Exhibit 10.37


    
      
        

      


      Exhibit
        10.37

      


      RCN
        CORPORATION

      CHANGE
        OF CONTROL SEVERANCE PLAN

      


      1.   Term
        of Plan; General.
        This
        Plan shall become effective on the Effective Date and remain in effect until
        the
        first anniversary of a Change of Control; provided,
        however,
        that
        RCN shall in all events remain liable to provide any amounts or benefits
        to
        which a Participant became entitled hereunder prior to such anniversary.
        For the
        sake of clarity, no benefits shall be provided hereunder in respect of a
        Participant’s termination of employment for any reason prior to the Effective
        Date. Capitalized terms not otherwise defined shall have the meanings set
        forth
        on Exhibit A hereto.

       

      2.   Participants
        Covered.
        This
        Plan shall apply to Participants who are employed by RCN immediately prior
        to a
        Change of Control. 

       

      3.   Selection
        of Participants.
        The
        Compensation Committee of the Board (the “Committee”) shall designate those
        employees of the Employer who shall be considered to be Participants hereunder
        through a formal designation letter (the “Designation Letter”) specifying the
        terms and conditions of the employee’s participation. An employee who has not
        received a Designation Letter from the Committee shall not be a Participant
        hereunder. Except as set forth in the Designation Letter, the Committee may
        revoke an employee’s designation as a Participant at any time prior to the
        Effective Date.

       

      4.   Benefits
        Upon a Change of Control.
        Upon a
        Change of Control, all options, restricted stock awards, restricted stock
        units
        or other similar awards then held by the Participant shall become vested
        and, as
        applicable, exercisable.

       

      5.   Compensation
        Upon Termination.
        The
        Participant shall be entitled to the severance benefits provided in this
        Section
        5 hereof in the event the Participant's employment with all Employers is
        terminated during the Protection Period by an Employer without Cause or by
        the
        Participant for Good Reason. Notwithstanding the foregoing, the Participant
        shall not be entitled to severance benefits in the event of a termination
        of
        employment due to the Participant’s voluntary termination without Good Reason,
        an Employer’s termination of the Participant for Cause or on account of death or
        Disability. Upon termination of the Participant's employment as provided
        above,
        each Participant shall be entitled to the following benefits:

       

      a.   Severance.
        In the
        event of a Qualifying Termination during the Protection Period, a Participant
        shall be entitled to (i) continued payment of his or her Base Salary for
        twelve
        (12) months and (ii) a pro rated portion of the Participant’s target bonus
        (based upon the portion of the year of termination that has elapsed as of
        the
        Participant’s Qualifying Termination; provided that to receive any such
        payments, the Participant shall be required to execute and not revoke a
        Separation and Release Agreement in the form attached hereto as Exhibit A
        (the
“Release”).
        The
        pro rata bonus payment shall be made at the time RCN pays bonuses for that
        year
        to employees generally. 

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      b.   Additional
        Payments.
        In
        addition to the severance payment in (a), above, the Participants shall receive
        the following additional payments, payable in a lump sum promptly after the
        Participant’s Termination Date: (i) any accrued but unpaid Base Salary through
        the Termination Date, and (ii) an amount, if any, equal to any accrued vacation
        in full satisfaction of the Participant's rights thereto.

       

      c.   Welfare
        Benefits.
        RCN and
        the Participant shall continue to make such contributions as were required
        to be
        paid by RCN and the Participant immediately prior to the Termination Date
        for,
        and the Participant shall continue to receive, medical, dental, and vision
        benefits for the Participant and the Participant's eligible dependents on
        the
        same basis as in effect prior to the Change of Control or the Participant's
        Termination Date, whichever is deemed to provide for more substantial benefits,
        for the one-year period following the Participant’s date of termination (the
        "Severance
        Period");
        thereafter, the Participant may continue to be covered under the plans of
        the
        Employer providing such benefits at the Participant's expense at the applicable
        COBRA rate for the duration of the Consolidated Omnibus Reconciliation Act
        of
        1985, as amended ("COBRA")
        period
        which begins to run as of the Termination Date of the Participant; provided,
        however,
        in the
        event that the Participant commences comparable benefit coverage with a
        subsequent employer during the Severance Period, such Employer benefit coverage
        shall cease.

