This Employment Agreement
(this Agreement), effective as of September 20, 2011, by and between XPO Logistics, Inc., a Delaware corporation (together with its successors and assigns, the Company), and Scott Malat
WHEREAS, the Company desires to employ Employee and Employee desires to accept such employment
with the Company, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and
mutual covenants herein and for other good and valuable consideration, Employee and the Company agree as follows:
and Duties. (a) Term. The term of Employees employment hereunder (the Term) shall begin on October 20, 2011 (the Start Date) and end on September 2, 2016. Notwithstanding the
foregoing, the Term may be earlier terminated by either party in accordance with the terms of Section 4 of this Agreement, and the Term shall automatically expire on the last day of the Term (the Expiration Date) without
notice required by any party to the other.
(b) Employment Duties. Employee shall perform such duties as assigned from
time to time by the Chief Executive Officer of the Company (the CEO), which may include without limitation: (i) advising the CEO and Board of Directors of the Company (the Board) on the strategic direction
of the Company; (ii) analysis of market trends, competitive threats and opportunities for growth; (iii) creating, building and managing an active investor relations program, which management may include, without limitation, overseeing
shareholder meetings, press conferences, one-on-one investor meetings, road shows, and other investor-related matters; (iv) operations and financial planning and analysis (v) identification, research and analysis of potential acquisitions
and (vi) advising and preparing recommendations on capital structure and debt and equity capital markets.
Full Time Service and Other Activities. During the Term, Employee shall have the title Senior Vice President, Strategic Planning and, excluding any periods of paid time-off or approved sick leave to which Employee is entitled, Employee shall
devote his full working time, energy and attention to the performance of his duties and responsibilities hereunder and shall faithfully and diligently endeavor to promote the business and best interests of the Company. During the Term, Employee may
not, without the prior written consent of the CEO, directly or indirectly, operate, participate in the management, operations or control of, or act as an employee, officer, consultant, partner, member, agent or representative of, any type of
business or service other than as an employee and member of the Company. It shall not, however, be a violation of the foregoing provisions of this Section 1(c) for Employee to (i) serve as an officer or director or otherwise participate in
non-profit, educational, social welfare,
religious and civic organizations or (ii) manage his personal, financial and legal affairs, in each case so long as any such activities do not unreasonably interfere with the performance of
his duties and responsibilities to the Company.
(d) Location. During the Term, Employee shall be based primarily in
Greenwich, Connecticut or New York City, as mutually agreed upon between Employee and the CEO, with such travel as the performance of his duties to the Company may require.
2. Compensation. (a) Base Salary. During the Term, the Company shall pay Employee, pursuant to the Companys normal and customary payroll procedures but not less frequently than
monthly, a base salary at the rate of $300,000 per annum (the Base Salary). The Base Salary is subject to review annually throughout the Term by the Compensation Committee of the Board (the Compensation
Committee) in its sole discretion.
(b) Annual Bonus. As additional compensation, the Employee shall have the
opportunity to earn a performance-based bonus (Annual Bonus) for each year during the Term of the Employees employment commencing in the 2012 fiscal year targeted at 100% of the Base Salary based upon Employees
achievement of performance goals as determined by the Compensation Committee. The performance goals applicable to the Annual Bonus shall be based on one or more of the performance criteria set forth in Section 6(e)(iv) of the Companys
2011 Omnibus Incentive Compensation Plan (the 2011 Plan Performance Criteria). In determining the Annual Bonus for the 2011 fiscal year, the Compensation Committee shall take into account and attach significant importance to the
amount of Employees foregone bonus from his immediately prior employer. Notwithstanding anything to the contrary contained herein and without limiting any other rights and remedies of the Company, if Employee has engaged in fraud or other
misconduct that contributes to any financial restatements or material loss, the Company may require repayment by Employee of any cash Annual Bonus (net of Employees income taxes) previously paid to Employee, or cancel any earned but unpaid
Annual Bonus or adjust the future compensation of Employee in order to recover the amount by which any compensation paid to Employee exceeded the lower amount that would have been payable after giving effect to the restated financial results or the
(c) Benefits. During the Term, Employee shall be eligible to participate in the benefit plans and
programs of the Company that are generally available to other members of the Companys senior executive team, subject to the terms and conditions of such plans and programs.
(d) Paid-Time Off. Employee shall be entitled to (i) 10 days paid-time off, (ii) three days paid-time off to be used
solely in observance of religious holidays and (iii) any holidays that are generally afforded to the Companys employees, in each case, per calendar year during the Term, prorated for the portion(s) of any partial calendar year during the
Term. Employee may take paid-time off only with the consent of the CEO, which consent shall not be withheld unreasonably.
(e) Business Expenses. The Company shall provide Employee a Company-owned wireless
smartphone and Company-owned laptop computer during the Term and shall pay or reimburse Employee for all reasonable and necessary business expenses incurred in the performance of his duties to the Company during the Term upon the presentation of
appropriate statements of such expenses.
3. Equity Awards. (a) Grant. On or as promptly as practicable
following the Start Date, subject to approval by the Compensation Committee, Employee shall receive (x) 87,500 restricted stock units (RSUs) of the Company and (y) options (Options) to purchase 25,000
Shares, with an exercise price equal to the closing price per Share as reported by the NYSE Amex LLC on the date of grant, in each case, on the terms set forth below and on such other customary terms and conditions as the Company may require.
