Exhibit 10.1
SENIOR EXECUTIVE EMPLOYMENT
AGREEMENT
AGREEMENT , made and entered into as of the 11th day of
March, 2005 by and between IKON Office Solutions, Inc., an Ohio
corporation with its principal office located at 70 Valley Stream
Parkway, Malvern, Pennsylvania 19355 (together with its successors
and assigns permitted under this Agreement, the “
Company ”) and Jeffrey W. Hickling, who currently
resides at 40 Abbey Road, Easton, CT 06612 (the “
Executive ”);
W I T N E S
S E T H :
WHEREAS,
the Company desires to employ the Executive and to enter into an
agreement embodying the terms of such employment;
WHEREAS,
the Executive desires to accept such employment with the Company,
subject to the terms and provisions of this Employment
Agreement;
NOW,
THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the
receipt of which is mutually acknowledged, the Company and the
Executive (together, the “ Parties ”) agree as
follows:
1.
Definitions .
(A)
“ Affiliate ” of a Person shall mean a Person
who directly or indirectly controls, is controlled by, or is under
common control with, the Person specified.
(B)
“ Agreement ” shall mean this Employment
Agreement, which includes for all purposes its Exhibits
hereto.
(C)
“ Base Salary ” shall mean the salary provided
for in Section 4 or any increased salary granted to the Executive
pursuant to Section 4.
(D)
“ Board ” shall mean the Board of Directors of
the Company.
(E)
“ Cause ” shall mean:
(1) Executive fails to
comply with any material written Company policy, as the same may
from time to time be adopted and/or modified by the Company,
including, but not limited to, the Company’s Code of
Ethics;
(2)
Executive breaches his/her material obligations under the terms of
this
Agreement; or
(3)
the Executive has committed an act of dishonesty, moral turpitude
or theft against the Company or has breached his/her duties of
loyalty to the Company.
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(F)
“ Change in Control ” shall mean the occurrence
of any of the following events:
(1)
any “person,” as such term is currently used in Section
13(d) of the Securities Exchange Act of 1934, as amended, becomes a
“beneficial owner,” as such term is currently used in
Rule 13d-3 promulgated under that act, of 20% or more of the Voting
Stock of the Company;
(2)
a majority of the Board consists of individuals other than
Incumbent Directors, which term means the members of the Board on
the Effective Date; provided that any individual
becoming a director subsequent to such date whose election or
nomination for election was supported by a majority of the
directors who then comprised the Incumbent Directors shall be
considered to be an Incumbent Director;
(3)
the Company adopts any plan of liquidation providing for the
distribution of all or substantially all of its assets;
(4)
50% or more of the assets of the Company is disposed of pursuant to
a merger, consolidation or other transaction or series of
transactions (unless the shareholders of the Company immediately
prior to such merger, consolidation or other transaction or series
of transactions beneficially own, directly or indirectly, in
substantially the same proportion as they owned the Voting Stock of
the Company, more than 50% of the Voting Stock or other ownership
interests of the entity or entities, if any, that succeed to the
business of the Company); or
(5) the Company combines
with another company and is the surviving corporation but,
immediately after the combination, the shareholders of the Company
immediately prior to the combination hold 50% or less of the Voting
Stock of the combined company, (there being excluded from the
number of shares held by such shareholders, but not from the Voting
Stock of the combined company, any shares received by Affiliates of
such other company in exchange for stock of such other
company).
(G) “ Claim
” shall mean any claim, demand, request, investigation,
dispute, controversy, threat, discovery request, or request for
testimony or information.
(H) “
Committee ” shall mean the Human Resources Committee
of the Board;
(I) “ Common
Stock ” shall mean common stock of the
Company.
