EXHIBIT 10.25
EXECUTIVE EMPLOYMENT AGREEMENT
THIS IS A VERY IMPORTANT LEGAL DOCUMENT WHICH MAY AFFECT YOUR RIGHTS
TO FUTURE EMPLOYMENT. AS A RESULT, YOU SHOULD REVIEW THE DOCUMENT
CAREFULLY, AND FULLY UNDERSTAND ITS TERMS AND IMPLICATIONS, BEFORE SIGNING.
This Employment Agreement ("Agreement") effective April 1, 1997 is
entered into between IKON OFFICE SOLUTIONS, INC., an Ohio corporation ("IKON" or
the "Company"), with its principal place of business in Valley Forge,
Pennsylvania, and Lynn Graham ("Executive").
In consideration of the mutual promises contained in this Executive
Employment Agreement ("Agreement") including the following items, none of which
would be conferred upon Executive absent execution of this Agreement: (1) a
change in employment status from employment-at-will to employment for a fixed
period of time in a new executive position, subject to the terms and conditions
set forth below; and (2) additional good and valuable consideration including
but not limited to that set forth in Addendum B of this Agreement, the parties
to this Agreement ("Parties"), INTENDING TO BE LEGALLY BOUND, agree as follows:
ARTICLE I-TERMS OF EMPLOYMENT
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1.1 DUTIES.
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1.1.1 DUTIES OF POSITION. IKON shall employ Executive as President of its
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Document Services division. The Parties expressly agree that the position of
President of the Document Services division of IKON Office Solutions is a key
position and an executive position in the Company. Executive shall comply with
his obligation set forth in this Employment Agreement and with all Company
policies, now currently in force, or as may from time to time be unilaterally
adopted and modified by the Company, whether or not reduced to writing. In
addition, Executive shall have the following duties set forth in Addendum A of
the Agreement which is hereby incorporated as if fully set forth herein.
Executive specifically recognizes and acknowledges that this position is one of
trust and confidence and that, as a result, he will have access to, and may be
given specialized education and confidential, proprietary information of the
Company.
1.1.2 DUTY OF LOYALTY. Executive will (1) devote substantially appropriate
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time, attention, and energies to the business of the Company and diligently
perform all duties incident to his employment; (2) use his best efforts to
promote the interests and goodwill of the Company; and (3) perform such other
duties commensurate with his office as the President of IKON, or his assignees,
from time to time assign him. Further, during the term of employment, Executive
shall not engage in any activity to the detriment or embarrassment of the
Company. By way of illustration and not as a limitation, Executive shall not
discuss with any customer or potential customer of the Company, or any
competitor of the Company, any plans by Executive or any other employees of the
Company to leave the employment of the Company or to compete with the Company.
Executive shall at all times in performance of his duties work in concert with,
and take direction from the President of IKON.
1.2 TERM OF AGREEMENT. Unless terminated in accordance with Article 2, this
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Agreement shall remain in force for a term of two and one-half (2 1/2) years
from the effective date of this Agreement through September 30, 1999 ("Term").
1.3 COMPENSATION. During the Term of the Agreement, the Executive shall be
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compensated in accordance with the terms set forth in Addendum B of this
Agreement which is incorporated as if fully set forth herein ("Total
Compensation Package"). In the event the Company shall pay to Executive during
the Term any compensation in excess of the Total Compensation Package provided
for herein, the payment of such increased compensation shall not be deemed to be
an amendment to this Agreement, and may be discontinued at any time without
cause. Executive's Total Compensation Package shall be reviewed on a periodic
basis (most likely, yearly) and shall remain consistent with and commensurate to
those other executives of the Company in similar roles, always taking into
consideration the total responsibilities of Executive to the Company as well as
the overall revenue and operating income contributions of Executive's designated
marketplaces. The Company shall have the right to further adjust the
Executive's Total Compensation Package to reflect the actual performance of the
Executive.
1.4 ADDITIONAL OBLIGATIONS OF EXECUTIVE. Executive understands that the
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obligations imposed under this Agreement are not exclusive, and that the Company
may unilaterally, from time to time, impose additional reasonable obligations
upon Executive consistent with his duties and position within the Company. If
Company promotes Executive, or changes Executive's areas of responsibilities
during the Term of this Agreement, Company, at its option, may require Executive
to execute an Addendum describing the Executive's promotion, or change of areas
of Executive's responsibilities.
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1.5 DISCOVERIES. Executive shall promptly disclose in writing to the Company
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any and all information, ideas, conceptions, inventions, discoveries, processes,
methods, designs, and know-how, as well as all works of authorship (including
computer programs) which are within the subject matter of copyright, which are
conceived, originated, developed, made or acquired by Executive, either
individually or jointly with others, during the period of Executive's employment
with the Company or for one (1) year period thereafter and: (i) for which the
Company provided either equipment, supplies, facilities, or confidential
information; (ii) which were made or conceived on or partially on the Company's
time; or (iii) which relate to IKON's business or the business that IKON is in
the process of developing (collectively referred to as the "Vision Discoveries")
and shall assign or offer to assign to Company any and all of Executive's rights
in each Vision Discovery.
1.6 COPYRIGHTS. All Vision Discoveries which are within the subject matter of
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copyright shall be considered a "work for hire" granting the Company full
ownership to the work and components and all rights comprised therein. Should
any work or component thereof not fall within the definition of a "work for
hire" under copyright law, the Executive hereby transfers and assigns or, if
necessary, will transfer and assign to the Company full ownership of the
copyright to the work or component thereof and all rights comprised therein.
The Executive will sign all applications for registrations of such copyright,
and perform all other acts necessary or convenient to carry out the terms of
this Provision.
ARTICLE 2-TERMINATION OF AGREEMENT
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2.1 TERMINATION BY THE COMPANY -- ENUMERATED REASONS. Company may, in its sole
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discretion, terminate Executive's employment at any time during the Term of the
Agreement under the following circumstances:
(1) Executive fails to comply with any material Company Policy,
either currently in force, or as may from time to time be adopted and modified
by the company;
(2) the Executive's performance falls below 80% of the stated
mutually agreed-upon operational and financial goals specifically applicable to
Executive during any fiscal year time period;
(3) Executive breaches his obligations under the terms of this
Agreement;
(4) the Executive has committed an act of dishonesty, moral
turpitude; has exhibited material, gross, or substantial misfeasance or
negligence in the performance of his duties, waste of corporate assets, illegal
conduct, or conduct that is injurious to the Company, its reputation or goodwill
or theft or has breached his duties of loyalty to the Company, including any
duties specified under Article 1.1.2 hereunder or an act of insubordination to
any of his supervisors.
It is specifically understood that, during the Term of the Agreement,
Executive shall not be terminated pursuant to either 2.1 (1), (2) or (3) unless
and until (a) Executive has received reasonable written notice from the Company
of the applicable Company Policy, the operational and financial goals applicable
to the Executive or the breach of obligation, and (b) Executive has had
reasonable opportunity to comply with such Company Policy, contractual
obligation or perform up to the standards, expectations or applicable goals set
by Company. The Company may, however, immediately terminate Executive pursuant
to 2.1 (4) without notice.
In the event of the termination of Executive under this Article 2.1,
Executive's right to the compensation and benefits provided in Addendum B shall
immediately terminate and/or cease to accrue, provided, however, that Executive
shall receive (i) the unpaid portion, if any, of the Base Salary computed on a
pro-rata basis to the date of termination of employment and (ii) any unpaid
accrued benefits owed to the Executive in accordance with the terms of any Plan
or Program referenced in Addendum B.
2.2. TERMINATION BY THE COMPANY -- NOT ENUMERATED REASONS. The Company may
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terminate the employment of Executive during the Term for reasons other than
those enumerated in Article 2.1. However, in such event, the Company shall be
liable to Executive for the Base Salary compensation (but not unrealized
bonuses) and other remaining benefits (as permitted for terminated employees
under Company policy) provided in Addendum B for the remainder of the Term, and,
to the extent not inconsistent with applicable law and/or the terms and
conditions of any Plan or Program, all other remaining benefits (excluding
bonuses) shall continue to accrue until the end of the Term, which shall
constitute the full liquidated damages to which Executive is entitled. As an
elaboration of the above, but in no event to be construed as a commitment, in
such circumstances, the President of IKON shall recommend to the Board of
Directors of IKON that Executive's remaining unvested stock options should be
fully vested. Executive agrees that he shall not be entitled to any other
remedy at law or in equity, including but not limited to general, special,
punitive or exemplary damages and/or injunctive relief.
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Notwithstanding the foregoing, the amounts otherwise due pursuant to this
Article 2.2 shall be reduced by the full amount of any and all income earned or
received by the Executive during the remainder of the Term. Executive is
obligated to report all such income to the Company.
