Exhibit

10.3.8




 




EMPLOYMENT AGREEMENT




 




This Agreement is made as of the Effective Date

between Broadwing Inc. (“Employer”), and Matthew W. Booher (“Employee”).  For purposes of this Agreement, the

“Effective Date” is October 25, 2002.




 




Employer and Employee agree as follows:




 




1.                                       Employment.  By this Agreement, Employer and Employee set

forth the terms of Employer’s employment of Employee on and after the Effective

Date.  Any prior agreements or

understandings with respect to Employee’s employment by Employer are canceled

as of the Effective Date.




 




2.                                     Term

of Agreement.   The term of this

Agreement initially shall be the one year period commencing on the Effective

Date.  On the first anniversary of the

Effective Date and on each subsequent anniversary of the Effective Date, the

term of this Agreement automatically shall be extended for a period of one

additional year.  Notwithstanding the

foregoing, the term of this Agreement is subject to termination as provided in

Section 13.




 




3.                                       Duties.




 




A.            Employee

will serve as Senior Vice President, Finance for Broadwing Communications Inc.

or in such other equivalent capacity as may be designated by the Chief

Executive Officer of Employer. Employee will report to the Chief Financial

Officer of Employer or to such other officer as the Chief Executive Officer of

Employer may direct.




 




B.            Employee

shall furnish such managerial, executive, financial, technical, and other

skills, advice, and assistance in operating Employer and its Affiliates as

Employer may reasonably request.  For

purposes of this Agreement, “Affiliate” means each corporation which is a

member of a controlled group of corporations (within the meaning of section

1563(a) of the Internal Revenue Code of 1986, as amended (the “Code”)) which

includes Employer.




 




C.            Employee

shall also perform such other duties, consistent with the provisions of Section

3.A., as are reasonably assigned to Employee by the Chief Financial Officer of

Employer.




 




D.            Employee

shall devote Employee’s entire time, attention, and energies to the business of

Employer and its Affiliates.  The words

“entire time, attention, and energies” are intended to mean that Employee shall

devote Employee’s full effort during reasonable working hours to the business

of Employer and its Affiliates and shall devote 




 





























 




at least 40 hours per week to the business of Employer and its

Affiliates.  Employee shall travel to

such places as are necessary in the performance of Employee’s duties.




 




4.                                       Compensation.




 




A.            Employee

shall receive a base salary (the “Base Salary”) of at least $200,000.00 per

year, payable not less frequently than monthly, for each year during the term

of this Agreement, subject to proration for any partial year.  Such Base Salary, and all other amounts payable

under this Agreement, shall be subject to withholding as required by law.




 




B.            In

addition to the Base Salary, Employee shall be entitled to receive an annual

bonus (the “Bonus”) for each calendar year for which services are performed

under this Agreement.  Any Bonus for a

calendar year shall be payable after the conclusion of the calendar year in

accordance with Employer’s regular bonus payment policies.  Each year, Employee shall be given a Bonus

target of not less than $100,000.00. 

Employees Bonus target for 2002 shall be pro-rated with 2/12ths based on

this new target and new objectives, and 10/12ths at Employees prior bonus

target and objectives.




 




C.            On

at least an annual basis, Employee shall receive a formal performance review

and be considered for Base Salary and/or Bonus target increases.




 




5.                                       Expenses.  All reasonable and necessary expenses

incurred by Employee in the course of the performance of Employee’s duties to

Employer shall be reimbursable in accordance with Employer’s then current

travel and expense policies.




 




6.                                       Benefits.




 




A.            While

Employee remains in the employ of Employer, Employee shall be entitled to

participate in all of the various employee benefit plans and programs, or

equivalent plans and programs, which are made available to similarly situated

officers of Employer.




 




B.            Notwithstanding

anything contained herein to the contrary, the Base Salary and Bonuses

otherwise payable to Employee shall be reduced by any benefits paid to Employee

by Employer under any disability plans made available to Employee by Employer.




 




C.            During

each year of this Agreement, Employee will be granted stock options under

Employer’s 1997 Long Term Incentive Plan or any similar plan made available to

employees of Employer.