(J) “
Constructive Termination Without Cause ” shall mean a
termination by the Executive of his/her employment hereunder on 30
days’ written notice given by him/her to the Company
following the occurrence, without his/her prior written consent, of
any of the following events, unless the Company shall have fully
cured all grounds for such termination within 15 days after the
Executive gives notice thereof:
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(1) any reduction in
his/her then current Base Salary or in his/her annual incentive
bonus award opportunity set forth herein;
(2) any material breach
of any of the Company’s obligations, representations or
warranties in this Agreement;
(3) any material
diminution in his/her duties or the assignment to him/her of duties
that materially impair his/her ability to perform his/her
duties;
(4) following any Change
in Control, any relocation of the Company’s principal office,
or of his/her own office as assigned to him/her by the Company, to
a location more than 50 miles from Malvern,
Pennsylvania;
(5) following any Change
in Control, any failure by the Company to continue in effect any
compensation plan in which the Executive participated immediately
prior to such Change in Control and which is material to the
Executive’s total compensation, including but not limited to
the Company’s stock option, incentive compensation, deferred
compensation, stock purchase, bonus and other plans or any
substitute plans adopted prior to the Change in Control, unless an
equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or any
failure by the Company to continue the Executive’s
participation therein (or in such substitute or alternative plan)
on a basis no less favorable to the Executive, both in terms of the
amount of benefits provided and the level of the Executive’s
participation relative to other participants, as existed
immediately prior to such Change in Control;
(6) following any Change
in Control, any failure by the Company to continue to provide the
Executive with benefits substantially similar to those enjoyed by
the Executive under any of the Company’s pension, life
insurance, medical, health and accident, or disability plans in
which the Executive was participating immediately prior to such
Change in Control, the taking of any action by the Company which
would directly or indirectly materially reduce any of such benefits
or deprive the Executive of any perquisite enjoyed by the Executive
at the time of such Change in Control, or the failure by the
Company to maintain the vacation allowance provided in Section 7
with respect to the Executive;
(7) following any Change
in Control, any failure to retain Executive in a senior executive
capacity of the Person acquiring the Company with duties and
responsibilities of comparable scope to Executive’s duties
and responsibilities immediately prior to such Change in Control;
or
(8) the failure of the
Company to obtain the assumption in writing of its obligation to
perform this Agreement by any successor to all or substantially all
of the assets of the Company within 15 days after a merger,
consolidation, sale or similar transaction.
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(K)
“ Disability ” shall mean Total Disability as
defined in the Company’s Long-Term Disability Plan, as
amended from time to time.
(L)
“ Effective Date ” shall mean March 21,
2005.
(M)
“ Person ” shall mean any individual,
corporation, partnership, limited liability company, joint venture,
trust, estate, board, committee, agency, body, employee benefit
plan, or other person or entity.
(N)
“ Potential Change in Control ” shall mean the
occurrence of any of the following events:
(1) the Company enters
into an agreement, the consummation of which will result in the
occurrence of a Change in Control;
(2) the Company or any
Person publicly announces an intention to take or to consider
taking actions which, if consummated, will constitute a Change in
Control; or
(3) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(O)
“ Proceeding ” shall mean any threatened or
actual action, suit or proceeding, whether civil, criminal,
administrative, investigative, appellate or other.
(P)
“ Pro-Rata ” shall mean a fraction, the
numerator of which is the number of days that the Executive was
employed in the applicable performance period (a fiscal year in the
case of an annual incentive bonus award) and the denominator of
which shall be the number of days in the applicable performance
period.
(Q)
“ Term of Employment ” shall mean the period
specified in Section 2.
(R)
“ Termination Date ” shall mean the date on
which the Executive’s employment with the Company
terminates.
(S)
“ Voting Stock ” shall mean issued and
outstanding capital stock or other securities of any class or
classes having general voting power, under ordinary circumstances
in the absence of contingencies, to elect, in the case of a
corporation, the directors of such corporation and, in the case of
any other entity, the corresponding governing Person(s).
2.
Term of Agreement .
The
Company hereby agrees to continue to employ the Executive under
this Agreement, and the Executive hereby accepts such continued
employment, for the Term of Agreement. The initial Term of
Agreement shall commence as of the Effective Date and shall end on
the second anniversary thereof. Thereafter, the Term of Agreement
shall be automatically extended for additional one-year periods
(“extension periods”) unless either party provides
notice of non-renewal at least sixty (60) days prior to the
expiration of the Initial Term or extension period. Termination of
Executive’s employment as a result of non-renewal by the
Company shall be treated as a termination subject to the provisions
of Section 8(D) (Termination without Cause) of this Agreement.
