RESTRICTED STOCK AGREEMENT pursuant to the RCN CORPORATION
EXHIBIT
10.5
pursuant
to the
RCN
CORPORATION
2005
STOCK COMPENSATION PLAN
*
* * * *
Grantee:
Xxxxxx
Xxxxxx
Xxxxx
Date: May
25,
2006
Number
of Shares of Restricted Stock Granted: 10,000
*
* * *
*
THIS
RESTRICTED STOCK AGREEMENT (this “Agreement”), dated as of May 25, 2006, is
entered into by and between RCN Corporation (the “Company”), and the Grantee
specified above, pursuant to the RCN Corporation 2005 Stock Compensation Plan
as
in effect and as amended from time to time (the “Plan”); and
WHEREAS,
it has been determined under the Plan that it would be in the best interests
of
the Company to grant the Restricted Stock provided herein to the
Grantee.
NOW,
THEREFORE, in consideration of the mutual covenants and premises hereinafter
set
forth and for other good and valuable consideration, the parties hereto hereby
mutually covenant and agree as follows:
1. Incorporation
By Reference; Plan Document Receipt.
This
Agreement is subject in all respects to the terms and provisions of the Plan
(including, without limitation, any amendments thereto adopted at any time
and
from time to time unless such amendments are expressly intended not to apply
to
the grant of Restricted Stock hereunder), all of which terms and provisions
are
made a part of and incorporated in this Agreement as if they were each expressly
set forth herein. Any capitalized term not defined in this Agreement shall
have
the same meaning as is ascribed thereto under the Plan. The Grantee hereby
acknowledges receipt of a true and complete copy of the Plan and that the
Grantee has read the Plan carefully and fully understands its content. In the
event of any conflict between the terms of this Agreement and the terms of
the
Plan, the terms of the Plan shall control.
2. Grant
of Restricted Stock.
The
Company hereby grants to the Grantee, as of the Grant Date specified above,
the
number of shares of Restricted Stock specified above. Except as otherwise
provided by Section 10.13 of the Plan, the Grantee agrees and understands that
nothing contained in this Agreement provides, or is intended to provide, the
Grantee with any protection against potential future dilution of the Grantee’s
stockholder interest in the Company for any reason. One or more stock
certificates evidencing the Restricted Stock shall be issued in the name of
the
Grantee but shall be held in escrow by the Company until the Restricted Stock
has become vested and unrestricted. All such stock certificates shall bear
the
following legend, along with such other legends that the Board or the Committee
shall deem necessary and appropriate or which are otherwise required or
indicated pursuant to any applicable stockholders agreement:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO SUBSTANTIAL VESTING AND
OTHER RESTRICTIONS AS SET FORTH IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE
ISSUER AND THE ORIGINAL HOLDER OF THE SHARES, A COPY OF WHICH MAY BE OBTAINED
AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH RESTRICTIONS ARE BINDING ON TRANSFEREES
OF THESE SHARES, AND INCLUDE VESTING CONDITIONS WHICH MAY RESULT IN THE COMPLETE
FORFEITURE OF THE SHARES.
3. Vesting.
Subject
to Section 8, the shares of Restricted Stock subject to this grant shall become
unrestricted and vested as follows:
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On
January 1, 2007:
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3,333
Shares
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|
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On
January 1, 2008:
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3,333
Shares
|
|
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On
January 1, 2009:
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3,334
Shares.
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Notwithstanding
the foregoing, all shares of Restricted Stock shall immediately vest and become
unrestricted upon (i) the occurrence of a Change in Control or (ii) the failure
of the Grantee to be re-elected to the Company’s Board of Directors prior to
January 1, 2009 for a reason other than Grantee voluntarily electing not to
stand for re-election.
4. Termination.
Subject to clause (ii) of Section 3, above, if the Grantee's service as a member
of the Company’s Board of Directors terminates for any reason prior to the
vesting of all or any portion of the Restricted Stock awarded under this
Agreement, such Restricted Stock shall immediately be cancelled and the Grantee
(and the Grantee’s estate,
designated beneficiary or other legal representative) shall forfeit any rights
or interests in and with respect to any such Restricted
Stock.
