1
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of October 13, 1999, by and
between XPEDIOR INCORPORATED hereinafter referred to as "XPEDIOR," and J. Xxxxx
Xxxxxx, hereinafter referred to as "Employee".
In consideration of the mutual covenants and agreements hereinafter
set forth, the parties agree as follows:
1. OFFER AND ACCEPTANCE OF EMPLOYMENT. Employee's officer title shall
be Executive Vice President and Chief Operating Officer of XPEDIOR as of
October __, 1999 (the "Effective Date"). Employee agrees to accept such
employment and to perform the services specified herein, all upon the terms and
conditions hereinafter stated. Employee shall also serve on the XPEDIOR Board
of Directors ("the Board") and a key executive member of the XPEDIOR corporate
strategy council.
2. DUTIES. Employee agrees to discharge faithfully, diligently and to
the best of his ability during the term hereof the duties normally incidental
to the position of Executive Vice President and Chief Operating Officer of
XPEDIOR. Employee shall report to the Chief Executive Officer of XPEDIOR.
Employee's duties shall include, but not be limited to, oversight of XPEDIOR
operations and strategy development, with executive responsibility for meeting
XPEDIOR's overall operating expectations and direct operational responsibility
for North American revenues, profit, and operational quality. In this capacity,
Employee's direct reports will include North American regional executives and
practice executives, and his functional areas of responsibility will include
human resources, information technology, sales, and marketing. Employee agrees
to serve in such other capacity and perform such other executive duties as the
Chief Executive Officer or the Board may reasonably direct from time to time
and which are consistent with Employee's position and status. Employee agrees
that, during the term of this Agreement, Employee will devote Employee's entire
business time, skill, energy, knowledge and best efforts to the business and
affairs of XPEDIOR and that Employee will not engage, directly or indirectly,
in any other business interest or activities, whether or not similar to that of
XPEDIOR, except with the written consent of the XPEDIOR Board. Notwithstanding
the foregoing, Employee shall not be restricted from (a) serving on the board
of directors of not more than four (4) organizations or entities which do not
compete with XPEDIOR; or (b) engaging in any capacity for a not for profit
organization.
Employee shall be expected to commit whatever time is necessary for
the normal responsibilities of XPEDIOR management.
3. COMPENSATION. During the term of this Agreement, XPEDIOR agrees to
compensate the Employee and Employee agrees to accept the following amounts and
benefits:
3.1 Base Compensation. Employee shall receive a base cash
salary at the rate of Twenty Thousand Eight Hundred Thirty-Three Dollars and
Thirty-Three Cents ($20,833.33) per month--which would be equivalent to Two
Hundred Fifty Thousand Dollars and No Cents
2
($250,000.00) over the course of a twelve (12) month period--through the term
of this Agreement, provided however, that the parties are free to increase this
salary by mutual agreement in a writing executed by each of them. Such Base
Compensation will be reviewed from time to time by the Board's Compensation
Committee (the "Compensation Committee"), and the Compensation Committee, in
its sole discretion, may make appropriate adjustments. The compensation
received by Employee from time to time pursuant to this Section 3.1 shall be
hereinafter referred to as "Base Compensation." The Base Compensation
constitutes a gross amount and shall be paid in substantially equal
semi-monthly installments subject to such withholding and deductions as may
from time to time be legally required.