(b) Vesting and Cancellation. The RSUs and Options shall initially be unvested and, subject to Employees
continued employment hereunder, shall vest as follows: (i) 70,000 RSUs (Time-Based RSUs) and all the Options shall vest, solely based on Employees continued employment, in equal annual installments of 20% each beginning
on September 2, 2012 and continuing for the next four anniversaries thereof and (ii) 17,500 RSUs (Performance-Based RSUs) shall vest, subject to Employees achievement of performance goals as determined by the
Compensation Committee, in equal annual installments of 20% each beginning on September 2, 2012 and continuing for the next four anniversaries thereof. The performance goals applicable to the Performance-Based RSUs shall be based on one or more
of the 2011 Plan Performance Criteria.
(c) Treatment upon Termination of Employment. All unvested RSUs and Options
referenced in this Section 3 shall be forfeited upon the termination of Employees employment with the Company for any reason other than (i) a termination by the Company without Cause or a termination by Employee for Good Reason and
(ii) a termination due to Employees death or Disability. In the event that Employees employment with the Company is terminated by the Company without Cause or by Employee for Good Reason, subject to the terms and conditions of
Section 5(f) of this Agreement, a portion of any unvested RSUs and Options referenced in this Section 3 outstanding as of the Date of Termination shall immediately vest as determined in accordance with the following sentence, and the
balance of such RSUs and Options referenced in this Section 3 shall immediately be forfeited upon the Date of Termination. For purposes of this Section 3(c), (x) the portion of Time-Based RSUs and Options that shall vest upon a
termination pursuant to Section 3(c)(i) of this Agreement shall be calculated by multiplying the number of outstanding and unvested Time-Based RSUs and Options that would otherwise have vested on the next Vesting Date by a fraction,
(1) the numerator of which shall be the number of days that have elapsed between the Vesting Date immediately preceding the Date of Termination and the Date of Termination (or, if Employees employment is terminated before the first
Vesting Date, between September 2, 2011 and the Date of Termination), and (2) the denominator of which shall be 365, and (y) the portion of Performance-Based RSUs that shall be eligible to vest upon a termination pursuant to
Section 3(c)(i) of this Agreement shall be determined following
the last day of the applicable performance period by multiplying the number of Performance-Based RSUs that would otherwise have vested on the next Vesting Date based on the Companys actual
performance during such period by the same fraction applicable to the Time-Based RSUs and Options as set forth in Section 3(c)(x). In the event that Employees employment hereunder terminates due to his death or Disability, all unvested
RSUs and Options referenced in this Section 3 shall automatically vest and be settled, as applicable, within 30 days following the Date of Termination. No amounts shall be payable by the Company at any time with respect to any unvested RSUs or
(d) Change of Control. Upon the occurrence of a Change of Control while Employee is still employed by the
Company, all outstanding RSUs and Options shall be 100% vested. If Employees employment is terminated without Cause prior to a Change of Control and such termination of employment is in anticipation of the Change of Control and such Change of
Control actually occurs not later than six months following the Date of Termination, then for purposes of this Section 3(d), the date immediately preceding the Date of Termination shall be treated as the date of the Change of Control, provided
that for purposes of determining the timing of payments with respect to the RSUs and the vesting of Options, the date of the actual Change of Control shall be deemed to be the Date of Termination. For the purposes of this Agreement, the term
Change of Control shall have the meaning ascribed to it in the Companys 2011 Omnibus Incentive Compensation Plan.
4. Termination. Employees employment hereunder shall be terminated upon the earliest to occur of any one of the following events (in which case the Term shall terminate as of the applicable
Date of Termination):
(a) Expiration of Term. Unless sooner terminated, Employees employment hereunder shall
terminate automatically in accordance with Section 1(a) of this Agreement on the Expiration Date, unless otherwise agreed by the parties, in which case employment will continue on an at-will basis or pursuant to the terms of any subsequent
agreement between Employee and the Company.
(b) Death. Employees employment hereunder shall terminate upon his
(c) Cause. The Company may terminate Employees employment hereunder for Cause by written notice at any
time. For purposes of this Agreement, the term Cause shall mean Employees (i) dereliction of duties or his gross negligence or substantial failure to perform his duties hereunder or willful refusal to follow any lawful
directive of the CEO or the Board; (ii) commission of any fraud, embezzlement, theft or dishonesty, or any deliberate misappropriation of money or other assets of the Company; (iii) breach of any term of this Agreement or any agreement
governing any of the equity compensation referred to in Section 3 of this Agreement (the Equity Compensation), or breach of his fiduciary duties to the Company; (iv) any willful act, or failure to act, in bad faith to
the detriment of the Company; (v) willful failure to cooperate in good faith with a governmental or internal investigation of the Company or any of its directors, managers,
officers or employees, if the Company requests his cooperation; and (vi) conviction of, or plea of nolo contendere to, a felony or any serious crime; provided that the Company will provide
Employee with written or oral notice describing the facts and circumstances that the Company believes constitutes Cause and, in cases where cure is possible, Employee shall first be provided a 15-day cure period. If, subsequent to Employees
termination of employment hereunder for any reason other than by the Company for Cause, it is determined in good faith by the CEO that Employees employment could have been terminated by the Company for Cause pursuant to this Section 4(c),
Employees employment shall, at the election of the CEO, be deemed to have been terminated for Cause retroactively to the date the events giving rise to Cause occurred.
(d) Without Cause. The Company may terminate Employees employment hereunder without Cause by written notice at any time.
