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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This
Employment Agreement (the Agreement) is entered into as of August 11, 2008 by
and between Iron Mountain Incorporated, a Delaware corporation (Iron
Mountain), and Robert Brennan, of Sherborn, Massachusetts (Executive).
Whereas,
Iron Mountain desires to continue to employ Executive to perform services on
and subject to the terms and conditions set forth in this Agreement; and
Whereas,
Executive desires to continue to be employed by Iron Mountain on and subject to
the terms and conditions set forth in this Agreement;
Now
therefore, Iron Mountain and Executive agree as follows:
1. Employment;
Position; Duties.
a) Employment. Executives
continued employment with Iron Mountain under the terms of this Agreement shall
be effective as of the date first written above.
b) Position. Executive
shall serve as Chief Executive Officer of Iron Mountain. Executive
shall report at all times to the Board of Directors of Iron Mountain (the
Board).
c) Duties. Executive
shall perform the duties customarily associated with the office of Chief
Executive Officer and perform such other duties as may be assigned to him from
time to time by the Board that are generally consistent with the duties
normally performed by the most senior executives of comparable entities and
shall have all the authority customarily provided to a Chief Executive
Officer. Executive shall devote substantially his full business time
and best efforts to the performance of his duties hereunder and the business
and affairs of Iron Mountain and its affiliates and will not undertake or
engage without the consent of the Board in any other employment, occupation or
business enterprise other than one in which he is a passive
investor. Executive shall be based in Iron Mountains corporate
offices, but may be required to travel extensively within and outside the
United States.
2. Compensation
and Benefits. Iron Mountain shall pay Executive the following
compensation and benefits for all services rendered by him under this
Agreement:
a) Base
Salary. Iron Mountain will pay Executive a Base Salary at the
annualized rate of Nine Hundred Thousand Dollars ($900,000.00). The
Base Salary may be increased, but not decreased, by the Board from time to time
in its sole discretion. The Base Salary shall be paid to Executive
minus withholdings as required by law and other deductions
authorized by
Executive. The Base Salary will be paid in equal installments at
Iron Mountains regular payroll intervals, but not less often than monthly.
b) Bonus. Executive
shall be eligible to earn an annual bonus in accordance with the terms and
conditions of the Iron Mountain Incorporated 2006 Senior Executive Incentive
Plan, as modified or replaced from time to time (the SEIP). Iron
Mountain will pay any bonus earned by Executive in the normal course when
bonuses of other senior executives are paid; provided, however, that any such
bonus shall be paid on or prior to March 15th of the year (the Payment
Year) following the calendar year in which the bonus was
earned. Notwithstanding the foregoing, if Iron Mountain has not
released its audited financial results for the prior year by March 15th of the
Payment Year, the bonus due, if any, for the prior fiscal year shall be paid no
later than 60 days after release of the audited financial results for such
prior fiscal year.
c) Special
2008 Bonus. Executive will be eligible to earn a one-time
special bonus for 2008 in the target amount of twenty-five percent (25%) of his
Base Salary for 2008, and prorated based on Executive assuming the office of
Chief Executive Officer on June 5, 2008. The Compensation Committee of
the Board shall determine the amount of such bonus in its sole
discretion. Iron Mountain will pay the bonus, if any, in the normal
course when bonuses of other senior executives are paid; provided, however,
that any such bonus shall be paid on or prior to March 15, 2009. Notwithstanding
the foregoing, if Iron Mountain has not released its audited financial results
for 2008 by March 15, 2009, the bonus due, if any, in respect of 2008 shall be
paid no later than 60 days after release of the audited financial results for
2008.
d) Vacation. Executive
will earn four (4) weeks of paid vacation per calendar year, which shall accrue
ratably on a monthly basis. Executives rights with regard to his
accrued vacation shall be in accordance with Iron Mountains policy, as it may
be amended from time to time.
e) Benefits. Executive
shall be eligible to participate in all benefit plans and arrangements that
Iron Mountain may offer from time to time to its executive officers, in
accordance with the terms of those plans and arrangements.
f) Business
Expenses. Iron Mountain will reimburse Executive for all
reasonable and usual business expenses incurred by him in the performance of
his duties hereunder in accordance with Iron Mountains expense reimbursement
policy.
3. Termination. This
Agreement and Executives employment with Iron Mountain may be terminated as
follows.
a) Death. This
Agreement shall terminate automatically upon Executives death.
b) Disability. Iron
Mountain may terminate Executives employment in the event that he shall be
prevented, by illness, accident, disability or any other physical or mental
condition (to be determined by means of a written opinion of a competent
medical doctor chosen
-2-
by mutual agreement of Iron
Mountain and Executive or his personal representative(s)) from substantially
performing his duties and responsibilities hereunder for one or more periods
totaling ninety (90) consecutive days or one hundred and twenty (120) days in
the aggregate in any twelve (12) month period.
