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Item 9A. Controls and Procedures

2023-02-13 compared with 2022-02-16 · 75 added, 52 removed, 140 unchanged (48% of the section changed)

13 unchanged sentences

OTHER INFORMATION

On February 15, 2022, the Compensation Committee of the Board of Directors of XPO approved an amendment to the terms of the performance-based stock unit awards (“PSU Awards”) held by Brad Jacobs, Mario Harik, and Troy Cooper (collectively, the “Executives”).

The amendment modifies the clause of the change of control definition applicable to the PSU Awards that is triggered based on eligible transfers of assets with a minimum value or businesses or business lines representing a minimum amount of revenue (i) to increase the applicable transaction thresholds for value of assets and amount of revenue, respectively, from 50% to 75%, in each case, compared to the total asset value on a prior measurement date or total revenue during a prior measurement period and (ii) to clarify that an eligible transfer for purposes of this clause only applies to a transaction or series of transactions with respect to an entire business or business line of XPO, provided that the distribution of 80% or more of the common stock of a subsidiary of XPO that holds an entire business or business line will be included as an eligible transfer.

Each Executive entered into a letter agreement with XPO documenting the terms of the amendment.

The foregoing summary of the amendments does not purport to be complete and is qualified in its entirety by reference to the full text of the letter agreements, the form of which is filed with this Annual Report as Exhibit 10.17 and is incorporated herein by reference.

DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTION

On February 9, 2023, the Compensation Committee of the Board of Directors approved the cancellation and replacement of outstanding amounts of the cash long-term incentive award granted in July 2020 to each of Brad Jacobs and Mario Harik (the “Cash LTI Awards”) with performance-based restricted stock unit awards (the “PSU Replacement Awards”).

The PSU Replacement Awards were approved in response to stockholder feedback expressing a preference for equity-based incentives.

Each PSU Replacement Award has a target grant date value equal to the canceled portion of Messrs.

Jacobs’ and Harik’s Cash LTI Award and is pursuant to the Company’s Omnibus Incentive Compensation Plan.

The PSU Replacement Awards are subject to a replacement of the absolute adjusted cash flow per share and relative growth in adjusted cash flow per share performance goals from the Cash LTI Awards final tranche with a relative total shareholder return performance goal, weighted at 75%, and a continuation of the ESG scorecard goal, weighted at 25% and adjusted in connection with the RXO Spin-off.

The number of performance-based restricted stock units granted pursuant to the PSU Replacement Award for each of Messrs.

Jacobs and Harik was determined based on the grant value of the Cash LTI Awards final tranche for each of Messrs.

Jacobs and Harik and the closing price of a share of the Company's common stock on February 9, 2023.

The PSU Replacement Awards have an additional time-based vesting condition that generally requires continued service through February 9, 2025, or an earlier qualifying termination of service, and are subject to a restriction on the sale or transfer of shares until January 15, 2026 (which generally aligns with the vesting period for the corresponding canceled portion of the Cash LTI Awards).

The foregoing summary of the PSU Replacement Awards does not purport to be complete and is qualified in its entirety by reference to the full text of the PSU Replacement Award Agreements filed with this Annual Report as Exhibit 10.18 and Exhibit 10.19 and incorporated herein by reference.

DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS.

Not applicable.

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PRINCIPAL ACCOUNTANT FEES AND SERVICES

Our independent registered public accounting firm is KPMG LLP , Stamford, CT , Auditor ID:

Our independent registered public accounting firm is KPMG LLP , Dallas, TX, Auditor ID:

The information required by Item 14 of Part III of Form 10-K will be set forth in our Proxy Statement for the 2023 Annual Meeting of Stockholders and is incorporated herein by reference.

8 unchanged sentences

(incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K filed with the SEC on August 3, 2021).

2.3 Separation and Distribution Agreement, dated October 31, 2022, by and between the registrant and RXO, Inc.

(incorporated herein by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K filed with the SEC on November 1, 2022).

