONFIRMATION OF SEPARATION AND GENERAL RELEASE**

 

 

By signing below, I hereby acknowledge and confirm myagreement to all the terms of the Separation and General Release Agreement (“**Agreement**”).  I also agree that, as of the date I signthis document, 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 relating to my employment withAvocent Corporation and Apex Inc. and/or the termination of that relationshipwhich I would not have but for my being an employee of Avocent Corporation andApex Inc. since the time I signed the Agreement, as well as releasing andwaiving any and all other claims referenced in Paragraph 8 of the Agreement tothe extent permitted by law.

 

 

 
| _______________________________ |   | _______________________________ |
|---------------------------------|--------|---------------------------------|
| Barry L. Harmon                 |   | Date*                           |

 

 

 

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

**BEFORE SEPTEMBER 28, 2002**

 

 

### **ATTACHMENT C**

 

**RESIGNATION**

 

 

Secretary

Avocent Corporation

4991 Corporate Drive

Huntsville, Alabama 35805

 

 

 

                I hereby resign as an employee and officer of AvocentCorporation and its affiliates effective as of September 28, 2001.

 

 
|   |            |
|--------|-----------------|
|   | Barry L. Harmon |

 

** **

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