Employment And Noncompetition Agreement

EMPLOYMENT AND NONCOMPETITION AGREEMENT


THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (the "Agreement") is dated this 7th day of March, 2000, by and between Apex Inc., a Washington corporation ("Apex" or the "Employer"), and Samuel F. Saracino (the "Employee").


RECITALS


WHEREAS, Apex is engaged in the business of designing, manufacturing, and selling stand-alone console/KVM switching systems, console/KVM remote access products, and integrated server cabinet solutions for the client/server computing market; and


WHEREAS, Apex desires to employ the Employee and the Employee is willing to accept such employment by Apex on the terms and subject to the conditions set forth in this Agreement; and


WHEREAS, on the date of this Agreement, Apex, Cybex Computer Products Corporation, an Alabama corporation, and Aegean Sea Inc., a Delaware corporation ("Holdco"), are entering into an Agreement and Plan of Reorganization dated March 7, 2000 (the "Reorganization Agreement"). Pursuant to the Reorganization Agreement, (i) Apex Sub, Inc., a Washington corporation and a wholly-owned subsidiary of Holdco, will merge with and into Apex (the "Apex Merger"), and upon the Apex Merger, Apex will become a wholly-owned subsidiary of Holdco, and (ii) Cybex Sub, Inc., an Alabama corporation and a wholly-owned subsidiary of Holdco will merge with and into Cybex (the "Cybex Merger"), and upon the Cybex Merger, Cybex will also become a wholly-owned subsidiary of Holdco.


AGREEMENT


THE PARTIES HERETO AGREE AS FOLLOWS:


1. DUTIES. During the term of this Agreement, the Employee agrees to be employed by Apex and to serve Holdco and Apex as their Senior Vice President - Legal and Corporate Affairs, General Counsel, and Secretary. The Employee shall devote such of his business time, energy, and skill to the affairs of Holdco and Apex as shall be necessary to perform the duties of the Senior Vice President - Legal and Corporate Affairs, General Counsel, and Secretary of Holdco and Apex. The Employee shall report to the Executive Vice President of Holdco, to the President of Holdco, and to the Board of Directors of Holdco, 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 - Legal and Corporate Affairs, General Counsel, and Secretary. The Employee's principal place of business with respect to his services to Holdco and Apex shall be within the vicinity of the city of Redmond, Washington. The Employee shall function as the principal legal officer of Holdco and its affiliates with responsibility for legal and corporate affairs (including the legal aspects of Holdco's mergers and acquisitions, business development strategy, intellectual property affairs, and other legal matters). Employee will work with key managers and individuals located in Huntsville, Alabama,


Shannon, Ireland, and Acton, Massachusetts, and work closely with the Executive Vice President on business development activities.


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 of the Employee's employment by the Employer by reason of the Employee's willful dishonesty towards, fraud upon, or deliberate injury or attempted injury to, the Employer or by reason of the Employee's willful material breach of this Agreement which has resulted in material injury to the Employer.


(b) "TERMINATIONS OTHER THAN FOR CAUSE" shall mean termination by the Employer of the Employee's employment by the Employer (other than in a Termination for Cause) and shall include (i) constructive termination of the Employee's employment by reason of material breach of this Agreement by the Employer, such constructive termination to be effective upon thirty (30) days written notice from the Employee to the Employer of such constructive termination and (ii) any attempt to relocate outside of the vicinity of Redmond, Washington: (x) the Employee, (y) the Employee's duties and responsibilities, or (z) the Employer's office at which Employee is employed. Notwithstanding the foregoing, Employee agrees that a change in his duties and responsibilities shall not result in a constructive termination under this Section 2.1(b) unless such change results in a substantial diminution of Employee's duties and responsibilities.


(c) "VOLUNTARY TERMINATION" shall mean termination by the Employee of the Employee's employment by the Employer 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 a termination by the Employee of the Employee's employment with the Employer or services to Apex or Holdco following a "Change in Control" other than any "Change in Control" contemplated by or described in the Reorganization Agreement and/or resulting from the closing of the transactions described in the Reorganization Agreement including, without limitation, the Cybex Merger, the Apex Merger, and the Merger (as such terms are defined in the Reorganization Agreement).


(e) "CHANGE IN CONTROL" shall mean any one of the following events:


(i) Any person (other than Holdco) acquires beneficial ownership of Apex's or Holdco'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 Apex's or Holdco's then outstanding stock. For purposes of this Agreement, "beneficial ownership" shall be


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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 Apex's or Holdco'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, individuals who were Directors of Apex or Holdco at the beginning of such period, together with any other Directors first elected as directors of Apex or Holdco pursuant to nominations approved or ratified by at least two-thirds (2/3) of the Directors in office immediately prior to such respective elections, cease to constitute a majority of the Board of Directors of Holdco.


(iii) Holdco's stockholders approve:


(1) any consolidation or merger of Holdco in which Holdco is not the continuing or surviving corporation or pursuant to which shares of Holdco common stock would be converted into cash, securities or other property, other than a merger or consolidation of Holdco in which the holders of Holdco'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 Holdco.


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 Holdco is owned, directly or indirectly, by a holding company, and the holders of Holdco'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) Apex's stockholders approve:


(1) any consolidation or merger of Apex in which Apex is not the continuing or surviving coporation or pursuant to which shares of Apex common stock would be converted into cash, securities or other property, other than a merger or consolidation of Apex in which the holders of Apex's common stock immediately prior to the merger or consolidation have substantially the same proportionate ownership and voting control of the surving corporation immeadiately 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 Apex or Holdco.


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 Apex is owned, directly or indirectly, by a holding


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company, and the holders of Apex'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 immediately prior to the closing of the Apex Merger described in the Reorganization Agreement and ending on March 31, 2004, unless terminated earlier pursuant to this Section 2. At any time before March 31, 2004, 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 Board of Directors of Holdco stating the reason for termination. Upon Termination For Cause, the Employee immediately shall be paid all accrued salary, 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 Apex or Holdco 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 Apex or Holdco 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 Holdco, 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 in an amount equal to the average annual bonus earned by the Employee 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 pai ...