Exhibit 10.1
EMPLOYMENT
AGREEMENT
AGREEMENT by and between tw
telecom holdings inc . (the “ Company ”) and
John Blount (the “ Employee ”), dated as
of October 29, 2008 (the “ Effective Date
”).
WHEREAS, the Company is desirous of
continuing to employ the Employee in an executive capacity on the
terms and conditions, and for the consideration, hereinafter set
forth, and the Employee is desirous of being employed by the
Company on such terms and conditions and for such
consideration.
NOW, THEREFORE, IT IS HEREBY AGREED
AS FOLLOWS:
1. Term .
(a) Employment Period. The
Company hereby agrees to continue to employ the Employee, and the
Employee hereby agrees to continue to serve the Company, subject to
the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the three year
anniversary thereof (the “ Employment Period ”);
provided that, on such three year anniversary of the
Effective Date and each annual anniversary of such date thereafter
(such date and each annual anniversary thereof, the “
Renewal Date ”), unless previously terminated in
accordance with the provisions of Section 3 hereof, the
Employment Period shall be automatically extended so as to
terminate one year from such Renewal Date, unless, at least sixty
(60) days prior to the Renewal Date, the Company shall give
notice to the Employee that the Employment Period shall not be so
extended.
(b) Change of Control Employment
Agreement. The Employee and the Company acknowledge that they
have also entered into a Change of Control Employment Agreement
(“ COC Agreement ”) of even date herewith. Upon
the occurrence of the Effective Date as defined in the COC
Agreement, this Agreement will terminate and will be superseded by
the COC Agreement, except that such termination will not relieve
the Company of its obligation to pay any amount earned and payable
prior to the termination of this Agreement.
2. Terms of Employment .
(a) Position and Duties . (i) During the
Employment Period, the Employee shall serve as Chief Operating
Officer or in such other position as the Company shall determine,
and will perform such duties and responsibilities as may be
assigned to the Employee from time to time by the Company, and
shall perform his or her services at the headquarters of the
Company in the Denver, Colorado area, and shall travel for business
purposes to the extent necessary or appropriate in the performance
of such services.
(ii) During the Employment Period,
and excluding any periods of vacation and sick leave to which the
Employee is entitled, the Employee agrees to devote substantially
all of his or her attention and time during normal business hours
to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the
Employee hereunder, to use the Employee’s reasonable best
efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period, it shall not be a
violation of this Agreement for the Employee to serve on corporate,
civic or charitable boards or committees, deliver lectures, fulfill
speaking engagements or teach at educational institutions and
manage
personal investments, so long as such activities
do not significantly interfere with the performance of the
Employee’s responsibilities as an employee of the Company in
accordance with this Agreement and the Employee complies with
applicable provisions of the Company’s Code of Conduct and
Code of Ethics.
(b) Compensation (i)
Base Salary . During the Employment Period, the Employee
shall receive an annual base salary (“ Annual Base
Salary ”) of $492,660. The Employee’s Annual Base
Salary shall be reviewed at least annually by the Compensation
Committee of the Board (the “ Compensation Committee
”) pursuant to its normal performance review policies for
senior executives. Any increase in Annual Base Salary shall not
serve to limit or reduce any other obligation to the Employee under
this Agreement. The Annual Base Salary shall not be reduced and the
term “Annual Base Salary” as utilized in this Agreement
shall refer to the Annual Base Salary as increased from time to
time.
(ii) Annual Bonus . In
addition to the Annual Base Salary, the Employee shall be eligible
to be awarded, for each fiscal year of the Company or portion of a
fiscal year ending during the Employment Period, an annual bonus
(the “ Annual Bonus ”) pursuant to the terms of
the Company’s Annual Incentive Plan, as in effect from time
to time, based on a target percentage of the Annual Base Salary
paid to the Employee during such fiscal year of 100% (the “
Target Bonus ”). The Employee acknowledges that his or
her actual annual bonus will be at the sole discretion of the
Compensation Committee and may vary and range from 0% to 200% of
the target amount, depending on actual performance of the Company
and the Employee. “Annual Bonus” for any given fiscal
year shall mean the amount, if any, of annual bonus earned by the
Employee with respect to the applicable fiscal year of the Company,
including amounts deferred.
(iii) Other Benefits . During
the Employment Period: (A) the Employee shall be entitled to
participate in incentive, savings and retirement plans, practices,
policies and programs of the Company to the same extent as provided
generally to similarly situated executives of the Company; and
(B) the Employee and/or the Employee’s family, as the
case may be, shall be eligible for participation in, and shall
receive benefits under, welfare benefit plans, practices, policies
and programs provided by the Company to the same extent as provided
generally to similarly situated executives of the Company. The
Company reserves the right to amend or cancel any such plan,
practice, policy or program in its sole discretion, subject to the
terms of such plan, practice, policy or program and applicable
law.
(iv) Expenses . During the
Employment Period, the Employee shall be entitled to receive prompt
reimbursement for all reasonable business expenses incurred by the
Employee in accordance with the Company’s
policies.
3. Termination of Employment
. (a) Death or Disability . The Employee’s
employment shall terminate automatically upon the Employee’s
death during the Employment Period. If the Company determines in
good faith that the Disability (as defined below) of the Employee
has occurred during the Employment Period, it may provide the
Employee with written notice in accordance with Section 9(b)
of this Agreement of its intention to terminate the
Employee’s employment. In such event, the Employee’s
employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Employee (the “
Disability Effective Date ”), provided that,
within the thirty (30) days after such receipt, the Employee
shall
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not have returned to full-time performance of
the Employee’s duties. For purposes of this Agreement,
“ Disability ” shall mean the absence of the
Employee from the Employee’s duties with the Company on a
full-time basis for one hundred and eighty (180) consecutive
days or one hundred and eighty (180) days within any twelve
month period as a result of incapacity due to mental or physical
illness.
