**EXECUTIVE EMPLOYMENT AGREEMENT****BETWEEN****ALOGENT CORPORATION****AND****BRIANR. GEISEL****APRIL 29, 2005**
 

 
**EMPLOYMENT AGREEMENT**     THIS **EMPLOYMENT AGREEMENT**(the “Agreement”) by and between Alogent Corporation (the“Company”), and Brian R. Geisel (“You” or “Your”)1 (collectively, the “Parties”),is entered into and effective as of the 29th of April, 2005 (the “Effective Date”). Unlessotherwise indicated, all capitalized terms used in this Agreement are defined in Exhibit A,which is incorporated by reference and is included in the definition of “Agreement.”WHEREAS, You are currently employed as Chief Executive Officer of the Company (“CEO”);WHEREAS, the Company desires that You continue to serve as CEO, and You desire to continuesaid employment;WHEREAS, Your position is a position of trust and responsibility with access to ConfidentialInformation (as defined in Section 1D of the Employment Covenants Agreement executed by Youon September *9,*1999 (the “Covenants Agreement”)), Trade Secrets (as defined in Section 1D ofthe Covenants Agreement), and information concerning employees and customers of the Company;WHEREAS, the Trade Secrets and Confidential Information, and the relationship between theCompany and each of its employees and customers, are valuable assets of the Company and maynot be used for any purpose other than the Company’s Business;WHEREAS, the Company has agreed to continue to employ You in exchange for Yourcompliance with the terms of this Agreement;WHEREAS, the Company and You desire to express the terms and conditions of Your continuedemployment in this Agreement.NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the Parties agree as follows:     1. Employment and Duties          A. Position. The Company shall employ You as CEO.          B. Duties. You agree to perform all Mutually Established duties that areconsistent with Your position and that may otherwise be assigned to You by the Board ofDirectors of the Company (the “Board”) from time to time. When action is required ordiscretion is bestowed on the Board pursuant to this Agreement, such action or discretion shallbe taken by a majority of the members of the Board; provided, however, You shall notparticipate in such action or discretion.          C. Reporting. You shall report directly to the Board.          D. Devotion of Time. You agree to (i) devote all necessary working time requiredof Your position, (ii) devote Your best efforts, skill, and energies to promote and advance thebusiness and/or interests of the Company, and (iii) fully perform Your obligations 1 For purposes of this Agreement only, “You” or “Your” shall mean You or Yourestate, as the case may be.
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under this Agreement. During Your employment, You shall not render services to any other businessentity, regardless of whether You receive compensation, without the prior written consent of theBoard. You may, however, (A) engage in community, charitable, and educational activities, (B)manage Your personal investments, and (C) with the prior written consent of the Board, serve oncorporate boards or committees ((A) - (C) collectively the “Permissible Activities”), provided thatsuch Permissible Activities do not conflict or interfere with the performance of Your obligationsunder this Agreement or conflict with the interests of the Company.          E. Company Policies. You agree to comply with the policies and procedures of theCompany as may be adopted and changed from time to time, including those described in the Company’semployee handbook. If this Agreement conflicts with such policies or procedures, this Agreementshall control.          F. Service on the Board. Subject to the terms of the voting agreement between Youand certain shareholders of the Company dated April 17, 2001, as amended by a First Amendment datedApril 29, 2005 (the “Voting Agreement”), and subject to Section 6D hereof, You shall serve on theBoard if elected by the Company’s shareholders to serve in such capacity for so long as youcontinue to be CEO, and thereafter if you meet the conditions of (i) Section 6D below, and (ii) theVoting Agreement.          G. Fiduciary Duties. As a director and officer of the Company, You owe a duty of careand loyalty to the Company, as well as a duty to perform Your Duties in a manner that is in thebest interests of the Company. You owe such duties to the Company in addition to duties imposedupon You under applicable law.     2. Term. Unless this Agreement is terminated earlier in accordance with Section 4 below, Youshall provide services to the Company under this Agreement for a term of two (2) years, commencingon April 29, 2005 and terminating on April 29, 2007 (the “Term”), and this Agreement shallautomatically be renewed after the expiration of the Term for successive one- year periods (each,an “Extension”); provided, however, this Agreement may be terminated if advance written notice isgiven by either Party ninety (90) days prior to the expiration of the Term or the then-currentExtension (the “Termination Notice Period”). During the Termination Notice Period, the Companyshall have the option to relieve You of all titles, duties, and responsibilities as an employee ofthe Company, but the Company will continue to pay Your then current Base Salary (as defined below)throughout the remainder of such Termination Notice Period.     3. Compensation.          A. Base Salary. During the Employment Period, the Company will pay You an annual basesalary of $327,000.00 (“Base Salary”), minus applicable withholdings, in accordance with theCompany’s normal payroll practices. The Board shall review Your Base Salary at least annually todetermine whether to adjust Your Base Salary. Adjustments to Your Base Salary will be determinedby the Board in its sole discretion based upon whether You and the Company meet certainperformance objectives and criteria established from year to year by the Board.