(e) Good Reason. Employee may terminate his employment hereunder for Good Reason in accordance with the terms of this
Section 4(e). For purposes of this Agreement, Good Reason shall mean, without first obtaining Employees written consent: (i) the Company materially breaches the terms of this Agreement; (ii) the assignment of
Employee to a position that is substantially inconsistent with Employees professional skills and experience level as of the Start Date (including, for example, a change in Employees status to a non-exempt employee for purposes of the
Fair Labor Standards Act); (iii) the Company reduces the Base Salary; or (iii) the Company requires Employee to be based in a location that is more than 50 miles from Greenwich, Connecticut and New York City; provided that, the
Company shall first be provided a 30-day cure period (the Cure Period), following receipt of written notice setting forth in reasonable detail the specific conduct of the Company that constitutes Good Reason, to cease, and to
cure, any conduct specified in such written notice; provided further, that such notice shall be provided to the Company within 45 days of the occurrence of the conduct constituting Good Reason. If, at the end of the Cure Period, the
circumstance that constitutes Good Reason has not been remedied, Employee will be entitled to terminate employment for Good Reason during the 30-day period that follows the end of the Cure Period. If Employee does not terminate employment during
such 30-day period, Employee will not be permitted to terminate employment for Good Reason as a result of such event. If the Company disputes the existence of Good Reason, Employee shall have the burden of proof to establish that Good Reason does
not exist or that the circumstances that gave rise to Good Reason have been cured. For the avoidance of doubt, a change in Employees title or the person to whom Employee reports shall not constitute Good Reason for purposes of this Agreement,
including, without limitation, pursuant to Section 4(e)(i) or 4(e)(ii).
(f) Voluntarily Resignation. Employee may
voluntarily terminate his employment hereunder at any time upon at least 30 days advance written notice to the Company.
(g) Disability. Employees employment hereunder shall terminate in the event of Employees Disability. For purposes of
this Agreement, Disability shall mean the inability of Employee, due to illness, accident or any other physical or mental
incapacity, to perform Employees duties for the Company for an aggregate of 180 days within any period of 12 consecutive months, which inability is determined to be total and permanent by a
board-certified physician selected by the Company, and the determination of such physician shall be binding upon Employee and the Company.
(h) Date of Termination shall mean: (i) the scheduled expiration of the Term in the event of termination of Employees employment pursuant to Section 4(a) of this
Agreement; (ii) the date of Employees death in the event of termination of Employees employment pursuant to Section 4(b) of this Agreement; (iii) the date of the Companys delivery of a notice of termination to
Employee or such later date as specified in such notice in the event of termination by the Company pursuant to Section 4(c) or 4(d) of this Agreement; (iv) the 30th date following delivery of Employees notice to the Company of his resignation in accordance with
Section 4(e) or 4(f) of this Agreement (or such earlier date as selected by the Company provided that the Company continues to pay or provide to Employee the compensation and benefits specified under Sections 2 and 3 of this Agreement through
such 30th date) and (v) the date of a determination
of Employees Disability in the event of a termination of Employees employment pursuant to Section 4(g) of this Agreement.
5. Termination Payments. (a) General. Except as otherwise set forth in this Section 5, following any termination of Employees employment hereunder, the obligations of the
Company to pay or provide Employee with compensation and benefits under Section 2 of this Agreement shall cease, and the Company shall have no further obligations to provide compensation or benefits to Employee hereunder except for payment of
(i) any unpaid Base Salary accrued through the Date of Termination; (ii) any unused vacation accrued through the Date of Termination, and (iii) any unpaid or unreimbursed obligations and expenses under Section 2(e) of this
Agreement accrued or incurred through the Date of Termination (collectively items (a)(i) through (a)(iii) above, the Accrued Benefits). The payments referred to in Sections 5(a)(i) and (ii) of this Agreement shall be paid
within 30 days following the Date of Termination. The payments referred to in Section 5(a)(iii) of this Agreement shall be paid at the times such amounts would otherwise be paid had Employees services hereunder not terminated. Upon
termination of Employees employment for any reason, all unvested RSUs and Options shall be cancelled without payment therefor except as otherwise specifically provided in Section 3(c) or 3(d) of this Agreement. The payments and benefits
to be provided to Employee under Sections 5(c), (d) and (e) of this Agreement, if any, shall in all events be subject to the satisfaction of the conditions of Section 5(f) of this Agreement.
(b) Automatic Expiration of the Term, Voluntary Resignation, or Cause. If Employees employment is terminated pursuant to
Section 4(a), 4(c) or 4(f) of this Agreement, the Company shall have no obligation to Employee other than with respect to the Accrued Benefits.
(c) Death or Disability. In the event of a termination by reason of Employees death or Disability, Employee (or his estate) shall be entitled to:
(i) the Accrued Benefits;
(ii) a cash payment (the Severance Payment) equal to the Base Salary, as
in effect on the Date of Termination (payable as set forth in Section 5(f) of this Agreement), plus any Annual Bonus that the Company has notified Employee in writing that Employee has earned prior to the Date of Termination but is unpaid as of
the Date of Termination, and, solely in the case of Disability, continuation of medical and dental group insurance benefits for a period of 12 months from the Date of Termination; and
(iii) accelerated vesting of any outstanding RSUs and Options to the extent set forth in Section 3(c) of this Agreement.
(iv) Notwithstanding the foregoing, whenever compensation is payable to Employee hereunder as a result of a termination due to Disability
during or with respect to a time that such Disability would entitle Employee to severance, disability income or to salary continuation payments from the Company, as applicable, according to the terms of any plan now or hereafter provided by the
Company or according to any policy of the Company in effect at the time of such Disability, the compensation payable to Employee hereunder shall be reduced on a dollar-for-dollar basis by any such disability income or salary continuation and shall
not be in addition thereto. If disability income is payable directly to Employee by an insurance company under an insurance policy paid for by the Company, the compensation payable to Employee hereunder shall by reduced on a dollar-for-dollar basis
by the amounts paid to Employee by said insurance company and shall not be in addition thereto.