3.2 Bonus. Any incentive compensation plan in effect
immediately prior to the Effective Date of this Agreement shall be deemed
terminated as of the Effective Date, and payment of any compensation thereunder
shall be pro-rated to reflect the date of termination of such plan. Employee
shall also be eligible to receive a bonus for work performed from the Effective
Date through December 31, 1999 of up to Ninety-Three Thousand Seven Hundred
Fifty Dollars ($93,750.00) (less withholdings) based on the determination by
the Chief Executive Officer and Board that Employee has met or exceeded the
performance objectives set forth in Schedule A attached hereto and incorporated
herein by this reference. Thereafter, commencing with the year 2000, Employee
shall be eligible to receive an annual bonus (the "Incentive Bonus") of up to
one hundred fifty percent (150%) of the Base Compensation paid to Employee
under this Agreement the previous year based on Employee's meeting or exceeding
certain performance objectives. The performance objectives for the Incentive
Bonus for the year 2000 and for each subsequent calendar year shall be
mutually-agreed upon no later than March 31 of each calendar year. (In each of
these years, unless otherwise mutually agreed in writing, two thirds of the
Incentive Bonus will be based on meeting budgeted revenue expectations for the
budget year, and the remainder for meeting an additional target goal.) The
Chief Executive Officer and the Board shall determine whether Employee has met
or exceeded the performance objectives for each year. Incentive Bonuses will be
paid on or before March 31 of the year following the calendar year during which
the bonus criteria was achieved (the "Payout Date"), provided, however, that up
to 75% of the total Incentive Compensation will be advanced over one or more
quarterly payments if the Chief Executive Officer and the Board determine that
year-to-date performance is on track for meeting the established performance
objectives for that year. If Employee's employment terminates prior to the
Payout Date for any reason, XPEDIOR will pro-rate and pay Employee the amount
of unpaid portions of the Incentive Bonus. If Employee is advanced any part of
an Incentive Bonus in any year during the which the Chief Executive Officer and
Board ultimately determine that performance objectives were not met or
exceeded, then the amounts thus paid will be credited against the first dollars
otherwise to be paid in Incentive Bonus in subsequent years or credited against
any first dollars that may be owed to Employee by XPEDIOR, including payments
owed in consequence of a termination of this Agreement.
3.3 Benefits. Employee shall be entitled to participate in
any plan established by XPEDIOR, excluding any severance benefit plan that
would otherwise be applicable to Employee, to provide benefits to employees at
the time Employee meets the eligibility criteria established for each plan.
Employee shall be entitled to participate in the same benefits plans available
to other senior XPEDIOR executives after XPEDIOR is spun-off from Metamor
Worldwide, Inc.
-2-
3
3.4 Vacation. XPEDIOR's standard vacation policies shall
apply to Employee, provided however, that Employee shall be entitled to accrue
six and two-thirds hours vacation per semi-monthly pay period, which would
equal four (4) weeks of compensated vacation each year, to be taken at times
mutually agreed upon between Employee and the Chief Executive Officer. XPEDIOR
acknowledges that Employee currently has six (6) weeks of accrued, unused
vacation, and Employee agrees that Employee will not utilize more than two (2)
weeks of such accrued vacation at any one time, and further agrees to be
available by phone or e-mail during use of any such period of vacation. No more
than ten (10) weeks accrued, unused vacation may be carried over from one
calendar year to the next.
3.5. Stock Options. - Pursuant to a grant made on August 12,
1999, Employee shall receive options to purchase three hundred thousand
(300,000) shares of XPEDIOR common stock pursuant to an option agreement, and
provided further that, depending on the capitalization and independent
valuation of XPEDIOR, such number may be adjusted. In addition, subject to the
approval of the Compensation Committee of the Board, Employee shall be granted
options on the Effective Date to purchase one hundred thousand (100,000) shares
of XPEDIOR common stock pursuant to an option agreement, and provided further
that, depending on the capitalization and independent valuation of XPEDIOR,
such number may be adjusted. The terms of any stock options that may be granted
are subject to the terms of the Xpedior Stock Incentive Plan ("the Stock
Incentive Plan") and the Xpedior Incorporated 1999 Stock Incentive Plan
Nonstatutory Stock Option Agreement ("the Option Agreement") which must be
executed as a condition of eligibility to receive such options. In the event of
any conflict between the terms of this Agreement, the Option Agreement or any
other oral or written representation about stock options, on the one hand, and
the terms of the Stock Incentive Plan, on the other hand, the terms of the
latter document shall govern.
3.6. Withholding. The amounts payable to Employee pursuant to
this Section 3 constitute gross amounts and shall be subject to such
withholding and deductions as may be legally required.
3.7 Royalties. Nothing in this Agreement shall be interpreted
to prohibit Employee from receiving royalties or other payments or compensation
on the sales of any books that he has authored, co-authored, edited or
contributed to.
3.8 Attorneys' Fees. XPEDIOR shall pay the attorneys' fees
and costs billed by Employee's counsel in negotiating and documenting this
Agreement, up to a maximum of three thousand dollars ($3,000.00).
