Exhibit 4.1
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CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into effective
as of September 20, 2001 between RCN Corporation, a Delaware Corporation (the
"Company"), and Xxxxxx Xxxxx, Xx. (the "Consultant").
WHEREAS, in addition to obtaining the Consultant's valuable service as
a member of the Company's Board of Directors, the Company also desires to obtain
the benefit of the Consultant's knowledge and experience by retaining him as a
consultant; and
WHEREAS, the Consultant desires to accept such position upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
the Company and the Consultant hereby agree as follows:
1. DUTIES: The Consultant shall render such consulting services to the Company
as the Chief Executive Officer (the "CEO") or the Board of Directors of the
Company (the "Board") shall reasonably request of the Consultant. The Consultant
shall devote his best efforts and attention in performing his consulting
services and will render services relating to (i) debt reduction activities,
(ii) assisting the CEO in reviewing market business plans to help assure
positive cash flow in markets, (iii) reviewing and assisting management in
preparing the Company's financial plan to help assure efficiencies are realized,
including relating to engineering and construction, operations and sales and
marketing, (iv) assisting the CEO in seeking strategic partners, (v) reviewing
with the CEO and President of Customer and Field Operations the organizational
structure and necessary changes to help improve efficiencies and reduce
expenses, and (vi) such other duties as may be requested by the Board or the CEO
from time to time.
2. LOCATION: The Consultant shall render his consulting services at the
Company's offices or at any other mutually agreeable location.
3. COMPENSATION: The Consultant will be compensated by the Company as follows:
a. Fees: The Consultant will receive no cash fees in respect of his
consulting services.
b. Equity Compensation: The Consultant was granted 500,000 Outperform
Stock Options under the Company's 1997 Equity Incentive Plan (the
"1997 Plan") on September 20, 2001. The Consultant shall also be
eligible to receive a grant of 250,000 Outperform Stock Options under
the 1997 Plan (or any successor thereto), subject to the attainment of
certain performance objectives as determined by the
Compensation Committee of the Company's Board of Directors. If the
additional 250,000 Outperform Stock Options are granted, such options
shall be (i) granted at a per share initial exercise price of $1.95
(subject to Section 15 of the 1997 Plan ( "Changes in Capital
Structure")), (ii) fully vested on the date of grant and (iii) subject
to the terms and conditions of a stock option agreement substantially
similar to the stock option agreement attached as Exhibit A hereto.
c. Expenses: The Company shall reimburse the Consultant for all expenses
reasonably incurred by the Consultant in the performance of his
consulting services hereunder. The Consultant shall provide the
Company with appropriate documentation in respect of such expenses.
d. Benefits: The Consultant will not be entitled to any Company provided
employee benefits (e.g., group health insurance, vacation, sick leave,
severance or 401(k) participation).
4. TERMINATION: This Agreement shall be terminable by either party hereto at
any time upon 30 days' written notice to the other party.
5. NOTICE: Any notice given hereunder shall be in writing and shall be deemed
to have been given when delivered by messenger or courier service (against
appropriate receipt), or mailed by registered or certified mail (return receipt
requested), addressed as follows:
If to the Company:
RCN Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
If to the Consultant:
Xxxxxx Xxxxx, Xx.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
or at such other address as shall be indicated to the other party hereto in
writing. Notice of change of address shall be effective only upon receipt.
6. INTERPRETATION: This Agreement shall be interpreted in accordance with and
governed by the laws of the State of Delaware without reference to its conflict
of laws principles.
7. SEVERABILITY: The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity
or enforceability of any other provision hereof, which shall remain in full
force and effect.
8. ASSIGNMENT: This Agreement may not be assigned by either party hereto
without the prior written consent of the other party, except that the Company
may assign this Agreement to a corporation succeeding to substantially all the
assets or business of the Company whether by merger, consolidation, acquisition,
or otherwise.
9. COUNTERPARTS: This Agreement may be executed in one or more counterparts,
which, together, shall constitute one and the same agreement.
10. MODIFICATION: This Agreement may only be modified or amended by a
supplemental written agreement signed by the Consultant and an authorized
officer of the Company.
11. ENTIRE AGREEMENT: This Agreement together with the option agreements
referred to herein constitute the entire agreement between the Consultant and
the Company regarding the terms and conditions of the consultancy, and supersede
all prior negotiations, representations or agreements between the Consultant and
the Company regarding the Consultant's consultancy, whether written or oral.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first set forth above.
RCN CORPORATION
By: /s/ Xxxxx X. XxXxxxx
Name: Xxxxx X. XxXxxxx
Title: Chairman and
Chief Executive Officer
XXXXXX XXXXX, XX.
/s/ Xxxxxx Xxxxx, Xx.
