Exhibit 10.28
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Consulting Agreement") is made
effective the 8th day of June, 1998 and is entered into on the 5th day of
November, 1998, by and Digital Teleport, Inc., a Missouri corporation (the
"Company"), and Xxxxx X. Xxxxxx ("Consultant" or "Xxxxxx").
WITNESSETH:
WHEREAS, the Company wishes to retain Consultant and Consultant
wishes to be retained by Company on the terms set forth herein;
WHEREAS, this Consulting Agreement shall be converted into an
employment agreement at the time specified herein;
WHEREAS, certain provisions herein shall not be applicable until
this Consulting Agreement is converted into an employment agreement.
WHEREAS, the Company is a wholly-owned subsidiary of DTI
Holdings, Inc. ("Holdings");
NOW, THEREFORE, in consideration of the mutual promises
hereinafter set forth, it is hereby agreed as follows:
1. Engagement. Consultant is hereby engaged as a consultant to
the Company. The term of Consultant's services to the Company shall commence on
June 6, 1998 and shall end on October 10, 1998, unless earlier terminated as
provided herein (the "Consulting Period"). The term of the employment agreement
into which this Consulting Agreement shall be converted ("Employment Agreement")
shall commence upon the termination of the Consulting Period, and shall
terminate upon the third anniversary of the commencement of the Consulting
Period (the "Employment Period").
2. Services and Duties.
(a) Consulting Services. During the Consulting Period,
Consultant shall perform such consulting services as Company requests in the
area of network operations by the Company and any other services as Company and
Consultant mutually agree ("Consulting Services"). During the Consulting Term,
Consultant shall devote such time, attention, skill, energy and efforts as may
be necessary for the faithful performance of the Consulting Services. Consultant
shall have the title "Vice President Network Operations" of the Company.
(b) Duties. During the Employment Period, Xxxxxx shall serve
in a full-time capacity with the title Vice President Network Operations (which
area of responsibilities may be modified from time to time by the Company's
President) with the Company or the business of the Company as presently
conducted and as said business may evolve during the Employment Period on a
full-time basis. During the Employment Period, Xxxxxx shall devote such time,
attention, skill, energy and efforts as may be necessary for the faithful
performance of duties assigned to Xxxxxx.
3. Compensation.
(a) The Company shall pay Consultant $3,077 a week spent
performing Consulting Services.
(b) Consultant shall be paid $25,000 upon the execution of
this Consulting Agreement.
(c) Consultant shall be reimbursed by the Company for his
reasonable expenses for travel from his home in Dallas, Texas on Company
business, including without limitation travel to the Company's headquarters in
St. Louis, Missouri and his reasonable living expenses while in St. Louis on
Company business, in accordance with the Company's general reimbursement
policies.
(d) If Xxxxxx moves his household from Dallas, Texas to St.
Louis, Xxxxxx shall be entitled to receive from the Company reimbursement for
the relocation expenses set forth in Exhibit B (the "Relocation Expenses"). With
respect to the Relocation Expenses listed in paragraphs (a), (b) and (c) in
Exhibit B, reimbursement shall be made to Xxxxxx only for actual expenses
incurred, as evidenced in writing in form reasonably acceptable to the Company.
In the event Xxxxxx voluntarily terminates his services under the Consulting
Agreement or Employment Agreement prior to the one-year anniversary hereof,
Xxxxxx shall reimburse the Company an amount equal to the Relocation Expenses,
other than those specified in paragraphs (c) and (d) of Exhibit B.
(e) During the Employment Period, the Company shall pay Xxxxxx
as compensation for his services during the Employment Period, a base salary
(the "Base Salary") at a rate of One hundred and Seventy Five thousand Dollars
($175,000) per year, such Base Salary to be payable in accordance with the
Company's usual payment practices. Additionally, Xxxxxx shall be entitled to
participate in all of the Company's employee benefit plans generally available
to employees of the Company.
(f) Xxxxxx will receive a grant of options to purchase 300,000
shares of Holdings' outstanding common stock. The grant date shall be as soon as
reasonably practicable following the commencement of the Employment Period, not
to exceed four (4) months. Such options shall be have the features set forth in
Exhibit A hereto.
(g) Xxxxxx will be eligible for a bonus on June 6, 1998, June
6, 1999 and June 6, 2000, of up to one-third of his Base Salary. Such incentive
compensation shall be guaranteed for the first such bonus in an amount of
$58,333, and subsequent incentive compensation shall be payable in the sole and
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absolute discretion of the Company. Any such incentive compensation shall be
payable within four weeks following the dates set forth in the first sentence of
this Section 3(g).