       

      d.   Section
        409A.
        To the
        extent necessary to avoid imposition of any penalty tax under Section 409A
        of
        the Internal Revenue Code of 1986, as amended, any payments required to be
        made
        hereunder during the six month period following a Participant’s Qualifying
        Termination shall be deferred and paid at the expiration of such period .
        

       

      e.   Withholding.
        Payments and benefits provided pursuant to this Section 4 shall be subject
        only
        to any applicable payroll and other taxes required to be withheld.

       

      f.   No
        Mitigation.
        The
        Participant shall not be required to mitigate the amount of any payment provided
        for in this Plan by seeking other employment or otherwise and no such payment
        shall be offset or reduced by the amount of any compensation or benefits
        provided to the Participant in any subsequent employment, other than is set
        forth in Section 5(c).

       

      g.   Offset
        for Other Severance.
        In the
        event that the Participant is eligible for severance under any other plan
        or
        agreement of RCN or any Employer, then any cash severance amounts payable
        pursuant to this Plan shall be reduced by the amount of any cash severance
        payments payable under such other plan or agreement.

       

      6.    Gross-Up.
        Except
        as otherwise provided in a Participant’s Designation Letter, each Participant
        shall additionally be entitled to the benefits specified in Exhibit B attached
        hereto.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      7.    Notices.
        (a)
        Termination of the Participant by an Employer for any reason shall be made
        by
        delivery to the Participant a written notice specifying the basis for such
        termination ("Notice
        of Termination").
        For
        the purposes of this Plan, notices and all other communications provided
        for in
        the Plan shall be in writing and shall be deemed to have been duly given
        when
        personally delivered, delivered by a nationally recognized overnight delivery
        service, or sent by certified mail, return receipt requested, postage prepaid,
        addressed to the respective addresses last given by each party to the other,
        provided that all notices to RCN shall be directed to the attention of the
        General Counsel with a copy to the Secretary of RCN. All notices and
        communications shall be deemed to have been received on the date of delivery
        thereof or on the third business day after the mailing thereof, except that
        notice of change of address shall be effective only upon receipt.

       

      8.    Amendment
        and Termination.
        This
        Plan may not be amended or terminated during the Protection Period. The Board
        may amend, modify or terminate the Plan prior to the Effective
        Date.

       

      9.    Non-exclusivity
        of Rights.
        Nothing
        in this Plan shall prevent or limit the Participant's continuing or future
        participation in any benefit, bonus, incentive or other plan or program provided
        by RCN or any of its subsidiaries and for which the Participant may qualify,
        nor
        shall anything herein limit or reduce such rights as the Participant may
        have
        under any agreements with RCN or any of its subsidiaries (although any such
        severance benefits reduce the severance payable under this Plan). Amounts
        which
        are vested benefits or which the Participant is otherwise entitled to receive
        under any plan or program of RCN or any of its subsidiaries shall be payable
        in
        accordance with such plan or program, except as explicitly modified by this
        Plan.

       

      10.         
        Joint
        and Several Liability.
        Each
        entity included in the definition of "Employer" and any successors or assigns
        shall be jointly and severally liable with RCN under this Plan.

       

      11.         
        Governing
        Law.
        This
        Plan shall be governed by and construed and enforced in accordance with the
        laws
        of the State of New York without giving effect to the conflict of law principles
        thereof. For purposes of jurisdiction and venue, RCN and each Employer hereby
        consents to jurisdiction and venue in any action, suit or proceeding in any
        court of competent jurisdiction in any state in which the Participant resides
        at
        the commencement of such action, suit of proceeding and waives any objection,
        challenge or dispute as to such jurisdiction or venue being proper.

       

      12.         
        Successors
        and Assigns.
        This
        Plan shall be binding upon and shall inure to the benefit of RCN, its successors
        and assigns, and RCN shall require any successor or assign to expressly assume
        and agree to maintain this Plan and to perform under this Plan to the same
        extent that RCN would be required to perform under the Plan if no such
        succession or assignment had taken place. The term "Company" as used herein
        shall include such successors and assigns.

