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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT You are currently viewing:
This Employee Retention Agreement involves

Iron Mountain Incorporated

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Title: EMPLOYMENT AGREEMENT
Governing Law: Massachusetts     Date: 8/11/2008
Industry: SVSBUS     Sector: SERVIC

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ex10-1.htm

 

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.  Executive’s 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 Mountain’s 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 Mountain’s 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.  Executive’s rights with regard to his accrued vacation shall be in accordance with Iron Mountain’s 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 Mountain’s expense reimbursement policy.

 

3.           Termination.  This Agreement and Executive’s employment with Iron Mountain may be terminated as follows.

 

a)           Death.  This Agreement shall terminate automatically upon Executive’s death.

 

b)           Disability.  Iron Mountain may terminate Executive’s 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

 

 

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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 Executive’s 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 Executive’s 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 Executive’s prior written consent:  (i) a material diminution of Executive’s 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 Mountain’s principal business office of more than fifty (50) miles from its current location.

 

4.           Payment Upon Termination.  In the event that Executive’s employment with Iron Mountain terminates, Iron Mountain will pay Executive the following:

 

a)           Termination for Any Reason.  In the event that Executive’s 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) Executive’s Base Salary earned through the date of termination; (ii) a cash payment for all accrued, unused vacation calculated at Executive’s 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 Executive’s termination of employment.

 

 

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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 Executive’s 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 Executive’s termination of employment and continuing until six (6) months have expired after Executive’s termination of employment, equal monthly installments based on Executive’s last Base Salary rate in accordance with Iron Mountain’s 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 Executive’s 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 Executive’s 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 employer’s group plans or (y) two (2) years.  Such coverage will be under Iron Mountain’s 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 employer’s group plans.

 

(iv)  Iron Mountain will pay Executive a Bonus for the calendar year in which the termination occ

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