4. TERM AND TERMINATION OF EMPLOYMENT. Subject to earlier termination
as provided herein, XPEDIOR and Employee agree that the term of this Agreement
shall commence on the Effective Date and continue until two years from the
Effective Date (the "Term"), after which time this Agreement shall
automatically renew for an additional one (1) year term unless notice of
non-renewal is provided by either party to the other in writing thirty (30)
days prior to the end of the Term. XPEDIOR or Employee, as the case may be,
shall have the right to terminate employment under this Agreement at any time
for any of the following reasons:
-3-
4
(a) Termination Upon Death or Total Disability. In the event
of Employee's death during the Term of this Agreement, this Agreement will
terminate upon the first day of the month following Employee's date of death.
XPEDIOR may terminate this Agreement by reason of "Total Disability" upon at
least thirty (30) days' notice to Employee. As used herein, "Total Disability"
means illness or other physical or mental disability of Employee which shall
continue for a period of at least six (6) months in the aggregate during any
twelve (12) month period during the term of this Agreement, which such illness
or disability shall make it impossible or impracticable for Employee to perform
any of Employee's duties and responsibilities hereunder with whatever
reasonable accommodation may be required by applicable law. If a disagreement
arises between Employee and XPEDIOR as to whether Employee is suffering from
"Total Disability," as defined herein, the question of Employee's disability
shall be determined by a physician designated by a majority of the XPEDIOR
Board. In the event of Employee's death, XPEDIOR shall pay Employee's heirs, in
one lump sum, twelve (12) months' of Base Compensation plus an amount equal to
the most recent incentive bonus paid to Employee in return for Employee's heirs
executing a full release of all claims against they or Employee's estate may
have against XPEDIOR and its affiliates, predecessors, parents, subsidiaries,
and their directors, officers, employees, agents and attorneys. In the event of
Employee's Total Disability, XPEDIOR shall pay Employee, in one lump sum,
twelve (12) months' of Base Compensation in return for Employee's executing a
full release of all claims against XPEDIOR and its affiliates, predecessors,
parents, subsidiaries, and their directors, officers, employees, agents and
attorneys.
(b) Termination For Cause. Prior to the end of the Term of
this Agreement, XPEDIOR, upon ten (10) days' prior written notice to Employee,
may discharge Employee for Cause and terminate this Agreement without any
further liability hereunder to Employee or his estate, other than the
obligation to pay to Employee his base salary accrued to the date of
termination and accrued vacation. For purposes of this Agreement, a discharge
for "Cause" shall mean a discharge resulting from a determination by the Board
that Employee:
(i) has failed to diligently perform the material
duties assigned to Employee under this Agreement or to have abandoned
Employee's assigned job duties and not to have remedied the situation
within a reasonable period of time after receipt of written notice
from XPEDIOR specifying the failure;
(ii) has failed to abide by XPEDIOR's policies,
rules, procedures or directives and not to have remedied the situation
within a reasonable period of time after receipt of written notice
specifying the failure;
(iii) has acted in a grossly negligent manner, or
has engaged in reckless or willful misconduct with respect to XPEDIOR
which results or could have resulted in material harm to XPEDIOR's
standing among customers, suppliers, employees and other business
relationships;
(iv) has been found guilty by a court of law of
fraud, dishonesty and/or a felony crime, or any other crime involving
moral turpitude;
-4-
5
(v) has engaged in employee misconduct, including
but not limited to, breach of fiduciary duty, theft, fraud,
dishonesty, embezzlement, violation of securities laws, violation of
employment-related laws (including but not limited to laws prohibiting
discrimination in employment), violation of non-competition,
non-solicitation or confidentiality obligations or this Agreement,
falsification of employment applications or other business records,
insubordination, habitual absenteeism or tardiness, or unethical
activity or has failed to immediately disclose a Conflict of Interest
as defined in Section 7.
(vi) fails to agree to and execute any written
amendment to any part or all of Sections 6-13 of this Agreement,
within thirty (30) days of receipt of the XPEDIOR COMPANIES' (as
defined herein) written request, provided said requested amendment
revises said Sections to conform with applicable law, and provided
further, that said requested amendment does not expand the time or
geographic limits set forth herein.
In making any determination described above, the Board must act in good faith.