c) By
Iron Mountain for Cause. Iron Mountain may terminate Executives
employment for Cause immediately upon written notice to
Executive. For purposes of this Agreement, Cause shall mean any
of: (i) fraud, embezzlement or theft against Iron Mountain or any of its
subsidiaries or affiliates; (ii) Executive is convicted of, or pleads guilty or
no contest to, a felony; (iii) Executive breaches a fiduciary duty owed to Iron
Mountain; (iv) Executive materially breaches any material policy of Iron
Mountain or its subsidiaries, including but not limited to the Code of Conduct
or Insider Trading Policy; (v) willful nonperformance by Executive (other than
by reason of illness) of his material duties hereunder and failure to remedy
such nonperformance within ten (10) business days following written notice from
the Board identifying the nonperformance and the actions required to cure it;
or (vi) Executive commits an act of gross negligence, engages in willful
misconduct or otherwise acts with willful disregard for the best interests of
Iron Mountain or any of its affiliates.
d) By
Iron Mountain Other Than For Death, Disability or Cause. Iron
Mountain may terminate Executives employment for any reason other than for
Cause, disability or death upon written notice to Executive.
e) By
Executive For Good Reason or Any Reason. Executive may terminate
his employment at any time, with or without Good Reason, upon thirty (30) days
prior written notice to Iron Mountain. For purposes of this
Agreement, Good Reason shall mean that any of the following occurs without
Executives prior written consent: (i) a material diminution of
Executives position and/or the assignment of Executive to duties and
responsibilities that are materially inconsistent with his position; (ii) a
material diminution by Iron Mountain in the total annual compensation that
Executive is eligible to receive; or (iii) a relocation of Iron Mountains
principal business office of more than fifty (50) miles from its current
location.
4. Payment
Upon Termination. In the event that Executives employment with
Iron Mountain terminates, Iron Mountain will pay Executive the following:
a) Termination
for Any Reason. In the event that Executives employment
terminates for any reason, Iron Mountain shall pay him for the following items
that were earned and accrued but unpaid as of the date of termination: (i)
Executives Base Salary earned through the date of termination; (ii) a cash
payment for all accrued, unused vacation calculated at Executives then Base
Salary rate and any accrued but unpaid bonuses due Executive for the prior
fiscal year; (iii) reimbursement for any unpaid business expenses; and (iv)
such other benefits and payments to which Executive may be entitled by law or
pursuant to the benefit plans of Iron Mountain then in effect. These
amounts will be paid promptly and, in any event, on or prior to March 15th of the
year following the year of Executives termination of employment.
-3-
b) Termination
by Iron Mountain Without Cause or By Executive For Good Reason. In
addition to the payments provided for in Section 4(a), in the event that (i)
Iron Mountain terminates Executives employment without Cause pursuant to
Section 3(d) or Executive terminates his employment with Iron Mountain within
three (3) months of a Good Reason event pursuant to Section 3(e); (ii)
Executive complies fully with all of his obligations under Sections 5, 6, and 7
of this Agreement and (iii) Executive executes, delivers to Iron Mountain and
does not revoke a general release (in a form reasonably acceptable to Iron
Mountain) releasing and waiving any and all claims that he has or may have
against Iron Mountain, its subsidiaries and affiliates, and each of their
respective directors, officers, employees, agents, successors and assigns with
respect to his employment with Iron Mountain (other than the obligations of
Iron Mountain set forth herein which specifically survive the termination of
his employment), Iron Mountain will provide Executive with the following
severance benefits:
(i) Beginning on
Executives termination of employment and continuing until six (6) months have
expired after Executives termination of employment, equal monthly installments
based on Executives last Base Salary rate in accordance with Iron Mountains
usual payroll schedule; provided, however, that such payments shall be capped
at an amount equal to two times the limit under Section 401(a)(17) of the
Internal Revenue Code of 1986, as amended (the Code), for the year of his
termination of employment, all such payments intended to qualify for the
exception contained in Treas. Reg. § 1.409A-1(b)(9)(iii).
(ii) Beginning when
six (6) months have expired after Executives termination of employment and
terminating one (1) year after such date, equal monthly installments, with the
total of such installments equal to (A) one (1) year of Base Salary at
Executives last Base Salary rate less (B) the total payments that have been
made to Executive pursuant to clause (i).
All
payments due hereunder shall be reduced by withholding as required by law, or
as elected by the Executive.
(iii) Iron
Mountain will pay the monthly cost to provide Executive and his dependents with
health, dental and vision coverage comparable to that then offered by Iron
Mountain until the earlier of (x) the date on which Executive becomes eligible
for coverage under another employers group plans or (y) two (2)
years. Such coverage will be under Iron Mountains group health,
dental and vision plans for so long as Executive is eligible to participate in
such plans pursuant to COBRA continuation coverage and, thereafter, under as
comparable an individual insurance policy as is available for the remainder of
the two (2) year period. Executive agrees to promptly notify Iron
Mountain when he becomes eligible for coverage under another employers group
plans.
(iv) Iron Mountain will pay Executive a Bonus for the calendar year in which the termination occ






