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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into by
and between SWITCH & DATA FACILITIES COMPANY, INC.
, a Delaware corporation (the "Company"), and KEITH OLSEN
(the "Executive") as of December 16, 2008 (the "Effective
Date").
In consideration of the employment by the Company, and of the
compensation and other remuneration to be paid by the Company to
the Executive for such employment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the Executive, the Company and the Executive agree
as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES
1.1 Employment, Effective Date . Subject to the terms of
this Agreement, the Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company, beginning as of the
Effective Date and continuing until terminated pursuant to the
terms of this Agreement.
1.2 Position . During the Term, the Executive
shall serve as the President and Chief the Executive Officer of the
Company, reporting directly to the Chairman of the Company and the
Board of Directors of the Company (the "Board").
1.3 Duties and Services . The Executive shall have
the authority and shall perform the duties and services
appertaining to the office referred to in Section 1.2, as well
as such additional authority, duties and services appropriate to
such office that the parties mutually may agree upon from time to
time. In furtherance of the foregoing, the Executive 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 that
would conflict with the Executive’s performance of duties
hereunder except with the consent of the Board.
ARTICLE 2: TERMINATION OF EMPLOYMENT
2.1 The Company’s Right to Terminate . The
Executive’s employment shall automatically terminate upon the
Executive’s death. Additionally, the Company shall have the
right to terminate the Executive’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 Subsections 2.1(i) or
(ii) above, in the sole discretion of the Board or termination
for any reason by the Company within one year of a Change in
Control ("Without Cause Termination").
"Total Disability" shall mean the occurrence of any
circumstances in which the Executive, 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 180 days in
any 12-month period. Any questions as to the
existence of Total Disability of the Executive as to which the
Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician mutually acceptable to
the Executive and the Company. If the Executive 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 determination in writing. The
determination of a Total Disability made in writing to the Company
and the Executive shall be final and conclusive for all purposes of
this Agreement.
"Cause" shall mean that the Executive (A) has engaged in
gross negligence or willful misconduct in the performance of any
material duties required of him hereunder, (B) has been
convicted of, or has admitted to committing or pleads no contest to
committing, a felony offense, (C) has willfully refused to
perform the material duties and responsibilities required of him
hereunder other than as a result of the Executive’s Total
Disability, (D) has materially and willfully breached any then
current material Company policy or code of conduct established by
the Company, which policy or code of conduct was provided to the
Executive prior to such breach, or (E) has materially and
willfully breached any of the provisions of Section 1.3 (and
such breach is ongoing in nature), Article 4, and Article 6 of this
Agreement and, in all cases (except those specified in Clause
(B) above), such conduct or events remain uncorrected for 30
days following written notice to the Executive by the Company of
such conduct or events.
For purposes hereof, no act shall be deemed "willful" if taken
by the Executive with the good faith belief that such was in the
best interest of the Company or at the direction of the
Company’s Board.
As used herein, the term "Change of Control" shall mean:
(i) the acquisition by any individual, entity or group (within
the meaning of Section 13(d) or 14(d)(2)of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or
more of either (A) the then outstanding shares of common stock
of the Company (the "Outstanding Company Common Stock") or
(B) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); provided , however , that for the
purposes of this clause 2.2(c)(i), the following acquisition shall
not constitute a Change in Control: (u) any acquisition
directly from the Company, (w) any acquisition by the Company,
(x) any acquisition by an employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (y) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(A), (B) and (C) of clause 2.2(c)(iii) below; or
(ii) individuals who, as of date of this Agreement, constitute
the Board of the Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of the
Company; provided , however , that any individual
becoming a director subsequent to the date of this Agreement whose
election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the
directors then comprising the
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Incumbent Board (or the Nominating Committee)
shall be considered as though such individual were a member of the
Incumbent board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(iii) consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case,
unless, following such Business Combination, (A) all or
substantially of the Persons who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as
a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (B) no Person
(excluding any corporation resulting from such Business
Combination) or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, fifty
percent or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination and
(C) at least a majority of the members of the board of
directors resulting from such Business Combination were members of
the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination.