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          B. Bonus. During the Employment Period, You will be eligible to receive an annualbonus (a “Bonus”) equal to forty percent (40%) of Your then current Base Salary if, but only if, asdetermined by the Board in its sole discretion, You and the Company meet certain criteria MutuallyEstablished in advance of each fiscal year. You will not be entitled to receive any such Bonus ifYou and the Company do not meet such criteria. In addition, except asset forth in Section 5below, You will not receive any Bonus if, for any reason, You are not employed on the last day ofthe fiscal year for which the Bonus is to be paid. The Bonus, if any, will be subject to allapplicable withholdings and will be paid within thirty (30) days after the end of the fiscal year.          C. Options. You shall be eligible (i) to participate in the Company’s 2001 StockIncentive Plan and other option plans as adopted by the Board from time to time, and (ii) for agrant of options if (a) the Board, or (b) the Compensation Committee of the Board, grants stockoptions to other members of the senior management team (other than with regard to new hires). Theextent of Your participation in any option plan and the amount of any grant of option(s) to Youshall be determined by the Board in its sole discretion.          D. Benefits Plans. During the Employment Period, You are eligible to participate inall benefit plans in effect for senior executives of the Company, subject to the terms andconditions of such plans.          E. Vacation. During the Employment Period and except as provided below, You shall beentitled to accrue four (4) weeks of paid vacation per calendar year (the “Yearly VacationAllotment”). All accrued unused vacation from each Yearly Vacation Allotment shall be forfeited onthe first day of the succeeding calendar year, except that You may carry forward up to ten (10)days accrued unused vacation from each Yearly Vacation Allotment consistent with Company policy.Notwithstanding anything to the contrary contained in this Section 3E, (i) You shall not accruemore than a total of six (6) weeks of unused vacation (the “Vacation Accrual Maximum”), and allaccruals will cease during the time period Your total amount of accrued unused vacation is at theVacation Accrual Maximum, (ii) You shall be entitled to take a maximum of six (6) weeks of vacationper calendar year, and (iii) the Board shall pre-approve all vacation requests under this Section3E; provided, however, such vacation approval shall not be unreasonably withheld.          F. Mobile Telephone. During the Employment Period, the Company will provide You witha mobile telephone. The Company will reimburse You for all business-related charges incurred in theuse of the mobile telephone in accordance with the policies and procedures of the Company. You willbe responsible for all damage to the mobile telephone.     4. Termination. This Agreement and Your employment with the Company may be terminatedin advance of the expiration of the Term or any Extension by any of the following events:          A. Death. Your death;          B. Disability. Your disability which renders You unable to perform the materialduties of Your job even with reasonable accommodation, as determined in the Board’s solediscretion;
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          C. For Cause. “For Cause” shall mean a termination by the Company at any timefor any of the following events: 1. Your willful act that has a material adverseimpact on or has caused material injury to the Company;  2. Your negligence or misconduct in violation ofYour fiduciary duty to the Company;  3. Your dishonesty, fraud, or malfeasance;  4. Your repeated and/or material failure (afternotice and at least thirty (30) days opportunity to cure) to (i)satisfactorily perform Your Mutually Established duties, or (ii)follow the policies, procedures, and rules of the Company; however,Your repeated and/or material failure to satisfactorily perform YourMutually Established duties or to follow Company policies, procedures,and rules, if such failure is due to a disability (as defined inSection 4B above), shall not be grounds for termination for Cause; or  5. Your arrest, indictment for, conviction of,or entry of a plea of guilty or no contest to, (i) a felony, or (ii) acrime involving moral turpitude.          