(d) Without Cause or for
Good Reason. In the event that, either prior to a Change of Control or more than one year following a Change of Control, the Company terminates Employees employment hereunder without Cause or the Employee resigns for Good Reason, Employee
shall be entitled to:
(i) the Accrued Benefits;
(ii) a cash payment (the Non-CIC Severance Payment) equal to one years Base Salary, as in effect on the Date of Termination (payable as set forth in Section 5(f) of this
Agreement), plus any Annual Bonus that the Company has notified Employee in writing that Employee has earned prior to the Date of Termination but is unpaid as of the Date of Termination, and continuation of medical and dental group insurance
benefits for a period of 12 months from the Date of Termination, provided that Employee shall use his best efforts to secure other employment, at the commencement of which the benefits under this Section 5(d)(ii), if any, shall cease; and
(iii) accelerated vesting of a portion of any outstanding RSUs and Options to the extent set forth in Section 3(c) of
(e) Without Cause or for Good Reason Following a Change of Control. In the event that, within one year
following a Change of Control, the Company terminates Employees employment hereunder without Cause or the Employee resigns for Good Reason, Employee shall be entitled to:
(i) the Accrued Benefits; and
(ii) a cash payment (the CIC Severance Payment) equal to three times the
sum of (x) the Base Salary, as in effect on the Date of Termination and (y) the target Annual Bonus, as in effect on the Date of Termination, (payable as set forth in Section 5(f) of this Agreement), plus any Annual Bonus that the
Company has notified Employee in writing that Employee has earned prior to the Date of Termination but is unpaid as of the Date of Termination, and continuation of medical and dental group insurance benefits for a period of 36 months from the Date
(f) Conditions Precedent and Subsequent. The payments and benefits provided under Sections 5(c),
5(d) and 5(e) of this Agreement (other than the Accrued Benefits and other than in the event of termination by reason of Employees death or Disability) are subject to and conditioned upon (i) Employee having provided, within 30 days after
the Date of Termination (or such greater period as required by law), an irrevocable waiver and general release agreement in a form satisfactory to the Company that has become effective and irrevocable in accordance with its terms, and
(ii) Employees compliance with Sections 6 and 7 of this Agreement. Employee shall, upon request by the Company, be required to repay to the Company (net of any taxes paid by Employee on such payments), and the Company shall have no
further obligation to pay, the Severance Payment, Non-CIC Severance Payment or CIC Severance Payment, as applicable, in the event Employee receives, within six months after the occurrence of the breach, written notice from the Company that, in the
reasonable judgment of the CEO, Employee has materially breached his obligations under Section 6 or 7 hereof; provided, however, that, in cases where cure is possible, Employee shall first be provided a 15-day cure period to
cease, and to cure, such conduct. The Severance Payment and Non-CIC Severance Payment, if any, payable hereunder shall be paid in substantially equal installments over the 12-month period, following the Date of Termination, consistent with the
Companys payroll practices, with the first installment to be paid within 15 days after the condition described in Section 5(f)(i) has been satisfied and with any installments that would otherwise have been paid prior to such date
accumulated and paid in a lump sum on the first date on which payments are made in accordance with the terms of this sentence. The CIC Severance Payment, if any, payable hereunder shall be paid in one lump sum within 15 days after the condition
described in Section 5(f)(i) has been satisfied; provided, however, that, unless the CIC Severance Payment relates to a transaction that satisfies the requirements of Treas. Reg. § 1.409A-3(i)(5), any portion of the CIC
Severance Payment that constitutes deferred compensation within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (Section 409A), will be paid at the earliest date that is permitted in accordance
with the schedule that is applicable to the Non-CIC Severance Payment.
(g) Forfeiture of RSUs and Options.
Notwithstanding anything to the contrary herein and without limiting any rights and remedies available to the Company under the terms of this Agreement or otherwise at law or in equity, in the event the Company terminates Employees employment
for Cause or if Employee violates the restrictive covenants set forth in Sections 6 and 7 of this Agreement or engages in fraud or willful misconduct that contributes materially to any significant financial restatement or material loss to the
Company or any of its affiliates, the Company may, at any time up to six months after such termination or learning of such conduct, as applicable, terminate
or cancel the RSUs and Options, including any vested amounts thereof, and require Employee to forfeit or remit to the Company any amount payable, or the after-tax net amount paid or received by
Employee, in respect of any RSUs or Options; provided, however, that, in cases where cure is possible, Employee shall first be provided a 15-day cure period to cease, and to cure, such conduct.
6. Non-Solicitation. (a) During the Term and during the Restricted Period, Employee hereby agrees not to, directly or
indirectly, solicit or hire or assist any other person or entity in soliciting or hiring any employee of the Company, or any of its affiliates (the Company Entities), to perform services for any entity (other than a Company
Entity) or attempt to induce any such employee to leave the service of a Company Entity, or solicit, hire or engage on behalf of himself or any other person, any employee of a Company Entity, or anyone who was employed by a Company Entity, during
the twelve-month period preceding such hiring or engagement. Restricted Period means three years following termination of Employees employment for any reason.
