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Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"Agreement") is entered into by and between SWITCH AND DATA
MANAGEMENT COMPANY LLC , a Delaware limited liability company
("Company"), and GEORGE A. POLLOCK, JR. ("Employee")
effective as of December 18, 2008 (the "Effective Date").
In consideration of the employment by Company, and of the
compensation and other remuneration to be paid by Company to
Employee for such employment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by Employee, Company and Employee agree as
follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
1.1 Employment: Effective Date . Subject to the terms of
this Agreement, Company agrees to employ Employee, and Employee
agrees to be employed by Company, beginning as of the Effective
Date and continuing until the last day of the Stated Term (as
hereinafter defined) unless earlier terminated or extended in
accordance with this Agreement (such period of employment being
referred to herein as the "Term").
1.2 Position . During the Term, Employee shall
serve as the Senior Vice President, Chief Financial Officer and
Treasurer. The Employee acknowledges that the Company is a
management company affiliated with Switch & Data
Facilities Company, Inc. (the "Parent") and that the
Employee’s duties under this Agreement will involve services
on behalf of the Company, Parent and the Parent’s
subsidiaries (the "Switch & Data Group").
1.3 Duties and Services . The Employee shall
perform diligently and to the best of his abilities the duties and
services appertaining to the office referred to in
Section 2.2, as well as such additional duties and services
appropriate to such office that the Board of Directors of the
Parent (the "Board") or the Chief Executive Officer of the Parent
(the "CEO") may determine from time to time. The Employee’s
employment shall also be subject to the policies maintained and
established by the Board and the CEO, as the same may be amended
from time to time. In furtherance of the foregoing, the Employee
shall devote his full business time, energy and efforts to the
business and affairs of the Company and its affiliates and shall
not engage, directly or indirectly, in any other business or
businesses, whether or not similar to that of the Switch &
Data Group, except with the consent of the Board, which consent may
be withheld by the Board in its sole discretion. The foregoing
notwithstanding, the parties recognize and agree that the Employee
may engage in passive personal investments and other business
activities that do not conflict with the business and affairs of
the Switch & Data Group or interfere with the
Employee’s performance of his duties hereunder.
1.4 Duty of Loyalty . Employee acknowledges and
agrees that Employee owes a fiduciary duty of loyalty, fidelity and
allegiance to act at all times in the best interests of
Switch & Data Group and to do no act that would injure the
business, interests or reputation of Company or any of its
subsidiaries or affiliates. In keeping with these duties, Employee
shall make full
disclosure to Company of all business
opportunities pertaining to Company’s business and shall not
appropriate for Employee’s own benefit business opportunities
concerning the subject matter of the fiduciary
relationship.
ARTICLE 2
STATED TERM AND TERMINATION OF EMPLOYMENT
2.1 Stated Term and Extensions . The stated term (the
"Stated Term") of this Agreement shall commence on the Effective
Date and end on December 31, 2009. Unless either of the
parties provides written notice of termination to the other party
at least 45 days prior to the expiration of the Stated Term, this
Agreement shall automatically extend for an additional calendar
year (an "Extended Year Term"). Thereafter, this Agreement shall
automatically extend for additional Extended Year Terms, unless
either of the parties provides written notice of termination to the
other party at least 45 days prior to the expiration of the then
current Extended Year Term.
2.2 Company’s Right to Terminate .
Notwithstanding the provisions of Section 2.1,
Employee’s employment shall terminate prior to the expiration
of the Stated Term or any Extended Year Term as follows:
(a) Employee’s employment shall automatically terminate
upon Employee’s death and (b) Company shall have the
right to terminate Employee’s employment at any time for any
of the following reasons:
(i) upon Total Disability (as defined below);
(ii) for Cause (as defined below); or
(iii) for any reason not described in Section 2.2(a) or
2.2(b)(i) or (ii), in the sole discretion of the Board of
Directors, by giving Employee 30 days’ advance notice
("Without Cause Termination").
"Total Disability" shall mean the occurrence of any
circumstances in which Employee, by reason of illness, incapacity
or other disability, has failed to perform his duties or fulfill
his obligations under this Agreement for a cumulative total of 130
days in any 12-month period. Any questions as to the existence of
Total Disability of Employee as to which Employee and the Company
cannot agree shall be determined in writing by a qualified
independent physician, mutually acceptable to Employee and the
Company. If Employee and the Company cannot agree as to a qualified
independent physician, each shall appoint such a physician and
those two physicians shall select a third who shall make such a
determination in writing. The determination of a Total Disability
made in writing to the Company and Employee shall be final and
conclusive for all purposes of this Agreement.