D. Resignation for Good Reason. Your resignation for Good Reason;          E. Voluntary Resignation. Your resignation for any reason other than Good Reason atany time upon at least ninety (90) days advance written notice to the Company; or          F.Without Cause. “Without Cause” shall mean any termination of Your employment with theCompany which is not defined in Sections 4A - 4E above. In the event the Company elects not torenew the Term or any Extension of the Agreement, such election shall be treated as a terminationWithout Cause.     5. Company’s Post-Termination Obligations          A. Except as provided in Section 16 below, if this Agreement terminates for any reason listedin Section 4A, 4B, 4D, or 4F above, then the Company will pay You all accrued but unpaid wagesthrough the termination date based on Your then current Base Salary (the “Accrued Wages”). Inaddition, if this Agreement terminates for any reason set forth in the preceding sentence, thenafter Your “separation from service” (as defined in Code §409A(a)(2)(A)(i)) from the Company, theCompany shall pay You (i) separation payments equal to eighteen (18) months of Your then currentBase Salary, to be paid over a period of eighteen (18) months in equal installments (the“Payment(s) Over Time”), and (ii) one hundred percent (100%) of the Bonus established for Youduring the fiscal year this Agreement  terminates, to be paid within thirty (30) days after theend of the fiscal year in which this Agreement terminates (the“Bonus Payment”)((i) - (ii)collectively referred to as the “Separation Payments”). The Company’s obligation to provide theSeparation Payments under this Section 5A, if any, shall not cease if You become employed oraffiliated with another company. Notwithstanding anything to the contrary in this Section 5A, theCompany’s obligation to
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provide the Separation Payments to You shall be conditioned upon the following (collectively, the“Separation Conditions”): (i) Your execution and non-revocation of a Separation andRelease Agreement in a form attached as Exhibit B; provided, however, theCompany reserves the right to revise Exhibit B based on (a) changes and/orrequirements in applicable law, or (b) material changes in the circumstancesof Your employment with the Company. You will have twenty-one (21) days toexecute a Separation and Release Agreement; provided, however, if thisAgreement terminates in connection with a reduction in force, You shall haveforty-five (45) days to execute a Separation and Release Agreement; and  (ii) Your compliance with the covenants contained in thisAgreement and all other post-termination obligations to which You aresubject, including, but not limited, the obligations contained inSections 1 - 3 of the Covenants Agreement.          The Company will pay You the first Payment Over Time sixty (60) days after this Agreementterminates (the “First Payment Date”), and the Company will then pay You the remaining PaymentsOver Time in equal installments on the first (1st) day of each succeeding month whichfollows the First Payment Date; provided,however, (i) if the first month to succeed theFirst Payment Date is within fifteen (15) days of the First Payment Date, then the next paymentfollowing the First Payment Date shall be on the first day of the second month which succeeds theFirst Payment Date, and (ii) You must execute and not revoke an effective Separation and ReleaseAgreement as set forth above. If You do not execute a Separation and Release Agreement as setforth above, the Company shall have no obligation to provide any Separation Payments under thisSection 5A or any other payments to You. The Company’s obligation to provide any SeparationPayments under this Section 5A shall terminate immediately upon any breach by You of anypost-termination obligations to which You are subject (the “Breach”), including, but not limitedto, the covenants contained in Sections 1 - 3 of the CovenantsAgreement. If a court of competentjurisdiction determines that You committed a Breach, all appeals periods have expired, and, ifappealed, the competent appellate court(s) has determined that You committed a Breach (the “BreachJudgment”), (i) You shall, within ten (10) calendar days after the Breach Judgment, return to theCompany any Separation Payments which You received from the Company, and (ii) You shall forfeitall vested and unvested options on the day of such Breach Judgment.          