(h) All compensation shall be subject to customary withholding
taxes and other employment and usage taxes as required with respect thereto.
4. Termination of Employment. During the Employment Period,
the Employment Agreement and Xxxxxx'x employment may be terminated by the
Company as follows:
(a) Upon thirty (30) days prior written notice to Xxxxxx in
the event Xxxxxx becomes disabled. In the event of a disagreement concerning the
existence of any such disability, the matter shall be resolved by a
disinterested licensed physician chosen by the Company.
(b) At the election of the Company, for "Cause" immediately
upon notice by the Company to Xxxxxx. For the purposes of this Employment
Agreement, "Cause" shall mean:
(i) willful or prolonged absence from work by Xxxxxx
(other than by reason of disability due to physical or mental illness) or
failure, neglect or refusal by Xxxxxx to perform his duties and responsibilities
under the Employment Agreement;
(ii) material breach by Xxxxxx of any of the covenants
contained in the Employment Agreement;
(iii) Xxxxxx'x commission of fraud or dishonesty against
the Company or willful misfeasance or nonfeasance of duty intended to injure or
having the effect of injuring the reputation, business or business relationships
of the Company, its subsidiaries or affiliates or their respective officers,
directors or employees; or
(iv) upon a charge by a governmental entity against Xxxxxx
of any crime involving moral turpitude or which could reflect unfavorably upon
the Company or upon the filing of any civil action involving a charge of
embezzlement, theft, fraud or other similar act.
(c) For any other cause or without cause, upon written notice
to Xxxxxx.
Upon termination of the Employment Agreement, all rights and
obligations of the parties hereunder shall cease, except: (i) if the Employment
Agreement is terminated without cause pursuant to Subsection (c) above prior to
the end of the Employment Period, Xxxxxx shall receive all of his or her Base
Salary for the remainder of such Employment Period; and (ii) termination of
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employment pursuant to this Section 5 or otherwise shall not terminate or
otherwise affect the rights and obligations of the parties pursuant to Sections
6, 7 and 9 through 13 of the Employment Agreement.
Nothing contained herein will be construed to prevent Xxxxxx
from seeking or obtaining other employment in the event the employment of Xxxxxx
is terminated by the Company without cause.
5. Change of Control.
(a) Following the beginning of the Employment Period, if (i)
the Company terminates Xxxxxx'x employment without Cause during the period
commencing with the date of a Change of Control (as hereinafter defined) and
ending twelve months following the Change of Control (the "Change of Control
Period"), or (ii) the Company terminates Xxxxxx'x employment without Cause
within three months prior to a Change of Control unless such termination was not
in connection with or not in anticipation of a Change of Control, Xxxxxx shall
be entitled to receive as compensation Change of Control Payments (as
hereinafter defined) and such Change of Control Payments shall be in lieu of any
other payments described in Section 4 herein. Notwithstanding anything to the
contrary contained herein, nothing in the Employment Agreement shall relieve the
Company of its obligation of providing Xxxxxx with all retirement and deferred
compensation benefits in accordance with the terms of all retirement and
deferred compensation plans in which Xxxxxx participates.
(b) The term "Change of Control" for purposes of this section
shall mean:
(i) any "person" (within the meaning of the Securities
Exchange Act of 1934 (the "Exchange Act"), becomes the beneficial owner of more
than fifty percent (50%) of Holdings then outstanding voting securities (other
than as a result of any sale by KLT Telecom Inc. of voting securities in
Holdings or change of ownership of KLT Telecom Inc.);
(ii) the shareholders of Holdings approve a definitive
agreement of merger or consolidation with any other business entity other than a
merger or consolidation that would result in the voting securities of Holdings
outstanding immediately prior to the consummation of the merger or consolidation
continuing to represent (either by remaining outstanding or being converted into
voting securities of the surviving entity) at least fifty percent (50%) of the
combined voting power of the voting securities of the surviving entity of such
merger or consolidation outstanding immediately after such merger or
consolidation (provided that if such agreement is terminated prior to
consummation of such merger or consolidation, a change of control shall be
deemed not to have happened for purposes of the Employment Agreement if Xxxxxx
has not been previously terminated); or
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(iii) the shareholders of Holdings approve a plan of
complete liquidation or dissolution of Holdings or an agreement for the sale or
disposition by Holdings of all or substantially all of the assets of Holdings
(provided that if such plan is terminated prior to such liquidation or
dissolution, or if such agreement is terminated prior to the consummation of
such sale or disposition, a change of control shall be deemed not to have
happened for purposes of the Employment Agreement if Xxxxxx has not been
previously terminated).