The
Board or the Committee, in its sole discretion, may determine, prior to or
within ninety (90) days after the date of any such termination, that all or
a
portion of any the Grantee’s unvested Restricted
Stock
shall
not be so cancelled and forfeited.
5. Dividends.
Any
dividends paid on shares of Restricted Stock shall be paid to the Grantee
promptly after the date any such dividends are paid by the Company to
stockholders generally.
2
6. Delivery
of Restricted Stock.
Subject
to Section 6.5 of the Plan, if the Restricted Stock awarded by this Agreement
becomes vested, the Grantee shall be entitled to receive unrestricted
Shares.
7. Non-transferability.
The Restricted Stock, and any rights or interests with respect thereto, issued
under this Agreement and the Plan shall not, prior to vesting, be sold,
exchanged, transferred, assigned or otherwise disposed of in any way at any
time
by the Grantee (or any beneficiary(ies) of the Grantee), other than by
testamentary disposition by the Grantee or the laws of descent and distribution.
Any such Restricted Stock, and any rights and interests with respect thereto,
shall not, prior to vesting, be pledged, encumbered or otherwise hypothecated
in
any way at any time by the Grantee (or any beneficiary(ies) of the Grantee)
and
shall not, prior to vesting, be subject to execution, attachment or similar
legal process. Any attempt to sell, exchange, pledge, transfer, assign, encumber
or otherwise dispose of or hypothecate the Restricted Stock, or the levy of
any
execution, attachment or similar legal process upon the Restricted Stock,
contrary to the terms of this Agreement and/or the Plan shall be null and void
and without legal force or effect. Prior to vesting, the Restricted Stock,
and
any rights and interests with respect thereto, issued under this Agreement
shall
be held by the Company as escrow agent.
8. Restrictions
on Transfer of Shares After Vesting.
(a) Except
as
expressly permitted under Sections 8(b) and 8(c) below, the Grantee shall not
assign, sell, offer to sell, pledge, mortgage, hypothecate, encumber, dispose
of, or any other way transfer any of the Shares (or any interest therein) (a
“Transfer”) or enter into any agreement or arrangement to make any Transfer of
any of the Shares at any time when he is serving as a member of the Board of
Directors of the Company. The foregoing restriction on Transfer of the Shares
shall terminate and be of no further force and effect with respect to all
then-vested Shares on the date on which the Grantee’s service as a member of the
Board of Directors of the Company is terminated for any reason, whether
voluntarily or involuntarily (including, without limitation, by death or
disability, by resignation or removal, or by expiration of his term). The
foregoing restriction on Transfer of the Shares may be waived with respect
to
any proposed Transfer of any vested Shares by the prior consent of a majority
of
the disinterested non-employee members of the Board of Directors of the
Company.
(b) Notwithstanding
the provisions of Section 8(a), the Grantee may, in accordance with the
Company’s trading policies as in effect from time to time, Transfer, in one of
more transactions, (i) up to that number of Shares equal in value at the time
of
disposition to any Federal, state, or local tax liability arising from the
vesting or ownership of any Shares, and (ii) up to a number of vested Shares
equal, in the aggregate, to fifty percent (50%) of the total number of Shares
that have, as of the date of such Transfer, vested pursuant to Section 3,
remaining in the ownership of Grantee following the sale(s) or transfer(s)
contemplated in the preceding clause (i).
(c) The
restrictions set forth in Sections 8(a) and 8(b) shall not apply to any Transfer
(i) by way of gift and without consideration of any vested Shares by the
Grantee, either during his lifetime or on death by will or intestacy, to the
Grantee’s spouse, siblings, children or grandchildren, or to any custodian or
trustee for the account or benefit of the Grantee or the Grantee’s spouse,
siblings, children or grandchildren or (ii) to any entity with respect to which
the Grantee is a shareholder, partner or member so long as the Grantee maintains
sole control with respect to the voting, tendering and disposition of such
Shares; provided that in the case of Transfers described in clauses (i) and
(ii)
the transferee of such Shares enters into an agreement with the Company pursuant
to which the transferred Shares shall remain subject to substantially the same
restrictions as set forth in this Section 8.
3
9. Effect
of Prohibited Transfer.