The Company may elect to purchase insurance on Your life and You agree to cooperate with theCompany should it elect to secure such insurance coverage (the “Insurance Coverage”), and anypayments made to You pursuant to such Insurance Coverage shall be credited against the Company’sobligations under this Agreement. In addition, any excess amounts (beyond the amounts owed to Youunder this Agreement) that the Company receives as a result of the Insurance Coverage shall bethe sole property of the Company.          The Separation Payments and the Accrued Wages are subject to all applicable withholdings,including, but not limited to, withholdings required by Code §3401. The Separation Payments setforth in this Section 5A shall constitute full satisfaction of the Company’s obligations under thisAgreement, and the Company shall have no other obligations to You if this Agreement terminatesfor any reason listed in this Section 5A, including under any
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provision of this Agreement, Company policy, or otherwise; however, You shall continue to be boundby all post-termination obligations to which You are subject, including, but not limited to, thecovenants contained in Sections 1 - 3 of the Covenants Agreement.          B. If this Agreement terminates for any reason listed in Section 4C or 4E above, then theCompany will pay You all Accrued Wages. The Accrued Wages shall constitute full satisfaction ofthe Company’s obligations under this Agreement, and the Company shall have no further obligationsto You if this Agreement terminates for any reason listed in Section 4C or 4E above, includingunder any provision of this Agreement, Company policy, or otherwise; however, You shall continueto be bound by all post-termination obligations to which You are subject, including, but notlimited to, the covenants contained in Sections 1 - 3 of the Covenants Agreement.     6. Your Post-Termination Obligations.          A. Return of Materials. Upon the termination of this Agreement for any reason orupon the Company’s request at any time, You will return to the Company all of the Company’sproperty, including, but not limited to, keys, passcards, credit cards, customer lists, rolodexes,tapes, laptop computer, software, computer files, marketing and sales materials, and any otherproperty, record, document or piece of equipment belonging to the Company. You will not (i)retain any copies of the Company’s property, including any copies existing in electronic form,which are in Your possession or control, or (ii) destroy, delete, or alter any Company property,including, but not limited to, any laptop computer, without the Company’s consent.          B. Non-Disparagement. After the termination of this Agreement for any reason, Youwill not make any disparaging or defamatory statements, whether written or verbal, regarding theCompany. In addition, You will not make any statement or take any action which may have a materialnegative impact on the Company’s ability to close those business transactions that You were,directly or indirectly, working on or had knowledge of during the course of Your employment withthe Company. The prohibitions set forth in this Section 6B do not apply to Your actions or Yourstatements made to the Company’s employees or the Board, or to independent contractors retained bythe Company, so long as Your actions or Your statements are made in the normal course of businesswhile You are employed or retained by the Company, as the case may be. Similarly, the Companyagrees that (i) the members of the Board, and (ii) the senior executives of the Company ((i) and(ii) collectively the “Applicable Persons”) will not make any disparaging or defamatory statements,whether written or verbal, regarding You (the “Company Non-Disparagement”). The CompanyNon-Disparagement shall only apply to Applicable Persons who are employed or retained, as the casemay be, on the date this Agreement terminates.          C. Post-Employment Disclosure. During the Non-Solicitation Period (as defined inSection 2 of the Covenants Agreement), You shall provide a copy of this Agreement to persons and/orentities for whom You work or consult as an owner, partner, joint venturer, employee or independentcontractor. If, during the Non-Solicitation Period, You work or consult for another person orentity as an owner, partner, joint venturer, employee or independent contractor, You shall providethe Company with such person or entity’s name, the nature of such person or entity’s business, Yourjob title, and a general description of the services You will provide.