       

      13.        
        Severability.
        The
        provisions of this Plan shall be deemed severable, and the invalidity or
        unenforceability of any provision hereof shall not affect the validity or
        enforceability of the other provisions hereof.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, this instrument has been executed on this 7th day of April,
        2006.

       

      
        	 	
                RCN
                  CORPORATION

              
	 	 	 
	 	
                By:

              	
                Peter
                  D. Aquino

              
	 	 	
                Name:
                  Peter D. Aquino

              
	 	 	
                Title:
                  President & Chief Executive
                  Officer

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      EXHIBIT
        A

      DEFINITIONS

      


      The
        following terms shall have the meanings set forth below for purposes of this
        Plan:

      


      a.   "Base
        Salary"
        shall
        mean the greater of a Participant's annual base salary on the Effective Date
        or
        the Participant’s Termination Date following the Effective Date.

       

      b.   "Just
        Cause”
means
        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 an Employer. In order to terminate a Participant for “Just
        Cause”, an Employer 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.
        An
        Employer may terminate a Participant for “just cause” at the end of such 10-day
        period if the breach is not fully remedied at that time. Notwithstanding
        the
        foregoing, need not provide a Participant with an opportunity to cure any
        acts
        of theft of cash or significant property of an Employer, fraud or embezzlement.
        

       

      c.   “Change
        of Control”
of
        RCN
        shall mean: (a) any “person” (as such term is used in Sections 3(a)(9) and
        13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
        Act”))
        or
“group” (as such term is used in Section 14(d)(2) of the Exchange Act) is
        or becomes a “beneficial owner” (as such term is used in Rule 13d-3
        promulgated under the Exchange Act) of 50% or more of the Voting Stock of
        RCN;
        (b) all or substantially all of the assets or business of RCN are disposed
        of
        pursuant to a merger, consolidation or other transaction unless, immediately
        after such transaction, the stockholders of RCN immediately prior to the
        transaction own, directly or indirectly, in substantially the same proportion
        as
        they owned the Voting Stock of RCN prior to such transaction more than 50%
        of
        the Voting Stock of RCN surviving such transaction or succeeding to all or
        substantially all of the assets or business of RCN or the ultimate parent
        company of such surviving or successor company if such surviving or successor
        company is a subsidiary of another entity (there being excluded from the
        number
        of shares held by such stockholders, but not from the Voting Stock of the
        combined company, any shares received by affiliates of such other company
        in
        exchange for stock of such other company); (c) a majority of the Board consists
        of individuals other than Incumbent Directors, which term means the members
        of
        the Board on January 1, 2005 or, if any such individual is no longer a member
        of
        the Board, any successor to any such individual (or to any successor to any
        such
        individual) if the election or nomination for election of such individual
        or
        successor was approved by a majority of the directors who then comprised
        the
        Incumbent Directors; (d) RCN adopts any plan of liquidation providing for
        the
        distribution of all or substantially all of its assets if such plan of
        liquidation will result in the winding-up of the business of RCN; or (e)
        the
        consummation of any merger, consolidation or other similar corporate transaction
        unless, immediately after such transaction, the stockholders of RCN immediately
        prior to the transaction own, directly or indirectly, in substantially the
        same
        proportion as they owned the Voting Stock of RCN prior to such transaction
        more
        than 50% of the Voting Stock of RCN surviving such transaction or its ultimate
        parent company if such surviving company is a subsidiary of another entity
        (there being excluded from the number of shares held by such stockholders,
        but
        not from the Voting Stock of the combined company, any shares received by
        affiliates of such other company in exchange for stock of such other company).
        For purposes of this definition, “RCN” shall include any entity that succeeds to
        all or substantially all of the business of RCN; “Voting Stock” shall mean
        securities of any class or classes having general voting power under ordinary
        circumstances, in the absence of contingencies, to elect the directors of
        a
        corporation; and references to ownership of “more than 50% of the Voting
        Stock” shall mean the ownership of shares of Voting Stock that represent the
        right to exercise more than 50% of the votes entitled to be cast in the election
        of directors of a corporation. 