 




7.             Confidentiality.  Employer and its Affiliates are engaged in

the telecommunications industry within the U.S.  Employee acknowledges that in the course of employment with the

Employer, Employee will be entrusted with or obtain access to




 




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information proprietary to the Employer and its Affiliates with respect

to the following (all of which information is referred to hereinafter

collectively as the “Information”); the organization and management of Employer

and its Affiliates; the names, addresses, buying habits, and other special

information regarding past, present and potential customers, employees and

suppliers of Employer and its Affiliates; customer and supplier contracts and

transactions or price lists of Employer, its Affiliates and their suppliers;

products, services, programs and processes sold, licensed or developed by the

Employer or its Affiliates; technical data, plans and specifications, present

and/or future development projects of Employer and its Affiliates; financial

and/or marketing data respecting the conduct of the present or future phases of

business of Employer and its Affiliates; computer programs, systems and/or

software; ideas, inventions, trademarks, business information, know-how,

processes, improvements, designs, redesigns, discoveries and developments of

Employer and its Affiliates; and other information considered confidential by

any of the Employer, its Affiliates or customers or suppliers of  Employer, its Affiliates.  Employee agrees to retain the Information in

absolute confidence and not to disclose the Information to any person or

organization except as required in the performance of Employee’s duties for

Employer, without the express written consent of Employer; provided that

Employee’s obligation of confidentiality shall not extend to any Information

which becomes generally available to the public other than as a result of

disclosure by Employee.




 




8.                                       New

Developments.  All ideas,

inventions, discoveries, concepts, trademarks, or other developments or

improvements, whether patentable or not, conceived by the Employee, alone or

with others, at any time during the term of Employee’s employment, whether or

not during working hours or on Employer’s premises, which are within the scope

of or related to the business operations of Employer or its Affiliates (“New

Developments”), shall be and remain the exclusive property of Employer.  Employee shall do all things reasonably

necessary to ensure ownership of such New Developments by Employer, including

the execution of documents assigning and transferring to Employer, all of

Employee’s rights, title and interest in and to such New Developments, and the

execution of all documents required to enable Employer to file and obtain

patents, trademarks, and copyrights in the United States and foreign countries on

any of such New Developments.




 




9.                                       Surrender

of Material Upon Termination. 

Employee hereby agrees that upon cessation of Employee’s employment, for

whatever reason and whether voluntary or involuntary, Employee will immediately

surrender to Employer all of the property and other things of value in his

possession or in the possession of any person or entity under Employee’s

control that are the property of Employer or any of its Affiliates, including

without any limitation all personal notes, drawings, manuals, documents,

photographs, or the like, including copies and derivatives thereof, relating

directly or indirectly to any confidential information or materials or New

Developments, or relating directly or indirectly to the business of Employer or

any of its Affiliates.




 




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10.                                 Remedies.




 




A.                                   Employer

and Employee hereby acknowledge and agree that the services rendered by

Employee to Employer, the information disclosed to Employee during and by

virtue of Employee’s employment, and Employee’s commitments and obligations to

Employer and its Affiliates herein are of a special, unique and extraordinary

character, and that the breach of any provision of this Agreement by Employee

will cause Employer irreparable injury and damage, and consequently the

Employer shall be entitled to, in addition to all other remedies available to

it, injunctive and equitable relief to prevent a breach of Sections 7, 8, 9, 11

and 12 of this Agreement and to secure the enforcement of this Agreement.




 




B.                                     Except

as provided in Section 10.A., the parties agree to submit to final and binding

arbitration any dispute, claim or controversy, whether for breach of this

Agreement or for violation of any of Employee’s statutorily created or

protected rights, arising between the parties that either party would have been

otherwise entitled to file or pursue in court or before any administrative

agency (herein “claim”), and waives all right to sue the other party.




 




(i)                                     This

agreement to arbitrate and any resulting arbitration award are enforceable

under and subject to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.

(“FAA”).  If the FAA is held not to

apply for any reason then Ohio Revised Code Chapter 2711 regarding the

enforceability of arbitration agreements and awards will govern this Agreement

and the arbitration award.




