THIS EMPLOYMENT
AGREEMENT (“Agreement”) entered into as of this 28th
day of September, 2009 (“Effective Date”) by and
between RCN Corporation, a Delaware corporation (“RCN”
or the “Company”) and Jose A. Cecin, Jr.
(“Employee”).
1.
Employment . RCN will employ Employee and Employee accepts
such employment upon the terms and conditions set forth in this
Agreement. Employee shall continue to be a voting member of the
Board of Directors on the Effective Date; and the Board shall
propose Employee for re-election to the Board for the term
beginning June 2010 provided that he meets all criteria for
service on the Board of Directors. Employee agrees that he will
resign from the Board of Directors if he ceases to be an
Employee.
2. Term
of Employment . Employee’s employment under this
Agreement will be for a term of three (3) years from the
Effective Date (the “Employment Period”), unless this
Agreement is otherwise terminated pursuant to the provisions of
Section 5 of this Agreement.
The parties
may, however, extend the Agreement as provided herein. At least one
hundred and eighty (180) days prior to the expiration of the
Employment Period, but no more than three hundred and sixty five
(365) days before the expiration of the Employment Period,
either party may provide written notice of interest in extending
the term of the Agreement. If timely notification is provided by
either party, the Company will have sixty (60) days to make a
reasonable good faith offer to Employee regarding an extension.
Failure to make a reasonable good faith offer within such sixty
(60) day period shall constitute “Non-Renewal by the
Company”. If Employee does not engage in good faith
negotiations with the Company within thirty (30) days after
receipt of the Company’s reasonable good faith offer then
“Non-Renewal by the Employee” shall be deemed to have
occurred. If neither party provides written notice of interest in
extending the term of the Agreement within the applicable timeframe
described herein, then a Non-Renewal by the Employee shall be
deemed to have occurred.
3.
Position and Duties . Employee will be employed as Executive
Vice President & Chief Operating Officer, reporting directly to
the Chief Executive Officer, with such duties and responsibilities
that are consistent with that position as may from time to time be
assigned to Employee, and will have such authority as may be
reasonably necessary for Employee to carry out his or her duties
and responsibilities. During the Employment Term, Employee’s
principal location of employment shall be within 30 miles of the
Company’s current executive offices in Northern Virginia,
except for customary business travel on behalf of the Company and
its affiliates.
Employee
will work full-time and devote all of Employee’s business
time, attention, and energies to, on behalf of, and for the benefit
of the Company. Employee will not, without the written consent of
the Company: (i) render service to others for compensation, or
(ii) serve on more than one (1) board or governing body
of another for profit entity; provided, however, that Employee is
party to certain consulting agreements with third parties who are
not direct competitors of the Company and will wind down his
performance under such consulting agreements as soon as possible
after the Effective Date in accordance with the terms of
such
consulting
agreements. Notwithstanding the foregoing, at no time may Employee
serve on the board or governing body of another for profit entity
which, in the sole discretion of the Company, is or becomes a
competitor of the Company. Furthermore, the Company acknowledges
and consents to Employee’s service on more than one
(1) board as of the Effective Date; provided that Employee
agrees to reduce board participation to the standards outlined
herein by June 15, 2010. Employee will not engage in any
activity which conflicts or materially interferes with the
performance of Employee’s duties and responsibilities
hereunder. Employee may engage in personal, charitable, and
professional activities, (i) subject to compliance with the
Company’s normal conflicts procedures, and (ii) provided
such activities do not conflict or materially interfere with the
ability of Employee to perform the duties and responsibilities
hereunder. If, in the reasonable discretion of the Company, an
outside activity subsequently creates a conflict with the
Company’s business or prospective business, Employee agrees
promptly to cease engaging in such activity at such time as
requested. Employee will observe and adhere to all applicable
written Company policies and procedures adopted from time to
time.
4. Salary
and Compensation .