Notwithstanding the foregoing, Employee shall in no event be deemed to have
been discharged for Cause unless and until there shall have been delivered to
Employee a termination notice in the form of a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the entire
membership of the Board (excluding Employee, if applicable).
(c) Termination Without Cause; Constructive Termination;
Non-Renewal. Prior to the end of the Term of this Agreement, XPEDIOR, upon
written notice to Employee, may discharge Employee without Cause and terminate
this Agreement, such termination to be effective upon the date as specified in
said notice. In the event XPEDIOR terminates Employee without Cause or Employee
is Constructively Terminated, XPEDIOR shall pay Employee an amount equal to
twenty-four times (24) times Employee's then monthly base compensation (less
legally-required withholdings) and an amount sufficient to provide for one (1)
year of COBRA coverage, in return for Employee executing a termination of
employment agreement which contains a full release of all claims against
XPEDIOR and its affiliates, predecessors, parents, subsidiaries, and their
directors, officers, employees, agents and attorneys. In the event XPEDIOR
declines to renew this Agreement, XPEDIOR shall pay Employee an amount equal to
twelve (12) times Employee's then monthly base compensation (less
legally-required withholdings) and an amount sufficient to provide for one (1)
year of COBRA coverage in return for Employee executing a termination of
employment agreement which contains a full release of all claims against
XPEDIOR and its affiliates, predecessors, parents, subsidiaries, and their
directors, officers, employees, agents and attorneys. For purposes of this
Agreement, "Constructively Terminated" or "Constructive Termination" shall mean
the occurrence of any of the following events without Employee's express
written consent:
(i) A substantial and adverse change in the
Employee's duties, control, authority, status or position with
XPEDIOR, or the assignment to the Employee of any duties or
responsibilities which are materially inconsistent with such status or
position, or a material reduction in the duties and responsibilities
previously exercised by the Employee, or a loss of title, loss of
office, loss of
-5-
6
significant authority, power or control, or any removal of him from
or any failure to reappoint or reelect him to such positions, except
in connection with the termination of his employment for Cause or
Total Disability, or as a result of Employee's death;
(ii) Any reduction by XPEDIOR in Employee's Base
Compensation unless such reduction shall also apply to similarly
situated executives of XPEDIOR and does not exceed ten percent (10%)
per year (unless otherwise agreed to in writing by Employee);
(iii) Any material breach by XPEDIOR of any
provision of this Agreement;
(iv) A material increase in the amount of travel
required by XPEDIOR of Employee to perform Employee's duties; or
(v) Ownership by Metamor Worldwide, Inc., and/or its
parents, affiliates or subsidiaries of the majority of XPEDIOR common
stock on the second anniversary of the Effective Date, provided that
Employee notifies XPEDIOR of his intention to resign within ninety
(90) days following such anniversary.
(d) Resignation. Should Employee, at any time during the term
of this Agreement, desire to resign his employment, Employee shall submit
notice of his proposed resignation to the Board at least thirty (30) days prior
to the intended effective date thereof. This notice period may be waived by the
Board in its sole discretion. XPEDIOR will have no further obligation if
Employee resigns other than to pay Employee for compensation already earned
including any obligation under any applicable benefit plan, including accrued
vacation pay, to make the pro-rated bonus payment referenced in Section 3.2 of
this Agreement, and to make COBRA coverage available. Employee understands that
Employee will still be subject to the Sections 6, 8, 9 and 10 of this
Agreement.
All amounts described in this Section shall be subject to
legally-required withholdings.
5. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent, postage prepaid, by
certified or registered mail, return-receipt requested (a) to Employee at 000
X. Xxxxxx Xxx., Xxx Xxxx, XX 00000 and (b) to XPEDIOR at 0000 Xxxx Xxx Xxxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: General Counsel, or (c) to other
such address as either party shall designate by written notice to the other
party.