 




(ii)                                  (a)                                  All

of a party’s claims must be presented at a single arbitration hearing.  Any claim not raised at the arbitration

hearing is waived and released.  The

arbitration hearing will take place in Cincinnati, Ohio.




 




(b)                                 The

arbitration process will be governed by the Employment Dispute Resolution Rules

of the American Arbitration Association (“AAA”) except to the extent they are

modified by this Agreement.




 




(c)                                  Employee

has had an opportunity to review the AAA rules and the requirements that

Employee must pay a filing fee for which the Employer has agreed to split on an

equal basis.




 




(d)                                 The

arbitrator will be selected from a panel of arbitrators chosen by the AAA in

White Plains, New York.  After the

filing of a Request for Arbitration, the AAA will send simultaneously to

Employer and Employee an identical list of names of five persons chosen from

the panel.  Each party will have 10 days

from the transmittal date in which to strike up to two names, number the

remaining names in order of preference and return the list to the AAA.




 




(e)                                  Any

pre-hearing disputes will be presented to the arbitrator for expeditious, final

and binding resolution.




 




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(f)                                    The

award of the arbitrator will be in writing and will set forth each issue

considered and the arbitrator’s finding of fact and conclusions of law as to

each such issue.




 




(g)                                 The

remedy and relief that may be granted by the arbitrator to Employee are limited

to lost wages, benefits, cease and desist and affirmative relief, compensatory,

liquidated and punitive damages and reasonable attorney’s fees, and will not

include reinstatement or promotion.  If the

arbitrator would have awarded reinstatement or promotion, but for the

prohibition in this Agreement, the arbitrator may award front pay.  The arbitrator may assess to either party,

or split, the arbitrator’s fee and expenses and the cost of the transcript, if

any, in accordance with the arbitrator’s determination of the merits of each

party’s position, but each party will bear any cost for its witnesses and

proof.




 




(h)                                 Employer

and Employee recognize that a primary benefit each derives from arbitration is

avoiding the delay and costs normally associated with litigation.  Therefore, neither party will be entitled to

conduct any discovery prior to the arbitration hearing except that:  (i) Employer will furnish Employee with

copies of all non-privileged documents in Employee’s personnel file; (ii) if

the claim is for discharge, Employee will furnish Employer with records of

earnings and benefits relating to Employee’s subsequent employment (including

self-employment) and all documents relating to Employee’s efforts to obtain

subsequent employment; (iii) the parties will exchange copies of all documents

they intend to introduce as evidence at the arbitration hearing at least 10

days prior to such hearing; (iv) Employee will be allowed (at Employee’s

expense) to take the depositions, for a period not to exceed four hours each,

of two representatives of Employer, and Employer will be allowed (at its

expense) to depose Employee for a period not to exceed four hours; and (v)

Employer or Employee may ask the arbitrator to grant additional discovery to the

extent permitted by AAA rules upon a showing that such discovery is necessary.




 




(i)                                     Nothing

herein will prevent either party from taking the deposition of any witness

where the sole purpose for taking the deposition is to use the deposition in

lieu of the witness testifying at the hearing and the witness is, in good

faith, unavailable to testify in person at the hearing due to poor health,

residency and employment more than 50 miles from the hearing site, conflicting

travel plans or other comparable reason.




 




(j)                                     Arbitration

must be requested in writing no later than 6 months from the date of the

party’s knowledge of the matter disputed by the claim. A party’s failure to

initiate arbitration within the time limits herein will be considered a waiver

and release by that party with respect to any claim subject to arbitration

under this Agreement.




 




(k)                                  Employer

and Employee consent that judgment upon the arbitration award may be entered in

any federal or state court that has jurisdiction.




 




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(l)                                     Except

as provided in Section 10.A., neither party will commence or pursue any

litigation on any claim that is or was subject to arbitration under this

Agreement.




 




(m)                               All

aspects of any arbitration procedure under this Agreement, including the

hearing and the record of the proceedings, are confidential and will not be

open to the public, except to the extent the parties agree otherwise in

writing, or as may be appropriate in any subsequent proceedings between the

parties, or as may otherwise be appropriate in response to a governmental

agency or legal process.