2.3 DISABILITY AND DEATH
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2.3.1 DISABILITY. In the event that Executive is unable fully to
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perform his duties and responsibilities hereunder to the full extent required by
the Company by reason of illness, injury or incapacity for ninety (90)
consecutive days or ninety (90) working days during the Term, this Agreement may
be terminated by Company and Company shall have no further liability or
obligation to Executive for the compensation or benefits set forth in Addendum
B, provided however, that Executive will be entitled to receive (i) salary
continuation until the long-term disability benefit plan (if applicable) takes
effect, (ii) the payments prescribed under any disability benefit plan which may
be in effect for employees of the Company and in which he participated and (iii)
any unpaid accrued benefits owed to the Executive in accordance with the terms
of any Plan or Program referenced in Addendum B. For purposes of this paragraph
2.3.1, Executive's temporary inability to travel or maintain regular office
hours because of illness, injury or incapacity will not be considered a failure
or inability to perform his duties and responsibilities so long as Executive,
through Telecommuting and alternate arrangements, otherwise fulfills his duties
and responsibilities.
2.3.2. DEATH. In the event that Executive dies during the Term,
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Company shall pay to his executors, legal representatives or administrators an
amount equal to the installment of his Base Salary set forth in Addendum B for
the month in which he dies, and for an additional two (2) months thereafter, and
thereafter Company shall have no further liability or obligation pursuant to the
Agreement to his executors, legal representatives, administrators, heirs or
assigns or any other person claiming under or through him; provided however,
that Executive's estate or designated beneficiaries shall be entitled to receive
(i) the payment prescribed for such recipients under any death benefit plan
which may be in effect for employees of the Company and in which Executive
participated and (ii) any unpaid accrued benefits owed to the Executive in
accordance with the terms of any Plan or Program referenced in Addendum B.
ARTICLE 3-RESTRICTION ON THE USE OF CONFIDENTIAL INFORMATION
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3.1 SCOPE OF CONFIDENTIAL INFORMATION. Executive acknowledges that the Company
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is engaged in the business of sales, servicing, renting and leasing of copier
equipment, facsimiles, micrographic equipment, computers, shredders, offset
printing, typewriters, laser printers, word processing equipment and other
related office products, the business of facilities management and state-of-the-
art copying and/or scanning operations, the ongoing development and
implementation of additional business segments providing outsourcing and
networking sales and services, and the growth through acquisitions of entities
engaged in any or all of the aforementioned businesses ("Company's Business").
Executive further recognizes that the Company's Business and its continued
success depend upon the use and protection of a large body of confidential and
proprietary information. Executive further acknowledges that he holds a
position of trust and confidence by virtue of which he necessarily possesses,
has access to and, as a consequence of his signing this Agreement, will continue
to possess and have access to, highly valuable, confidential and proprietary
information not known to employees of the Company at large or the public in
general, and that it would be improper for him to make use of this information
for the benefit of himself or others. ALL OF SUCH CONFIDENTIAL AND PROPRIETARY
INFORMATION NOW EXISTING OR TO BE DEVELOPED IN THE FUTURE WILL BE REFERRED TO IN
THIS AGREEMENT AS "COMPANY SECRETS". Company and Executive intend that the
meaning of "Company Secrets" in this Agreement will be read as broadly as
possible to include all information of any sort (whether merely remembered or
embodied in a tangible medium) which (i) is related to Company's Business or
potential future business and (ii) is not generally and publicly known. This
includes, without specific limitation, information relating to the nature and
operation of the Company's Business, the persons, firms and corporations which
are customers or active prospects of the Company during Executive's employment
by the Company, the Company's development transition and transformation plans,
methodology and methods of doing business, strategic, acquisition, marketing and
expansion plans, including plans regarding planned and potential acquisitions
and sales, financial and business plans, employee lists, numbers and location of
sales representatives, new and existing programs and services, support and
those under development, prices and terms, customer service, integration
processes requirements, costs of providing service, support and equipment and
equipment maintenance costs.
3.2 EXECUTIVE'S DUTY NOT TO DISCLOSE CONFIDENTIAL INFORMATION. Executive will
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protect and preserve as confidential during his employment relationship with the
Company and at all times after the termination of the employment relationship,
all of the Company Secrets at any time known to Executive or at any time in
Executive's possession or control. Executive understands that this Agreement
includes an obligation not to disclose Company Secrets to employees within the
Company who do not have a right or need to know the Company Secrets.
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Executive will, during his employment relationship with the Company and at all
times after the termination of the employment relationship, neither disclose,
use, nor allow any other person or entity to use in any way, except for the
benefit of the Company and as directed by the Company, any of the Company
Secrets.
3.3 RETURN OF CONFIDENTIAL INFORMATION. Executive will, prior to or upon
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leaving employment with the Company, deliver to the Company any and all records,
items and media of any type (including, without limitation, all partial or
complete copies of duplicates) containing or otherwise relating to any of the
Company Secrets, whether prepared or acquired by, or provided to, Executive.
Executive acknowledges that all such records, items and media are and at all
times will be and remain the property of Company.
3.4 ADDITIONAL AGREEMENTS REQUIRED BY THIRD PARTIES. Executive will enter into
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and comply fully with any agreement reasonably required by any of the Company's
affiliates, business partners, suppliers or contractors with respect to the
protection of the confidential and proprietary information of such entities.
3.5 SEVERABILITY. Executive understands that the obligations imposed under
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this Restriction on the Use of Confidential Information are in addition to, and
independent of, any Restriction on Post-Termination Employment imposed under
this Agreement or any previously executed agreement concerning post-termination
employment, impose separate and distinct obligations from the Restriction on
Post-Termination Employment, and may be valid even if the Restriction on Post-
Termination Employment is declared invalid, in whole or in part, in any judicial
or quasi-judicial forum.
ARTICLE 4-RESTRICTION ON POST-TERMINATION EMPLOYMENT
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4.1 ACKNOWLEDGMENTS BY EXECUTIVE.
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4.1.1. ACKNOWLEDGMENT OF PROTECTIBLE INTERESTS. Executive agrees that
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the Company has a protectible interest in the Company Secrets, goodwill and
specialized knowledge acquired by Executive during the course of his employment
with Company.
4.1.2. ACKNOWLEDGMENT OF CONSIDERATION. Executive acknowledges that
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the provisions of this Article 4 are in consideration of (1) a change in
employment status from that of an at-will employee to employment for a fixed
period of time, subject to discharge only for the reasons and under the terms
and conditions set forth in this Agreement; and (2) additional good and valuable
consideration as set forth in Addendum B of this Agreement including but not
limited to the granting of specific stock options.
4.1.3. ABILITY TO EARN LIVELIHOOD. Executive expressly agrees and
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acknowledges that the Restrictions contained in this Article 4 do not preclude
Executive from earning a livelihood, nor does it unreasonably impose limitations
on Executive's ability to earn a living. In addition, the Executive agrees and
acknowledges that the potential harm to the Company of its non-enforcement
outweighs any harm to the Executive of its enforcement by injunction or
otherwise.
4.1.4. EXECUTIVE'S GEOGRAPHIC AREA. Executive's Geographic Area for
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purposes of this Agreement is defined as the designated geographic territory
(also referred to within the Company as marketplace(s)) that is or was under the
Executive's management, control and/or responsibility during the two (2) year
period immediately preceding the termination of Executive's employment. At
present, Executive is responsible for all of North America.
4.2 POST-EMPLOYMENT RESTRICTIONS. Executive agrees that if Executive's
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employment with the Company is terminated for cause, by voluntary resignation on
the part of Executive, or without cause (whether by the Company, by Executive or
otherwise), the Executive will not, without the express written consent of the
Company, directly or indirectly, for a period of three (3) years from the date
of termination, in any capacity whatsoever, including either as an employee,
employer, officer, director, proprietor, partner, joint venturer, consultant,
stockholder (except for investments of no greater than 5% of the total
outstanding shares in any publicly funded company), on his behalf or on behalf
of any other entity:
(1) solicit, sell to, divert, serve, accept or receive business, which
is similar to, or competitive with, the Company's Outsourcing Business,
from any entity which was a customer of IKON, or an active prospect of IKON
within the Executive's Geographic Area, or
(2) start-up, engage or manage in any business which competes with the
Company's Outsourcing Business within the Executive's Geographic Area, or
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(3) acquire, purchase, or work in any capacity whatsoever for or on
behalf of, any entity which has been identified as an actual or potential
acquisition of IKON during the two (2) year period immediately preceding
the termination of Executive's employment, or
(4) solicit, entice, or encourage any employee of the Company to leave
the Company or hire or employ any such employee, or
(5) Manage or work for a business or a portion of the business, of any
entity within the Executive's Geographic Area, engaged in a business which
is similar to, or competitive with, the Company's Outsourcing Business, or
(6) Work in any capacity whatsoever for Xerox Corporation or Danka
Corporation, or any subsidiaries or affiliates thereof.