"Cause" shall mean that Employee (A) has engaged in gross
negligence or willful misconduct in the performance of the duties
required of him hereunder, (B) has been indicted with respect
to a felony offense, or a criminal information has been returned
with respect to a misdemeanor offense, (C) has willfully
refused to perform the duties and responsibilities required of him
hereunder, (D) has materially breached any then-current
Company policy or code of conduct established by Company, which
policy or code of conduct was provided to Employee prior to such
breach, (E) has willfully engaged in conduct that is
materially injurious
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to Company or any of its affiliates, (F) has
breached any material provision of this Agreement that, if
correctable, remains uncorrected for 30 days following written
notice to Employee by Company of such breach or (G) has
voluntarily resigned.
2.3 Employee’s Right to Terminate for "Good
Reason" . Employee may terminate his employment hereunder
for Good Reason at any time during the Term, in which event
Employee shall resign from all of his positions with Company. For
purposes of this Agreement, "Good Reason" shall mean any of the
following should they occur without the Employee’s prior
consent:
(a) The assignment to Employee by Company of duties inconsistent
with Employee’s position as Senior Vice President or Chief
Financial Officer, or any significant reduction or significant
change in either position, stature, or job function, except in
connection with the termination of employment for Cause or Total
Disability; provided, that "Good Reason" shall not occur pursuant
to this Section 2.3(a) unless and until such assignment,
significant reduction or significant change remains uncorrected for
30 days following written notice to Company by Employee of
same;
(b) A reduction by Company in the Base Salary or benefits
received by Employee in violation of this Agreement; provided, that
"Good Reason" shall not occur pursuant to this Section 2.3(b)
unless and until such reduction of Base Salary or benefits remains
uncorrected for 30 days following written notice to Company by
Employee of same;
(c) Unless consented to by Employee, Company and its affiliates
shall no longer engage in the business of providing colocation and
ancillary services by reason of an action taken by a majority of
the Board; or
(d) The occurrence of a Change of Control. As used herein, the
term "Change of Control" shall mean (i) in the event the
Parent’s common stock, par value $0.0001 per share ("Common
Stock"), is not publicly traded on a national securities exchange,
any merger, consolidation, amalgamation, plan of arrangement,
reorganization or similar transaction involving the Parent, other
than a transaction in which the Parent’s shareholders,
immediately prior to the transaction hold, immediately thereafter,
not less than fifty percent of the combined voting power of the
then outstanding voting securities with respect to the election of
the board of directors of the resulting entity or the ultimate
parent of the resulting entity, (ii) in the event the
Parent’s Common Stock is publicly traded on a national
securities exchange, any merger, consolidation, amalgamation, plan
of arrangement, reorganization or similar transaction involving the
Parent, other than a transaction in which the Parent’s
shareholders, immediately prior to the transaction hold,
immediately thereafter, in the same proportion as immediately prior
to the transaction, not less than fifty percent of the combined
voting power of the then outstanding voting securities with respect
to the election of the board of directors of the resulting entity
or the ultimate parent of the resulting entity, and (iii) any
liquidation or sale of all or substantially all of the assets of
the Parent.
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2.4 Effect of Termination
.
(a) If Employee’s employment shall terminate upon the
expiration of the Stated Term or any Extended Year Term, then, all
compensation and all benefits to Employee hereunder shall terminate
contemporaneously with such termination of employment.
(b) If Employee’s employment shall terminate prior to the
expiration of the Stated Term or an Extended Year Term, then, upon
such termination, regardless of the reason therefor, all
compensation and benefits to Employee hereunder shall terminate
contemporaneously with such termination; provided, that upon any
Without Cause Termination or any termination for Good Reason,
subject to subsection 2.4(d) below, Company shall continue to pay
Employee the Base Salary (as defined below) plus the pro rated
bonus amount for that calendar year plus medical insurance premiums
for a period of 12 months after such termination, in such
installments and on the same normal payroll dates as Company would
have paid in accordance with Company's normal payroll practice had
such termination not occurred. Such Base Salary to be adjusted for
any increases in salary.
(c) In light of the difficulties in estimating the damages for
an early termination of this Agreement, Company and Employee hereby
agree that the payments, if any, to be received by Employee
pursuant to this Section 2.3 shall be received by Employee as
liquidated damages, and Employee shall not have any right to any
other payment or damages except for such liquidated damages.
(d) With respect to the payments provided by subsection 2.4(b)
above (the "Termination Payments"), to the extent necessary to
avoid the imposition o
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