Notwithstanding the foregoing, in no event shall an initial public offering of
Holdings, or an increase in the ownership of shares of voting securities by any
shareholder of Holdings who beneficially owns shares of voting securities as of
the date of the Consulting Agreement, be considered a Change of Control.
(c) The term "Change of Control Payments" shall mean the
greater of:
(i) Xxxxxx'x Base Salary for the remainder of the
Employment Period, plus an amount equal to the simple average of performance
bonuses previously paid to Xxxxxx, prorated to the end of the Employment Period;
or
(ii) an amount equal to Xxxxxx'x Base Salary for one year.
6. Third-Party Confidentiality. Xxxxxx shall not disclose to
the Company or induce the Company to use any secret or confidential information
belonging to persons not affiliated with the Company. Xxxxxx acknowledges that
the Company has disclosed that the Company is now, and may be in the future,
subject to duties to third parties to maintain information in confidence and
secrecy. Xxxxxx agrees to be bound by any such duty owed by the Company to any
third party.
7. Inventions, Etc.; Confidentiality
(a) Any and all ideas, inventions, discoveries, patents,
patent applications, continuation-in-part patent applications, divisional patent
applications, technology, copyrights, derivative works, trademarks, service
marks, improvements, trade secrets and the like ("Invention"), which are
developed, conceived, created, discovered, learned, produced and/or otherwise
generated by Xxxxxx, whether individually or otherwise, during the Consulting
Period or the Employment Period, whether or not during working hours, that
relate to (i) the business and/or activities of the Company, (ii) the Company's
anticipated research or development, or (iii) any work performed by Xxxxxx for
the Company, shall be the sole and exclusive property of the Company, and the
Company shall own any and all right, title and interest to such property. Xxxxxx
assigns and agrees to assign to the Company any and all right, title and
interest in and to any such Inventions, whenever requested to do so by the
Company, at the Company's expense, and Xxxxxx agrees to execute any and all
applications, assignments or other instruments which the Company deems desirable
or necessary to protect such interests.
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(b) Section 8(a) shall not apply to any Invention (1) for
which no equipment, supplies, facilities, or confidential and trade secret
information of the Company was used and which was developed entirely on the
Xxxxxx'x own time, unless (i) the Invention relates (A) to the Company's
business or (B) to the Company's actual or demonstrably anticipated research or
development or (ii) the Invention results from any work performed by the Xxxxxx
for the Company, or (2) that has resulted or results from the specific business
set forth on Exhibit C.
(c) Xxxxxx acknowledges that Xxxxxx'x work for the Company is
expected to bring him or her into close contact with various confidential
business data of the Company and its clients not readily available to the
public. Accordingly, Xxxxxx:
(i) covenants and agrees that (A) during the Employment
Period, except pursuant to appropriate safeguards on confidentiality and only in
connection with the business of the Company, and (B) after the Employment
Period, on any basis for any reason, Xxxxxx shall not use or disclose to anyone
except authorized personnel of the Company, whether or not for his or her
benefit or otherwise, any confidential matters (collectively, "Confidential
Matters"), concerning the Company or its suppliers, consultants, agents or
clients, whether former, current or potential (collectively, the "Clients"),
including without limitation, all confidential technical information of the
Company, secrets, trade secrets, formulas, proprietary software, copyrights,
Client lists, lists of employees, confidential evaluations, mailing lists,
details of consultant contracts, pricing policies, sales data and reports,
margins, operational methods and processes, marketing plans or strategies,
business acquisition plans, new personnel acquisition plans, financial
information and other confidential business affairs, learned by Xxxxxx
concerning the Company, its Clients, or a third party, including without
limitation, any subsidiaries, partners, affiliates, shareholders, employees,
lenders, suppliers, consultants, agents or joint venture partners of the Company
(collectively, "Affiliates"); and
(ii) covenants and agrees that (A) all confidential
memoranda, notes, sketches, lists (including, without limitation, mailing and
customer lists), records, other confidential documents and computer diskettes
(and all copies thereof) made or compiled by Xxxxxx or made available to him or
her concerning the Company, its Clients and any Affiliates are the sole property
of the Company, and (B) if such documents are in the possession or control of
Xxxxxx, Xxxxxx shall deliver them, without retaining any copies thereof, to the
Company promptly at the time of Xxxxxx'x termination of employment or at any
other time upon request by the Company.