(b) During the Term and during the Restricted Period, Employee hereby agrees not to, directly or indirectly, solicit, encourage, advise
or influence any individuals, partnerships, corporations, professional associations or other business organizations that have a business relationship with any Company Entity during the Term or for the three years thereafter (the
Companys Clients) or to discontinue or reduce the extent of the relationship between the Company Entities and the Companys Clients or to obtain or seek products or services the same as or similar to the Company
Entities from any other source not affiliated with the Company Entities.
7. Confidentiality; Non-Compete; Non-Disclosure;
Non-Disparagement; Cooperation. (a) Confidentiality. (i) Employee hereby agrees that, during the Term and thereafter, he will hold in strict confidence any Confidential Information related to any of the Company Entities. For
purposes of this Agreement, Confidential Information shall mean all confidential or proprietary information of any of the Company Entities (in whatever form), including, without limitation: any information, observations and data
concerning the business or affairs or operation of the Company Entities developed by Employee during the Term or which any Company Entity or any of their respective members, directors, officers, managers, partners, employees, agents, advisors,
attorneys, accountants, consultants, investment bankers, investment advisors or financing sources at any time furnishes or has furnished to Employee in connection with the business of any of the Company Entities; the Companys (and any of its
respective affiliates) investment methodologies or models, investment advisory contracts, fees and fee schedules or investment performance (Track Records); technical information or reports; brand names, trademarks, formulas;
trade secrets; unwritten knowledge and know-how; operating instructions; training manuals; customer lists; customer buying records and habits; product sales records and documents, and product development, marketing and sales strategies;
market surveys; marketing plans; profitability analyses; product cost; long-range plans; information relating to pricing, competitive strategies and new product development; information relating to any forms of compensation or other
personnel-related information; contracts and supplier lists and any information relating to financial
data, strategic business plans; information about any other third parties in respect of which any Company Entity has a business relationship or owes a duty of confidentiality; and all notes,
analyses, compilations, forecasts, studies or other documents prepared by Employee that contain or reflect any such information and which is not known to the public generally other than as a result of Employees breach of this Agreement.
Without limiting the foregoing, Employee acknowledges and agrees that the Track Records shall not be the work of any one individual (including Employee) and are the exclusive property of the Company and its affiliates, as applicable, and agrees that
he shall in no event claim the Track Records as his own following termination of his employment with the Company.
as expressly set forth otherwise in this Agreement (including, without limitation, pursuant to Section 8 of this Agreement), Employee agrees that he shall not disclose the terms of this Agreement except to his immediate family and his financial
and legal advisors, or as may be required by law or ordered by a court. Employee further agrees that any disclosure to his financial and legal advisors will only be made after such advisors acknowledge and agree to maintain the confidentiality of
this Agreement and its terms.
(iii) Employee further agrees that he will not improperly use or disclose any confidential
information or trade secrets, if any, of any former employers of Employee or any other person to whom Employee has an obligation of confidentiality, and will not bring onto the premises of the Company or its affiliates any unpublished documents or
any property belonging to any such former employer or other person to whom Employee has an obligation of confidentiality unless consented to in writing by the former employer or such other person.
(b) Non-Competition. Employee and the Company agree that Employee will occupy a high-level and unique position of trust and
confidence with the Company Entities and will have access to their Confidential Information, and that they would likely suffer significant harm from Employees competing with them during the Term and for some period of time thereafter.
Accordingly, Employee agrees that he will not, during the Term and during the Non-compete Period, directly or indirectly become employed by, engage in business with, serve as an agent or consultant to, become an employee, partner, member, principal,
stockholder or other owner (other than a holder of less than 1% of the outstanding voting shares of any publicly held company) of, any Competitive Business, or otherwise perform services relating to the business of any of the Company Entities, or
businesses they are actively considering, at the time of the termination or during the one year prior to termination (the Business) for any Competitive Business (whether or not for compensation). For purposes of this Agreement,
Competitive Business shall mean any individual, employeeship, corporation, limited liability company, partnership, unincorporated organization, trust, joint venture or other entity (i) that engages in or may engage in
acquisition related or mergers and acquisition activities related to the transportation or third-party logistics industry, including, without limitation, researching, analyzing and evaluating companies for possible investment in or acquisition of,
for itself or clients, (ii) that engages in or may engage in the Business, including, without limitation, any providers of third-party logistics services, including, without limitation,
freight brokerage, freight forwarding, expediting or intermodal providers, or firms such as CH Robinson, Expeditors International of Washington, Inc., Echo Global Logistics Inc., Roadrunner
Transportation Systems and Hub Group Inc., or (iii) that otherwise competes with the Company Entities anywhere in which the Company Entities engage in or intend to engage in the Business or where any of the Company Entities customers are
located. Non-Compete Period means (x) one year following termination of Employees employment by the Company without Cause or by the Employee for Good Reason and (y) three years following termination of
Employees employment for any reason not covered by clause (x) of this definition.
Non-Competition. In the event that Employees employment with the Company is terminated by the Company without Cause or by the Employee for Good Reason, the Company shall have the right to extend the Non-Compete Period for up to two
additional 12-month periods (each, an Extended Non-Compete Period) beyond the completion of the Non-Compete Period. If the Company elects to extend the Non-Compete Period or the Extended Non-Compete Period, it will notify Employee in
writing of such fact not later than the 90th day prior to the expiration of the Non-Compete Period or the then-current Extended Non-Compete Period, as applicable. By signing this Agreement, Employee agrees to accept and abide by the Companys
election. If the Company elects to extend the Non-Compete Period, Employee agrees that, during any Extended Non-Compete Period, Employee shall be bound by the restrictions set forth in Section 7(b) in the same manner applicable during the
Non-Compete Period, and the Company agrees to pay Employee subject to Section 5(f) of this Agreement during each month of the Extended Non-Compete Period, an amount equal to his monthly Base Salary as in effect on the Date of Termination.