3.1 Amended and Restated Certificate of Incorporation of the registrant, dated May 17, 2005 (incorporated herein by reference to Exhibit 3.1 to the registrant’s Annual Report on Form 10-K filed with the SEC on March 27, 2008).

4 unchanged sentences

3.6 Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the registrant, dated September 8, 2015 (incorporated herein by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K filed with the SEC on September 8, 2015).

3.7 2nd Amended and Restated Bylaws of the registrant, dated August 30, 2007 (incorporated herein by reference to Exhibit 3(ii) to the registrant’s Current Report on Form 8-K/A filed with the SEC on September 14, 2007).

3.8 Text of Amendments to the 2nd Amended and Restated Bylaws of the registrant , adopted May 19, 2015 (incorporated herein by reference to Exhibit 3.2 to the registrant’s Current Report on Form 8-K filed with the SEC on May 21, 2015).

3.9 Text of A mendment to the 2nd Amended and Restated Bylaws of the registrant , adopted March 14, 2017 (incorporated herein by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K filed with the SEC on March 17, 2017).

3.7 Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the registrant, dated December 15, 2022 (incorporated herein by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K filed with the SEC on December 19, 2022).

3.8 3rd Amended and Restated Bylaws of the registrant, dated December 19, 2022 (incorporated herein by reference to Exhibit 3.2 to the registrant’s Current Report on Form 8-K filed with the SEC on December 19, 2022).

4.1 Certificate of Designation of Series A Convertible Perpetual Preferred Stock of the registrant, dated September 2, 2011 (incorporated herein by reference to Exhibit 4.1 to the September 2011 Form 8-K).

Number Description

4.2 Form of Warrant Certificate (incorporated herein by reference to Exhibit 4.2 to the September 2011 Form 8-K).

4.2 Registration Rights Agreement, dated September 2, 2011, by and among JPE, each of the other holders and designated secured lenders party thereto and the registrant (incorporated herein by reference to Exhibit 4.3 to the September 2011 Form 8-K).

3 unchanged sentences

4.5 Description of Common Stock (incorporated herein by reference to Exhibit 4.9 to the registrant’s Annual Report on Form 10-K filed with the SEC on February 10, 2020).

4.7 Indenture, dated August 25, 2016, between the registrant, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as Trustee (incorporated herein by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K filed with the SEC on August 26, 2016).

4.8 Indenture, dated February 22, 2019, by and among the registrant, the guarantors party thereto and Wells Fargo Bank, National Association, as Trustee (incorporated herein by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K filed with the SEC on February 22, 2019).

4.6 Indenture, dated April 28, 2020, between the registrant, the guarantors party thereto and Wells Fargo Bank, National Association, as Trustee (incorporated herein by reference to Exhibit 4.1 to the registrant’s current report on Form 8-K filed with the SEC on April 28, 2020).

10.1 + 2011 Omnibus Incentive Compensation Plan (incorporated herein by reference to Exhibit D to Exhibit 2.1 to the registrant’s current report on Form 8-K filed with the SEC on June 14, 2011).

10.2 + Form of Option Award Agreement (2011 Omnibus Incentive Compensation Plan) (incorporated herein by reference to Exhibit 10.20 to the registrant ’ s Annual Report on Form 10- K filed with the SEC on March 1, 20 12 ).

10.3 + Form of Restricted Stock Unit Award Agreement for Non-Employee Directors (2011 Omnibus Incentive Compensation Plan) (incorporated herein by reference to Exhibit 10.21 to the registrant ’ s Annual Report on Form 10-K filed with the SEC on March 1, 2012 ).

10.4 + Amended and Restated 2011 Omnibus Incentive Compensation Plan (incorporated herein by reference to Exhibit A to the registrant’s definitive proxy statement on Schedule 14A filed with the SEC on April 27, 2012).

