Exhibit 10.19
XPEDIOR STOCK INCENTIVE PLAN
AMENDED AND RESTATED NONSTATUTORY STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made as of the 22ND day of March,
2000, between XPEDIOR INCORPORATED, a Delaware corporation (the "Company"), and
Xxxx X. Xxxxxx ("Employee") in order to carry out the purposes of the XPEDIOR
STOCK INCENTIVE PLAN (the "Plan"), by affording Employee the opportunity to
purchase shares of common stock of the Company, and in consideration of the
mutual agreements and other matters set forth herein and in the Plan, the
Company and Employee hereby agree as follows:
I.
Definitions
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1.1 Definitions. Wherever used in this Agreement, the following words and
phrases shall have the meanings ascribed below, unless the context clearly
indicates to the contrary, and all other capitalized terms used in this
Agreement, which are not defined below, shall have the meanings set forth in the
Plan:
1.1.1 "Act" shall mean the Securities Act of 1933, as amended.
1.1.2 "Agreement" shall mean this nonstatutory stock option agreement
between Employee and the Company.
1.1.3 "Company's Stock Option Program" shall mean the program
established by the Company setting forth the rules and regulations
regarding the mechanics and payment methods for exercise of stock options
under the Company's stock option plans, as such program may be amended from
time to time.
1.1.4 "Date of Grant" shall mean September 24, 1999.
1.1.5 "Option" shall mean the right and option to purchase shares of
Common Stock on the terms set forth in this Agreement and the Plan.
1.1.6 "Parent Company Merger" shall mean the closing of the merger by
and among Metamor Worldwide, Inc., a Delaware corporation ("Metamor"),
PSINet Inc., a New York corporation, and PSINet Shelf IV Inc., a Delaware
corporation.
1.1.7 "Prior Agreement" shall mean that certain Nonstatutory Stock
Option Agreement dated September 24, 1999 between the Employee and the
Company.
1.1.8 "Restricted Period" shall mean the period beginning on the date
hereof and ending on the earlier of (i) the occurrence of the Parent
Company Merger, (ii) the Spin-off, or (ii) December 16, 2001.
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1.1.9 "Spin-Off" shall mean the date of completion of a spin-off of
all of the Common Stock of the Company held by Metamor to its stockholders
through dividend, share exchange, or similar transaction.
1.1.10 "Vested Interest" shall mean the vested interest determined in
accordance with Section IV.
II.
Grant of Option and Purchase Price
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2.1 Grant of Option. The Company hereby irrevocably grants to Employee the
Option to purchase all or any part of an aggregate of 175,000 shares of Common
Stock, on the terms and conditions set forth herein and in the Plan, which Plan
is incorporated herein by reference as a part of this Agreement. This Option
shall not be treated as an incentive stock option within the meaning of section
422(b) of the Code.
2.2 Purchase Price. The purchase price of the Common Stock purchased
pursuant to the exercise of this Option shall be $10.71.
III.
Exercise of Option
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3.1 Exercise of Option. Subject to the earlier expiration of this Option
as herein provided, this Option may be exercised in accordance with the
Company's Stock Option Exercise Program; provided, however, that except as
otherwise provided in this Section III, this Option (i) shall be exercisable
only for the shares offered by this Option in which Employee has acquired a
Vested Interest in accordance with Section IV and (ii) shall not be exercisable
in whole or in part prior to the end of the Restricted Period.
3.2 Termination of Employment. This Option may be exercised only while
Employee remains an employee of the Company and will terminate and cease to be
exercisable upon Employee's termination of employment with the Company, except
as follows:
3.2.1 If Employee's employment with the Company terminates by reason
of disability (within the meaning of section 22(e)(3) of the Code), this
Option may be exercised by Employee (or Employee's estate or the person who
acquires this Option by will or the laws of descent and distribution or
otherwise by reason of the death of Employee) at any time during the period
of one year following such termination, but only as to the number of shares
in which Employee had a Vested Interest as of the date Employee's
employment so terminates; provided, however, notwithstanding any provision
set forth in this Agreement to the contrary, Employee shall not have a
Vested Interest in any shares if the Restricted Period has not ended as of
the date Employee's employment so terminates.
3.2.2 If Employee dies while in the employ of the Company, Employee's
estate, or the person who acquires this Option by will or the laws of
descent and distribution or otherwise by reason of the death of Employee,
may exercise this Option at any time during
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the period of one year following the date of Employee's death, but only as
to the number of shares in which Employee had a Vested Interest as of the
date of Employee's death; provided, however, notwithstanding any provision
set forth in this Agreement to the contrary, Employee shall not have a
Vested Interest in any shares if the Restricted Period has not ended as of
the date of Employee's death.
3.2.3 If Employee's employment with the Company terminates for any
reason other than as described in Subparagraph 3.2.1 or 3.2.2 above, unless
such employment is terminated for Cause, this Option may be exercised (A)
by Employee at any time during the period of three months following such
termination, or (B) if Employee dies during such three-month period, by
Employee's estate (or the person who acquires this Option by will or the
laws of descent and distribution or otherwise by reason of the death of
Employee) during a period of one year following the Employee's death, but
in all such cases only (Y) as to the number of shares in which Employee had
a Vested Interest as of the date Employee's employment so terminates, and
(Z) if the Restricted Period has ended as of the date Employee's employment
so terminates.