8. Noncompetition/Conflicts of Interest.
(a) Xxxxxx covenants and agrees that he shall not,
directly or indirectly, as a principal, employee, partner, consultant, agent or
otherwise, compete or assist in competitive activity with the Company, within
the areas in which the Company currently provides telecommunications services at
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the time of commencement of the Restricted Period (as defined below), during the
Employment Period and for a period of twelve (12) consecutive months immediately
following (i) termination of Xxxxxx with Cause, or (ii) the termination of this
Agreement on the mutual consent of the Company and Xxxxxx pursuant to a
separation agreement that provides compensation acceptable to Xxxxxx (the period
of time during which Xxxxxx is restricted from such competition pursuant to the
foregoing provisions is hereinafter referred to as the "Restricted Period")
without the express prior written consent of the Company; provided, however,
that the running of the Restricted Period shall be tolled during any period of
time in which Xxxxxx violates the provisions herein. Without limiting the
generality of what might constitute competitive activity, Xxxxxx acknowledges
and agrees that any fiber-optic competitive access provider, competitive or
incumbent local exchange carrier or inter-exchange carrier shall constitute
competitive activity. Upon request from Xxxxxx during the Restricted Period, the
Company may, in its sole and reasonable discretion, determine that a proposed
future employment of Xxxxxx will not constitute competitive activity with the
Company and may therefore waive the provisions of this Section 8.
(b) During the Restricted Period, Xxxxxx shall not
directly or indirectly, alone or in concert with others, solicit or accept the
business of any customer (or any person or entity whom the Company or any of its
employees or agents has solicited as a prospective customer) ("Customer") (nor
provide any services to any Customer) which was a Customer of the Company at any
time during the Employment Period.
(c) During the Restricted Period, Xxxxxx shall not,
directly or indirectly, alone or in concert with others, solicit or encourage
any employee of the Company, or an employee of any person or entity with which
the Company has an agreement through which the Company and the person or entity
are to act in concert with respect to the business of the Company (a
"consultant"), to leave their respective employment or hire any employee of the
Company or any person who was an employee of the Company at any time within the
one (1) year period prior to the date first above written.
(d) During the Restricted Period, Xxxxxx shall not,
directly or indirectly, alone or in concert with others, encourage any
consultant which is then under contract with the Company to cease to work for
the Company or any consultant.
9. Acknowledgment Regarding Restrictions. Xxxxxx
recognizes and agrees that the restraints contained in Section 7 and Section 8
are reasonable and enforceable in view of the Company's legitimate interests in
protecting its trade secrets and customer contacts. Xxxxxx further acknowledges
that the limitations contained in Section 7 and Section 8 are reasonable as to
the duration in time, as to geographic scope and as to the nature of the
activities restricted. However, in the event an appropriate court determines
that the provisions of Section 8 are excessively broad as to duration,
geographic scope, prohibited activities or otherwise, the parties agree that
Section 8 may be reduced or curtailed to the extent necessary to render it
enforceable.
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10. Non-Waiver of Rights. The Company's failure to enforce
at any time any of the provisions of the Consulting Agreement or Employment
Agreement or to require at any time performance by the Xxxxxx of any of the
provisions of either Agreement shall in no way be construed to be a waiver of
such provisions or to affect either the validity of the Consulting Agreement or
Employment Agreement, or any part of either Agreement, or the right of the
Company thereafter to enforce each and every provision in accordance with the
terms of the Consulting Agreement or Employment Agreement. Xxxxxx'x failure to
enforce at any time any of the provisions of the Consulting Agreement or
Employment Agreement or to require at any time performance by the Company of any
of the provisions of either Agreement shall in no way be construed to be a
waiver of such provisions or to affect either the validity of the Consulting
Agreement or Employment Agreement, or any part of either Agreement, or the right
of Xxxxxx thereafter to enforce each and every provision in accordance with the
terms of the Consulting Agreement or Employment Agreement.