(a)
Salary . Employee’s rate of salary shall be $325,000
per annum (“Initial Base Salary”) commencing on the
Effective Date. The Company, through its Compensation Committee
(the “Committee”) agrees to annually evaluate
Employee’s performance and salary (annually set, “Base
Salary”). The Committee may, in its sole discretion, increase
or decrease Employee’s salary at any time; provided, however,
that Employee’s salary may not be decreased to less than the
higher of (i) the Initial Base Salary or (ii) the amount
that is ten percent (10%) below Employees highest Base Salary in
the preceding 12 month period. Employee’s salary shall
be paid in accordance with the Company’s customary payroll
practices.
(b)
Bonus Plan . Employee shall be eligible to participate in an
annual cash bonus program maintained by the Company for its senior
executives (the “Bonus Plan”) at a target level of no
less than 75% of the Employee’s Base Salary (“Target
Bonus”). The actual bonus payable pursuant to the Bonus Plan
for any given year shall be based upon the terms of the Bonus Plan
then in effect and upon individual and corporate performance
criteria established and approved by the Committee.
(c)
Stock Plan . Upon the Effective Date, the Company shall
grant to Employee 125,000 restricted stock units (the
“Initial RSU Award”) pursuant to the Company’s
2005 Stock Compensation Plan (the “2005 Stock Plan”).
One-third (1/3) of the shares subject to the Initial RSU Award
shall vest and become payable on each of the first three
(3) anniversaries of the Effective Date provided that Employee
is employed by the Company on each such vesting date. For the
avoidance of any doubt, Employee will not forfeit any of the
restricted stock unit grant made to him on August 20, 2009
based on his employment as contemplated hereby.
Effective
for calendar years commencing on or after January 1, 2010,
Employee shall be eligible to participate in any long-term
incentive program maintained by the Company for its senior
executives (including, the 2005 Stock Plan) (collectively, the
“Stock Plan”) at a target level of no less than 175% of
Employee’s combined Base Salary and actual bonus paid under
the Bonus Plan with respect to the preceding calendar year (the
“Target Stock Award”) for
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each year. The
actual award pursuant to the Stock Plan for any given year shall be
based upon the terms of the Stock Plan then in effect and upon
performance criteria, if any, established and approved by the
Committee. If the Company does not have sufficient shares of Stock
authorized or reserved for issuance under the Stock Plan on the
date of grant of any equity awards required or determined to be
made under 4(c), then the Compensation Committee shall notify the
Employee of such fact, and the Compensation Committee shall provide
alternative compensation arrangements to deliver similar value to
the Employee.
(d)
Benefit Plans . Employee shall be eligible to participate in
such employee benefit and fringe benefit plans generally maintained
or provided by the Company from time to time to or for the benefit
of its senior executives (the “Benefit Plans”), at a
level commensurate with Employee’s position and Company
policy regarding other similarly situated Company employees,
provided that Employee meets the prerequisites and eligibility
factors established by the Company for participation in the Benefit
Plans. Employee’s participation in any Benefit Plans will be
subject to the terms of the applicable plan documents and the
Company’s generally applied policies. The Company in its
discretion may from time to time adopt, modify, interpret, or
discontinue such plans or policies.
(e)
Interpretation of Terms . In the event there is a conflict
between the terms of any Benefit Plan, Bonus Plan or Stock Plan on
the one hand, and the terms outlined in this Agreement on the other
hand, the terms of the Benefit Plan, Bonus Plan or Stock Plan, as
applicable, shall govern. Notwithstanding the foregoing,
Section 6 of this Agreement shall govern, if applicable, in
the event of a conflict.
5.
Termination of Employment .
(a)
Resignation . Employee may resign his or her employment at
any time, for any or for no reason, upon at least thirty
(30) days prior written notice to the Company. The Company, at
its sole discretion, may relieve Employee of his or her active
duties and may require Employee to use any accrued and unused paid
time off, including vacation, during the notice period. The Company
may also waive such notice, and/or set an earlier termination date
upon receipt of such notice, in which event Employee’s
employment will terminate on the earlier termination date, and no
pay in lieu of notice will be due.