Notice of non-renewal by Executive shall be treated as a
termination subject to the provisions of Section 8(G) (Voluntary
Termination) of this Agreement. Notwithstanding the foregoing, the
Term of Agreement may be terminated at any time prior to the
expiration of the Initial Term and/or any extension period in
accordance with the provisions of Section 8.
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3.
Positions, Duties and Responsibilities .
(A)
During the Term of Agreement, the Executive shall serve as a Senior
Vice President, Operations, of the Company and shall perform such
senior executive functions and duties as shall be determined by the
Chief Executive Officer.
(B)
During the Term of Agreement, Executive will (1) devote substantial
and full-time attention and energies to the business of the
Company, particularly its Operations function, and diligently
perform all duties incident to his/her employment; (2) use his/her
best efforts to promote the interests and goodwill of the Company;
and (3) perform such duties as may be assigned to him/her by the
CEO.
4.
Base Salary .
Commencing
as of the Effective Date, the Executive shall be paid an annualized
Base Salary of $325,000, payable in accordance with the regular
payroll practices of the Company. The Base Salary shall be reviewed
no less frequently than annually for increase in the discretion of
the CEO and, if applicable, the Board.
5.
Annual Incentive Award Opportunity .
The
Executive shall be eligible for an annual incentive bonus award
opportunity from the Company in respect of each fiscal year of the
Company that ends during the Term of Agreement. He/she shall be
eligible for an annual incentive bonus award opportunity of no less
than fifty percent (50%) of his/her eligible base salary earnings
for the fiscal year, the achievement of which shall be based upon
the performance of the Company and the performance of the
Executive. In addition, in the sole discretion of the CEO, the
Executive may be eligible for an additional annual overachievement
bonus award opportunity. To the extent earned, the Executive shall
be paid his/her annual incentive awards at the same time that other
senior-level executives receive their incentive awards.
6. Sign On Awards
.
(A)
The Executive will be eligible to receive the following sign-on
awards: (a) a one-time stock option grant of 40,000 shares, subject
to the approval of the Board of Directors and the terms of the
stock option award plan and agreement; and (b) a one-time
restricted stock grant of 15,000 shares, subject to the approval of
the Board of Directors and the terms of the restricted stock plan
and agreement. The Executive will be subject to IKON’s Stock
Ownership Guidelines, as they may be amended from time to
time.
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(B)
The Executive will be eligible to receive a one-time taxable
sign-on bonus of $100,000, which will be earned as of the Effective
Date and payable as of the Executive’s first
paycheck.
7.
Other Benefits .
(A)
Other Executive Compensation Plans . During the Term
of Agreement, the Executive shall be entitled to participate in all
compensation plans and programs that are, from time to time, made
generally available to senior executives of the Company, including,
without limitation, the Executive Deferred Compensation
Plan.
(B)
Employee Benefits . During the Term of Agreement, the
Executive shall participate in all employee benefit plans and
programs which are currently made available on a general basis to
the Company’s senior executives, including, without
limitation, pension, savings and other retirement plans or
programs, medical, dental, hospitalization, short-term and
long-term disability and life insurance plans or programs,
accidental death and dismemberment protection, travel accident
insurance, and any other employee welfare or retirement benefit
plans or programs that may be sponsored by the Company from time to
time, including any plans or programs that supplement the
above-listed types of plans or programs, whether funded or
unfunded. In recognition of the fact that Executive is not eligible
to participate in the IKON Pension Plan (due to the fact that he
became employed with IKON after July 1, 2004, the date on which the
Board closed the Pension Plan to new employees), IKON has agreed to
provide Executive the same benefits under the SERP that he would
have earned under the combination of the IKON Pension Plan and the
SERP were it not for the closure of the IKON Pension Plan to new
employees as of July 1, 2004. Any pension benefits which Executive
earns under the SERP (including the benefits he would have earned
under the combination of the IKON Pension Plan and the SERP) will
become vested upon Executive’s attainment of age 55 and
completion of five years of service with the Company, unless
otherwise provided under Section 8 of this Agreement.