For purposes of this paragraph 4.2, Company's Outsourcing Business is
defined as the business of facilities management, business and litigation photo-
copying, scanning, imaging, backfile conversion, printing, graphic design and
fulfillment.
The foregoing restriction shall be in addition to (and to the extent
of any conflict, shall control) any post-employment restriction contained in any
Long-Term Incentive Plan applicable to Executive.
4.3 SEVERABILITY. Executive understands that the obligations imposed under
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this Restriction on Post-Termination Employment are in addition to, and
independent of, any Restriction on the Use of Confidential Information imposed
under this Agreement and any previously executed agreement concerning post-
terminated employment, impose separate and distinct obligations from the
Restriction on the Use of Confidential Information, and may be valid even if the
Restriction on the Use of Confidential Information is declared invalid, in whole
or in part, in any judicial or quasi-judicial forum.
ARTICLE 5-REMEDIES FOR BREACH
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5.1 INJUNCTIONS. In the event of a breach or threatened breach of any
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provision of Articles 3 or 4 of this Agreement, Executive acknowledges and
agrees that the Company will suffer irreparable harm and further acknowledges
and agrees that the Company's remedies at law are inadequate, and that the
Company shall be entitled to an immediate injunction restraining such breach or
potential breach as well as other equitable relief; but nothing herein shall be
construed as prohibiting the Company from pursuing any other remedy available
for such breach or threatened breach.
5.2 RESTITUTION. Notwithstanding anything in this Agreement or any other
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agreement between the parties to the contrary and in addition to any other
rights or remedies the Company may have, if at any time Executive (whether
during the Employment period or thereafter as provided herein) has violated any
of his obligations contained in Articles 3 and 4 above, then the obligation of
the Company to pay salary, vacation pay, bonus, incentive compensation or other
form of pay or compensation, shall terminate, and from and after such
termination neither the Executive, his beneficiary nor any of their legal
representatives or distributee shall have any right to receive any payment(s) in
connection therewith.
ARTICLE 6 -MISCELLANEOUS
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6.1 ARBITRATION. Except as permitted or provided in the foregoing Article 5, in
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the event Executive's employment is terminated, and Executive contends that such
termination was wrongful or otherwise in violation of his rights or privileges,
express or implied, whether founded in fact or in law, or any other rights or
privileges, or was in violation of any express or implied condition, term, or
covenant, whether founded in law or in fact, including but not limited to the
covenant of good faith and fair dealing, or otherwise in violation of law,
Executive and Company agree to submit the above-described disputed matter to
binding arbitration. Executive and Company further expressly agree that in any
such arbitration, the exclusive maximum remedy which may be awarded by the
arbitrator(s) shall be limited to back pay owing up to and including the date
the arbitration award becomes final and reasonable attorney's fees and costs.
Notwithstanding the above remedy, the parties further agree that in the event
such arbitrator(s) determine that Executive was not terminated for cause, then
the arbitrator(s) shall have the additional ability in a termination situation
to award the remedy as described in Section 2.2 above. Executive agrees that he
shall not be entitled to any other remedy at law or in equity, including but not
limited to general, special, punitive or exemplary damages and/or injunctive
relief.
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6.2 REFORMATION. The provisions and covenants contained herein are intended to
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be separate and divisible and if, for any reason, any one or more of such
provisions or covenants should be held to be invalid and unenforceable in whole
or in part, it is agreed that the same shall not be held to affect the validity
or enforceability of any other provisions and covenants of this Agreement. In
the event that any restriction set forth in this Agreement is determined by a
Court to be unenforceable with respect to scope, time or geographical coverage,
Executive agrees that such a restriction should be modified and narrowed so as
to provide the maximum protection of the Company's legally protectible interests
as described in this Agreement, and without negating or impairing any other
restrictions or agreements set forth herein.
6.3 REASONABLENESS. Executive acknowledges that he has carefully read this
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Agreement and has given careful consideration to the restraints imposed upon the
Executive by this Agreement, and is in full accord as to their necessity for the
reasonable and proper protection of the Company's Secrets. The Executive
expressly acknowledges and agrees that each and every restraint imposed by this
Agreement is reasonable with respect to subject matter, time period and
geographical area, except for mutually agreed upon modifications to this
Agreement.
6.4 MODIFICATION. The Parties agree that the Agreement may not be modified
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except by the mutual written consent of the Parties. Notwithstanding the
foregoing, the parties further agree that if a judicial or quasi-judicial entity
declares the agreement invalid in whole or in part, it may modify the terms of
the Agreement to give affect to the Agreement as modified.
6.5 SUCCESSORS AND ASSIGNS OF THE COMPANY. This Agreement shall bind Company
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and Executive and also all of their respective family members, heirs,
administrators, representatives, successors, assigns, officers, directors,
agents, employees, shareholders, affiliates, predecessors, and also all other
persons, firms, corporations, associations, partnerships, and entities in
privity with or related to or affiliated with any such person, firm,
corporation, association, partnership or entity; including without limitation,
any person, firm, corporation, association, partnership, limited liability
company and entity or combination thereof which shall acquire substantially all
of the assets, or direct or indirect control of a majority of the voting stock,
of the Company, or which shall in any other manner cause a majority of the
current members of the Board of Directors or the President to be replaced at any
time after the effective date of this Agreement (a "Change of Control"). Any
termination under Section 2.1 (2) within twelve (12) months of a Change of
Control or any material demotion or restriction of Executive's current duties at
the time of the Change of Control or within twelve (12) months of a Change of
Control, however effected, shall not be deemed a termination under Section 2.1
and Executive shall instead be entitled to receive the benefits he would be
entitled to receive under Section 2.2 of this Agreement. Notwithstanding
anything to the contrary herein, this Agreement (and the provisions herein)
shall be declared null and void in the event IKON goes into bankruptcy or
becomes insolvent.
6.6 SURVIVAL OF OBLIGATIONS AND PROVISIONS. Exercise of the Company's
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termination rights according to the provisions of Articles 2.1, 2.2. and 2.3.1
shall not affect the Company's rights or the Executive's obligations under
Article 1.1.2 and Articles 3, 4, 5 or 6. The Parties acknowledge and agree that
the provisions within Article 1.1.2 and Articles 3, 4, 5 or 6 survive the
termination or expiration of this Agreement as well as the termination of
Executive's employment relationship with the Company.
6.7 AT-WILL PRESUMPTION. Upon completion of the Term of the Agreement, the
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Parties acknowledge and agree that any further employment with the Company shall
be in an at-will capacity and may be terminated at any time or the Agreement may
be renewed by mutual written agreement.
6.8 EXPENSES OF ENFORCEMENT. Executive shall be liable to, and will pay the
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Company for all costs and expenses, including, but not limited to, reasonable
attorneys' fees, incurred by the Company in the successful enforcement in any
respect of any of its rights under this Agreement, whether in litigation or
otherwise. Likewise, in the event the Company is unsuccessful in enforcing its
rights under this Agreement, whether in litigation or otherwise, then the
Company shall pay all of Executive's costs and expenses, including, but not
limited to, reasonable attorneys' fees, incurred by Executive in defending the
Company's claims.
6.9 ENTIRE AGREEMENT. The Executive acknowledges and agrees that this
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Agreement, including Addendums A and B which are incorporated herein and made a
part of the Agreement, together with the IKON Office Solutions' Confidentiality
and Patent Agreement executed by the Executive, which is incorporated herein and
made a part of the Agreement, constitute the entire agreement between the
Parties concerning the subject matter of this Agreement, and that together they
supersede and replace all prior agreements, whether written or oral except the
relevant benefit and compensation plans (including any Long-Term Incentive Plan
applicable to Executive) referred to elsewhere in the Agreement, which are
incorporated by reference; there are no other agreements, understandings,
restrictions, warranties, or representations between the parties relating to
this
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subject matter. Executive hereby represents that, in signing the Agreement, he
has not relied upon any promise, representation, or any other inducement that is
not expressed herein.
6.10 APPLICABLE LAW. This Agreement, the construction of its terms, and the
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interpretation of the parties' rights and duties shall be governed by and
construed according to the laws of the Commonwealth of Pennsylvania (the state
of the principal place of business of Company) without regard to the choice of
law provisions of such law.
6.11 VENUE. The parties hereby agree that any lawsuit or proceeding instituted
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regarding this Agreement, its interpretation, enforcement or validity shall be
commenced in the Court of Common Pleas of Chester County, Pennsylvania, or in
the United States District Court for the Eastern District of Pennsylvania, and
the parties hereby consent to the personal jurisdiction over them of both
Courts.