6. CONFIDENTIAL INFORMATION. Employee acknowledges that in the course
of his employment by XPEDIOR, XPEDIOR will provide him with certain
confidential information and knowledge concerning the operations of XPEDIOR and
Metamor Worldwide, Inc. and their affiliates and subsidiaries (hereinafter
individually and collectively referred to as
-6-
7
"the XPEDIOR COMPANIES") which the XPEDIOR COMPANIES desire to protect. This
confidential information shall include, but not be limited to:
(i) terms and conditions of and the identity of the
parties to the XPEDIOR COMPANIES' agreements with
their clients and suppliers, including but not
limited to price information;
(ii) management systems, policies or procedures,
including the contents of related forms and manuals;
(iii) professional advice rendered or taken by the XPEDIOR
COMPANIES;
(iv) the XPEDIOR COMPANIES' own financial data, business
and management information, strategies and plans and
internal practices and procedures, including but not
limited to internal financial records, statements
and information, cost reports or other financial
information;
(v) proprietary software, systems and technology-related
methodologies of the XPEDIOR COMPANIES and their
clients;
(vi) salary, bonus and other personnel information
relating to the XPEDIOR COMPANIES' personnel;
(vii) the XPEDIOR COMPANIES' business and management
development plans, including but not limited to
proposed or actual plans regarding acquisitions
(including the identity of any acquisition
contacts), divestitures, asset sales, and mergers;
(viii) decisions and deliberations of the XPEDIOR
COMPANIES' committees or boards;
(ix) litigation, disputes, or investigations to which the
XPEDIOR COMPANIES may be party and legal advice
provided to Employee on behalf of the XPEDIOR
COMPANIES in the course of Employee's employment;
and
(x) the particular information technology needs and
concerns of the XPEDIOR COMPANIES' customers,
clients and active prospects.
Employee understands that such information is confidential, and he agrees not
to reveal such information to anyone outside the XPEDIOR COMPANIES so long as
the confidential or secret nature of such information shall continue. Employee
further agrees that he will at no time use such information in competing with
the XPEDIOR COMPANIES. At such time as Employee shall cease to be employed by
XPEDIOR, he will surrender to XPEDIOR all papers, documents, writings and other
property produced by him or coming into his possession by or through his
employment and relating to the information referred to in this paragraph, and
Employee agrees
-7-
8
that all such materials will at all times remain the property of the XPEDIOR
COMPANIES.
7. CONFLICTS OF INTEREST. Subject to the provisions of Section 2
above, in keeping with Employee's fiduciary duties to the XPEDIOR COMPANIES,
Employee agrees that he shall not, acting alone or in conjunction with others,
directly or indirectly, become involved in a conflict of interest, or upon
discovery thereof, allow such a conflict to continue. Moreover, Employee agrees
that he shall disclose to the Board any facts which might involve any
reasonable possibility of a conflict of interest.
It is agreed that a direct or indirect interest in, connection with,
or benefit from any outside activities, particularly commercial activities,
which interest might in any way adversely affect the XPEDIOR COMPANIES involves
a possible conflict of interest. Circumstances in which a conflict of interest
on the part of Employee would or might arise, and which should be reported
immediately by Employee to the Board, include, but are not limited to the
following:
(i) Ownership of a material interest in any supplier,
contractor, subcontractor, or other entity with
which the XPEDIOR COMPANIES do business;
(ii) Acting in any capacity including director, officer,
partner, consultant, employee, distributor, agent or
the like, for suppliers, contractors,
subcontractors, or other entities with which the
XPEDIOR COMPANIES do business;
(iii) Acceptance, directly or indirectly, of payments,
services or loans from a supplier, contractor,
subcontractor, or other entity with which the entity
does business, including but not limited to, gifts,
trips, entertainment, or other favors, of more than
a nominal interest;
(iv) Misuse of information or facilities of the XPEDIOR
COMPANIES to which Employee has access in a manner
which will be detrimental to the XPEDIOR COMPANIES'
interest, such as, utilization for Employee's own
benefit of know-how or information developed through
the XPEDIOR COMPANIES' business or research
activities;
(v) Disclosure or other misuse of information of any
kind obtained through Employee's connection with the
XPEDIOR COMPANIES;
(vi) Acquiring or trading in, directly or indirectly,
other properties or interests connected with the
services provided by the XPEDIOR COMPANIES;
(vii) The appropriation by Employee or diversion to
others, directly or indirectly, of any business
opportunity in which it is known or could reasonably
be anticipated that the XPEDIOR COMPANIES would be
interested; and
(viii) The ownership, directly or indirectly, of a material
interest in an enterprise
-8-
9
in competition with the XPEDIOR COMPANIES or acting
as a director, officer, partner, consultant,
employee or agent of any enterprise which is in
competition with the XPEDIOR COMPANIES.