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          D. Resignation. Upon the termination of this Agreement for any reason, You shalldeliver to the Company a written resignation from all offices of the Company, Your membership onthe Board, and any other fiduciary positions in which You serve;provided,however, if theCompany terminates this Agreement Without Cause or if You resign for Good Reason, then You mayremain a member of the Board in accordance with the terms of the Voting Agreement so long as (i)You continue to hold at least 10% of the capital stock of the Company, and (ii) You perform Yourduties as a member of the Board in good faith and in the best interests of the Company.     7. Change of Control. Notwithstanding anything to the contrary contained in thisAgreement, immediately prior to a Change of Control the Company shall accelerate and vest allunvested options granted to You by the Company (the “Accelerated Vesting Date”); provided, however,(i) You must be employed by the Company on the Accelerated Vesting Date, and (ii) the Company’s2001 Stock Incentive Plan, or other applicable option plan, shall continue to govern such optionsafter the Accelerated Vesting Date.     8. Injunctive Relief. You agree that if You breach this Agreement: (i) the Companywould suffer irreparable harm; (ii) it would be difficult to determine damages, and money damagesalone would be an inadequate remedy for the injuries suffered by the Company, and (iii) if theCompany seeks injunctive relief to enforce this Agreement, You will waive and will not (a) assertany defense that the Company has an adequate remedy at law with respect to the breach, (b) requirethat the Company submit proof of the economic value of any Trade Secret or ConfidentialInformation, or (c) require the Company to post a bond or any other security. Nothing contained inthis Agreement shall limit the Company’s right to any other remedies at law or in equity.     9. IndependentEnforcement. The covenants set forth in Sections 1 - 3 of the CovenantsAgreement shall be construed as agreements independent of any other agreements or any otherprovision in this Agreement, and the existence of any claim or cause of action by You against theCompany, whether predicated on this Agreement or otherwise, regardless of who was at fault andregardless of any claims that either You or the Company may have against the other, shall notconstitute a defense to the enforcement by the Company of thecovenants set forth in Sections 1 - 3of the Covenants Agreement. The Company shall not be barred from enforcing the restrictivecovenants set forth in Sections 1 - 3 of the Covenants Agreement by reason of any breach of anyother part of this Agreement or any other agreement with You.     10. Severability. The provisions of this Agreement are severable. If any provision isdetermined to be invalid, illegal, or unenforceable, in whole or in part, the remaining provisionsand any partially enforceable provisions shall remain in full force and effect.     11. Attorneys’ Fees. In the event of litigation relating to this Agreement, theprevailing party shall be entitled to recover attorneys’ fees and costs of litigation in additionto all other remedies available at law or in equity.     12. Waiver. The Company’s failure to enforce any provision of this Agreement shall notact as a waiver of that or any other provision. The Company’s waiver of any breach of thisAgreement shall not act as a waiver of any other breach.