6.12 NOTICES. All notices and other communications concerning this Agreement
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shall be in writing and must be given by postage prepaid, registered or
certified mail, as follows:
(a) If to the Company, to: (b) If to Executive, to:
IKON Office Solutions, Inc. Lynn Graham
P.O. Box 834 21 Waterford Lakes
Valley Forge, PA 19482 The Woodlands, TX 77381
Attn: Law Department
6.13 UNDERSTANDING OF TERMS. Executive acknowledges that he has carefully
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reviewed the contents of this Agreement, understands its import and intent,
including the restrictions on post-termination employment it imposes, and that
he agrees to its terms without duress and in full and complete knowledge of its
effect.
6.14 WAIVER. No omission or delay on the part of either Party of due and
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punctual fulfillment of any obligation shall be deemed to constitute a waiver by
the other Party of any of its rights to require such due and punctual
fulfillment of any other obligation hereunder, whether similar or otherwise, or
a waiver of any remedy it may have.
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IN WITNESS HEREOF, the Parties have affixed their signatures to this Agreement
to be effective ___________________.
WITNESS
/s/ Signature /s/ Lynn Graham
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Lynn Graham
IKON OFFICE SOLUTIONS, INC.
/s/ John E. Stuart
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By: John E. Stuart
Title: Chief Executive Officer
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Addendum A
JOB TITLE: PRESIDENT - DOCUMENT SERVICES
IKON Office Solutions
JOB DESCRIPTION AND PRIMARY RESPONSIBILITIES:
REPORTS TO: CHIEF EXECUTIVE OFFICER OF IKON
GENERAL SCOPE:
The President of Document Services has full Profit and Loss ("P&L"), asset
management, logistics, marketplace strategy and implementation, customer
relations and employee relations responsibilities for the Document Services
division and all the districts and marketplaces serviced by such division in
North America.
SPECIFIC ACCOUNTABILITIES:
Manage the Document Services division in a cost effective and responsive manner
to effectively provide high quality and timely support and services to all IKON
marketplaces and customer base.
Assess, identify and develop appropriate business plans and maximize the total
growth opportunity for the division, effectively utilizing all of the products
and services which the division and IKON offers. Consistently achieve financial
and non-financial objectives.
Ensure that the resources and disciplines are in place in a timely fashion in
order to meet or exceed business plan commitments.
Keep immediate direct report informed on a regular basis regarding issues
related to financial, asset, organizational, employee, customer and vendor
objectives and relationships. Effectively implement IKON strategies and
marketing initiatives through the division as assigned.
Identify companies and actively participate in the acquisition process to
acquire quality companies that provide products and services consistent with
IKON's strategic objectives.
Participate in task forces and ad hoc projects as assigned.
Demonstrate broad leadership capability across all areas of the business,
maintaining the highest ethical standards.
9
PAGE 2
AUTHORITY:
. Authority, subject to one-over-one approval, to hire, terminate, determine
compensation levels and criteria for direct reports and provide one-over-
one approval for the management level reporting to the division President's
direct reports.
. Authority to approve capital expenditures up to a limit of $100,000 within
the division.
. Authority as delegated from the CEO of IKON to make commitments on behalf
of IKON to customers and vendors.
. Authority to negotiate real estate leases including rates within the scope
of IKON policies and procedures as delegated by the CEO of IKON.
Initials: ________
________
10
Addendum B
TITLE: PRESIDENT - DOCUMENT SERVICES
INITIAL TERM - COMPENSATIONS ITEMS:
BASE SALARY: 4/1/97-9/30/97 $225,000.00 per year ($112,500 over the 6
months)
10/1/97-9/30/98 $235,000.00 per year
10/1/98-9/30/99 $235,000.00 per year
BONUS OPPORTUNITY: Up to maximum of one hundred percent (100%) of Base
Salary/year based upon mutually agreeable objectives for the division as
follows:
.Fiscal 1997 -
--------------
1. Operating Income Target to earn 100% of performance bonus is
$25,500,000 plus any additional operating income dollars resulting from fiscal
1997 acquisitions and mergers (less the customary 90 day grace period).
2. Operating Income Pretax Cash Target to earn 100% of performance bonus
is $11,500,000 (45% of OI $) plus any additional pretax cash dollars resulting
from fiscal 1997 acquisitions and mergers (less the customary 90 day grace
period).
Note: The performance bonus calculation will be adjusted based on a
performance matrix that reflects a 1% underachievement to target resulting in a
5% decrease in bonus i.e. the minimum threshold that needs to be reached in each
target category is 90% of target.
Fiscal 1998 and 1999 -
--------------------
The performance bonus criteria will be agreed upon each year on or before
November 1st for the applicable fiscal year.
OTHER COMPENSATION BENEFITS:
. One-time discretionary grant of 3500 IKON Stock options (standard
vesting criteria) to be granted by Board of Directors in August , 1997
due to promotion and entering into this Executive Employment Agreement
and the post-employment restrictions contained herein.
STANDARD BENEFITS:
1. Executive shall be reimbursed travel and entertainment expenses related to
Company's business consistent with the policies of the Company
2. Executive shall be entitled to reasonable vacations, without cessation of
salary payments.
11
3. Executive will continue eligibility under the NightRider Overnight Copy
Service Executive Long-Term Incentive Plan Agreement II and will be
provided with benefits under the terms and conditions of the IKON
Retirement and Pension Plan for Salaried Employees, the IKON Medical Plan
(disability, life, etc.) as those plans apply to the Document Services
division and as may be amended from time to time.
4. In the event of any conflict between this Addendum B and any relevant plan
("Plan") document or summary plan description ("SPD"), the relevant Plan or
SPD will govern.
Further, in the event of Executive's death, the special rules set forth in
the relevant Retirement Plan or SPD shall govern
Initials: _________
_________
12
IKON OFFICE SOLUTIONS
CONFIDENTIALITY AND PATENT AGREEMENT
I, Lynn Graham, in consideration of my continued employment by IKON Office
Solutions, Inc., my change in employment status from employment-at-will to
employment for a fixed period of time in a new executive position, the
compensation paid or to be paid to me, and discretionary stock options being
granted to me, agree as follows:
1. Definitions. The term "IKON" as used in this Agreement includes IKON
-----------
Office Solutions, Inc. and all of its divisions, subsidiaries or affiliates.
2. Disclosure of Confidential Information. I shall not at any time during my
--------------------------------------
employment or thereafter, except as properly required in the course of my
employment, publish, disclose or authorize anyone else to publish or disclose
any Confidential Information belonging to IKON. Confidential Information
includes, but is not limited to, models, drawings, memoranda and other
materials, documents or records of a proprietary nature; information relating to
research, finance, accounting, sales, personnel, management and operations; and
information particularly relating to customer lists, price lists, customer
service requirements, costs of providing service and equipment, and equipment
maintenance costs; notwithstanding the foregoing or any contrary provision
hereof, the term "Confidential Information" shall not include any information
(i) which is or becomes public otherwise than through a breach of this
Agreement, (ii) which was known to me prior to disclosure thereof by IKON, or
(iii) which is disclosed to me by a non-Company employee third party not subject
to an obligation to maintain such information in confidence.
3. Use and Return of Company Property. I shall not, in the course of my
----------------------------------
employment or thereafter, use or permit others to use materials, equipment or
other company property for personal purposes. Further, I shall not make copies
of, resell or transfer any computer software owned or licensed by IKON. On
termination of my employment, I will deliver to IKON all property belonging to
IKON, and will not retain any copies or reproductions of correspondence,
reports, drawings, photographs or documents containing Confidential Information
or relating in any way to the business of IKON that is confidential or
proprietary in nature.
4. Patents, Copyrights and Trade Secrets. I will disclose and assign to IKON
-------------------------------------
any and all material of a proprietary nature, particularly including, but not
limited to, material subject to protection as trade secrets or as patentable or
copyrightable ideas which I may conceive, invent, or discover during the course
of my employment with IKON. Upon IKON's request, either during or at any time
after the termination of my employment with IKON, I shall execute and deliver
all papers, including applications for patents and do such other acts (entirely
at IKON's expense) as may be necessary for IKON to obtain and maintain
proprietary rights in any and all countries and to vest title thereto in IKON.
5. Term; Modifications. THE PROVISIONS OF THIS AGREEMENT SHALL SURVIVE
-------------------
TERMINATION OF MY EMPLOYMENT RELATIONSHIP WITH IKON. This Agreement may be
modified or waived only by a written instrument signed by me and an authorized
executive of IKON.