(b)
Termination For Cause . The Company may terminate
Employee’s employment for “Cause” if the Board of
Directors has made a good faith determination, after providing the
Employee with reasonably detailed written notice and a reasonable
opportunity to be heard on the issues at a board meeting, that any
of the following has occurred:
(i) the
willful and continued failure by the Employee to substantially
perform his material duties for the Company (other than due to
mental or physical disability) after ten (10) days’
written notice from the Company describing such failure in
reasonable detail;
(ii) the
Employee has engaged in misconduct or gross negligence that has
resulted in demonstrable damage to the business or reputation of
the Company or its subsidiaries;
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(iii) the
Employee has been convicted of, or pleaded nolo contendere to, a
misdemeanor involving moral turpitude or a felony;
(iv) the
Employee has engaged in fraud against the Company or
misappropriated Company property (other than incidental property);
or
(v) the
Employee has materially violated any material written policy of the
Company or its subsidiaries that has been distributed to Employee,
including any written code of conduct applicable to senior
executives of the Company or members of the Board.
(c)
Termination Without Cause . The Company may terminate
Employee’s employment without Cause, for any reason or for no
reason, at any time upon five (5) days prior written notice to
Employee. The Company, at its sole discretion, may relieve Employee
of his or her active duties and require Employee to use any accrued
and unused paid time off, including vacation, during the notice
period. The Company may also provide five (5) days pay in lieu
of notice. Employee’s termination without Cause will be
effective on the date of termination specified by the
Company.
(d)
Resignation for Good Reason . Employee may terminate
employment for “Good Reason” if, without
Employee’s prior consent, the Company: (i) reduces
Employee’s Base Salary (other than reductions permitted by
Section 4(a) of this Agreement), Target Bonus, or Target Stock
Award; (ii) materially changes the Employee’s principal
location of employment as of the Effective Date of this Agreement;
(iii) materially reduces Employee’s responsibilities as
in effect on the Effective Date or materially changes the reporting
relationship as in effect on the Effective Date; or (iv) commits a
material breach of the Company’s material obligations under
this Agreement, including without limitation the compensation
provisions thereof. Before terminating employment for Good Reason,
Employee must within forty-five (45) days of the initial
existence of the putative Good Reason condition specify in writing
to the Company the nature of the act or omission that Employee
deems to constitute Good Reason and provide Company thirty
(30) days after receipt of such notice to correct the
situation (and thus provide the Company with opportunity to prevent
Employee’s termination for Good Reason). Employee’s
termination for Good Reason must occur no later than six
(6) months following the date on which such Good Reason
condition initially arose.
The
parties specifically agree that the occurrence of a Change in
Control shall not, by itself, constitute Good Reason, and that Good
Reason shall exist after a Change in Control only upon the
occurrence of one or more of the events described above.
Furthermore, for the avoidance of doubt, in the event that a Change
of Control occurs, neither (i) a change in RCN’s status
as a publicly traded company, (ii) the Company’s
operation as a subsidiary, (iii) a change in title or position
(so long as such change is not a reduced title or position) of the
person or entity to whom Employee directly reports
(Employee’s “Supervisor”), nor (iv) a change
in the title or position (so long as such change is not a reduced
title or position) of the person or entity to whom Employee’s
Supervisor directly reports shall, in and of itself, constitute
Good Reason.
(e)
Disability . If Employee becomes “Disabled,” the
Company may terminate Employee’s employment. For the purposes
hereof, Employee and the Company agree that
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Employee will
be considered “Disabled” if the Employee is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be
expected to result in death or last for a period of not less than
twelve (12) months. Employee agrees that if Employee becomes
“Disabled” under the definition of this
Section 5(e), Employee will be unable to perform the essential
functions of Employee’s position and that there would be no
reasonable accommodation which would not constitute an undue
hardship to the Company. Therefore, as Employee would not be
qualified for Employee’s position, the Company would have the
right to terminate Employee’s employment under this
Section 5(e). Employee’s termination due to Disability
will be effective immediately upon the Company mailing or
transmitting written notice of such termination to
Employee.
(f)
Death . Employee’s employment will terminate on the
date of Employee’s death.
(g)
Non-Renewal by the Employee or the Company . Either the
Employee or the Company may terminate this Agreement through
non-renewal pursuant to the written notice procedures described in
Section 2 of this Agreement. Employee’s termination due
to non-renewal by either party will be effective at the end of the
applicable initial or extended term, unless termination occurs
earlier pursuant to terms of the Agreement.