(C)
Relocation Benefits . In connection with
Executive’s plans to relocate his residence to the Malvern,
Pennsylvania area, Executive will be eligible to elect between the
following relocation benefit packages: either (i) a one-time
$100,000 taxable relocation bonus (“Relocation Bonus”),
or (ii) standard Level 1 benefits under IKON’s
Relocation Program, Executive Addendum and Tier One Policy
(“Standard Relocation Benefits”), as such program may
be amended from time to time. Executive’s eligibility for
these relocation benefit packages will be subject to his execution
of a standard IKON relocation agreement and his compliance with the
terms of IKON’s Relocation Program. Executive will have up to
three (3) years from the Effective Date of this Agreement to choose
between the two relocation benefit options set forth above,
provided he remains employed with the Company through that time. In
the event Executive does not relocate his residence to the
Pennsylvania area by December 31, 2008, for whatever reason, he
will not be entitled to either the Relocation Bonus or Standard
Relocation Benefits.
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In
addition to Executive’s relocation benefit options as set
forth above, Executive will be eligible for up to six (6) months of
temporary/interim housing reimbursement pursuant to the terms of
IKON’s Relocation Program, Executive Addendum and Tier One
Policy. Executive will be responsible for any and all
commuting/temporary housing costs incurred following the expiration
of this six-month period.
(D)
Expenses . The Executive is authorized to incur
reasonable expenses in carrying out his/her duties and
responsibilities hereunder and the Company shall promptly reimburse
him/her for all such expenses, subject to documentation in
accordance with reasonable policies of the Company.
(E)
Vacation . Executive shall be entitled to four weeks
paid vacation per year.
8.
Termination of Employment .
(A)
Termination Due to Death . In the event that the
Executive’s employment hereunder is terminated due to his/her
death, his/her estate or his/her beneficiaries (as the case may be)
shall be entitled to:
(1) Base Salary through
the end of the month in which his/her death occurs;
(2) a Pro-Rata annual
incentive bonus award for the fiscal year in which his/her death
occurs, based on the Executive’s annual incentive bonus award
opportunity for the year of death (excluding any overachievement
bonus award opportunity), payable in a lump sum promptly following
his/her death, regardless of the Executive’s and
Company’s performance during such fiscal year;
(3) the continued right
to exercise each outstanding stock option for a period of 12 months
(provided, however, that no options can be exercised beyond their
expiration date), all such options to become fully vested and
exercisable as of the date of his/her death, and the immediate
vesting of all shares of restricted stock as of the date of his/her
death;
(4) immediate vesting in
the Company’s Retirement Savings Plan (or any successor
401(k) plan), pension plan, supplemental retirement plan and
deferred compensation plans if Executive was participating in such
plans at the time of Death; and
(5) the benefits
described in Section 8(H)(1).
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(B)
Termination Due to Disability . In the event that the
Executive’s employment hereunder is terminated due to
Disability, he/she shall be entitled to the following:
(1) periodic disability
payments in accordance with the Company’s Long-Term
Disability Plan;
(2) Base Salary through
the end of the month in which the Termination Date
occurs;
(3) a Pro-Rata annual
incentive bonus award for the fiscal year in which his/her
Termination Date occurs, based on the Executive’s annual
incentive bonus award opportunity for such fiscal year (excluding
any overachievement bonus award opportunity), payable in a lump sum
promptly following the Termination Date, regardless of the
Executive’s and Company’s performance during such
fiscal year;
(4) the continued right
to exercise each outstanding stock option for a period of 12 months
(provided, however, that no options can be exercised beyond their
expiration date), all such options to become fully vested and
exercisable as of the Termination Date, and the immediate vesting
of all shares of restricted stock as of the Termination Date;
and
(5) continued
participation, for a period of two years from the Termination Date,
in all medical, dental, vision, hospitalization, disability and
life insurance coverages and in all other empl