6. Severability. The provisions of this Agreement shall be deemed severable,
------------
and the invalidity or unenforceability of any provision shall not affect the
validity and enforceability of the other provisions hereof. If any provision of
this Agreement is unenforceable for any reason whatever, such provision shall be
appropriately limited and given effect to the extent that it may be enforceable.
I HAVE READ THIS AGREEMENT AND FULLY UNDERSTAND ITS TERMS.
Signed at Houston, TX, this 13th day of June, 1997.
Witness: _______________________________ /s/Lynn Graham
-------------------------
Lynn Graham
13
EXHIBIT 10.25
EXECUTIVE EMPLOYMENT AGREEMENT
THIS IS A VERY IMPORTANT LEGAL DOCUMENT WHICH MAY AFFECT YOUR RIGHTS
TO FUTURE EMPLOYMENT. AS A RESULT, YOU SHOULD REVIEW THE DOCUMENT
CAREFULLY, AND FULLY UNDERSTAND ITS TERMS AND IMPLICATIONS, BEFORE SIGNING.
This Employment Agreement ("Agreement") effective October 1, 1995,
is entered into among ALCO OFFICE PRODUCTS, an operating division (including its
network of operating companies) of Alco Standard Corporation ("AOP") and ALCO
STANDARD CORPORATION ("Alco") (both entities AOP and Alco also collectively
referred to as the "Company"), an Ohio Corporation with its principal place of
business in Pennsylvania, and PETER W. SHOEMAKER ("Executive").
In consideration of the mutual promises contained in this Executive
Employment Agreement ("Agreement") including the following three items, none of
which would be conferred upon Executive absent execution of this Agreement: (1)
a change in employment status from employment-at-will to employment for a fixed
period of time in a new executive position, subject to the terms and conditions
set forth below; (2) eligibility to participate in the new 1995-1996 Long-Term
Incentive Compensation Program in accordance with the additional terms of that
Program; and (3) additional good and valuable consideration including but not
limited to that set forth in Addendum B of this Agreement the parties to this
Agreement ("Parties") INTENDING TO BE LEGALLY BOUND, Agree as follows:
ARTICLE I-TERMS OF EMPLOYMENT
- -----------------------------
1.1 DUTIES.
------
1.1.1 DUTIES OF POSITION. AOP shall employ Executive as a Regional
------------------
President of AOP. The Parties expressly agree that the position of Regional
President is a key position and an executive position in the Company. Executive
shall comply with his obligation set forth in this Employment Agreement and with
all Company policies, now currently in force, or as may from time to time be
unilaterally adopted and modified by the Company, whether or not reduced to
writing. In addition, Executive shall have the following duties set forth in
Addendum A of the Agreement which is hereby incorporated as if fully set forth
herein.
Executive specifically recognizes and acknowledges that this position is one of
trust and confidence and that, as a result, he will have access to, and may be
given specialized education and confidential, proprietary information of the
Company.
1.1.2 DUTY OF LOYALTY. Executive will (1) devote substantially all his
---------------
time, attention, and energies to the business of the Company and diligently
perform all duties incident to his employment; (2) use his best efforts to
promote the interests and goodwill of the Company; and (3) perform such other
duties commensurate with his office as either the President of AOP or the
President of Alco, or the assignees of either from time to time assign him.
Further, during the term of employment, Executive shall not engage in any
activity to the detriment or embarrassment of the Company. By way of
illustration and not as a limitation, Executive shall not discuss with any
customer or potential customer of the Company, or any competitor of the Company,
any plans by Executive or any other employees of the Company to leave the
employment of the Company or to compete with the Company.
1.2 TERM OF AGREEMENT. Unless terminated in accordance with Article 2, this
-----------------
Agreement shall remain in force for a term of three (3) years from the date of
execution of this Agreement ("Term").
1.3 COMPENSATION. During the Term of the Agreement, the Executive shall be
------------
compensated in accordance with the terms set forth in Addendum B of the
Agreement which is incorporated as if fully set forth herein ("Total
Compensation Package"). In the event the Company shall pay to Executive during
the Term any compensation in excess of the Total Compensation Package provided
for herein, the payment of such increased compensation shall not be deemed to be
an amendment to this Agreement, and may be discontinued at any time without
cause.
1.4 ADDITIONAL OBLIGATIONS OF EXECUTIVE. Executive understands that the
-----------------------------------
obligations imposed under this Agreement are not exclusive, and that the Company
may unilaterally, from time to time, impose additional reasonable obligations
upon Executive consistent with his duties and position within the Company. If
Company promotes Executive, or changes Executive's areas of responsibilities
during the Term of this Agreement, Company, at its option, may require Executive
to execute an Addendum describing the Executive's promotion, or change of areas
of Executive's responsibilities.
Page 1 of 7
1.5 DISCOVERIES. Executive shall promptly disclose in writing to the Company
-----------
any and all information, ideas, conceptions, inventions, discoveries, processes,
methods, designs, and know-how, as well as all works of authorship (including
computer programs) which are within the subject matter of copyright, which are
conceived, originated, developed, made or acquired by Executive, either
individually or jointly with others, during the period of Executive's employment
with the Company or for one (1) year period thereafter and: (i) for which the
Company provided either equipment, supplies, facilities, or confidential
information; (ii) which were made or conceived on or partially on the Company's
time; or (iii) which relate to AOP's business or the business that AOP is in the
process of developing (collectively referred to as the "Vision Discoveries") and
shall assign or offer to assign to Company any and all of Executive's rights in
each Vision Discovery.
1.6 COPYRIGHTS. All Vision Discoveries which are within the subject matter of
----------
copyright shall be considered a "work for hire" granting the Company full
ownership to the work and components and all rights comprised therein. Should
any work or component thereof not fall within the definition of a "work for
hire" under copyright law, the Executive hereby transfers and assigns or, if
necessary, will transfer and assign to the Company full ownership of the
copyright to the work or component thereof and all rights comprised therein.
The Executive will sign all applications for registrations of such copyright,
and perform all other acts necessary or convenient to carry out the terms of
this Provision.
ARTICLE 2-TERMINATION OF AGREEMENT
- ----------------------------------
2.1 TERMINATION BY THE COMPANY -- ENUMERATED REASONS. Company may, in its sole
------------------------------------------------
discretion, terminate Executive's employment at any time during the Term of the
Agreement under the following circumstances:
(1) Executive fails to comply with any material Company Policy,
either currently in force, or as may from time to time be adopted and modified
by the company;
(2) the Executive's performance falls below 80% of the stated
operational and financial goals specifically applicable to Executive;
(3) Executive breaches his obligations under the terms of this
Agreement;
(4) the Executive has committed an act of dishonesty, moral
turpitude or theft or has breached his duties of loyalty to the Company,
including any duties specified under Article 1.1.2 hereunder.
It is specifically understood that, during the Term of the
Agreement, Executive shall not be terminated pursuant to either 2.1 (1), (2) or
(3) unless and until (a) Executive has received reasonable notice, written or
oral, from the Company of the applicable Company Policy, or the operational and
financial goals applicable to the Executive, and (b) Executive has had
reasonable opportunity to comply with such Company Policy or perform up to the
standards, expectations or applicable goals set by Company. The Company may,
however, immediately terminate Executive pursuant to 2.1 (4) without notice.
In the event of the termination of Executive under this Article 2.1,
Executive's right to the compensation and benefits provided in Addendum B shall
immediately terminate and/or cease to accrue, provided, however, that Executive
shall receive (i) the unpaid portion, if any, of the base salary computed on a
pro-rata basis to the date of termination of employment and (ii) any unpaid
accrued benefits owed to the Executive in accordance with the terms of any Plan
or Program referenced in Addendum B.
2.2. TERMINATION BY THE COMPANY -- NOT ENUMERATED REASONS. The Company may
----------------------------------------------------
terminate the employment of Executive during the Term for reasons other than
those enumerated in Article 2.1. However, in such event, the Company shall be
liable to Executive for the compensation and benefits provided in Addendum B for
the remainder of the Term, and, to the extent not inconsistent with ERISA and/or
the terms and conditions of any Plan or Program, all benefits shall continue to
accrue until the end of the Term, which shall constitute the full liquidated
damages to which Executive is entitled. Executive agrees that he shall not be
entitled to any other remedy at law or in equity, including but not limited to
general, special, punitive or exemplary damages and/or injunctive relief.
2.3 DISABILITY AND DEATH
--------------------
2.3.1 DISABILITY. In the event that Executive is unable fully to perform
----------
his duties and responsibilities hereunder to the full extent required by the
Company by reason of illness, injury or incapacity for ninety (90) consecutive
days or ninety (90) working days during the Term, this Agreement may be
terminated by Company and Company shall have no further liability or obligation
to Executive for the compensation or benefits set forth in Addendum B, provided
however, that
Page 2 of 7
Executive will be entitled to receive (i) salary continuation until the long-
term disability benefit plan takes effect, (ii) the payments prescribed under
any disability benefit plan which may be in effect for employees of the Company
and in which he participated and (iii) any unpaid accrued benefits owed to the
Executive in accordance with the terms of any Plan or Program referenced in
Addendum B.