6.
Payments in the Event of Termination of Employment
.
(a)
Termination Due to Resignation, Non-Renewal by Employee or for
Cause . In the event of termination of Employee’s
employment pursuant to Section 5(a) or 5(b) or a Non-Renewal by the
Employee pursuant to 5(g), the Company will pay to Employee:
(i) the unpaid amount, if any, of Employee’s salary
through the date of termination, (ii) the amount of any
substantiated but previously unreimbursed business expenses
incurred prior to the date of termination, and (iii) any
additional payments, awards, or benefits, if any, which Employee is
eligible to receive under the terms of any Benefit Plan
(collectively, “Accrued Compensation”).
Employee
and, where applicable, Employee’s spouse and eligible
dependents, at Employee’s expense, will be eligible to
exercise his or her rights under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”) upon his or her
termination of employment.
(b)
Prior to a Change in Control . If a Change in Control has
not occurred within the twenty-four (24) months prior to
Employee’s termination, and if Employee continues to comply
with the post-employment obligations under this Agreement for the
Restricted Period, and if Employee executes a Release on or about
the date of termination and does not revoke that release pursuant
to its terms, Company will provide to Employee the
following:
(i)
Termination Without Cause or Resignation for Good Reason .
In the event of termination of Employee’s employment pursuant
to Section 5(c) or 5(d), the Company will pay Employee:
(1) Any
Accrued Compensation;
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(2)
Lump Sum Payment . The Company will pay Employee a single
lump sum payment in the total amount of 100% of his or her
aggregate Base Salary and Target Bonus in effect at termination,
less federal, state and local tax withholdings and any other
deductions required by law or previously authorized by Employee,
payable within fifteen (15) days of the effective date of the
Release;
(3)
Benefits Continuation . The Company will continue
Employee’s participation in all medical, dental and vision
plans in which Employee was enrolled (including the
Employee’s spouse and eligible dependents, if applicable) as
of Employee’s termination of employment. The Company will
continue the coverage and pay that portion of the premium paid by
the Company during Employee’s employment until the earlier of
(A) the last day of the month of the one year anniversary of
Employee’s termination or (B) the Benefits Expiration
Date (defined below) (“Benefit Continuation Coverage”).
Employee’s portion of the costs for any such continued
benefits shall be paid as directed by the Company. Employee is
obligated to inform the Company within ten (10) days of
becoming eligible for benefit coverage through another employer,
through his spouse’s employer, or otherwise, with all
medical, dental and vision plan coverage ending as of the last day
of the month as of which Employee becomes eligible for such other
benefit coverage (the “Benefits Expiration Date”).
Beginning on the date that the Company no longer provides
subsidized benefit coverage pursuant to this Agreement, Employee
shall be eligible for COBRA coverage;
(4)
Pro Rata Bonus . The Company shall pay Employee his annual
bonus, if any, pursuant to the Bonus Plan attributable to
Employee’s employment with the Company for the period from
January 1 of the year of termination through the termination date
(the “Pro Rata Bonus”). Any Pro Rata Bonus shall be
paid based on Employee’s Target Bonus applied to
Employee’s eligible salary from January 1 of the year of
termination through the termination date. Any Pro Rata Bonus will
be based on calculations as defined in the Bonus Plan as in effect
as of Employee’s termination of employment. The Company will
pay the Pro Rata Bonus, if any, to Employee at the time, in the
same form, and under the same terms that the Company generally
makes payment to the employees of the Company under the Bonus Plan
(provided, however, that in no event will a Pro Rata Bonus be paid
to Employee more than two and one-half (2
1 / 2
) months after the end of the
calendar year during which Employee’s entitlement to such
payment is earned); and
(5)
12 Months of Equity Vesting . For purposes of vesting in
equity awards made pursuant to any Stock Plan, the Company will
treat Employee as if he remained employed through the twelve
(12) month period following termination of employment. Any
option (or portion thereof) that vests pursuant to this provision
shall terminate at 5:00 p.m. (local Virginia time) on the 90th
calendar day following the date such option (or portion thereof)
vests pursuant to this Agreement or, if earlier, at their original
term (the “Equity Cancellation Date”). Any terminated
option shall be cancelled and shall have no further force or
effect. Any performance-based Stock Plan awards scheduled to vest
during this twelve (12) month period will remain subject to
applicable performance-based criteria as described under the Stock
Plan and award agreements. Except as expressly provided herein, the
terms of the Stock Plan and applicable award agreements shall
govern all of Employee’s outstanding Stock Plan awards.
