RESTRICTED STOCK AGREEMENT pursuant to the RCN CORPORATION
EXHIBIT
10.3
pursuant
to the
RCN
CORPORATION
2005
STOCK COMPENSATION PLAN
*
* * * *
Grantee:
Xxxxx
X.
Xxxxxx
Xxxxx
Date: June
6,
2006
Number
of Shares of Restricted Stock Granted: 10,000
*
* * *
*
THIS
RESTRICTED STOCK AGREEMENT (this “Agreement”), dated as of August 4, 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:
1
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
March 31, 2007:
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3,333
Shares
|
|
On
March 31, 2008:
|
3,333
Shares
|
|
On
March 31, 2009:
|
3,334
Shares.
|
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) in
accordance with the terms of the Grantee’s Employment Letter, dated as of May 6,
2005.
4.
Termination.
Subject to the terms of Paragraph 3, if the Grantee’s employment with the
Company and/or one of its Subsidiaries 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 held by the Company on
the
Grantee’s behalf subject to the same terms and conditions applicable to the
related shares of Restricted Stock, it being understood that such dividends
will
be forfeited if the Grantee forfeits the related shares of Restricted Stock.
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.
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 agreement dated
as
of May 6, 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.
3
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.
4
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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Executive
Vice President & Chief Financial Officer
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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