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      d.   "“Disability”
means,
        as a result of a Participant’s incapacity due to physical or mental illness as
        determined by a physician selected by the Participant, and reasonably acceptable
        to RCN, a Participant has been substantially unable to perform his or her
        duties
        hereunder for six consecutive months, or for an aggregate of 180 days
        during any period of twelve consecutive months.. 

       

      e.   "Effective
        Date"
        shall
        mean the date on which a Change of Control occurs.

       

      f.   "Employer"
        shall
        mean RCN or any subsidiary of RCN for which a Participant is employed
        thereby.

       

      g.         
        "Good
        Reason"
        shall
        mean the occurrence after a Change of Control of any of the following events
        or
        conditions: (a) an Employer’s material breach of an employment agreement with
        the Participant (after failure to cure within thirty (30) days of receipt
        of
        written notice from the Participant); (b) a reduction in a Participant’s Base
        Salary or Target Bonus opportunity (that is not in either case agreed to
        by the
        Participant); (c) a material diminution in a Participant’s title or duties as in
        effect immediately prior to the Effective Date that is not cured within thirty
        (30) days of receipt of written notice from the Participant; or (d) relocation
        of a Participant’s principal place of work more than thirty (30) miles without
        the Participant’s consent

       

      h.         
        “Protection
        Period”
means
        the period commencing on the Effective Date and ending on the second anniversary
        thereof.

       

      i.   “Qualifying
        Termination”
shall
        mean a termination of employment that entitles a Participant to severance
        benefits pursuant to Section 5 of the Plan.

       

      j.   "Termination
        Date"
        shall
        mean the Participant’s termination date specified in any notice of
        termination.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      EXHIBIT
        B

      


      Certain
        Change of Control Benefits

      


      1.    In
        the
        event it shall be determined that any payment or distribution in the nature
        of
        compensation (within the meaning of Section 280G(b)(2) of the Code) to or
        for a Participant’s benefit, whether paid or payable pursuant to the agreement
        to which this Exhibit B is attached (including, without limitation, the
        accelerated vesting of equity awards held by a Participant) (collectively,
        the
“Company
        Payments”),
        would
        be subject to the excise tax imposed by Section 4999 of the Code (the
“Excise
        Tax”),
        then
        the amount of such Company Payments shall be automatically reduced to an
        amount
        one dollar less than the amount that would subject a Participant to such
        Excise
        Tax (the “Safe
        Harbor Limit”);
        provided that if the Company Payments exceed the Safe Harbor Limit by more
        than
        10% of the Safe Harbor Limit, then a Participant shall instead be entitled
        to
        receive an additional payment (the “Gross-Up
        Payment”)
        in an
        amount such that, after payment by a Participant of all taxes (and any interest
        or penalties imposed with respect to such taxes), including, without limitation,
        any income taxes (and any interest and penalties imposed with respect thereto)
        and Excise Tax imposed upon the Gross-Up Payment, a Participant retain an
        amount
        of the Gross-Up Payment equal to the Excise Tax imposed upon the
        payments.

       

      3.    All
        determinations required to be made under this Exhibit B, including whether
        and
        when a Gross-Up Payment is required, the amount of such Gross-Up Payment
        and the
        assumptions to be utilized in arriving at such determination, shall be made
        by a
        nationally recognized accounting firm selected by the Company (the “Accounting
        Firm”).
        The
        Accounting Firm shall provide detailed supporting calculations both to the
        Company and the Participant within 15 business days of the receipt of
        notice from a Participant that there has been a Payment or such earlier time
        as
        is requested by the Company. All fees and expenses of the Accounting Firm
        shall
        be borne solely by the Company. Any Gross-Up Payment, as determined pursuant
        to
        this Exhibit B, shall be paid by the Company to a Participant within
        15 days of the receipt of the Accounting Firm’s determination. Absent
        manifest error, any determination by the Accounting Firm shall be binding
        upon
        the Company and a Participant. 