If any
transfer of Shares is made or attempted to be made contrary to the terms of
this
Agreement, the Company shall have the right to acquire for its own account,
without the payment of any consideration therefor, such Shares from the owner
thereof or his transferee, at any time before or after such prohibited transfer.
In addition to any other legal or equitable remedies it may have, the Company
may enforce its rights to specified performance to the extent permitted by
law
and may exercise such other equitable remedies then available to it. The Company
may refuse for any purpose to recognize any transferee who receives Shares
contrary to the provisions of this Agreement as a stockholder of the Company
and
may retain and/or recover all dividends on such Shares which were paid or
payable subsequent to the date on which the prohibited transfer was made or
attempted.
10. Entire
Agreement; Amendment.
This
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter contained herein, and supersedes all prior agreements
or
prior understandings, whether written or oral, between the parties relating
to
such subject matter. Notwithstanding the foregoing, this Agreement shall not
be
deemed to amend or supersede any provision of the employment letter agreement
dated as of May 12, 2005 between the Company and the Grantee (together with
the
Exhibits thereto, the “Employment Letter”) and in the event of any inconsistency
between any provision of this Agreement and any provision of the Employment
Letter, the terms of the Employment Letter shall prevail. The
Board
or the Committee shall have the right, in its sole discretion, to modify or
amend this Agreement from time to time in accordance with and as provided in
the
Plan; provided, however, that no such modification or amendment shall materially
adversely affect the rights of the Grantee under this Agreement without the
consent of the Grantee. The Company shall give written notice to the Grantee
of
any such modification or amendment of this Agreement as soon as practicable
after the adoption thereof. This Agreement may also be modified or amended
by a
writing signed by both the Company and the Grantee.
11. Notices.
Any
Exercise Notice or other notice which may be required or permitted under this
Agreement shall be in writing, and shall be delivered in person or via facsimile
transmission, overnight courier service or certified mail, return receipt
requested, postage prepaid, properly addressed as follows.
11.1
If
such notice is to the Company, to the attention of the Secretary of RCN
Corporation, Presidents Plaza, Building One, 000 Xxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx, 00000 or at such other address as the Company, by notice
to
the Grantee, shall designate in writing from time to time.
4
11.2
If
such notice is to the Grantee, at his or her address as shown on the Company’s
records, or at such other address as the Grantee, by notice to the Company,
shall designate in writing from time to time.
12. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware without reference to the principles of conflict of laws
thereof.
13. Compliance
with Laws.
The
issuance of the Restricted Stock or Shares pursuant to this Agreement shall
be
subject to, and shall comply with, any applicable requirements of any federal
and state securities laws, rules and regulations (including, without limitation,
the provisions of the Securities Act of 1933, the Exchange Act and the
respective rules and regulations promulgated thereunder) and any other law
or
regulation applicable thereto. The Company shall not be obligated to issue
the
Restricted Stock or Shares pursuant to this Agreement if any such issuance
would
violate any such requirements.
14. Binding
Agreement; Assignment.
This
Agreement shall inure to the benefit of, be binding upon, and be enforceable
by
the Company and its successors and assigns. The Grantee shall not assign any
part of this Agreement without the prior express written consent of the
Company.
15. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which shall constitute one and the same
instrument.
16. Headings.
The
titles and headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
17. Further
Assurances.
Each
party hereto shall do and perform (or shall cause to be done and performed)
all
such further acts and shall execute and deliver all such other agreements,
certificates, instruments and documents as any party hereto reasonably may
request in order to carry out the intent and accomplish the purposes of this
Agreement and the Plan and the consummation of the transactions contemplated
thereunder.
18. Severability.
The
invalidity or unenforceability of any provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality
or
enforceability of any provision of this Agreement in any other jurisdiction,
it
being intended that all rights and obligations of the parties hereunder shall
be
enforceable to the fullest extent permitted by law.
5
EXHIBIT
10.5
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer, and the Grantee has hereunto set his hand, all as
of
the Grant Date specified above.
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RCN
Corporation
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Xxxxxxx
X. Xxxxxx
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EVP
& Chief Financial Officer
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/s/
Xxxxxx Xxxxxx
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| Xxxxxx Xxxxxx | ||||