If
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Employee
materially breaches this Agreement or the Release, all outstanding
and unvested Stock Plan awards shall be forfeited except as
otherwise provided by the Committee.
(ii)
Non-Renewal by the Company . In the event of termination of
Employee’s employment pursuant to Section 5(g), the
Company will pay Employee:
(1) Any
Accrued Compensation;
(2)
Lump Sum Payment . The Company will pay Employee a single
lump sum amount equal to 50% of his aggregate Base Salary and
Target Bonus, less federal, state and local tax withholdings and
any other deductions required by law or previously authorized by
Employee, payable within fifteen (15) days of the effective
date of the Release;
(3)
Benefits Continuation . The Company will continue
Employee’s participation in all medical, dental and vision
plans in which Employee was enrolled (including Employee’s
spouse and eligible dependents, if applicable) as of
Employee’s termination of employment. The Company will
continue the coverage and pay that portion of the premium paid by
the Company during Employee’s employment until the earlier of
(A) the last day of the month of the six month anniversary of
Employee’s termination or (B) the Benefits Expiration
Date. Employee’s portion of the costs for any such continued
benefits shall be as directed by the Company. Employee is obligated
to inform the Company within ten (10) days of becoming
eligible for benefit coverage through another employer, through his
spouse’s employer, or otherwise, with all medical, dental and
vision plan coverage ending as of the Benefits Expiration Date.
Beginning on the date that the Company no longer provides
subsidized benefit coverage pursuant to this Agreement, Employee
shall be eligible for COBRA coverage;
(4)
Pro Rata Bonus . The Company shall pay Employee any Pro Rata
Bonus. Any Pro Rata Bonus shall be paid based on Employee’s
Target Bonus applied to Employee’s eligible salary from
January 1 of the year of termination through the termination date.
Any Pro Rata Bonus will be based on calculations as defined in the
Bonus Plan as in effect as of Employee’s termination of
employment. The Company will pay any Pro Rata Bonus to Employee at
the time, in the same form, and under the same terms that the
Company generally makes payment to the employees of the Company
under the Bonus Plan (provided, however, that in no event will a
Pro Rata Bonus be paid to Employee more than two and one-half
(2 1
/ 2 ) months
after the end of the calendar year during which Employee’s
entitlement to such payment is earned); and
(5)
6 Months of Equity Vesting . For purposes of vesting in
equity awards made pursuant to any Stock Plan, the Company will
treat Employee as if he remained employed through the six
(6) month period following termination of employment. Any
option (or portion thereof) that vests pursuant to this provision
shall terminate at 5:00 p.m. (local Virginia time) on the 90th
calendar day following the date such option (or portion thereof)
vests pursuant to this Agreement or, if earlier, at their original
term (the “Equity Cancellation Date”). Any terminated
option shall be cancelled and shall have no further force or
effect. Any
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performance-based Stock Plan awards scheduled to
vest during this six (6) month period will remain subject to
applicable performance-based criteria as described under the Stock
Plan and award agreements. Except as expressly provided herein, the
terms of the Stock Plan and applicable award agreements shall
govern all of Employee’s outstanding Stock Plan awards. If
Employee materially breaches this Agreement or the Release, all
outstanding and unvested Stock Plan awards shall be forfeited
except as otherwise provided by the Committee.