(b) Cause . The Company may
terminate the Employee’s employment during the Employment
Period either with or without Cause. For purposes of this
Agreement, “ Cause ” shall mean:
(i) being convicted of, or pleading
guilty or nolo contendere to, a charge of commission of a
felony or a misdemeanor involving moral turpitude;
(ii) engaging in any theft,
misappropriation, embezzlement or similar financial fraud or
reckless or willful destruction of the Company’s property, or
willful or reckless violation of the Company’s insider
trading policy;
(iii) the willful and continued
failure of the Employee to perform substantially the
Employee’s duties (as contemplated by Section 2(a)) with
the Company or its affiliated companies (other than any such
failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is
delivered to the Employee by the Board or the Chief Executive
Officer of the Company that specifically identifies the manner in
which the Board or the Chief Executive Officer of the Company
believes that the Employee has not substantially performed the
Employee’s duties;
(iv) the willful or reckless
engaging by the Employee in illegal conduct or gross misconduct
that is materially injurious to the Company’s business,
financial condition or reputation;
(v) any willful or reckless breach
of a statutory or common law duty of loyalty to the Company that is
materially injurious to the Company’s business, financial
condition or reputation;
(vi) any willful and material
violation of the Company’s Code of Conduct; or
(vii) any material breach of the
Employee’s obligations under this Agreement, including
Section 7.
No act, or failure to act, shall be
considered “willful” if it is done, or omitted to be
done, based upon authority (A) given pursuant to a resolution
duly adopted by the Board, (B) upon the instructions of the
Chief Executive Officer of the Company or (C) based upon the
advice of counsel for the Company. With respect to the conduct
described in Sections 3(b)(ii) through 3(b)(vii) above, the Company
shall provide the Employee with written notice setting forth the
details of any claimed breach and in the case of the conduct
described in Section 3(b)(iii) above, the Employee shall have
a reasonable period of time (not less than thirty (30) days)
to cure such claimed breach.
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(c) Notice of Termination .
Any termination by the Company for Cause shall be communicated by
Notice of Termination (as defined below) to the other party hereto
given in accordance with Section 9(b) of this Agreement. For
purposes of this Agreement, a “ Notice of Termination
” shall mean a written notice that (i) indicates the
termination provision in this Agreement relied upon and
(ii) specifies the termination date (which date shall be not
more than thirty (30) days after the giving of such notice) if
the Date of Termination (as defined below) is other than the date
of receipt of such notice. The failure by the Employee or the
Company to set forth in the Notice of Termination any fact or
circumstance that contributes to a showing of Cause shall not waive
any right of the Employee or the Company, respectively, hereunder
or preclude the Employee or the Company, respectively, from
asserting such fact or circumstance in enforcing the
Employee’s or the Company’s rights
hereunder.
(d) Date of Termination .
“ Date of Termination ” shall mean (i) if
the Employee’s employment is terminated by the Company for
Cause, the date of receipt of the Notice of Termination or any
later date specified therein (which date shall not be more than
thirty (30) days after the giving of such notice), as the case
may be, (ii) if the Employee’s employment is terminated
by the Company other than for Cause, death or Disability, the Date
of Termination shall be the date on which the Company notifies the
Employee of such termination, or such later date specified by the
Company, (iii) if the Employee’s employment is
terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Employee or the
Disability Effective Date, as the case may be, and (iv) if the
Employee’s employment is terminated by the Employee for any
reason, the date on which the Employee notifies the Company of such
termination, or such later date as is mutually agreed by the
Company and the Employee.
4. Obligations of the Company
upon Termination . (a) Other Than for Cause, Death or
Disability . If, during the Employment Period, the Company
shall terminate the Employee’s employment other than for
Cause, death or Disability:
(i) the Company shall pay to the
Employee the aggregate of the following amounts in a lump sum in
cash within thirty (30) days after the Date of Termination, or
with respect to the amounts set forth in Sections 4(a)(i)(B) and
4(a)(i)(C), if later, within eight (8) days after the
Employee’s execution and delivery (without revocation) of a
“Waiver and Release” in substantially the form attached
hereto as Exhibit A (the “ Release ”),
which Release must be delivered (and not revoked) not later than 21
days after the Date of Termination (or such longer period of time
permitted by the Company, but in no event later than the latest
business day that is not more than two months after the end of the
calendar year in which the Date of Termination occurs) (the “
Release Deadline ”):
(A) the sum of (1) the
Employee’s Annual Base Salary and any accrued vacation pay
through the Date of Termination, (2) the Employee’s
Annual Bonus for the fiscal year immediately preceding the fiscal
year in which the Date of Termination occurs (other than any
portion of such Annual Bonus that was previously deferred) if such
bonus has not been paid as of the Date of Termination, and
(3) the Employee’s business expenses that have not
been
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reimbursed by the Company as of the
Date of Termination that were incurred by the Employee prior to the
Date of Termination in accordance with the applicable Company
policy, in the case of each of clauses (1) through (3), to the
extent not theretofore paid (the sum of the amounts described in
clauses (1) through (3) shall be hereinafter referred to
as the “ Accrued Obligations ”); and
(B) s