2.3.2. DEATH. In the event that Executive dies during the Term, Company
-----
shall pay to his executors, legal representatives or administrators an amount
equal to the installment of his base pay set forth in Addendum B for the month
in which he dies, and thereafter Company shall have no further liability or
obligation pursuant to the Agreement to his executors, legal representatives,
administrators, heirs or assigns or any other person claiming under or through
him; provided however, that Executive's estate or designated beneficiaries shall
be entitled to receive (i) the payment prescribed for such recipients under any
death benefit plan which may be in effect for employees of the Company and in
which Executive participated and (ii) any unpaid accrued benefits owed to the
Executive in accordance with the terms of any Plan or Program referenced in
Addendum B.
ARTICLE 3-RESTRICTION ON THE USE OF CONFIDENTIAL INFORMATION
- ------------------------------------------------------------
3.1 SCOPE OF CONFIDENTIAL INFORMATION. Executive acknowledges that the Company,
---------------------------------
through AOP is engaged in the business of sales, servicing, renting and leasing
of copier equipment, facsimiles, micrographic equipment, computers, shredders,
offset printing, typewriters, laser printers, word processing equipment and
other related office products, the business of facilities management and state-
of-the-art copying and/or scanning operations, the ongoing development and
implementation of additional business segments providing outsourcing and
networking sales and services, and the growth through acquisitions of entities
engaged in any or all of the aforementioned businesses ("OP Division business").
Executive further recognizes that the Company's OP Division business and its
continued success depend upon the use and protection of a large body of
confidential and proprietary information. Executive further acknowledges that
he holds a position of trust and confidence by virtue of which he necessarily
possesses, has access to and, as a consequence of his signing this Agreement,
will continue to possess and have access to, highly valuable, confidential and
proprietary information not known to employees of the Company at large or the
public in general, and that it would be improper for him to make use of this
information for the benefit of himself or others. ALL OF SUCH CONFIDENTIAL AND
PROPRIETARY INFORMATION NOW EXISTING OR TO BE DEVELOPED IN THE FUTURE WILL BE
REFERRED TO IN THIS AGREEMENT AS "COMPANY SECRETS". Company and Executive
intend that the meaning of "Company Secrets" in this Agreement will be read as
broadly as possible to include all information of any sort (whether merely
remembered or embodied in a tangible medium) which (i) is related to OP Division
business or potential future business and (ii) is not generally and publicly
known. This includes, without specific limitation, information relating to the
nature and operation of the OP Division business, the persons, firms and
corporations which are customers or active prospects of the Company during
Executive's employment by the Company, the Company's development transition and
transformation plans, methodology and methods of doing business, strategic,
acquisition, marketing and expansion plans, including plans regarding planned
and potential acquisitions and sales, financial and business plans, employee
lists, numbers and location of sales representatives, new and existing programs
and services, support and those under development, prices and terms, customer
service, integration processes requirements, costs of providing service, support
and equipment and equipment maintenance costs.
3.2 EXECUTIVE'S DUTY NOT TO DISCLOSE CONFIDENTIAL INFORMATION. Executive will
---------------------------------------------------------
protect and preserve as confidential during his employment relationship with the
Company and at all times after the termination of the employment relationship,
all of the Company Secrets at any time known to Executive or at any time in
Executive's possession or control. Executive understands that this Agreement
includes an obligation not to disclose Company Secrets to employees within the
Company who do not have a right or need to know the Company Secrets.
Executive will, during his employment relationship with the Company and at all
times after the termination of the employment relationship, neither disclose,
use, nor allow any other person or entity to use in any way, except for the
benefit of the Company and as directed by the Company, any of the Company
Secrets.
3.3 RETURN OF CONFIDENTIAL INFORMATION. Executive will, prior to or upon
----------------------------------
leaving employment with the Company, deliver to the Company any and all records,
items and media of any type (including, without limitation, all partial or
complete copies of duplicates) containing or otherwise relating to any of the
Company Secrets, whether prepared or acquired by, or provided to, Executive.
Executive acknowledges that all such records, items and media are and at all
times will be and remain the property of Company.
Page 3 of 7
3.4 ADDITIONAL AGREEMENTS REQUIRED BY THIRD PARTIES. Executive will enter into
-----------------------------------------------
and comply fully with any agreement reasonably required by any of the Company's
affiliates, business partners, suppliers or contractors with respect to the
protection of the confidential and proprietary information of such entities.
3.5 SEVERABILITY. Executive understands that the obligations imposed under
------------
this Restriction on the Use of Confidential Information are in addition to, and
independent of, any Restriction on Post-Termination Employment imposed under
this Agreement or any previously executed agreement concerning post-termination
employment, impose separate and distinct obligations from the Restriction on
Post-Termination Employment, and may be valid even if the Restriction on Post-
Termination Employment is declared invalid, in whole or in part, in any judicial
or quasi-judicial forum.
ARTICLE 4-RESTRICTION ON POST-TERMINATION EMPLOYMENT
- ----------------------------------------------------
4.1 ACKNOWLEDGMENTS BY EXECUTIVE.
----------------------------
4.1.1. ACKNOWLEDGMENT OF PROTECTIBLE INTERESTS. Executive agrees that the
---------------------------------------
Company has a protectible interest in the Company Secrets, goodwill and
specialized knowledge acquired by Executive during the course of his employment
with Company.
4.1.2. ACKNOWLEDGMENT OF CONSIDERATION. Executive acknowledges that the
-------------------------------
provisions of this Article 4 are in consideration of the Company's change in his
employment status from that of an at-will employee to an employee subject to
discharge only for the reasons and under the terms and conditions set forth in
this Agreement, in consideration of: (1) a change in employment status from
employment-at-will to employment for a fixed period of time, subject to the
terms and conditions set forth below; (2) eligibility to participate in the
1995-1996 Long-Term Incentive Compensation Program in accordance with the
additional terms of that Program; and (3) additional good and valuable
consideration as set forth in Addendum B of this Agreement.
4.1.3. ABILITY TO EARN LIVELIHOOD. Executive expressly agrees and
---------------------------
acknowledges that the Restrictions contained in this Article 4 do not preclude
Executive from earning a livelihood, nor does it unreasonably impose limitations
on Executive's ability to earn a living. In addition, the Executive agrees and
acknowledges that the potential harm to the Company of its non-enforcement
outweighs any harm to the Executive of its enforcement by injunction or
otherwise.
4.2 POST-EMPLOYMENT RESTRICTIONS. Executive agrees that if Executive's
----------------------------
employment with the Company is terminated for any reason (whether by the
Company, by Executive or otherwise), the Executive will not, without the express
written consent of the Company, directly or indirectly, for a period of two (2)
years from the date of termination, in any capacity whatsoever, including either
as an employee, employer, officer, director, proprietor, partner, joint
venturer, consultant, stockholder (except for investments of no greater than 5%
of the total outstanding shares in any publicly funded company), on his behalf
or on behalf of any other entity:
(1) solicit, sell to, divert, serve, accept or receive business,
which is similar to, or competitive with, the OP Division Business, from
any entity which was a customer of AOP, or active prospect of AOP, during
the two (2) year period immediately preceding the termination of
Executive's employment, or
(2) engage or manage in any business which competes with the
Company's OP Division business in any geographical area in which Company
competes at the time of Executive's termination, or
(3) start-up, acquire, purchase, or work in any capacity whatsoever
for or on behalf of, any entity which has been identified as an actual or
potential acquisition of AOP during the two (2) year period immediately
preceding the termination of Executive's employment, or
(4) solicit, entice, or encourage any employee of the Company to
leave the Company or hire or employ any such employee, or
(5) Manage the business or a portion of the business, of any entity
engaged in a business which is similar to, or competitive with, the OP
Division business.
Page 4 of 7
4.3 SEVERABILITY. Executive understands that the obligations imposed under
------------
this Restriction on Post-Termination Employment are in addition to, and
independent of, any Restriction on the Use of Confidential Information imposed
under this Agreement and any previously executed agreement concerning post-
terminated employment, impose separate and distinct obligations from the
Restriction on the Use of Confidential Information, and may be valid even if the
Restriction on the Use of Confidential Information is declared invalid, in whole
or in part, in any judicial or quasi-judicial forum.