Payment for any partial month will be prorated. Payment of Employees Base Salary during the Extended Non-Compete Period will be made pursuant to the Companys normal and customary payroll procedures. If the Company elects to extend the
Non-Compete Period or the Extended Non-Compete Period, any monies Employee earns from any other work during such periods, whether as an employee or as an independent contractor, will reduce, dollar for dollar, the amount that the Company is
obligated to pay Employee under this Section 7(c). Payments made by the Company under this Section 7(c) are made solely for the extension of the non-compete covenant and do not render Employee either an employee of, or a consultant to, the
(d) Competitive Opportunity. If, at any time during the Term, Employee (i) acquires knowledge of a
potential investment, investment opportunity or business venture which may be an appropriate for investment by the Company, or in which the Company could otherwise have an interest or expectancy (a Competitive Opportunity), or
(ii) otherwise is then exploiting any Competitive Opportunity, Employee shall promptly bring such Competitive Opportunity to the Company. In such event, Employee shall not have the right to hold any such Competitive Opportunity for his (and his
agents, employees or affiliates) own account and benefit or to recommend, assign or otherwise transfer or deal in such Competitive Opportunity with persons other than the Company.
(e) Return of Company Property. All documents, data, recordings, or other property, including, without limitation, smartphones,
computers and other business
equipment, whether tangible or intangible, including all information stored in electronic form, obtained or prepared by or for Employee and utilized by Employee in the course of his employment
with the Company shall remain the exclusive property of the Company and Employee shall return all copies of such property upon any termination of his employment and as otherwise requested by the Company during the Term.
(f) Non-Disparagement. Employee hereby agrees not to defame or disparage any of the Company Entities or any of its officers,
directors, members, partners or employees (collectively, the Company Parties), and to cooperate with the Company upon reasonable request, in refuting any defamatory or disparaging remarks by any third party made in respect of any
of the Company Parties. Employee shall not, directly or indirectly, make (or cause to be made) any comment or statement, oral or written, including, without limitation, in the media or to the press or to any individual or entity, that could
reasonably be expected to adversely affect the reputation of any of the Company Parties or the conduct of its, his or their business.
(g) Cooperation. During the Term and thereafter (including, without limitation, following the Date of Termination), Employee shall, upon reasonable notice and without the necessity of any Company
Entity obtaining a subpoena or court order, provide Employees reasonable cooperation in connection with any suit, action or proceeding (or any appeal from any suit, action or proceeding), and any investigation and/or defense of any claims
asserted against any Company Entity that relates to events occurring during Employees employment with any Company Entity as to which Employee may have relevant information (including furnishing relevant information and materials to the
relevant Company Entity or its designee and/or providing testimony at depositions and at trial), provided that the Company shall reimburse the Executive for expenses reasonably incurred in connection with any such cooperation occurring after the
termination of Executives employment and provided that any such cooperation occurring after the Date of Termination shall be scheduled to the extent reasonably practicable so as not to unreasonably interfere with Employees business or
8. Notification of Subsequent Employer. Employee hereby agrees that, prior to accepting employment
with any other person during any period during which the Executive remains subject to any of the covenants set forth in Section 6, 7(b) or 7(c), Employee shall provide such prospective employer with written notice of such provisions of this
Agreement, with a copy of such notice delivered simultaneously to the Company.
9. Injunctive Relief. Employee
acknowledges that it is impossible to measure in money the damages that will accrue to the Company Parties in the event that Employee breaches any of the restrictive covenants provided in Sections 6 and 7 of this Agreement. In the event that
Employee breaches any such restrictive covenant, the Company Parties shall be entitled to an injunction restraining Employee from violating such restrictive covenant (without posting any bond). If any of the Company Parties shall institute any
action or proceeding to enforce any such restrictive covenant, Employee hereby waives the claim or defense that such Company Party has an adequate remedy at law and agrees not to assert in any such action or proceeding the claim or defense that
there is an adequate remedy at law. The foregoing shall not prejudice the Companys
right to require Employee to account for and pay over to the Company, and Employee hereby agrees to account for and pay over, the compensation, profits, monies, accruals or other benefits derived
or received by Employee as a result of any transaction constituting a breach of any of the restrictive covenants provided in Sections 6 and 7 of this Agreement or to seek any other relief to which it may be entitled.
10. Miscellaneous. (a) Notices. Any notice or other communication required or permitted under this Agreement shall be
effective only if it is in writing and shall be deemed to be given when delivered personally, or four days after it is mailed by registered or certified mail, postage prepaid, return receipt requested or one day after it is sent by overnight courier
service via UPS or FedEx and, in each case, addressed as follows (or if it is sent through any other method agreed upon by the parties):
If to the Company:
XPO Logistics, Inc.
429 Post Road
Buchanan, MI 49107
Attention: Chief Executive Officer
with a copy in either case to:
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
Attention: Jennifer S. Conway, Esq.
Facsimile: (212) 474-3700
If to Employee:
During the Term, to his principal office at the Company, and after the Term, to his principal residence as listed in the records of the
with a copy in either case to:
Kaye Scholer, LLP
425 Park Avenue
New York, NY 10022
Attention: John Geelan, Esq.
Facsimile: (212) 836-6421
or to such other address as any party may designate by notice to the others.