 




11.                                 Covenant

Not to Compete.  For purposes of

this Section 11 only, the term “Employer” shall mean, collectively, Employer

and each of its Affiliates. During the one-year period following termination of

Employee’s employment with Employer for any reason (or if this period is

unenforceable by law, then for such period as shall be enforceable) Employee

will not engage in any business offering services related to the current

business of Employer, whether as a principal, partner, joint venture, agent,

employee, salesman, consultant, director or officer, where such position would

involve Employee in any business activity in competition with Employer.  This restriction will be limited to the

geographical area where Employer is then engaged in such competing business

activity or to such other geographical area as a court shall find reasonably

necessary to protect the goodwill and business of the Employer.




 




During the two-year period following termination of

Employee’s employment with Employer for any reason (or if this period is

unenforceable by law, then for such period as shall be enforceable) Employee

will not interfere with or adversely affect, either directly or indirectly, Employer’s

relationships with any person, firm, association, corporation or other entity

which is known by Employee to be, or is included on any listing to which

Employee had access during the course of employment as a customer, client,

supplier, consultant or employee of Employer and that Employee will not divert

or change, or attempt to divert or change, any such relationship to the

detriment of Employer or to the benefit of any other person, firm, association,

corporation or other entity.




 




During the one-year period following termination of

Employee’s employment with Employer for any reason (or if this period is

unenforceable by law, then for such period as shall be enforceable) Employee

shall not, without the prior written consent of Employer, accept employment, as

an employee, consultant, or otherwise, with any company or entity which is a

customer or supplier of Employer at any time during the final year of

Employee’s employment with Employer.




 




Employee will not, during or at any time within three

years after the termination of Employee’s employment with Employer, induce or

seek to induce, any other employee of Employer to terminate his or her

employment relationship with Employer.




 




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12.                                 Goodwill.  Employee will not disparage Employer or any

of its Affiliates in any way which could adversely affect the goodwill,

reputation and business relationships of Employer or any of its Affiliates with

the public generally, or with any of their customers, suppliers or

employees.  Employer will not disparage

Employee.




 




13.                                 Termination.




 




A.                                   (i)                                     Employer

or Employee may terminate this Agreement upon Employee’s failure or inability

to perform the services required hereunder because of any physical or mental

infirmity for which Employee receives disability benefits under any disability

benefit plans made available to Employee by Employer (the “Disability Plans”),

over a period of one hundred twenty consecutive working days during any twelve

consecutive month period (a “Terminating Disability”).




 




(ii)                                  If

Employer or Employee elects to terminate this Agreement in the event of a

Terminating Disability, such termination shall be effective immediately upon

the giving of written notice by the terminating party to the other.




 




(iii)                               Upon termination of this

Agreement on account of Terminating Disability, Employer shall pay Employee

Employee’s accrued compensation hereunder, whether Base Salary, Bonus or

otherwise (subject to offset for any amounts received pursuant to the

Disability Plans), to the date of termination. 

For as long as such Terminating Disability may exist, Employee shall

continue to be an employee of Employer for all other purposes and Employer

shall provide Employee with disability benefits and all other benefits according

to the provisions of the Disability Plans and any other Employer plans in which

Employee is then participating.




 




(iv)                              If

the parties elect not to terminate this Agreement upon an event of a

Terminating Disability and Employee returns to active employment with Employer

prior to such a termination, or if such disability exists for less than one

hundred twenty consecutive working days, the provisions of this Agreement shall

remain in full force and effect.




 




B.                                     This

Agreement terminates immediately and automatically on the death of the

Employee, provided, however, that the Employee’s estate shall be paid

Employee’s accrued compensation hereunder, whether Base Salary, Bonus or

otherwise, to the date of death.




 




C.                                     Employer

may terminate this Agreement immediately, upon written notice to Employee, for

Cause.  For purposes of this Agreement,

Employer shall have “Cause” to terminate this Agreement only if Employer’s

Board of Directors determines that there has been fraud, misappropriation or

embezzlement on the part of Employee.