10.5 + Form of Restricted Stock Unit Award Agreement (Amended and Restated 2011 Omnibus Incentive Compensation Plan) (incorporated herein by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on March 20, 2014).

10.1 + 2016 Omnibus Incentive Compensation Plan (incorporated herein by reference to Annex A to the registrant’s definitive proxy statement on Schedule 14A filed with the SEC on November 21, 2016).

10.2 + Form of Restricted Stock Unit Award Agreement for Non-Employee Directors (2016 Omnibus Incentive Compensation Plan) (incorporated herein by reference to Exhibit 10.17 to registrant’s Annual Report on Form 10-K filed with the SEC on February 28, 2017).

10.8 + Performance-Based Restricted Stock Unit Award Agreement, dated August 9, 2018, between the registrant and Sarah J.S.

Glickman (incorporated herein by reference to Exhibit 10.3 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 5, 2018).

Number Description

10.3 + Form of Performance-Based Restricted Stock Unit Award Agreement (2016 Omnibus Incentive Compensation Plan) (incorporated herein by reference to Exhibit 10.4 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 5, 2018).

9 unchanged sentences

10.9 + Performance-Based Restricted Stock Unit Award Agreement, dated September 8, 2021, between the registrant and Ravi Tulsyan (incorporated by reference to Exhibit 10.6 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 3, 2021).

10.16 +* Form of Bonus Agreement with Certain Executive Officers.

10.17 +* Form of Letter Agreement with Certain Executive Officers.

10.10 + Form of Performance-Based Restricted Stock Unit Award Agreement (2016 Omnibus Incentive Compensation Plan) (incorporated hereby by reference to Exhibit 10.1 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on May 10, 2022).

10.11 + Form of Performance-Based Restricted Stock Unit Award Agreement (2016 Omnibus Incentive Compensation Plan) (incorporated hereby by reference to Exhibit 10.2 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on May 10, 2022).

Number Description

10.12 + Amendment No.

3 to the XPO Logistics, Inc.

2016 Omnibus Incentive Compensation (incorporated herein by reference to Annex B to the registrant’s definitive proxy statement on Schedule 14A filed with the SEC on April 18, 2022).

10.13 + Form of Performance-Based Restricted Stock Unit Award Agreement (2016 Omnibus Incentive Compensation Plan) (incorporated hereby by reference to Exhibit 10.2 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.14 + Form of Restricted Stock Unit Award Agreement (2016 Omnibus Incentive Compensation Plan) (incorporated hereby by reference to Exhibit 10.7 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.15 + Form of Performance-Based Restricted Stock Unit Award Agreement (2016 Omnibus Incentive Compensation Plan) (incorporated hereby by reference to Exhibit 10.8 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.16 +* Restricted Stock Unit Award Agreement, dated November 1, 2022, between the registrant and Brad Jacobs.

10.17 +* Restricted Stock Unit Award Agreement, dated November 1, 2022, between the registrant and Mario Harik.

10.18 +* Performance-Based Restricted Stock Unit Award Agreement, dated February 9, 2023, between the registrant and Brad Jacobs.

10.19 +* Performance-Based Restricted Stock Unit Award Agreement, dated February 9, 2023, between the registrant and Mario Harik.

10.20 + Employment Agreement, dated June 5, 2019, between the registrant and Sarah J.S.

1 unchanged sentence

10.21 + Employment Agreement, effective as of February 3, 2020, and Amendment to Employment Agreement, dated April 7, 2020, between the registrant and Kurt M.

Rogers (incorporated herein by reference to Exhibit 10.1 to the registrant ’ s Quarterly Report on For m 10-Q filed with the SEC on May 5, 2020) .

Rogers (incorporated herein by reference to Exhibit 10.1 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on May 5, 2020).

10.22 + Employment Agreement, effective as of March 2, 2020, between the registrant and David B.