(b) Entire Agreement. This Agreement shall constitute the entire agreement and understanding among the parties hereto with respect to Employees employment hereunder and supersedes and is in
full substitution for any and all prior
understandings or agreements (whether written or oral) with respect to Employees employment. The Company does not make and has not made, and the Employee does not rely and has not relied on
any statement, omission, representation or warranty, written or oral, of any kind or nature whatsoever, regarding the Company or the Equity Compensation, including, without limitation, its or their present, future, prospective or potential value,
worth, prospects, performance, soundness, profit or loss potential, or any other matter or thing whatsoever relating to whether Employee should purchase or accept any Equity Compensation and/or the consideration therefor.
(c) Amendment; No Waiver. Except as expressly set forth otherwise in this Agreement (including, without limitation, pursuant to
Sections 10(l)(iv) and 10(m) of this Agreement), this Agreement may be amended only by an instrument in writing signed by the parties, and the application of any provision hereof may be waived only by an instrument in writing that specifically
identifies the provision whose application is being waived and that is signed by the party against whom or which enforcement of such waiver is sought. The failure of any party at any time to insist upon strict adherence to any provision hereof shall
in no way affect the full right to insist upon strict adherence at any time thereafter, nor shall the waiver by any party of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or a waiver of
the provision itself or a waiver of any other provision of this Agreement. No failure or delay by either party in exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or
power, or any abandonment of any steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. Termination of this Agreement shall not relieve any party of liability for any
breach of this Agreement occurring prior to such termination.
(d) No Construction Against Drafter. The parties
acknowledge and agree that each party has reviewed and negotiated the terms and provisions of this Agreement and has had the opportunity to contribute to its revision. Accordingly, any rule of construction to the effect that ambiguities are resolved
against the drafting party shall not be employed in the interpretation of this Agreement.
(e) Employee Representations and
Acknowledgements. Employee represents, warrants and covenants that as of the date hereof: (i) he has the full right, authority and capacity to enter into this Agreement, (ii) he is ready, willing and able to perform his obligations
hereunder and, to his knowledge, no reason exists that would prevent him from performing his obligations hereunder, (iii) he is not bound by any agreement that conflicts with or prevents or restricts the full performance of his duties and
obligations to the Company hereunder during or after the Term and (iv) the execution and delivery of this Agreement shall not result in any breach or violation of, or a default under, any existing obligation, commitment or agreement to which
Employee is subject. Employee acknowledges and agrees that nothing in this Agreement shall (x) entitle Employee to any compensation or other interest in respect of any activity of Jacobs Private Equity, LLC, a Delaware limited liability company
(JPE) or Bradley S. Jacobs other than with respect to the Company; (y) restrict or prohibit the Company, Bradley S. Jacobs or any of his affiliates from having business interests and engaging in business
activities in addition to those relating to the Company; or (z) restrict the investments which the Company, Bradley S. Jacobs or JPE or any of his or its affiliates may make, regardless of
whether such investment opportunity or investment may be deemed to be a Competitive Opportunity. Employee acknowledges that he has carefully read this Agreement and has given careful consideration to the restraints imposed upon Employee by this
Agreement, and is in full accord as to the necessity of such restraints for the reasonable and proper protection of the Confidential Information, business strategies, employee and customer relationships and goodwill of the Company Entities now
existing or to be developed in the future. Employee expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, industry scope, time period and geographic area. Employee
agrees to comply with each of the covenants contained in Sections 6 and 7 in accordance with their terms, and Employee shall not, and hereby agrees to waive and release any right or claim to, challenge the reasonableness, validity or enforceability
of any of the covenants contained in Sections 6 and 7. Employee further acknowledges that although Employees compliance with the covenants contained in Sections 6 and 7 may prevent Employee from earning a livelihood in a business similar to
the business of the Company Entities, Employees experience and capabilities are such that Employee has other opportunities to earn a livelihood and adequate means of support for Employee and Employees dependents. Employee acknowledges
that the Company has advised him that it is in his best interest to consult with an attorney prior to executing this Agreement.
(f) Survival. Employees obligations under Sections 6 and 7 of this Agreement shall remain in full force and effect for the
entire period provided therein notwithstanding any termination of employment or other expiration of the Term or termination of this Agreement. The terms and conditions of Sections 5, 6, 7, 8 and 9 of this Agreement shall survive the Term and
termination of Employees employment.
(g) Assignment. This Agreement is binding on and is for the benefit of the
parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives. This Agreement is personal to Employee; and neither this Agreement nor any right or obligation hereunder may be assigned by
Employee without the prior written consent of the Company (or except by will or the laws of descent and distribution), and any purported assignment in violation of this Section 10(g) shall be void.
(h) Severability. If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect
other provisions or applications of this Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of this Agreement are declared to be severable. If any term or provision of this Agreement is
invalid, illegal or incapable of being enforced by any applicable law or public policy, all other conditions and provisions of this Agreement shall nonetheless remain in full force and effect so long as the economic and legal substance of the
transactions contemplated by this Agreement is not affected in any manner materially adverse; provided, however, that in the event of a final, non-reviewable, non-appealable determination that any provision of Section 6 or 7 of
this Agreement (whether in whole or in part) is void or constitutes an unreasonable restriction
against Employee, such provision shall not be rendered void but shall be deemed to be modified to the minimum extent necessary to make such provision enforceable for the longest duration and the
greatest scope as may constitute a reasonable restriction under the circumstances. Subject to the foregoing, upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest
(i) Tax Withholding. The Company may withhold from any amounts payable to Employee hereunder all
federal, state, city, foreign or other taxes that the Company may reasonably determine are required to be withheld pursuant to any applicable law or regulation (it being understood that Employee shall be responsible for payment of all taxes in
respect of the payments and benefits provided herein).
