Exhibit 10.35





Exhibit
10.35




RCN CORPORATION

Restricted Stock Unit Award




AWARD AGREEMENT, dated as of August 20, 2009, between RCN Corporation, a Delaware corporation
(the “Company”), and Peter Aquino (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. RSU Award. The Company hereby grants to the Participant, on the terms and
conditions set forth herein, an Award of 131,579 Restricted Stock Units (“RSUs”). 100% of
the RSUs covered by the Award shall be fixed in amount (the “Time-Based Awards”). 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 on each of
the dates specified below subject to the continued service with the Company or Subsidiary through
each such vesting date, as follows:



	 	 	 
	January 1, 2010:
	 	1/3 of Award
	January 1, 2011:
	 	1/3 of Award
	January 1, 2012:
	 	1/3 of Award






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
or is a participant in the Company’s Amended and Restated Change in Control Severance Plan (or any
successor thereto or other severance plan), any provisions of such agreement or plan 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. 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. 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 7. 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 8. 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 9. 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.


 


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Section 10. 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 11. 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

 	 
	 	By:  	 	 
	 	 	Name:  	Michael T. Sicoli 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 
	 	PARTICIPANT

 	 
	 	 	 




 


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