(c)
Following a Change in Control . If a Change in Control has
occurred within the twenty four (24) months prior to
Employee’s termination without Cause, for Good Reason or for
Non-Renewal by the Company, and if Employee continues to comply
with the post-employment obligations under this Agreement for the
Restricted Period, and if Employee executes a Release on or about
the date of termination and does not revoke that release pursuant
to its terms, Company will provide to Employee the
following:
(i) Any
Accrued Compensation;
(ii)
Lump Sum Payment . The Company will pay Employee a single
lump sum amount equal to 150% of his aggregate Base Salary and
Target Bonus, less federal, state and local tax withholdings and
any other deductions required by law or previously authorized by
Employee, payable within fifteen (15) days of the effective
date of the Release;
(iii)
Benefits Continuation . The Company will continue
Employee’s participation in all medical, dental and vision
plans in which Employee was enrolled (including Employee’s
spouse and eligible dependents, if applicable) as of
Employee’s termination of employment. The Company will
continue the coverage and pay that portion of the premium paid by
the Company during Employee’s employment through the eighteen
(18) month period following Employee’s termination.
Employee’s portion of the costs for any such continued
benefits shall be paid by check or other arrangement mutually
agreeable to the parties. Beginning on the date that the Company no
longer provides subsidized benefit coverage pursuant to this
Agreement, Employee shall be eligible for COBRA
coverage;
(iv)
Pro Rata Bonus . The Company shall pay Employee any Pro Rata
Bonus. Any Pro Rata Bonus shall be paid based on Employee’s
Target Bonus applied to Employee’s eligible salary from
January 1 of the year of termination through the termination date.
Any Pro Rata Bonus will be based on calculations as defined in the
Bonus Plan as in effect as of Employee’s termination of
employment. The Company will pay the Pro Rata Bonus, if any, to
Employee at the time, in the same form, and under the same terms
that the Company generally makes payment to the employees of the
Company under the Bonus Plan (provided, however, that in no event
will a Pro Rata Bonus be paid to Employee more than two and
one-half (2 1 / 2
) months after the end of the
calendar year during which Employee’s entitlement to such
payment is earned); and
(v)
Full Equity Vesting . The Company will accelerate the
vesting and exercisability of all unvested and unexercisable equity
awards made pursuant to any Stock Plan . Any option (or portion
thereof) that vests pursuant to this provision shall terminate at
5:00 p.m.
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(local Virginia
time) on the 90th calendar day following the date such option (or
portion thereof) vests pursuant to this Agreement or, if earlier,
at their original term (the “Equity Cancellation
Date”). Any terminated option shall be cancelled and shall
have no further force or effect. Any Stock Plan awards of
performance-based restricted stock or restricted stock units shall
be settled as if all performance criteria had been satisfied at
target levels. Except as expressly provided herein, the terms of
the Stock Plan and applicable award agreements shall govern all of
Employee’s outstanding Stock Plan awards. If Employee
materially breaches this Agreement or the Release, all outstanding
and unvested Stock Plan awards shall be forfeited except as
otherwise provided by the Committee.
(d)
Termination of Employment Due to Disability . In the event
of the termination of Employee’s employment with the Company
pursuant to Section 5(e), if Employee continues to comply with
the post-employment obligations under this Agreement for the
Restricted Period, and if Employee (or Employee’s guardian or
personal representative) executes a Release as soon as
administratively feasible following the date of termination, the
Company will provide to Employee (or Employee’s guardian or
personal representative):
(1)
Accrued Compensation : Any Accrued Compensation;
(2)
Benefits Continuation . The Company will continue
Employee’s participation in all medical, dental and vision
plans in which Employee was enrolled (including Employee’s
spouse and eligible dependents, if applicable) as of
Employee’s termination of employment. The Company will
continue the coverage and pay that portion of the premium paid by
the Company during Employee’s employment until the last day
of the month of the one year anniversary of Employee’s
termination. Beginning on the date that the Company no longer
provides subsidized benefit coverage pursuant to this Agreement,
Employee (including Employee’s spouse and eligible
dependents, if applicable) shall be eligible for COBRA
coverage;
(3)
Pro Rata Bonus . The Company shall pay Employee any Pro Rata
Bonus. Any Pro Rata Bonus shall be paid based on Employee’s
Target Bonus applied to Employee’s eligible salary from
January 1 of the year of termination through the termination date.
Any Pro Rata Bonus will be based on calculations as defined in the
Bonus
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