(j) Cooperation Regarding Equity Compensation. Employee
expressly agrees that he shall execute such other documents as reasonably requested by the Company to effect the terms of this Agreement and the issuance of the Equity Compensation as contemplated hereunder in compliance with applicable law.
(k) Governing Law; Arbitration; Consent to Jurisdiction; Waiver of Jury Trial. (i) This Agreement shall be
governed by and construed in accordance with its express terms, and otherwise in accordance with the laws of the State of New York without reference to its principles of conflicts of law.
(ii) Any claim initiated by the Employee arising out of or relating to this Agreement, or the breach thereof, or Employees
employment, or the termination thereof, shall be resolved by binding arbitration before a single arbitrator in the City, County and State of New York administered by the American Arbitration Association in accordance with its Commercial Arbitration
Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Any claim initiated by the Company arising out of or relating to this Agreement, or the breach thereof, or Employees employment, or the termination thereof, shall, at the election of the Company be resolved in accordance with
Section 10(k)(ii) or (iv) of this Agreement.
(iv) Employee hereby irrevocably submits to the jurisdiction of any
state or federal court located in the City, County and State of New York; provided, however, that nothing herein shall preclude the Company from bringing any suit, action or proceeding in any other court for the purposes of enforcing
the provisions of this Section 10(k) or enforcing any judgment or award obtained by the Company. Employee waives, to the fullest extent permitted by applicable law, any objection which he now or hereafter has to personal jurisdiction or to the
laying of venue of any such suit, action or proceeding brought in an applicable court described in this Section 10(k)(iv), and agrees that he shall not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any court. Employee agrees that, to the fullest extent permitted by applicable law, a final and non-appealable judgment in any suit, action or proceeding brought in any
applicable court described in this Section 10(k)(iv) shall be conclusive and binding upon Employee and may be enforced in any other jurisdiction. EMPLOYEE EXPRESSLY AND KNOWINGLY WAIVES ANY RIGHT TO A JURY TRIAL IN THE EVENT THAT ANY
ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH THEREOF, OR EMPLOYEES EMPLOYMENT, OR THE TERMINATION THEREOF, IS LITIGATED OR HEARD IN ANY COURT.
(v) The prevailing party shall be entitled to recover all legal fees and costs (including reasonable attorneys fees and the fees of experts) from the losing party in connection with any claim
arising under this Agreement or Employees employment hereunder.
(l) Section 409A. (i) It is intended
that the provisions of this Agreement comply with Section 409A, and all provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A.
(ii) Neither Employee nor any of his creditors or beneficiaries shall have the right to subject any deferred compensation
(within the meaning of Section 409A) payable under this Agreement or under any other plan, policy, arrangement or agreement of or with the Company or any of its affiliates (this Agreement and such other plans, policies, arrangements and
agreements, the Company Plans) to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A, any deferred compensation (within the meaning
of Section 409A) payable to Employee or for Employees benefit under any Company Plan may not be reduced by, or offset against, any amount owing by Employee to the Company or any of its affiliates.
(iii) If, at the time of Employees separation from service (within the meaning of Section 409A), (i) Employee shall be a
specified employee (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time) and (ii) the Company shall make a good faith determination that an amount payable under a Company
Plan constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under
Section 409A, then the Company (or its affiliate, as applicable) shall not pay such amount on the otherwise scheduled payment date but shall instead accumulate such amount and pay it on the first business day after such six-month period.
(iv) Notwithstanding any provision of this Agreement or any Company Plan to the contrary, in light of the uncertainty with
respect to the proper application of Section 409A, the Company reserves the right to make amendments to any Company Plan as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A. In any
case, Employee is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on Employee or for
Employees account in connection with any Company Plan (including any taxes and penalties under Section 409A), and neither the Company nor any affiliate shall have any obligation to
indemnify or otherwise hold Employee harmless from any or all of such taxes or penalties.
(v) For purposes of
Section 409A, each payment hereunder will be deemed to be a separate payment as permitted under Treasury Regulation Section 1.409A-2(b)(2)(iii).
(vi) Except as specifically permitted by Section 409A, any benefits and reimbursements provided to Employee under this Agreement during any calendar year shall not affect any benefits and
reimbursements to be provided to Employee under this Agreement in any other calendar year, and the right to such benefits and reimbursements cannot be liquidated or exchanged for any other benefit. Furthermore, reimbursement payments shall be made
to the Employee as soon as practicable following the date that the applicable expense is incurred, but in no event later than the last day of the calendar year following the calendar year in which the underlying expense is incurred.
(m) Section 105(h). Notwithstanding any provision of this Agreement to the contrary, to the extent necessary to satisfy
Section 105(h) of the Code, the Company will be permitted to alter the manner in which medical benefits are provided to you following termination of your employment, provided that the after-tax cost to you of such benefits shall not be greater
than the cost applicable to similarly situated executives of the Company who have not terminated employment.
Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Signatures delivered by facsimile or electronic means (including
by pdf) shall be deemed effective for all purposes.
(o) Headings. The headings in this Agreement are
inserted for convenience of reference only and shall not be a part of or control or affect the meaning of any provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
|XPO LOGISTICS, INC.|
/s/ Bradley S. Jacobs
||Bradley S. Jacobs|
||Chief Executive Officer|
/s/ Scott Malat