11. The Company's Right to Injunctive Relief. In the event
of a breach or threatened breach of any of Xxxxxx'x duties and obligations under
the terms and provisions of Sections 7 and 8, Xxxxxx agrees that the Company
shall be entitled to a temporary restraining order and a preliminary and
permanent injunction to prevent such breach or threatened breach because the
harm which might result to the Company's business as a result of any
noncompliance by Xxxxxx with any of the provisions of Sections 7 and 8 will be
irreparable. Xxxxxx acknowledges that the Company's entitlement to injunctive
relief shall be in addition to the Company's entitlement to damages.
12. The Company's Right to Recover Costs and Fees. Each of
Xxxxxx and the Company agree that if the other party breaches or threatens to
breach the Employment Agreement ("Breaching Party"), then the Breaching Party
shall be liable for any attorneys' fees and costs incurred by the other party in
enforcing the rights of that other party under the Employment Agreement in the
event that a court determines that the Breaching Party has breached the
Employment Agreement or if the other party obtains injunctive relief against the
Breaching Party.
13. Other obligations. Xxxxxx represents and warrants to
the Company that his obligations under the Consulting Agreement and Employment
Agreement do not violate or conflict with, or otherwise interfere with the
noncompetition provisions or any other obligations or restrictions applicable to
Xxxxxx. Xxxxxx further certifies that he will not disclose or use, during the
Consulting Period or Employment Period, any confidential information that he
acquired as a result of any previous employment or under a contractual
obligation of confidentiality before the date hereof.
14. Limited Liability. With regard to the services to be
performed by Consultant pursuant to the terms of the Consulting Agreement,
neither Consultant nor any Consultants or agents of Consultant shall be liable
to the Company, or to anyone who may claim any right due to this relationship
with the Company, for any action or omission in the performance of said services
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on the part of Consultant or on the part of the agents or Consultants of
Consultant, except when said acts or omissions of Consultant or such agents or
Consultants are due to willful misconduct or gross negligence. The Company shall
hold Consultant free and harmless from any obligations, costs, claims judgments
attorneys fees and attachments arising from or growing out of the services
rendered to the Company pursuant to the terms of the Consulting Agreement,
except when the same shall arise due to the intentional misconduct or gross
negligence of Consultant, and Consultant is determined to have committed
intentional misconduct or gross negligence by the arbitration proceedings
provided herein. During the Employment Period, Xxxxxx shall be entitled to all
indemnification to which he is entitled by law.
15. Assignments. The Consulting Agreement and Employment
Agreement shall be freely assignable by the Company and shall inure to the
benefit of, and be binding upon, the Company, its successors and assigns and/or
any other corporate entity which shall succeed to the business presently being
operated by the Company, but, being a contract for personal services, neither
this Consulting Agreement nor any rights hereunder are assignable by Consultant.
16. Vacation and Holidays. After this agreement has been
converted into an Employment Agreement, Xxxxxx shall be entitled to three (3)
weeks paid vacation per year starting at the beginning of the employment term,
provided that the Company may require that such vacation shall be scheduled as
mutually agreed by Xxxxxx and the Company.
17. Governing Law/Arbitration. This Consulting Agreement
and the Employment Agreement shall be interpreted in accordance with and
governed by the laws of the State of Missouri without regard to its conflict of
law rules. Any dispute arising out of or relating to the Consulting Agreement or
Employment Agreement or the breach, termination or validity of either Agreement,
other than Section 7 and Section 8, shall be settled by arbitration in St. Louis
County, Missouri in accordance with the commercial arbitration rules then in
effect of the American Arbitration Association. The parties consent to the
jurisdiction of the Supreme Court of the State of Missouri, and of the United
States District Court for the Eastern District of the State of Missouri for
injunctive, specific enforcement or other relief in aid of the arbitration
proceedings or to enforce judgment of the award in such arbitration proceeding.
The award entered by the arbitrator(s) shall be final and binding on all parties
to arbitration. Each party shall bear its respective arbitration expenses and
shall each pay its pro rata portion of the arbitrator's charges and expenses.
The arbitrator(s) shall not award punitive, exemplary or consequential damages.
With respect to disputes arising out of Section 7 and Section 8 of this
Agreement, the parties agree that exclusive venue and jurisdiction for any
action brought under this Consulting Agreement shall lie in the County of St.
Louis, Missouri.
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18. Amendments. No modification, amendment or waiver of
any of the provisions of this Consulting Agreement shall be effective unless in
writing and signed by the parties hereto.