Nothing contained in this Agreement shall prohibit Employee from owing
no more than one percent (1%) of the publicly traded capital stock or
possessing greater than a one percent (1%) ownership interest in any company.
8. NON-COMPETITION. In return for the consideration stated in this
Agreement, including the promise of XPEDIOR to provide Employee with
confidential information, Employee agrees that, during Employee's employment
and for one (1) year after the termination of Employee's employment, Employee
shall not directly or indirectly possess an ownership interest in, manage,
control, participate in, consult with, or render services for any other person,
firm, association or corporation, engaged the XPEDIOR COMPANIES' business in
any geographic area where the XPEDIOR COMPANIES are conducting business without
the prior written consent of XPEDIOR. The term "conducting business" is defined
to mean the geographic area within a twenty-five (25) mile radius of any client
of the XPEDIOR COMPANIES as of the date of the termination of Employee's
employment and the six (6) month period preceding that date.
Employee agrees that Employee shall not, either directly or
indirectly, during Employee's employment and for one (1) year after termination
of employment, in any capacity whatsoever (either as an employee, officer,
director, stockholder, proprietor, partner, joint venturer, consultant or
otherwise) (a) solicit, contact, call upon, communicate with, or attempt to
communicate with any of the XPEDIOR COMPANIES' clients for the purpose of
providing services to such client, or (b) sell any services to any client of
the XPEDIOR COMPANIES. For the purposes of this paragraph, "services" shall
mean activities performed by the XPEDIOR COMPANIES at any time within the one
(1) year period preceding termination of Employee's employment. For the
purposes of this Agreement, "client" shall be defined as those entities with
which the XPEDIOR COMPANIES have conducted any business during the twelve (12)
month period prior to termination of the employment relationship.
Employee agrees that during Employee's employment, Employee shall not
directly or indirectly, on behalf of anyone other than the XPEDIOR COMPANIES,
either alone or in conjunction with any other person or entity, employ,
solicit, induce, or recruit, any person then employed by the XPEDIOR COMPANIES
or employed at any time during the immediately preceding one (1) year period.
Employee agrees that for a period of two (2) years after termination of
employment, Employee shall not directly or indirectly, either alone or in
conjunction with any other person or entity, employ, solicit, induce, or
recruit, any person who is employed by the XPEDIOR COMPANIES as of the date
Employee's employment is terminated or at any time during the one (1) period
immediately preceding Employee's termination.
Employee agrees that it is his intention that any restriction
contained in this section that is determined to be unenforceable be modified by
any court having jurisdiction to be reasonable and enforceable, and, as
modified, to be fully enforced.
-9-
10
9. SPECIFIC PERFORMANCE. Employee acknowledges that a remedy at law
for any breach or attempted breach of Sections 6, 7 and 8 of this Agreement
will be inadequate, agrees that the XPEDIOR COMPANIES may be entitled to
specific performance and injunctive and other equitable relief in case of any
such breach or attempted breach, and further agrees to waive any requirement
for the securing or purchasing of any bond in connection with the obtaining of
any such injunctive or any other equitable relief.
10. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, the breach thereof, Employee's employment with XPEDIOR, or
the termination thereof, whether arising during or after the period of
employment or under statute, common law or otherwise, except for the injunctive
relief described in Section 9 of this Agreement, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (AAA), and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
location of such arbitration shall be Chicago, Illinois. To select an
arbitrator, each party shall strike a name from the list submitted by AAA with
the grieving party striking first. The arbitrator shall not have the power to
add to or ignore any of the terms and conditions of this Agreement. His
decision shall not go beyond what is necessary for the interpretation and
application of this Agreement and obligations of the parties under this
Agreement. Cost of such arbitration, but not attorney's fees, will be paid by
the losing party.
11. BINDING EFFECT. This Agreement shall be binding upon all
successors and assigns of XPEDIOR. The obligations of Employee under this
Agreement are personal and may not be assigned.
12. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed for all purposes by the laws of the State of Illinois.