2 unchanged sentences

Glickman (incorporated herein by reference to Exhibit 99.1 to the registrant’s current report on Form 8-K filed with the SEC on May 8, 2020).

10.22 + Employment Agreement, effective as of July 31, 2020, between the registrant and Bradley S.

(incorporated herein by reference to Exhibit 10.5 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on August 3, 2020).

10.24 + Employment Agreement, effective as of July 31, 2020, between the registrant and Troy A.

(incorporated herein by reference to Exhibit 10.6 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on August 3, 2020).

10.24 + Employment Agreement, effective as of July 31, 2020, between the registrant and Mario A.

(incorporated herein by reference to Exhibit 10.7 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on August 3, 2020).

Number Description

10.25 + Offer Letter, dated September 14, 2021, between the registrant and Ravi Tulsyan (incorporated by reference to Exhibit 10.7 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 3, 2021).

1 unchanged sentence

10.27 + Separation Agreement, dated December 27, 2021, between the registrant and Troy A.

Cooper (incorporated herein by reference to Exhibit 10.27 to registrant’s Annual Report on Form 10-K filed with the SEC on February 16, 2022).

Number Description

10.28 + Employment Agreement, dated August 5, 2022, between the registrant and Mario A.

Harik (incorporated by reference to Exhibit 10.1 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.29 + Letter of Amendment to Separation Agreement, dated September 1, 2022, between the registrant and Troy A.

Cooper (incorporated by reference to Exhibit 10.3 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.30 + Employment Agreement, dated September 13, 2022, between the registrant and Bradley S.

Jacobs (incorporated by reference to Exhibit 10.4 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.31 + Offer Letter, dated October 6, 2022, between the registrant and Carl Anderson (incorporated by reference to Exhibit 10.5 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.32 + Change in Control and Severance Agreement, dated October 9, 2022, between the registrant and Carl Anderson (incorporated by reference to Exhibit 10.6 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.33 + Transition Agreement, dated October 10, 2022, between the registrant and Ravi Tulsyan (incorporated by reference to Exhibit 10.9 to the registrant’s Quarterly Report on Form 10-Q filed with the SEC on November 2, 2022).

10.34 +* Amendment to Employment Agreement, effective as of November 1, 2022, between the registrant and Bradley S.

10.35 + Separation Agreement and General Release, dated January 23, 2023, between registrant and Ravi Tulsyan (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on January 25, 2023).

10.36 XPO Logistics, Inc.

10 unchanged sentences

3 to Second Amended and Restated Revolving Loan Credit Agreement, dated April 30, 2019, by and among the registrant, certain subsidiaries signatory thereto, the lenders party thereto and Morgan Stanley Senior Funding, Inc., as agent (incorporated herein by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on May 1, 2019).

Number Description

10.42 Amendment No.

6 unchanged sentences

6 to Second Amended and Restated Revolving Loan Credit Agreement, dated July 30, 2021, by and among the registrant and certain subsidiaries signatory thereto, the lenders party thereto and Morgan Stanley Senior Funding, Inc., as agent (incorporated by reference to Exhibit 10.5 to the registrant’s Current Report on Form 8-K filed with the SEC on August 3, 2021).

10.45 Amendment No.

7 to Second Amended and Restated Revolving Loan Credit Agreement, dated February 6, 2023, by and among the registrant and certain subsidiaries signatory thereto, the lenders party thereto and Morgan Stanley Senior Funding, Inc., as agent (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on February 6, 2023).

10.46 Senior Secured Term Loan Credit Agreement, dated October 30, 2015, by and among the registrant, certain subsidiaries signatory thereto, Morgan Stanley Senior Funding, Inc., as agent, and the Lenders from time to time party thereto (incorporated herein by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on November 2, 2015).

Number Description

10.47 Incremental and Refinancing Amendment (Amendment No.

10 unchanged sentences

6 to Senior Secured Term Loan Credit Agreement), dated March 3, 2021, by and among the registrant, the subsidiaries signatory thereto, as guarantors, the lenders party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent (incorporated herein by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on March 3, 2021).