3.3 Ten-Year Term. This Option shall not be exercisable in any event after
the expiration of ten years from the date of grant hereof.
3.4 Method of Payment. The purchase price of shares as to which this
Option is exercised shall be paid in full at the time of exercise by any method
permitted by the Company's Stock Option Program; provided, that no fraction of a
share of Common Stock shall be issued by the Company upon exercise of an Option
or accepted by the Company in payment of the purchase price thereof; rather,
Employee shall provide a cash payment for such amount as is necessary to effect
the issuance and acceptance of only whole shares of Common Stock.
3.5 Issuance of Certificate. Unless and until a certificate or
certificates representing such shares shall have been issued by the Company to
Employee, Employee (or any other person permitted to exercise this Option
pursuant to the terms of the Plan and this Agreement) shall not be or have any
of the rights or privileges of a stockholder of the Company with respect to
shares acquirable upon an exercise of this Option.
IV.
Vesting
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4.1 Vesting of Shares. Subject to the forfeiture provisions of Paragraph
4.3, Employee shall acquire a Vested Interest in the shares subject to this
Option in accordance with Paragraph 4.2 below. Notwithstanding Employee's
acquisition of a Vested Interest pursuant to this Section IV, no Option or
portion thereof shall be exercisable by Employee prior to the time provided in
Section III or in any manner except as provided in Section III.
4.2 36-Month Vesting Schedule. As long as Employee is continuously
employed by the Company, Employee shall acquire a Vested Interest in 4861 shares
subject to this Option per month for the first thirty five (35) months following
the Date of Grant, and a Vested Interest in 4865 shares subject to this Option
for the thirty-sixth (36th) month following the Date of Grant. Upon
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termination of Employee's employment with the Company for any reason, including,
but not limited to, death and disability, Employee shall cease to acquire a
Vested Interest in the shares subject to this Option.
4.3 Forfeiture of Option. Employee shall forfeit this entire Option
(including the portion of such Option in which Employee has acquired a Vested
Interest) and any and all shares acquired pursuant to the exercise of such
Option in accordance with Paragraph 5.2 of the Plan if the Committee determines
that Employee has engaged in any Detrimental Activity.
V.
Status of Common Stock
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5.1 Status of Common Stock. With respect to the status of the Common
Stock, at the time of execution of this Agreement Employee understands and
agrees to all of the following:
5.1.1 The Company intends to register for issuance under the Act the
shares of Common Stock acquirable upon exercise of this Option, and intends
to keep such registration effective throughout the period this Option is
exercisable. In the absence of such effective registration or an available
exemption from registration under the Act, issuance of shares of Common
Stock acquirable upon exercise of this Option will be delayed until
registration of such shares is effective or an exemption from registration
under the Act is available. The Company intends to use its best efforts to
ensure that no such delay will occur. In the event exemption from
registration under the Act is available upon an exercise of this Option,
Employee (or the person permitted to exercise this Option in the event of
Employee's death or incapacity), if requested by the Company to do so, will
execute and deliver to the Company in writing an agreement containing such
provisions as the Company may require to assure compliance with applicable
securities laws.
5.1.2 Employee agrees that the shares of Common Stock which Employee
may acquire by exercising this Option will not be sold or otherwise
disposed of in any manner that would constitute a violation of any
applicable securities laws, whether federal or state.
5.1.3 Employee agrees that (i) the certificates representing the
shares of Common Stock purchased under this Option may bear such legend or
legends as the Committee deems appropriate in order to assure compliance
with applicable securities laws, (ii) the Company may refuse to register
the transfer of the shares of Common Stock purchased under this Option on
the stock transfer records of the Company if such proposed transfer would
in the opinion of counsel satisfactory to the Company constitute a
violation of any applicable securities law, and (iii) the Company may give
related instructions to its transfer agent, if any, to stop registration of
the transfer of the shares of Common Stock purchased under this Option.
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VI.
Miscellaneous
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6.1 Employment Relationship. For purposes of this Agreement, Employee
shall be considered to be in the employment of the Company as long as Employee
remains an employee of either the Company, a parent or subsidiary corporation
(as defined in section 424 of the Code) of the Company, or a corporation or a
parent or subsidiary of such corporation assuming or substituting a new option
for this Option. Any question as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Committee, and its determination shall be final.
6.2 Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company to: Xpedior Incorporated
Xxx Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Senior Vice President, Human Resources
With a copy to: Xpedior Incorporated
00 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Senior Vice President and General Counsel
If to Employee to: Xxxx X. Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices or changes of address shall be
effective only upon receipt.
6.3 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company and all persons lawfully claiming under
Employee.
6.4 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the state of Illinois.
6.5 Replacement and Termination of Prior Agreement. The parties expressly
acknowledge and agreement that this Agreement supercedes and replaces the Prior
Agreement in its entirety and, upon execution and delivery of this Agreement by
the parties, the Prior Agreement shall immediately terminate and be of no
further force and effect.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Employee has executed
this Agreement, all as of the day and year first above written.
XPEDIOR INCORPORATED
By:/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Senior Vice President, General Counsel
and Secretary
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
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Social Security Number: ###-##-####
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