       

      4.    A
        Participant shall notify the Company in writing of any claim by the Internal
        Revenue Service that, if successful, would require the payment by the Company
        of
        the Gross-Up Payment. Such notification shall be given as soon as practicable,
        but no later than ten business days after a Participant is informed in writing
        of such claim. The Participant shall apprise the Company of the nature of
        such
        claim and the date on which such claim is requested to be paid. The Participant
        shall not pay such claim prior to the expiration of the 30-day period following
        the date on which a Participant gives such notice to the Company (or such
        shorter period ending on the date that any payment of taxes with respect
        to such
        claim is due). If the Company notifies a Participant in writing prior to
        the
        expiration of such period that the Company desires to contest such claim,
        the
        Participant shall:

       

      (i)   give
        the
        Company any information reasonably requested by the Company relating to such
        claim,

       


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      (ii)   take
        such
        action in connection with contesting such claim as the Company shall reasonably
        request in writing from time to time, including, without limitation, accepting
        legal representation with respect to such claim by an attorney reasonably
        selected by the Company,

       

      (iii)         
        cooperate
        with the Company in good faith in order effectively to contest such claim,
        and


       

      (iv)         
        permit
        the Company to participate in any proceedings relating to such
        claim;

       

      provided,
        however,
        that
        the Company shall bear and pay directly all costs and expenses (including
        additional interest and penalties) incurred in connection with such contest,
        and
        shall indemnify and hold a Participant harmless, on an after-tax basis, for
        any
        Excise Tax or income tax (including interest and penalties) imposed as a
        result
        of such representation and payment of costs and expenses. Without limitation
        on
        the foregoing provisions of this Exhibit B, the Company shall control all
        proceedings taken in connection with such contest, and, at its sole discretion,
        may pursue or forego any and all administrative appeals, proceedings, hearings
        and conferences with the applicable taxing authority in respect of such claim
        and may, at its sole discretion, either pay the tax claimed to the appropriate
        taxing authority on a Participant’s behalf and direct the Participant to sue for
        a refund or contest the claim in any permissible manner, and the Participant
        agrees to prosecute such contest to a determination before any administrative
        tribunal, in a court of initial jurisdiction and in one or more appellate
        courts, as the Company shall determine; provided,
        however,
        that,
        if the Company pays such claim and directs the Participant to sue for a refund,
        the Company shall indemnify and hold the Participant harmless, on an after-tax
        basis, from any Excise Tax or income tax (including interest or penalties)
        imposed with respect to such payment or with respect to any imputed income
        in
        connection with such payment; and provided,
        further,
        that
        any extension of the statute of limitations relating to payment of taxes
        for a
        Participants taxable year with respect to which such contested amount is
        claimed
        to be due is limited solely to such contested amount. Furthermore, the Company’s
        control of the contest shall be limited to issues with respect to which the
        Gross-Up Payment would be payable hereunder, and the Participant shall be
        entitled to settle or contest, as the case may be, any other issue raised
        by the
        Internal Revenue Service or any other taxing authority.

       

      5.   If,
        after
        a Participant’s receipt of a Gross-Up Payment or payment by the Company of an
        amount on a Participant’s behalf pursuant to this Exhibit B, a Participant
        becomes entitled to receive any refund with respect to the Excise Tax to
        which
        such Gross-Up Payment relates or with respect to such claim, the Participant
        shall promptly pay to the Company the amount of such refund (together with
        any
        interest paid or credited thereon after taxes applicable thereto). If, after
        payment by the Company of an amount on a Participant’s behalf pursuant to this
        Exhibit B, a determination is made that the Participant shall not be entitled
        to
        any refund with respect to such claim and the Company does not notify the
        Participant in writing of its intent to contest such denial of refund prior
        to
        the expiration of 30 days after such determination, then the amount of such
        payment shall offset, to the extent thereof, the amount of Gross-Up Payment
        required to be paid.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      6.   Notwithstanding
        any
        other provision of this Exhibit B, the Company may, in its sole discretion,
        withhold and pay over to the Internal Revenue Service or any other applicable
        taxing authority, for a Participant’s benefit, all or any portion of any
        Gross-Up Payment, and each Participant hereby consents to such withholding
        and
        payment.