ARTICLE 5-REMEDIES FOR BREACH
- -----------------------------
5.1 INJUNCTIONS. In the event of a breach or threatened breach of any
-----------
provision of Articles 3 or 4 of this Agreement, Executive acknowledges and
agrees that the Company will suffer irreparable harm and further acknowledges
and agrees that the Company's remedies at law are inadequate, and that the
Company shall be entitled to an immediate injunction restraining such breach or
potential breach as well as other equitable relief; but nothing herein shall be
construed as prohibiting the Company from pursuing any other remedy available
for such breach or threatened breach.
5.2 RESTITUTION. Notwithstanding anything in this Agreement or any other
-----------
agreement between the parties to the contrary and in addition to any other
rights or remedies the Company may have, if at any time Executive (whether
during the Employment period or thereafter as provided herein) has violated any
of his obligations contained in Articles 3 and 4 above, then the obligation of
the Company to pay salary, vacation pay, bonus, incentive compensation or other
form of pay or compensation, shall terminate, and from and after such
termination neither the Executive, his beneficiary nor any of their legal
representatives or distributees shall have any right to receive any payment(s)
in connection therewith. In addition, in the event of such violation by
Executive, Executive agrees to immediately pay back any sums already paid by the
Company subsequent to the execution of this Agreement under the 1995-1996 Long-
Term Incentive Compensation Program offered by the Company, or any subsequent
Long-Term Incentive Compensation Program offered by the Company.
ARTICLE 6 -MISCELLANEOUS
- ------------------------
6.1 ARBITRATION. Except as permitted or provided in the foregoing Article 5, in
------------
the event Executive's employment is terminated, and Executive contends that such
termination was wrongful or otherwise in violation of his rights or privileges,
express or implied, whether founded in fact or in law, or any other rights or
privileges, or was in violation of any express or implied condition, term, or
covenant, whether founded in law or in fact, including but not limited to the
covenant of good faith and fair dealing, or otherwise in violation of law,
Executive and Company agree to submit the above-described disputed matter to
binding arbitration. Executive and Company further expressly agree that in any
such arbitration, the exclusive remedy which may be awarded by the arbitrator(s)
shall be limited to back pay owing up to and including the date the arbitration
award becomes final, and Executive agrees that he shall not be entitled to any
other remedy at law or in equity, including but not limited to general, special,
punitive or exemplary damages and/or injunctive relief.
6.2 REFORMATION. The provisions and covenants contained herein are intended to
-----------
be separate and divisible and if, for any reason, any one or more of such
provisions or covenants should be held to be invalid and unenforceable in whole
or in part, it is agreed that the same shall not be held to affect the validity
or enforceability of any other provisions and covenants of this Agreement. In
the event that any restriction set forth in this Agreement is determined by a
Court to be unenforceable with respect to scope, time or geographical coverage,
Executive agrees that such a restriction should be modified and narrowed so as
to provide the maximum protection of the Company's legally protectible interests
as described in this Agreement, and without negating or impairing any other
restrictions or agreements set forth herein.
6.3 REASONABLENESS. Executive acknowledges that he has carefully read this
--------------
Agreement and has given careful consideration to the restraints imposed upon the
Executive by this Agreement, and is in full accord as to their necessity for the
reasonable and proper protection of the Company's Secrets. The Executive
expressly acknowledges and agrees that each and every restraint imposed by this
Agreement is reasonable with respect to subject matter, time period and
geographical area.
6.4 MODIFICATION. The Parties agree that the Agreement may not be modified
------------
except by the mutual written consent of the Parties. Notwithstanding the
foregoing, the parties further agree that if a judicial or quasi-judicial entity
declares the agreement invalid in whole or in part, it may modify the terms of
the Agreement to give affect to the Agreement as modified.
6.5 SUCCESSORS AND ASSIGNS OF THE COMPANY. This Agreement shall bind Company
--------------------------------------
and Executive, and also all of their respective family members, heirs,
administrators, representatives, successors, assigns, officers, directors,
agents employees, shareholders, affiliates, predecessors, and also all other
persons, firms, corporations, associations, partnerships, and entities in
privity with or related to or affiliated with any such person, firm,
corporation, association, partnership or entity.
Page 5 of 7
6.6 SURVIVAL OF OBLIGATIONS AND PROVISIONS. Exercise of the Company's
--------------------------------------
termination rights according to the provisions of Articles 2.1, 2.2. and 2.3.1
shall not affect the Company's rights or the Executive's obligations under
Article 1.1.2 and Articles 3, 4, 5 or 6. The Parties acknowledge and agree that
the provisions within Article 1.1.2 and Articles 3, 4, 5 or 6 survive the
termination or expiration of this Agreement as well as the termination of
Executive's employment relationship with the Company.
6.7 AT-WILL PRESUMPTION. Upon completion of the Term of the Agreement, the
-------------------
Parties acknowledge and agree that any further employment with the Company shall
be in an at-will capacity and may be terminated at any time.
6.8 EXPENSES OF ENFORCEMENT. Executive shall be liable to, and will pay the
-----------------------
Company for all costs and expenses, including, but not limited to, reasonable
attorneys' fees, incurred by the Company in the successful enforcement in any
respect of any of its rights under this Agreement, whether in litigation or
otherwise.
6.9 ENTIRE AGREEMENT. The Executive acknowledges and agrees that this
----------------
Agreement, including Addendums A and B which are incorporated herein and made a
part of the Agreement, together with previously entered into specific agreements
entitled the Employment and Non-Competition Agreement dated September 30, 1983
executed by the Executive and the Alco Standard Corporation Confidentiality and
Patent Agreement executed by the Executive and constitute the entire agreement
between the Parties concerning the subject matter of this Agreement, and that
together they supersede and replace all prior agreements, whether written or
oral except the relevant benefit and compensation plans referred to elsewhere in
the Agreement, which are incorporated reference; there are no other agreements,
understandings, restrictions, warranties, or representations between the parties
relating to this subject matter. Executive hereby represents that, in signing
the Agreement, he has not relied upon any promise, representation, or any other
inducement that is not expressed herein.
6.10 APPLICABLE LAW. This Agreement, the construction of its terms, and the
--------------
interpretation of the parties' rights and duties shall be governed by and
construed according to the laws of the Commonwealth of Pennsylvania (the state
of the principal place of business of Alco) without regard to the choice of law
provisions of such law.
6.11 VENUE. The parties hereby agree that any lawsuit or proceeding instituted
-----
regarding this Agreement, its interpretation, enforcement or validity shall be
commenced in the Court of Common Pleas of Chester County, Pennsylvania, or in
the United States District Court for the Eastern District of Pennsylvania, and
the parties hereby consent to the personal jurisdiction over them of both
Courts.
6.12 NOTICES. All notices and other communications concerning this Agreement
-------
shall be in writing and must be given by postage prepaid, registered or
certified mail, as follows:
(a) If to the Company, to: (b) If to Executive, to:
P.O. Box 834 64 Ely Road
Valley Forge, PA 19482 Longmeadow, MA 01106
Attn: Law Department
6.13 UNDERSTANDING OF TERMS. Executive acknowledges that he has carefully
----------------------
reviewed the contents of this Agreement, understands its import and intent,
including the restrictions on post-termination employment it imposes, and that
he agrees to its terms without duress and in full and complete knowledge of its
effect.
6.14 WAIVER. No omission or delay on the part of either Party of due and
------
punctual fulfillment of any obligation shall be deemed to constitute a waiver by
the other Party of any of its rights to require such due and punctual
fulfillment of any other obligation hereunder, whether similar or otherwise, or
a waiver of any remedy it may have. Company's waiver of similar rights with
respect to any other employee shall not constitute a waiver of Company's rights
with respect to Executive.
Page 6 of 7
IN WITNESS HEREOF, the Parties have affixed their signatures to this Agreement
to be effective October 1, 1995.
WITNESS
/s/Sandra S. Dougall /s/ Peter W. Shoemaker
- -------------------------------- -----------------------------------
PETER W. SHOEMAKER
Date
ALCO STANDARD CORPORATION
/s/ Kurt E. Dinkelakcer
-----------------------------------
By: Kurt E. Dinkelacker
Title: Executive Vice President
Date January 26, 1996
ALCO OFFICE PRODUCTS
/s/ Kurt E. Dinkelakcer
-----------------------------------
By: Kurt E. Dinkelacker
Title: President
Date January 25, 1996
Page 7 of 7
EXHIBIT 10.25
AMENDMENT BETWEEN IKON OFFICE SOLUTIONS, INC.,
AS SUCCESSOR, AND PETER W. SHOEMAKER
TO 1995 EXECUTIVE EMPLOYMENT AGREEMENT
This is an amendment, effective February 1, 1998, to the Executive
Employment Agreement dated October 1, 1995 between ALCO STANDARD CORPORATION, an
Ohio corporation with its principal place of business in Pennsylvania, and its
operating division, Alco Office Products ("Predecessor Employer"), and PETER W.
