RCN CORPORATION Performance-Based Restricted Stock Unit Award
EXHIBIT 10.1
RCN CORPORATION
Performance-Based
Restricted Stock Unit Award
Restricted Stock Unit Award
AWARD AGREEMENT, dated as of March 13, 2008, between RCN Corporation, a Delaware corporation
(the “Company”), and (the “Participant”). This Award is granted by
the Compensation Committee of the Board of Directors of the Company (the “Committee”)
pursuant to the terms of the RCN Corporation 2005 Stock Compensation Plan (the “Plan”).
The applicable terms of the Plan are incorporated herein by reference, including the definitions of
terms contained therein.
Section 1. Performance-Based RSU Award. The Company hereby grants to the Participant,
on the terms and conditions set forth herein, an Award of Restricted Stock Units
(“RSUs”), which amount may be increased or decreased on the Determination Date (as defined
herein) based upon the Company’s overall corporate level of achievement under its 2008 Short Term
Incentive Plan. The Participant shall have the right to receive the number of RSUs that
corresponds to the percentage of the Company’s corporate level achievement, set forth on
Appendix A hereto. The number of RSUs will be determined on the date of the Compensation
Committee meeting during the first quarter of 2009 and such date is referred to herein as the
“Determination Date”. The number of RSUs on the Determination Date shall be the number of RSUs for
the purposes of the Award and the vesting schedule below. The Award shall constitute an RSU Award
under Article 6 of the Plan. The RSUs are notional units of measurement denominated in Shares of
the Company (i.e. one RSU is equivalent in value to one Share, subject to the terms
hereof). The RSUs represent an unfunded, unsecured obligation of the Company.
Section 2. Vesting Requirements. The number of shares represented by the RSU Award as
determined in accordance with Section 1 shall become vested in three equal installments as to an
equal or approximately equal number of RSUs on each of the dates specified below, subject to the
achievement of the performance requirements, as set forth in Appendix A, and the
Participant’s continued service with the Company or Subsidiary through each such vesting date, as
follows:
Determination Date:
|
1/3 of Award | |
June 1, 2010:
|
1/3 of Award | |
June 1, 2011:
|
1/3 of Award |
If the performance and service requirements are not satisfied as to any portion of the RSU Award,
the unvested RSUs shall be immediately forfeited. All RSUs for which all of the requirements of
this Section 2 have been satisfied shall become vested and shall thereafter be payable in
accordance with Section 5 hereof.
Section 3. Accelerated Vesting. Notwithstanding the otherwise applicable terms
hereof, the RSU Award shall become fully vested and payable in accordance with Section 5 hereof
upon (i) the date of termination of the Participant’s employment without “Cause” (as defined
below) within 12 months following the occurrence of a Change in Control of the Company or (ii) the
date of the Participant’s death or disability (within the meaning of Section 409A of the Code).
In addition, if the Participant is employed pursuant to an employment agreement with the Company,
any provisions thereof relating to this RSU Award, including, without limitation, any provisions
regarding acceleration of vesting and/or payment of this Award in the event of termination of
employment, shall be fully applicable and supersede any conflicting provisions hereof.
For the purposes of this Award Agreement, “Cause” shall mean a Participant’s repeated failure
to perform the Participant’s material duties as assigned, a Participant’s engagement in willful or
intentional materially injurious acts, continual or repeated absence (unless due to illness or
disability), a Participant’s use of illegal drugs or impairment due to other substances, a
Participant’s conviction of any felony, an act of gross misconduct, fraud, embezzlement or theft
or a Participant’s violation of a material policy of the Company. In order to terminate a
Participant for “Cause”, the Company shall first give a Participant written notice stating with
specificity the reason for termination (“breach”) and, if such breach is susceptible of cure or
remedy, the Participant shall be given a period of 10 days after the giving of such notice to
fully remedy or cure such breach. The Company may terminate a Participant for “Cause” at the end
of such 10-day period if the breach is not fully remedied at that time. Notwithstanding the
foregoing, the Company need not provide a Participant with an opportunity to cure any acts of
theft of cash or significant property of the Company, fraud or embezzlement.
Section 4. Dividend Equivalents. Subject to Section 10 hereof, any cash dividends
paid with respect to the Shares to the Company’s shareholders shall be credited on account of the
Participant in the equivalent dollar amount that would be paid as a dividend on the number of
Shares subject to the RSU Award that are outstanding as of the record date for such dividend
(“Dividend Equivalents”). The Dividend Equivalents shall be subject to vesting on the same
basis as the underlying RSUs to which the Dividend Equivalent relates, and shall be paid to the
Participant in cash at the same time as the underlying RSUs in accordance with Section 5 hereof.
Section 5. Payment of Award. Subject to any deferral election of the Participant in
accordance with Section 6 hereof, payment of vested RSUs (and any Dividend Equivalents relating to
such vested RSUs) shall be made within 15 days following the applicable vesting date as set forth
in Section 2 or 3 hereof. The RSUs shall be paid in Shares and shall be paid to the Participant
after deduction of applicable minimum statutory withholding taxes.
Section 6. Election to Defer Payment. The Participant shall have the right to elect a
deferral of the timing of payment to be made with respect to the Participant’s RSUs. Any such
election shall be made not later than the date hereof and shall be irrevocable when made. The
terms of such deferral shall be in accordance with the elections of the Participant set forth on
the “RSU Deferral Election Form” attached hereto as Appendix B. In the event that the RSUs
become payable as a result of an accelerated vesting and payment date under Sections 3 and 5
hereof, the RSUs shall become payable in accordance therewith in lieu of any deferral payment
election.
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Section 7. Section 409A Compliance. It is intended that the terms of this RSU Award
will comply with Section 409A of the Code to the extent applicable, and will be interpreted and
construed in a manner consistent with such intent. Any payment under the RSU Award that is to be
made hereunder as a result of the Participant’s termination of employment or other service must
satisfy the requirements for a “separation from service” within the meaning of Section 409A of the
Code. If the Participant is treated as a “specified employee” (as defined in Section
409A(a)(2)(B)(i) of the Code) as of the date of any payment under the RSU Award upon such
separation from service, then, to the extent required, the commencement of any payment shall be
delayed until the date that is six (6) months following the date of such separation from service.
Section 8. Restrictions on Transfer. Except as provided in Section 10.6 of the Plan,
neither this RSU Award nor any RSUs covered hereby may be sold, transferred, pledged, assigned or
otherwise alienated or hypothecated, other than by will, by the laws of descent and distribution,
other than to Company as a result of forfeiture of the RSUs as provided herein.
Section 9. No Voting Rights. The RSUs granted pursuant to this Award, whether or not
vested, will not confer any voting rights upon the Participant, unless and until the Award is paid
in Shares.
Section 10. Award Subject to Plans. This RSU Award is subject to the terms of the
Plan, the terms and provisions of which are hereby incorporated by reference. In the event of a
conflict or ambiguity between any term or provision contained herein and a term or provision of the
Plan, the Plan will govern and prevail.
Section 11. Changes for Corporate Events. The RSUs under this RSU Award shall be
subject to the provisions of Section 10.13 of the Plan relating to adjustments by the Board as a
result of certain Corporate Events.
Section 12. Governing Law. This Award Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to the choice of law
principles thereof.
| RCN CORPORATION |
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| By: | |||||
| Name: | |||||
| Title: | |||||
| PARTICIPANT | |||||
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