2.2 The Executive’s Right to Terminate . The
Executive may terminate his employment hereunder for Good Reason or
without Good Reason at anytime during the Term, in which event the
Executive shall resign from all of his positions with the Company.
For purposes of this Agreement, "Good Reason" shall mean any of the
following should they occur without the Executive’s prior
consent:
(a) The assignment to the Executive by the Company of duties or
authority inconsistent with the Executive’s position as
President and Chief Executive Officer of the Company, or any
significant reduction or significant change in either position,
reporting relationship, 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 2.2 (a) unless and until the Executive
first provides written notice to the Company of such assignment,
significant reduction or significant change within 90 days
following the effective date of such assignment, significant
reduction or significant change, and such assignment, significant
reduction or significant change remains uncorrected for more than
30 days following written notice to the Company by the Executive of
same; or
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(b) (i) A reduction by the Company in the Base
Salary, the minimum target bonus for 2008, or benefits received by
the Executive in violation of this Agreement, or (ii) the
Company states its intent to lower the Executive’s Target
Bonus (as defined in Section 3.2 hereof); provided, that "Good
Reason" shall not occur pursuant to this Section 2.2(b) unless
and until the Executive first provides written notice to the
Company of such reduction of Base Salary, minimum 2008 target
bonus, Target Bonus, or benefits within 90 days following the
effective date of such reduction, and such reduction remains
uncorrected for more than 30 days following written notice to the
Company by the Executive of same.
The Executive’s termination of his employment shall not
constitute a termination for "Good Reason" unless the effective
date of such termination is within one year following the effective
date of the occurrence the "Good Reason."
2.3 Effect of Termination .
(a) If the Executive’s employment shall terminate pursuant
to Sections 2.1 or 2.2 then, upon such termination, regardless of
the reason therefor, the Executive shall be paid all earned but
unpaid compensation and benefits, and all further compensation and
benefits to the Executive hereunder shall terminate
contemporaneously with such termination.
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1)
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Notwithstanding the previous
sentence, if the Executive complies with the provisions of Article
6 of this Agreement and Subsection (c) of this Section, then,
upon any termination for "Good Reason" or any Without Cause
Termination, the Company shall (A) pay the Executive, in equal
monthly installments as nearly as practicable, on the normal
payroll dates that would have been applicable for the Executive had
such termination not occurred, for a period of 12 months after such
termination (the "Severance Term"), the greater of: (i) an
amount equal to the Base Salary (as defined below) and bonus paid
to the Executive in the year prior to the year of termination, and
(ii) $500,000, and (B) to the extent permitted by the
applicable benefit plan or the Company policy, provide the
Executive with continued benefits that were in effect as of the
termination of this Agreement for the balance of the Severance
Term, as if the Executive had remained an active employee of the
Company hereunder during the Severance Term.
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2)
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With respect to
subsection 2.3(a)(1)(B) above, in the event that the Executive
is no longer eligible to participate in a benefit plan that was in
effect as of the termination of this Agreement, and such
ineligibility is caused solely as a result of the termination of
this Agreement, then the Company shall provide the Executive with
substantially similar benefits through commercial insurers or such
other means as the Company shall reasonably determine.
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3)
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With respect to the payments
provided by subsection 2.3(a)(1)(A) above (the "Cash Severance
Amount"), in the event the aggregate portion of the Cash Severance
Amount payable during the first six months of the Severance Term
would exceed an amount (the " Minimum Amount ") equal to two
times the lesser of (i) the Executive’s annualized
compensation as in effect for the calendar year immediately
preceding the calendar year during which the Executive’s
termination of
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employment occurs, or (ii) the
maximum amount that may be taken into account under a qualified
retirement plan pursuant to Section 401(a)(17) of the Internal
Revenue Code of 1986, as amended (the "Code"), for the calendar
year during which the Executive’s termination of employment
occurs, then, to the extent necessary to avoid the imposition of
additional income taxes or penalties or interest on the Executive
und
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