SHOEMAKER ("Executive") ("the 1995 Agreement") with this amendment ("this
Amendment") having been entered into this 24th day of August, 1998.
The 1995 Agreement was assigned to and assumed by IKON OFFICE
SOLUTIONS, INC., an Ohio corporation ("IKON" or the "Company"), in connection
with the acquisition by IKON of certain property and assets of Predecessor
Employer.
In consideration of the mutual promises contained in this document and
intending to be legally bound hereto, the Parties agree that the 1995 Agreement
is amended as follows:
1. Duties of Position. IKON shall revise Executive's position
------------------
(Addendum A) and employ Executive as Senior Vice-President, IKON Business
Services, a division of IKON. The Parties expressly agree that the Executive's
revised duties and responsibilities are as set forth in the attached Addendum A,
which is incorporated as if fully set forth herein.
2. Term of Agreement. Fulltime employment of Executive under this
-----------------
Amendment shall extend through January 31, 2000 unless further extended by the
parties ("Extended Term"). The Initial Term and previously identified Extended
Term provisions set forth in the 1995 Agreement and Addendum B of the 1995
Agreement shall cease to have any force or effect, and shall be replaced and
superseded as follows:
(a) Paragraph 4 of this Amendment sets forth the compensation of
Executive during the Extended Term.
(b) Upon completion of the Extended Term herein as Senior Vice-
President, IKON Business Services, IKON agrees thereafter to employ Executive
(in an employee/consulting capacity) for an additional two (2) year period
("Post-Extended Term") beginning February 1, 2000 or at a later date if the
Extended Term has been extended. During the Post-Extended Term, Executive shall
be compensated at his Base (no additional bonus), together with continuing
vesting and all normal employee-related benefits. LTIP Programs to which
Executive is already a party to will continue to mature; however, Executive will
no longer be eligible for any newly created LTIP Programs or additional stock
option grants. In the event of inconsistent corporate policies or procedures,
conflicting Plan documents or any other cause or reason which prevents Executive
from realizing such employee-related benefits, IKON agrees to make up any
benefit shortfall to Executive by contributing a comparable amount to
Executive's Supplemental Employment Retirement Plan.
(c) It is understood that the employment/consulting services to be
rendered by Executive to IKON during the Post-Extended term will be of minimal
magnitude and not inconsistent with Executive being regularly engaged in other
employment or business activities. Such services shall nevertheless be of
special, unique, unusual, extraordinary and intellectual character, which shall
give said services a peculiar value, the loss of which may not be reasonably or
adequately compensated in damages in an action of law; and shall be at the
reasonable direction and control of the CEO or COO of IKON, or their successors
or assigns, subject to the preceding sentence.
-2-
3. Relocation Payment. As part of this Amendment, IKON further
------------------
agrees to pay Executive upon completion of the Extended Term a lump sum
relocation payment of Fifty Thousand Dollars ($50,000), reduced by required
withholding, if any, for relocation of his principal residence but only so long
as Executive (i) provides written notice to IKON of his intent to relocate
within sixty (60) days of his completion of the Extended Term and (ii) actually
moves within one (1) year of his completion of the Extended Term.
4. Compensation. Paragraph 1.3 and Addendum B of the 1995 Agreement
------------
are amended to provide (i) a Base Salary of Three Hundred Twenty-Five Thousand
Dollars ($325,000) per annum; and (ii) revised Bonus arrangements as set forth
in revised Addendum B which is attached to this Amendment.
5. Post-Employment Restrictions. The restrictions on Post-Employment
----------------------------
set forth in Paragraph 4.2 of Article 4 of the 1995 Agreement are amended to
substitute "IKON's North American Business" for the OP Division Business and
AOP, and such substitution shall be made for each reference in the 1995
Agreement to OP Division Business or AOP. Executive further agrees not to work
in any capacity whatsoever for Xerox Corporation, Canon or Danka Corporation.
6. Notices. All notices and other communications concerning the 1995
-------
Agreement or this Amendment shall be in writing and must be given postage
prepaid, registered or certified mail, by facsimile or by overnight delivery
service, as follows:
If to the Company, to: IKON Office Solutions, Inc.
70 Valley Stream Parkway
Malvern, PA 19355
Attention: CEO
If to the Executive, to: Peter W. Shoemaker
430 Inveraray Road
Villanova, PA 19085
-3-
7. Change of Control. Even though he is not an executive officer of
-----------------
the parent Company, IKON hereby agrees that Executive shall have the benefit of
IKON's change of control commitment to senior officers, which confers rights and
benefits upon executive employees in the event that a defined Change of Control
of IKON has occurred, the same as if Executive were a senior officer of the
parent Company, and the same as if that policy were fully set forth in this
Agreement. This paragraph is subject to approval by the parent company's Board
of Directors.
8. Additional Changes to 1995 Agreement.
------------------------------------
(a) The second sentence of paragraph 2.2 of the 1995 Agreement is
amended to read as follows:
"However, in such event, the Company shall be liable to
Executive for the compensation and benefits provided in this
Agreement for the Extended Term and Post-Extended Term."
9. Interpretation of Agreements. All terms and conditions set forth
----------------------------
in the 1995 Agreement shall remain in full force and effect unless revised and
superseded herein. If there are any inconsistencies between this Amendment and
the 1995 Agreement, this Amendment shall prevail. Addenda A and C of the 1995
Agreement are without further force or effect.
(remainder of this page intentionally left blank)
-4-
IN WITNESS WHEREOF, the Parties have affixed their signatures to this
Agreement this 24th day of August, 1998.
WITNESS:
- --------
/s/Anne Marie Fiumara /s/Peter W. Shoemaker
- --------------------- --------------------------------
Peter W. Shoemaker
IKON OFFICE SOLUTIONS, INC.
By:/s/James J. Forese
--------------------
Title: President and Chief Executive Officer
-------------------------------------
-5-
Revised Addendum A
[Beth Sexton to Finalize]
JOB TITLE: Senior Vice-President, IKON Business Services
JOB DESCRIPTION AND PRIMARY RESPONSIBILITIES:
REPORTS TO: CEO
SPECIFIC ACCOUNTABILITIES:
. Performance Responsibility for the thirteen (13) U.S. Districts of
Business Services.
. Responsibility for the marketing functions which relate to Business
Services.
. Responsibility for the re-manufacturing function which relate to
Business Services.
Initials: /s/PWS
--------
/s/JJF
--------
-6-
Revised Addendum B
Peter W. Shoemaker
TITLE: Senior Vice-President, Business Services
TERM - COMPENSATIONS ITEMS:
BASE SALARY: $325,000 per fiscal year
BONUS OPPORTUNITY: Up to maximum of 100% of Base Salary/fiscal year based
upon following:
. Up to a maximum of 25% based upon achievement of IKON's fiscal year
business objectives, pro rata.
. Up to a maximum of 25% based upon achievement of Business Services'
most recently revised fiscal year business plan objectives, pro
rata.
Note: For fiscal year 1998 only, the Transformation Bonus incentive
under Executive's former position (at former Base Salary level) was
earned and is therefore 100% guaranteed for the period October 1, 1997
through January 31, 1998, pro rata, totaling $83,334. The remainder
of Executive's fiscal year 1998 bonus opportunity (for the period
February 1, 1998 through September 30, 1998) pro rata, will be based
upon the following IKON Business Services business objectives:
. 25% of the eight (8) month's Bonus Opportunity (at
Executive's new Base Salary level) for the February 1, 1998
through September 30, 1998, time period, pro rata, will be
guaranteed, totaling $54,167.
. a the remaining $162,500 partial fiscal year bonus
opportunity (at Executive's new Base Salary level) will be
at risk and based upon Executive achieving the Business
Services' revised business plan objectives, copy of which is
attached.
[Kurt Dinkelacker to finalize and provide Business Services'
revised business plan objectives]
* Subsequent fiscal year(s) BONUS opportunity and objectives are to be
discussed and determined on a yearly basis.
OTHER COMPENSATION BENEFITS:
. CEO to recommend to Board of Directors at the July, 1998 Board
Meeting that Executive be included in the Change-of-Control program
that has previously been afforded to Corporate Officers.
-7-
Revised Addendum B
Peter W. Shoemaker
Page 2
EXTENDED TERM - COMPENSATION ITEMS
. THE EXTENDED TERM-COMPENSATION ITEMS HAVE BEEN SUPERSEDED AND
REPLACED WITH THE TERMS AND CONDITIONS MORE FULLY DESCRIBED IN
SECTION *1.2 OF THIS AMENDMENT.
*2 Initials /s/PWS
------
Initials: /s/PWS
------
/s/JJF
------
-8-