 




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D.                                    Employer

may terminate this Agreement immediately, upon written notice to Employee, for

any reason other than those set forth in Sections 13.A., B. and C.; provided,

however, that Employer shall have no right to terminate under this Section

13.D. within one year after a Change in Control.   In the event of a termination by Employer under this Section

13.D., Employer shall, within five days after the termination, pay Employee an

amount equal to one times the sum of the annual Base Salary rate in effect at

the time of termination plus the Bonus target in effect at the time of

termination. For the remainder of the Current Term, Employer shall continue to

provide Employee with medical, dental, vision and life insurance coverage

comparable to the medical, dental, vision and life insurance coverage it offers

to its other employees; and, to the extent that Employee would have been

eligible for any post-retirement medical, dental, vision or life insurance

benefits from Employer if Employee had continued in employment through the end

of the Current Term, Employer shall provide such post-retirement benefits to

Employee after the end of the Current Term. 

For purposes of any stock option or restricted stock grant outstanding

immediately prior to the termination, Employee’s employment with Employer shall

not be deemed to have terminated until the end of the Current Term.  In addition, Employee shall be entitled to

receive, as soon as practicable after termination, an amount equal to the sum

of (i) any forfeitable benefits under any qualified or nonqualified pension,

profit sharing, 401(k) or deferred compensation plan of Employer or any

Affiliate which would have vested prior to the end of the Current Term if

Employee’s employment had not terminated plus (ii) if Employee is participating

in a qualified or nonqualified defined benefit plan of Employer or any

Affiliate at the time of termination, an amount equal to the present value of

the additional vested benefits which would have accrued for Employee under such

plan if Employee’s employment had not terminated prior to the end of the

Current Term and if Employee’s annual Base Salary and Bonus target had neither

increased nor decreased after the termination. 

For purposes of this Section 13.D., “Current Term” means the one year

period beginning at the time of termination. 

For purposes of this Section 13.D. and Section 13.E.,  “Change in Control” means a change in

control as defined in Employer’s 1997 Long Term Incentive Plan, including all

relevant modifications.




 




E.                                      This

Agreement shall terminate automatically in the event that there is a Change in

Control and Employee’s employment with Employer is actually or constructively

terminated by Employer within one year after the Change in Control for any

reason other than those set forth in Sections 13.A., B. and C.  For purposes of the preceding sentence, a

“constructive” termination of Employee’s employment shall be deemed to have

occurred if, without Employee’s consent, there is a material reduction in

Employee’s authority or responsibilities or if there is a reduction in

Employee’s Base Salary or Bonus target from the amount in effect immediately

prior to the Change in Control or if Employee is required by Employer to

relocate from the city where Employee is residing immediately prior to the

Change in Control.  In the event of a

termination under this Section 13.E., Employer shall pay Employee an amount

equal to one times the sum of the annual Base Salary rate in effect at the time

of termination plus the Bonus target in effect at the time of termination, all

stock options shall become immediately exercisable (and Employee shall be

afforded the opportunity to exercise them). For the remainder of the Current Term,

Employer shall continue to provide




 




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Employee with medical, dental, vision and life

insurance coverage comparable to the medical, dental, vision and life insurance

coverage it offers to its other employees; and, to the extent that Employee

would have been eligible for any post-retirement medical, dental, vision or

life insurance benefits from Employer if Employee had continued in employment

through the end of the Current Term, Employer shall provide such

post-retirement benefits to Employee after the end of the Current Term.  Employee’s accrued benefit under any

nonqualified pension or deferred compensation plan maintained by Employer or

any Affiliate shall become immediately vested and nonforfeitable and Employee

also shall be entitled to receive a payment equal to the sum of (i) any

forfeitable benefits under any qualified pension or profit sharing or 401(k)

plan maintained by Employer or any Affiliate plus (ii) if Employee is

participating in a qualified or nonqualified defined benefit plan of Employer

or any Affiliate at the time of termination, an amount equal to the present

value of the additional benefits which would have accrued for Employee under

such plan if Employee’s employment had not terminated prior to the end of the

Current Term and if Employee’s annual Base Salary and Bonus target had neither

increased nor decreased after the termination. 