10.44 Transition Services Agreement, dated August 1, 2021, by and between the registrant and GXO Logistics, Inc.

(incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on August 3, 2021).

Number Description

10.53 Amendment No.

7 to Senior Secured Term Loan Credit Agreement, dated June 10, 2022, by and among the registrant and certain subsidiaries signatory thereto, the lenders party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent (incorporated herein by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on June 13, 2022).

10.54 Tax Matters Agreement, dated August 1, 2021, by and between the registrant and GXO Logistics, Inc.

2 unchanged sentences

(incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K filed with the SEC on August 3, 2021).

10.47 Intellectual Property License Agreement, dated July 30, 2021, by and between the registrant and GXO Logistics, Inc.

(incorporated by reference to Exhibit 10.4 to the registrant’s Current Report on Form 8-K filed with the SEC on August 3, 2021).

10.56 Intellectual Property License Agreement, dated October 24, 2022, by and between the registrant and XPO NAT Solutions, LLC (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on October 25, 2022).

10.57 Transition Services Agreement, dated October 31, 2022, by and between the registrant and RXO, Inc.

(incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on November 1, 2022).

10.58 Tax Matters Agreement, dated October 31, 2022, by and between the registrant and RXO, Inc.

(incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on November 1, 2022).

10.59 Employee Matters Agreement, dated October 31, 2022, by and between the registrant and RXO, Inc.

(incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K filed with the SEC on November 1, 2022).

19.1 * XPO, Inc.

Insider Trading Policy, dated December 19, 2022.

21 * Subsidiaries of the registrant.

2 unchanged sentences

31.2 * Certification of the Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, with respect to the registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022.

Number Description

32.1** Certification of the Principal Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, with respect to the registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022.

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101.PRE * Inline XBRL Taxonomy Extension Presentation Linkbase.

Number Description

104 * Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101).

4 unchanged sentences

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

XPO LOGISTICS, INC.

/s/ Brad Jacobs

(Chairman of the Board of Directors and Chief Executive Officer)

/s/ Ravi Tulsyan

/s/ Mario Harik

(Chief Executive Officer)

(Chief Financial Officer)

2 unchanged sentences

Signature Title Date

/s/ Brad Jacobs Chairman of the Board of Directors and Chief Executive Officer

/s/ Brad Jacobs Executive Chairman of the Board of Directors February 13, 2023

/s/ Mario Harik Director and Chief Executive Officer

(Principal Executive Officer) February 13, 2023

/s/ Ravi Tulsyan Chief Financial Officer

Anderson II Chief Financial Officer

(Principal Financial Officer) February 13, 2023

/s/ Lance Robinson Chief Accounting Officer

/s/ Christopher Brown Chief Accounting Officer

(Principal Accounting Officer) February 13, 2023

Lance Robinson

/s/ AnnaMaria DeSalva Vice Chairman of the Board of Directors February 16, 2022

AnnaMaria DeSalva

/s/ Michael Jesselson Lead Independent Director February 16, 2022

Michael Jesselson

/s/ Jason Aiken Director February 16, 2022

/s/ Adrian Kingshott Director February 16, 2022

Adrian Kingshott

/s/ Mary Kissel Director February 16, 2022

/s/ Allison Landry Director February 16, 2022

Christopher Brown

/s/ Allison Landry Vice Chair of the Board of Directors February 13, 2023

Allison Landry

/s/ Johnny C.

Director February 16, 2022

Lead Independent Director February 13, 2023

/s/ Jason Aiken Director February 13, 2023

/s/ Bella Allaire Director February 13, 2023

Bella Allaire

/s/ Michael Jesselson Director February 13, 2023

Michael Jesselson

/s/ Irene Moshouris Director February 13, 2023

Irene Moshouris

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures