CCOI 8-K
Cogent Communications Holdings, Inc. (CCOI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On January 14, 2025, Cogent Communications Holdings, Inc. (the “Company”), the Company’s US operating subsidiary and the Company’s Chief Executive Officer, David Schaeffer, entered into an amendment to Mr. Schaeffer’s employment agreement, which, among other things, extended the term through December 31, 2027, set the parameters of his long-term equity compensation awards through 2027, and amended the criteria for Mr. Schaeffer’s annual cash incentive (hereafter “Amendment 10”).
Per Amendment 10, Mr. Schaeffer’s annual cash incentive award shall have a target of $500,000 and will not exceed $667,000. Half of the annual cash incentive award will be based on the Company’s Annualized Wavelength Revenue compound annual growth rate (“AWR CAGR”) determined by measuring the growth of the Company’s Annualized Wavelength Revenue for the applicable calendar year from the Company’s Annualized Wavelength Revenue for the prior calendar year as compared against a target compound annual growth rate (the “AWR CAGR Target”). The other half of the annual cash incentive award will be based on the Company’s Gross Profit compound annual growth rate (“GP CAGR”), determined by measuring the growth of the Company’s Gross Profit for the applicable calendar year from the Company’s Gross Profit for the prior calendar year as compared against a target compound annual growth rate (the “GP CAGR Target”). The AWR CAGR Target and GP CAGR Target will be set by the Compensation Committee (the “Committee”) of the Company’s Board of Directors (the “Board”) in its sole discretion. If AWR CAGR or GP CAGR is zero or negative, the portion of annual cash incentive award payable pursuant to the relevant metric shall be zero.
As described in Amendment 10, provided Mr. Schaeffer is employed by the Company on January 1 of such year, the Board shall grant Mr. Schaeffer an award of 180,000 shares of restricted stock in each of 2025, 2026 and 2027. A portion of the grant, 84,000 shares, will vest in 12 monthly increments of 7,000 shares starting on January 1 of the third year following the year of the grant, subject to Mr. Schaeffer’s continued employment with the Company through each applicable vesting date (except in the case of certain qualifying terminations of employment).
The remaining portion of the grant, 96,000 shares of performance-vesting restricted stock, will be eligible to vest following a three-year performance period, subject to Mr. Schaeffer’s continued employment with the Company through the applicable vesting date (except in the case of certain qualifying terminations of employment), with one-half of the shares of performance-vesting restricted stock based on the Company’s achievement of annual growth rate in EBITDA (“EBITDA CAGR”), and one-half based on the Company’s compound annual growth rate in Free Cash Flow (“FCF CAGR”), in each case measured over the three-year performance period. If EBITDA CAGR or FCF CAGR is zero or negative, then no shares of performance-vesting restricted stock subject to the relevent metric will vest. The CAGR performance targets which apply to performance-vesting restricted stock will be set by the Committee in its sole discretion. In the event of a material merger, acquisition, sale, divestiture or other business combination (materiality to be determined by the Committee in its sole discretion), the independent members of the Board may, in their good faith discretion, adjust one or more of the CAGR target percentages previously set for one of more of the tranches of shares of performance-vesting restricted stock to prevent dilution or enlargement of the potential benefits intended to be made available under the applicable awards.
This description of Amendment 10 does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of Amendment 10, which is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
On January 14, 2025, the Board granted a restricted stock award to Mr. Schaeffer consistent with the terms above. The form of Restricted Stock Award to Mr. Schaeffer is attached hereto as Exhibit 10.2 and incorporated herein by reference.
Also on January 9, 2025, customary annual grants were made to the other named executive officers: Thaddeus G. Weed, Chief Financial Officer; John B. Chang, Chief Legal Officer; James Bubeck, Chief Revenue Officer; and Henry W. Kilmer, Vice President of Network Strategy.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
| Exhibit Number |
Description | |
| 10.1 | Amendment No. 10 to Employment Agreement of David Schaeffer, dated January 14, 2025. | |
| 10.2 | Form of Restricted Stock Award between the Company and David Schaeffer. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Cogent Communications Holdings, Inc. | |||
| January 15, 2025 | By: | /s/ David Schaeffer | |
| Name: | David Schaeffer | ||
| Title: | President and Chief Executive Officer | ||
EXHIBIT 10.1
Amendment No. 10
to
Employment Agreement of David Schaeffer
This amendment (“Amendment”) is made by and among Cogent Communications Holdings, Inc. (“Holdings”), Cogent Communications, LLC (the “Company”) and David Schaeffer (“Executive”). This Amendment amends the Employment Agreement between the Company and Executive dated February 7, 2000 as amended.
| 1. | The second and third sentences of Section 2 are replaced with the following: |
The term of employment under this Agreement (the “Term”) shall be for the period beginning on the Effective Date and ending on December 31, 2027, unless earlier terminated as provided in Section 6.
| 2. | Section 5(b) (“Bonus”) is replaced with the following: |
With respect to each calendar year during the Term, Executive shall be eligible to earn an annual bonus with a target annual bonus of $500,000 as follows:
| (i) | 50% based on Annualized Wavelength Revenue compound annual growth rate (“AWR CAGR”) determined by measuring the growth of Holdings’ Annualized Wavelength Revenue for the applicable calendar year from Holdings’ Annualized Wavelength Revenue for the prior calendar year as compared against a target compound annual growth rate (the “AWR CAGR Target”) which shall be set by the Compensation Committee (the “Committee”) of Holdings’ Board of Directors in its sole discretion. For purposes of this determination, Annualized Wavelength Revenue shall be calculated by multiplying Holdings’ wavelength revenue for the quarter ending December 31st of the applicable year (as reported in Holdings’ earnings release for such quarter) by 4 (four). The portion of the annual bonus payable for achievement of the AWR CAGR Target shall be determined by dividing AWR CAGR by the AWR CAGR Target and multiplying the result by $250,000, provided, that the annual bonus payable for achievement of the AWR CAGR Target shall not exceed $333,500. If AWR CAGR is zero or negative, the portion of annual bonus payable pursuant to this metric shall be zero; and |
| (ii) | 50% based on Gross Profit compound annual growth rate (“GP CAGR”), determined by measuring the growth of Holdings’ Gross Profit for the applicable calendar year from Holdings’ Gross Profit for the prior calendar year as compared against a target compound annual growth rate (the “GP CAGR Target”) which shall be set by the Committee in its sole discretion. For purposes of this determination, Gross Profit shall be defined as Revenue MINUS Cost of Goods Sold and excluding equity based compensation. The portion of the annual bonus payable for achievement of the GP CAGR Target shall be determined by dividing GP CAGR by the GP CAGR Target and multiplying the result by $250,000, provided, that the portion of the annual bonus payable for achievement of the GP CAGR Target shall not exceed $333,500. If GP CAGR is zero or negative, the portion of annual bonus payable pursuant to this metric shall be zero. |
The annual bonus for each year, if any, shall be calculated and paid by March 15 of the following year in connection with the filing of Holdings’ Annual Report on Form 10-K (e.g. the annual bonus, if any, to be paid by March 15, 2026 is based on reported results for the year ending December 31, 2025 compared to the reported results for the year ending December 31, 2024 ), subject to Executive’s continued employment through December 31 of the applicable year.
| 3. | Section 5(g)(ii) is replaced with the following: |
(ii) With respect to 2025, 2026 and 2027, provided Executive is employed by the Company on January 1 of such year, each year Holdings shall grant to Executive 84,000 (eighty-four thousand) shares of time-based Restricted Stock (“New Award Time Vesting Shares”) and 96,000 (ninety six thousand) shares of performance-vesting Restricted Stock (the “New Award Performance Vesting Shares,” and together with the New Award Time Vesting Shares, the “Restricted Shares”), subject to the vesting requirements described below.
New Award Time Vesting Shares will vest in 12 equal monthly installments beginning on January 1 of the third year following the year of grant (e.g., a grant in January 2025 shall begin vesting on January 1, 2028), subject to Executive’s continued employment with the Company through each applicable vesting date.
New Award Performance Vesting Shares will be eligible to vest following a three-year performance period (a “Performance Period”) (e.g., a grant in January 2025 shall relate to performance during the period beginning on January 1, 2025 and ending on December 31, 2027), subject to Executive’s continued employment with the Company through the applicable vesting date, and based upon Executive’s achievements during the applicable Performance Period relative to the following performance targets to be determined and/or amended by the Committee, in its sole discretion in the year prior to the applicable grant date:
| (a) | up to 48,000 of the Performance Vesting Shares shall vest only if Holdings’ compound annual growth rate in EBITDA (“EBITDA CAGR”) for the last year of the applicable Performance Period compared to the EBITDA CAGR for the year immediately prior to the beginning of the applicable Performance Period is positive. EBITDA is as reported in Holdings’ earnings press releases, excluding payments from T-Mobile. If Holdings’ EBITDA CAGR for the applicable Performance Period is positive, then the number of Performance Vesting Shares that will be vested is determined by dividing (i) Holdings’ actual EBIDTA CAGR, by (ii) a target percent to be set by the Committee in its sole discretion, and then multiplying the resulting fraction by 48,000, provided, however that the number of Performance Vesting Shares that will vest in accordance with this clause (a) shall not exceed 48,000 Shares. If Holdings’ EBITDA CAGR for the applicable Performance Period is zero or negative then no Performance Vesting Shares subject to this clause (a) will vest. Any Performance Vesting Shares subject to this clause (a) which do not vest on the applicable vesting date will be forfeited and cancelled; and |
| (b) | up to 48,000 of the Performance Vesting Shares shall vest only if Holdings’ compound annual growth rate in Free Cash Flow (“FCF CAGR”) for the last year of the applicable Performance Period compared to the FCF CAGR for the year immediately prior to the beginning of the applicable Performance Period is positive. Free Cash Flow shall be defined as EBITDA MINUS capital expenditures MINUS principal payments on finance (capital) leases. EBITDA is as reported in Holdings’ earnings press releases, excluding payments from T-Mobile. If Holdings’ FCF CAGR for the applicable Performance Period is positive, then the number of Performance Vesting Shares that will be vested is determined by dividing (i) Holdings’ actual FCF CAGR, by (ii) a target percent to be set by the Committee in its sole discretion, and then multiplying the resulting fraction by 48,000, provided, however that the number of Performance Vesting Shares that will vest in accordance with this clause (b) shall not exceed 48,000 Shares. If Holdings’ FCF CAGR for the applicable Performance Period is zero or negative then no Performance Vesting Shares subject to this clause (b) will vest. Any Performance Vesting Shares subject to this clause (b) which do not vest on the applicable vesting date will be forfeited and cancelled. |
With respect to the Performance Vesting Shares, in the event of a material merger, acquisition, sale, divestiture or other business combination (materiality to be determined by the Committee in its sole discretion), the independent directors of the Board of Directors of Holdings may, in their good faith discretion, adjust one or more of the CAGR target percentages previously set for one of more of the Performance Vesting Shares set forth in subsections (a) and/or (b) above to prevent dilution or enlargement of the potential benefits intended to be made available under the applicable awards.
Each grant of Restricted Shares will be issued pursuant to the Amended and Restated Cogent Communications 2017 Incentive Award Plan (as it may be amended or restated from time to time, the “Plan”) of Holdings and shall be subject to the Plan, the applicable award agreement and such other terms and conditions set by the Committee.
Except as herein amended the Employment Agreement shall remain in full force and effect.
Accepted and Agreed to:
| As to Sections 1 and 2: Cogent Communications, LLC As to Section 3: Cogent Communications Holdings, Inc. | |||
| /s/ David Schaeffer | by: | /s/ John Chang | |
| David Schaeffer | John Chang | ||
| In his individual capacity | Chief Legal Officer and VP | ||
| Cogent Communications, LLC and Cogent | |||
| Communications Holdings, Inc. on behalf of the board of directors | |||
| Date: January 14, 2025 | Date: January 14, 2025 | ||
Exhibit 10.2
RESTRICTED STOCK AWARD
| Name: Dave Schaeffer | Cogent Communications Holdings, Inc. |
| Grant Date: [_____________] | 2017 Incentive Award Plan (the “Plan”) |
1. Grant: Effective as of the Grant Date specified above you have been granted [_____________] ([_____________]) Shares (“Time Vesting Shares”) and up to [_____________] ([_____________]) performance-vesting Shares of (the “Performance Vesting Shares” and along with the Time Vesting Shares the “Restricted Shares”) of Cogent Communications Holdings, Inc. (the “Company”) subject to the vesting requirements described below. Defined terms used but not otherwise defined herein will have the meaning set forth in the Plan.
2. Normal Vesting: You will become vested in [_____________] of the Time Vesting Shares on [_____________] and in an additional [_____________] of the Time Vesting Shares on the first day of each month thereafter, with full vesting of [_____________] Time Vesting Shares completed on [_____________], subject to your continued employment with the Company through each applicable vesting date. The Performance Vesting Shares shall vest on [_____________] (the “Performance Share Vesting Date”), based on performance from [_____________] through [_____________] (the “Performance Period”), and subject to your continued employment through the Performance Share Vesting Date, as follows:
(a) up to [___________] of the Performance Vesting Shares shall vest only if the Company’s compound annual growth rate in EBITDA (“EBITDA CAGR”) when comparing the Company’s EBITDA for the fiscal years ending [_____________] and [_____________] is positive. EBITDA is as reported in the Company’s earnings press releases, excluding payments from T-Mobile. If the Company’s EBITDA CAGR is positive, then the number of Performance Vesting Shares that will be vested is determined by dividing (i) the Company’s actual EBIDTA CAGR for the period set forth above, by (ii) [_____________], and then multiplying the resulting fraction by [_____________], provided, however that the number of Performance Vesting Shares that will vest in accordance with this clause (a) shall not exceed [_____________] Shares. If the Company’s EBITDA CAGR is zero or negative then no Performance Vesting Shares subject to this clause (a) will vest. Any Performance Vesting Shares subject to this clause (a) which do not vest on the Performance Share Vesting Date will be automatically forfeited and cancelled; and
(b) up to [_____________] of the Performance Vesting Shares shall vest only if the Company’s compound annual growth rate in Free Cash Flow (“FCF CAGR”) when comparing the Company’s Free Cash Flow for the fiscal years ending [_____________] and [_____________] is positive. Free Cash Flow shall be defined as EBITDA MINUS capital expenditures MINUS principal payments on finance (capital) leases. EBITDA is as reported in the Company’s earnings press releases, excluding payments from T-Mobile. If the Company’s FCF CAGR is positive, then the number of Performance Vesting Shares that will be vested is determined by dividing (i) the Company’s actual FCF CAGR for the period set forth above, by (ii) [_____________], and then multiplying the resulting fraction by [_____________], provided, however that the number of Performance Vesting Shares that will vest in accordance with this clause (b) shall not exceed [_____________] Shares. If the Company’s FCF CAGR is zero or negative then no Performance Vesting Shares subject to this clause (b) will vest. Any Performance Vesting Shares subject to this clause (b) which do not vest on the Performance Share Vesting Date will be automatically forfeited and cancelled.
In the event of a material merger, acquisition, sale, divestiture or other business combination (materiality to be determined by the Committee in its sole discretion), the independent directors of the Board of Directors of the Company may, in their good faith discretion, adjust one or more of the CAGR target percentages previously set for the one or more of the Performance Vesting Shares set forth in subsections (a) and/or (b) above to prevent dilution or enlargement of the potential benefits intended to be made available hereunder.
3. Accelerated Vesting: Notwithstanding Section 2, vesting in the Restricted Shares upon the following events will be treated as follows:
(a) Upon the termination of your employment by reason of death or disability you will fully vest in all unvested Time Vesting Shares and Performance Vesting Shares. Upon termination of your employment due your retirement (for the avoidance of doubt, the determination that a termination constitutes a retirement for this purpose is made in the sole and absolute discretion of the Committee), you will fully vest in all Time Vesting Shares and upon expiration of the Performance Period you will vest in any Performance Vesting Shares in accordance with Section 2 based on actual performance through and at the end of the Performance Period.
(b) If your employment is terminated entitling you to severance under the terms of your employment agreement either prior to a Change in Control or more than six months after a Change in Control, then you will vest in (i) the number of Time Vested Shares you would have vested in had you remained employed during the one-year severance period and (ii) on the Performance Share Vesting Date you will vest in the number of Performance Vesting Shares that vest in accordance with Section 2 above, based on actual performance through and at the end of the Performance Period, but pro-rated based on the number of days elapsed from the beginning of the Performance Period through the last day of your severance period.
(c) Immediately prior to a Change in Control the Performance Period will end and the number of Performance Vesting Shares in which you will be eligible to vest in will be determined based on EBITDA CAGR and FCF CAGR through the most recent publicly reported fiscal quarter ending prior to the Change in Control (if the most recently publicly reported fiscal quarter ending prior to the Change in Control is not at the year end, then EBITDA CAGR and FCF CAGR for such year should be calculated using the most recently reported EBITDA and Free Cash Flow for a quarter and multiplying such amount by 4 (four)) provided you remain employed through [_____________]; provided, however, you will be fully vested in such number of Performance Vesting Shares and fully vested in your unvested Time Vested Shares (i) if during the six months following the Change of Control the Company terminates your employment without cause (as defined in your employment agreement with the Company) or you terminate your employment for Good Reason (as defined in your employment agreement with the Company) or (ii) as otherwise provided in Section 3(a) above treating the Performance Vesting Shares which vest under the provisions of this Section 3(c) as Time Vesting Shares for such purposes.
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4. Nontransferable: The Restricted Shares or any interest or right therein or part thereof may not be disposed of by transfer, alienation, anticipation, pledge, hypothecation, encumbrance, assignment or any other means, whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), until vested, and any attempted disposition prior thereto shall be null and void and of no effect. The foregoing notwithstanding, transfers of the Restricted Shares may be permitted for estate planning purposes with the prior written consent of the Committee and subject in each case to the provisions of the Plan and the same restrictions and forfeiture provisions under this Restricted Stock Award Agreement (“Agreement”) that the Restricted Shares had in your hands.
5. Dividends/Voting: You will be entitled to vote the Restricted Shares. However, you will only be entitled to receive any dividends that are paid on shares of the Restricted Shares once they are vested. Any dividends paid on unvested Restricted Shares shall be held by the Company, without interest thereon and paid to you at the time the Restricted Shares on which such dividends were paid vest.
6. Certificates: The Company shall cause the Restricted Shares to be issued and a stock certificate or certificates representing the Restricted Shares to be registered in your name or held in book entry form, but if a stock certificate or certificates are issued, they shall be delivered to, and held in custody by the Company until the shares of Restricted Shares vest. You agree to give to the Company a stock power, except for voting rights, for all unvested Restricted Shares. If issued, each such certificate will bear such legends as the Company may determine.
7. No Other Rights: The grant of Restricted Shares under the Plan is a one-time benefit and does not create any contractual or other right to receive an award of Restricted Shares or benefits in lieu of Restricted Shares in the future. Future awards of Restricted Shares, if any, will be at the sole discretion of the Company, including, but not limited to, the timing of the award, the number of shares and vesting provisions. The grant of Restricted Shares under the Plan does not entitle you to any rights to remain employed with the Company, nor does it constitute a contract of employment.
8. Miscellaneous: The shares of Restricted Shares are granted under and governed by the terms and conditions of the Plan, as may be amended from time to time. Defined terms used herein shall have the meaning set forth in the Plan, unless otherwise defined herein.
9. 280G: Notwithstanding anything in this Agreement to the contrary, if the acceleration of vesting and any other payments to be made you (a “Payment”) would (i) constitute a “parachute payment” under Section 280G of the Code and (ii) but for this Section 9 be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then either (A) such Payments shall be reduced to the maximum amount that could be paid to you without any portion of the Payment (after reduction) being subject to the Excise Tax, or (B) the entire Payment, shall be paid if after taking into account all applicable federal, state and local taxes and the Excise Tax would provide a more favorable net after tax benefit to you (i.e., because the after tax proceeds to you of the reduced Payments and other benefits under this Agreement would exceed the after tax proceeds to you of Payments in the absence of any reduction, taking into account the Excise Tax applicable to such Payments). If a reduction in a Payment is to be made under clause (ii)(A), then the reduction will be made as determined by the Company in a manner that results in your retaining the largest amounts of Payments which are payable in cash or equity at or as close to the event giving rise to the change in control as possible, such as by first reducing your rights to any Payments that are contingent upon the occurrence of later events (such as severance). Any determination of whether any portion of the Payments constitutes a “parachute payment” within the meaning of Section 280G(b) of the Code, shall be made by a nationally recognized accounting firm selected by the Company, which may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the Code. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section 9.
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10. Claw-Back Provisions: The Restricted Shares (including any proceeds, gains or other economic benefit actually or constructively received by you upon receipt or exercise of this Award or upon the receipt or resale of any Shares underlying the Award) shall be subject to reduction, cancellation, forfeiture and/or recoupment to the extent necessary to comply with any clawback, forfeiture or other similar policy adopted by the Company, including, without limitation, the Policy for Recovery of Erroneously Awarded Compensation adopted by the Company, effective October 2, 2023.
| Cogent Communications Holdings, Inc. | ||
| By: | ||
| John Chang on behalf of the Board of Directors and the Compensation Committee | ||
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