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     13. Entire Agreement. This Agreement, including Exhibits A and B which areincorporated by reference, and the Covenants Agreement (the “Prior Agreement”)(collectively, the“Agreements”) constitute the entire agreement between the Parties. The Prior Agreement isincorporated by reference, and any post-termination obligations contained in the Prior Agreementshall remain in full force and effect, and shall survive cessation of Your employment. Youacknowledge that the post-termination obligations contained in the Prior Agreement are valid,enforceable and reasonably necessary to protect the interests of the Company, and You agree toabide by such obligations, including, but not limited to, the post-termination obligationscontained in Sections 1 - 3 of the Prior Agreement. These Agreements supersede any priorcommunications, agreements or understandings, whether oral or written, between the Parties arisingout of or relating to Your employment and the termination of that employment. Other than thisAgreement, no other representation, promise or agreement has been made with You to cause You tosign this Agreement.     14. Conflict With Covenants Agreement. If any term in the Covenants Agreement isinconsistent or in conflict with this Agreement, then this Agreement shallcontrol. Notwithstanding the previous sentence, the Parties acknowledge and agree that thefollowing provisions contained in the Covenants Agreement shall be replaced by this Agreement: (i)the definitions of the “Business” of the Company contained in the Covenants Agreement shall bereplaced with the definition of the “Business” listed in Exhibit A to this Agreement, (ii) Section8 of the Covenants Agreement shall be replaced by Section 2 of this Agreement, and (iii) Section 11of the Covenants Agreement shall be replaced by Section 20 of this Agreement.     15. Amendments. This Agreement may not be amended or modified except in writingsigned by both Parties.     16. Successors and Assigns. This Agreement shall be assignable to, and shall inure tothe benefit of, the Company’s successors and/or assigns, including, without limitation,successors through merger, name change, consolidation, or sale of a majority of the Company’s stockor assets, and shall be binding upon You. You shall not have the right to assign Your rights orobligations under this Agreement. The covenants contained in the Agreements shall survivecessation of Your employment with the Company, regardless of who causes the cessation or the reasonfor the cessation.     In the event of a Change of Control, the Company agrees that it shall require as a conditionof such Change of Control that any successor or assign assume this Agreement for a period oftwenty-four (24) months immediately following the effective date of the Change of Control (the“24-Month Assignment”). During the 24-Month Assignment, this Agreement shall be binding upon andenforceable against such successor or assign. During the 24-Month Assignment and after the24-Month Assignment expires, (i) the Company shall have no obligations under this Agreement toYou, including, but not limited to, any obligation to pay You the Separation Payments set forthabove or any other payments, and (ii) You shall have no right to enforce this Agreement againstthe Company. After the 24-Month Assignment expires, (i) the successor or assign to this Agreementshall have no obligations under this Agreement to You, including, but not limited to, anyobligation to pay You the Separation Payments set forth above or any other payments, and (ii) Youshall have no right to enforce this Agreement against the successor or assign to this Agreement.Notwithstanding anything to the contrary contained in this Section 16, Your post-terminationobligations shall continue to remain in full force and
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effect after the 24-Month Assignment expires, including, but not limited to, the post-terminationobligations contained in the Prior Agreement.     17. Governing Law. The laws of the State of Georgia shall govern this Agreement. IfGeorgia’s conflict of law rules would apply another state’s laws, the Parties agree that Georgialaw shall still govern.     18. No Strict Construction. If there is a dispute about the language of thisAgreement, the fact that one Party drafted the Agreement shall not be used in its interpretation.     19. Notice. Whenever any notice is required, it shall be given in writing addressed asfollows:       To Company: Alogent Corporation    c/o Chief Financial Officer    4005 Windward Plaza    Second Floor    Alpharetta, Georgia 30005       To Executive: Brian R. Geisel    2025 Drummond Pond Road    Alpharetta, Georgia 30004     Notice shall be deemed given and effective (i) one (1) business day after sending such noticevia overnight delivery to the appropriate address as set forth above, or (ii) when actuallyreceived. Either Party may change the address to which notices shall be delivered or mailed bynotifying the other party of such change in accordance with this Section 21.     20. Consent to Jurisdiction and Venue. You and the Company agree that any claimarising out of or relating to this Agreement shall be brought in a state or federal court ofcompetent jurisdiction in Georgia. You and the Company consent to the personal jurisdiction of thestate and/or federal courts located in Georgia. You and the Company waive (i) any objection tojurisdiction or venue, or (ii) any defense claiming lack of jurisdiction or improper venue, in anyaction brought in such courts.     21. AFFIRMATION. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS AGREEMENT, YOU KNOW ANDUNDERSTAND ITS TERMS AND CONDITIONS, AND YOU HAVE HAD THE OPPORTUNITY TO ASK THE COMPANY ANYQUESTIONS YOU MAY HAVE HAD PRIOR TO SIGNING THIS AGREEMENT.     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and yearfirst above written.      **ALOGENT CORPORATION:**