19. Notices. Any notices to be given by either party
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, certified or registered mail, postage prepaid, as follows:
to the Company at Digital Teleport, Inc., 0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attn.: Xxxxxxx X. Xxxxxxxxx, President; and to Consultant
at 00000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000; or to such other address
as may have been furnished to the other party in writing.
20. Reflection and Advice of Counsel Encouraged. The
Consulting Agreement and Employment Agreement contain substantial obligations on
Xxxxxx, including without limitation restrictions in the Employment Agreement
placed on Xxxxxx'x right to seek employment or consult with certain employers or
to engage in businesses competitive with the Company's business. Xxxxxx
acknowledges that he has had ample time to reflect on these restrictions and has
sought the advice of counsel with respect to the Consulting Agreement and
Employment Agreement.
21. Entire Agreement. The Consulting Agreement and
Employment Agreement are the entire agreements between the parties and
supersedes any previous oral or written agreement or understanding between the
Company and Xxxxxx with respect to the subject matter thereof respectively.
There are no representations, warranties, promises or undertakings other than
those expressly contained in the Consulting Agreement or the Employment
Agreement.
22. Severability. Subject to severability provisions
integral to any paragraph of the Consulting Agreement or Employment Agreement,
the unenforceability, invalidity or illegality of any provision of the
Consulting Agreement or Employment Agreement shall not affect or impair the
continuing enforceability or validity of any other part of the Consulting
Agreement or Employment Agreement, respectively, all of which shall survive and
be valid and enforceable.
23. Headings. The headings in the Consulting Agreement and
Employment Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of the Consulting Agreement or Employment
Agreement, respectively.
24. Future Employment. During the Restricted Period,
Xxxxxx shall inform each new employer, prior to accepting employment, of the
existence of the Employment Agreement and provide that employer with a copy of
Sections 6, 7 and 8 hereof. Xxxxxx hereby authorizes the Company to forward a
copy of Sections 6, 7 and 8 hereof to any actual or prospective new employer of
Xxxxxx during the Restricted Period.
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25. Relationship. Xxxxxx and the Company agree that the
relationship contemplated by the Consulting Agreement is that of a consultant
and not an employee. Consultant agrees to pay all applicable taxes with respect
to the compensation provided under the Consulting Agreement. Consultant agrees
that he is not entitled to any benefits or remuneration from the Company during
the Consulting Period other than as expressly set forth herein, including
without limitation any medical or vacation benefits. The Company will issue the
Consultant a Form 1099 with respect to the compensation paid to him hereunder
unless otherwise required by law.
26. Conversion. This Consulting Agreement shall convert
into an Employment Agreement on October 10, 1998, unless sooner agreed by the
parties, without any further action or execution of documents by Company or
Xxxxxx. IN WITNESS WHEREOF, the parties have executed this agreement on the 5th
day of November, 1998.
DIGITAL TELEPORT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
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EXHIBIT A
Stock Options
1. The options shall be nonqualified stock options.
2. One third of the options shall become exercisable after each of June 6,
1998, June 6, 1999 and June 6, 2000.
3. The exercisability of options shall accelerate upon a change of control.
4. Employee shall have 60 days following termination to exercise options if
terminated without cause, or if termination occurs following a change of
control.
5. The exercise price will be equal to $6.66.
6. The options will have a term of ten years.
EXHIBIT B
Relocation Expenses
(a) Customary real estate transaction fees and expenses, including brokers'
fees, for the sale of Xxxxxx'x residence in the Dallas, Texas metropolitan area
and purchase of a residence in the St. Louis metropolitan area;
(b) Moving expenses, including normal and customary packing and moving
charges, but not including the moving of automobiles or bulk material;
(c) Temporary housing expenses for up to ninety days, not to exceed $2,500
per month; and
(d) A relocation supplement of $2,000 cash to be paid upon Xxxxxx'x move to
the St. Louis metropolitan area to cover incidental moving expenses in lieu of
reimbursement.
EXHIBIT C
Items Excluded from
Definition of "Inventions"
1. The design and operation of wholesale internet services using signaling
system 7 messages to provide shared use modems and lines rather than
dedicated numbers and lines, as included in the business plan for
"InfoLinc" developed by Xxxxxx prior to joining DTI.
2. The use of Digital Subscriber Loop (DSL) by a CLEC to deploy high speed
data and voice services via twisted pair, as included in the business plan
for "InfoLinc" developed by Xxxxxx prior to joining DTI.