13. SEVERABILITY. In case any term, phrase, clause, paragraph,
section, restriction, covenant or agreement contained in this Agreement shall
be held to be invalid or unenforceable, the same shall be deemed, and it is
hereby agreed that same is meant to be, severable, and such invalidity or
unenforceability shall not defeat or impair the remaining provisions hereof.
14. WAIVER OF BREACH. The waiver by either party hereto of a breach of
any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach of such breaching party.
15. ENTIRE AGREEMENT; SURVIVAL. This Agreement supersedes, replaces
and merges all previous agreements and discussions relating to the same or
similar subject matters between Employee and XPEDIOR and constitutes the entire
Agreement between Employee and XPEDIOR with respect to the subject matter of
this Agreement. Employee acknowledges and agrees that he has not relied on any
representations not contained herein, which may have been made to Employee by
any representative of the XPEDIOR COMPANIES, including but not limited to
representations about the XPEDIOR COMPANIES or terms of employment.
Notwithstanding anything else contained in this Agreement, the provisions of
Sections 5-16 of this Agreement shall survive termination of this Agreement.
-10-
11
16. MODIFICATION. This Agreement may not be changed or terminated
orally, and no change, termination, or waiver of this Agreement or of any of
the provisions herein contained shall be binding unless made in writing and
signed by both parties, and in the case of XPEDIOR, by the Chief Executive
Officer of XPEDIOR.
In witness whereof, the parties hereto have affixed their signatures
to this Agreement on the dates stated below, this Agreement to be effective as
of the Effective Date.
XPEDIOR INCORPORATED
/s/ J. Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------------- ---------------------------------
J. Xxxxx Xxxxxx Xxxxx X. Xxxxxxxx
Chief Executive Officer
Date: October 13, 1999 Date: October 13, 1999
12
SCHEDULE A TO J. XXXXX XXXXXX EMPLOYMENT AGREEMENT
SCHEDULE A
For the final quarter of 1999 (Q4 1999), J. Xxxxx Xxxxxx (hereinafter,
"Employee") and XPEDIOR have agreed to the following performance goals in
connection with the terms of the Q4 1999 Incentive Bonus, as set forth in the
Agreement to which this document is Schedule A:
I. One third of the Incentive Bonus (50% of pro-rated base compensation
for Q4 1999) will be earned if XPEDIOR recognizes, in accordance with
its standard accounting practices, net revenue for Q4 1999 of
$40,702,000 or better.
II. One third of the Incentive Bonus (50% of pro-rated base compensation
for Q4 1999) will be earned if XPEDIOR recognizes, in accordance with
its standard accounting practices, Q4 1999 earnings before interest,
taxes, depreciation, and amortization (EBITDA) of ($2,387,000) or
better.
III. One third of the Incentive Bonus (50% of pro-rated base compensation
for Q4 1999) will be earned if all of the following conditions are
satisfied during Q4 1999:
1. Employee has earned two thirds of the Incentive Bonus by meeting
the net revenue and EBITDA goals set forth above in paragraphs I
and II.
2. An employment agreement between XPEDIOR and Xxxxxx Xxxxxx is
fully executed by November 15, 1999.
3. An employment agreement between XPEDIOR and Xxxxx Xxxxxxx is
fully executed by November 15, 1999.
4. In connection with the public offering of shares of common
stock of XPEDIOR (the "IPO"), a registration statement is
properly filed by January 1, 2000, with the Securities and
Exchange Commission.
5. Following the IPO but before January 1, 2000, Employee
participates and assists in the creation of a high quality
roadshow. Whether the roadshow is "high quality" is to be
determined solely by, and in the complete discretion of, the
Chief Executive Officer and the Board.
6. The following executive positions have been filled by January 1,
2000: Human Resources, Chief Information Officer, National
Service Line Manager, and Strategy Practice Leader.
IV. In the event the conditions of paragraph III above are not wholly
satisfied, the Chief Executive Officer and the XPEDIOR Compensation
Committee may elect in their complete discretion to pay Employee none
or some part of the remaining unearned amount of the Incentive Bonus,
commensurate with Employee's efforts in reaching these goals, and the
degree of success attained, during Q4 1999; provided, however, that
all conditions of paragraphs I and II must be satisfied, and two
thirds of the Incentive Bonus thus earned, before any partial payments
may be made under this paragraph IV.