Finally, to the extent that Employee is deemed to have received an

excess parachute payment by reason of the Change in Control, Employer shall pay

Employee an additional sum sufficient to pay (i) any taxes imposed under

section 4999 of the Code plus (ii) any federal, state and local taxes

applicable to any taxes imposed under section 4999 of the Code.  For purposes of this Section 13.E., “Current

Term” means the one year period beginning at the time of termination.




 




F.                                      Employee

may resign upon 60 days’ prior written notice to Employer.  In the event of a resignation under this

Section 13.F., this Agreement shall terminate and Employee shall be entitled to

receive Employee’s Base Salary through the date of termination, any Bonus

earned but not paid at the time of termination and any other vested

compensation or benefits called for under any compensation plan or program of

Employer.




 




G.                                     Upon

termination of this Agreement as a result of an event of termination described

in this Section 13 and except for Employer’s payment of the required payments

under this Section 13 (including any Base Salary accrued through the date of

termination, any Bonus earned for the year preceding the year in which the

termination occurs and any nonforfeitable amounts payable under any employee

plan), all further compensation under this Agreement shall terminate.




 




H.                                    The

termination of this Agreement shall not amend, alter or modify the rights and

obligations of the parties under Sections 7, 8, 9, 10, 11, and 12 hereof, the

terms of which shall survive the termination of this Agreement.




 




14.                                 Assignment.  As this is an agreement for personal

services involving a relation of confidence and a trust between Employer and

Employee, all rights and duties of Employee arising under this Agreement, and

the Agreement itself, are non-assignable by Employee.




 




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15.                                 Notices.  Any notice required or permitted to be given

under this Agreement shall be sufficient, if in writing, and if delivered

personally or by certified mail to Employee at Employee’s place of residence as

then recorded on the books of Employer or to Employer at its principal office.




 




16.                                 Waiver.  No waiver or modification of this Agreement

or the terms contained herein shall be valid unless in writing and duly

executed by the party to be charged therewith. 

The waiver by any party hereto of a breach of any provision of this

Agreement by the other party shall not operate or be construed as a waiver of

any subsequent breach by such party.




 




17.                                 Governing

Law.  This agreement shall be

governed by the laws of the State of Ohio.




 




18.                                 Entire

Agreement.  This Agreement contains

the entire agreement of the parties with respect to Employee’s employment by

Employer.  There are no other contracts,

agreements or understandings, whether oral or written, existing between them

except as contained or referred to in this Agreement.




 




19.                                 Severability.  In case any one or more of the provisions of

this Agreement is held to be invalid, illegal, or unenforceable in any respect,

such invalidity, illegality, or other enforceability shall not affect any other

provisions hereof, and this Agreement shall be construed as if such invalid,

illegal, or unenforceable provisions have never been contained herein.




 




20.                                 Successors

and Assigns.  Subject to the

requirements of Paragraph 14 above, this Agreement shall be binding upon

Employee, Employer and Employer’s successors and assigns.




 




21.                                 Confidentiality

of Agreement Terms.  The terms of

this Agreement shall be held in strict confidence by Employee and shall not be

disclosed by Employee to anyone other than Employee’s spouse, Employee’s legal

counsel, and Employee’s other advisors, unless required by law.  Further, except as provided in the preceding

sentence, Employee shall not reveal the existence of this Agreement or discuss

its terms with any person (including but not limited to any employee of

Employer or its Affiliates) without the express authorization of the President

of Employer.  To the extent that the

terms of this Agreement have been disclosed by Employer, in a public filing or

otherwise, the confidentiality requirements of this Section 21 shall no longer

apply to such terms.




 




IN WITNESS WHEREOF, the parties hereto have caused

this Agreement to be duly executed as of the day and year first above written.




 




	

   


  	

  Broadwing Inc.


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Kevin W. Mooney


  	

   


  
	

   


  	

  Its:


  	

  Chief Executive Officer


  





 




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  EMPLOYEE


  
	

   


  	

   


  
	

   


  	

  /s/ Matthew W. Booher


  	

   


  
	

   


  	

  Matthew W. Booher


  





 




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