Exhibit 4.4
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AMENDMENT NO. 1 TO THE OUTPERFORMANCE OPTION AGREEMENT UNDER THE RCN CORPORATION
1997 EQUITY INCENTIVE PLAN
THIS AMENDMENT is made as of April 16, 2002 to the Outperformance Option
Agreement dated as of September 20, 2001 by and between RCN Corporation, a
Delaware Corporation (the "Company") and Xxxxxx Xxxxx, Xx. (the "Consultant").
WHEREAS, pursuant to the Outperformance Option Agreement (the "Agreement") the
Company has granted Outperformance Options to the Consultant to purchase RCN
Corporation Common Stock under the Company's 1997 Equity Incentive Plan (the
"Plan"); and
WHEREAS, under the terms of the Plan, the Company has reserved the right to
amend the Plan and/or Agreements from time to time; and
WHEREAS, the Compensation Committee of the Board of Directors of the Company has
authorized the Company to amend the Agreement to allow for the accelerated
vesting of Outperformance Options granted to the Consultant upon the death or
disability of the Consultant; and
WHEREAS, the Compensation Committee of the Board of Directors of the Company has
authorized the Company to amend the Agreement to allow that the Outperformance
Options granted to the Consultant may be exercised by the Consultant (or in the
event of death, the executor or administrator of the estate of the Consultant or
the person or persons to whom the Outperformance Options shall have been validly
transferred by the executor or administrator pursuant to will or the laws of
descent and distribution), upon the death or disability of the Consultant, until
the Termination Date of the Options; and
WHEREAS, the Compensation Committee of the Board of Directors of the Company has
authorized the Company to amend the Agreement to revise the definition of
Disability.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Notwithstanding the vesting and exercise schedule in Section 3 of the
Agreement, the unvested portion of the Outperformance Options granted as of
September 20, 2001 shall be fully and immediately vested and exercisable as of
April 16, 2002.
2. Section 4 of the Agreement is amended and restated in its entirety to read as
follows:
Termination of Consulting Arrangement. (a) If prior to the Termination Date, the
Consultant ceases to provide consulting services to the Company by reason of the
Company ending the consulting arrangement other than for Cause (as defined in
the Plan), or if the Consultant voluntarily terminates the consulting
arrangement with the Company, the Outperformance Options shall remain
exercisable until the Termination Date.
(b) If the Consultant shall cease to provide consulting services to the Company
prior to the Termination Date by reason of Disability or death, or the
Consultant shall die while entitled to exercise any of the Outperformance
Options pursuant to paragraph 4(a), the Consultant, his executor, administrator,
guardian or legal representative, a person who acquired the Outperformance
Options pursuant to a qualified domestic relations order, a Family Member (as
defined in the Agreement) who acquired the Outperformance Options by gift, any
person to whom the Outperformance Options were transferred by will or the laws
of descent and distribution, the trustee or directors or a trust or foundation
created or established by the Consultant, or an authorized representative of a
charitable organization of the type described in the Agreement which acquired
the Outperformance Options pursuant to the terms of a trust or foundation
created or established by the Consultant, shall have the right, until the
Termination Date, to exercise the Outperformance Options, subject to any other
limitation contained herein on the exercise of the Outperformance Options in
effect on the date of exercise. For purposes of this Agreement, "Disability"
shall mean a determination, by the physician treating Consultant for such
illness or condition, that the Consultant is unable to perform the ordinary
functions of such Consultant's position as a result of mental or physical
disability.
(c) If the Consultant's consulting arrangement with the Company is terminated by
the Company for Cause, unless otherwise provided by the Committee, the
Outperformance Options, to the extent not exercised prior to such termination,
shall lapse and be canceled.
(d) After the expiration of any exercise period described in either of
paragraphs 4(a), 4(b) or 4(c) hereof, the Outperformance Options shall terminate
together with all of the Employee's rights hereunder, to the extent not
previously exercised.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first written above.
RCN CORPORATION
By: /s/ Xxxxx X. XxXxxxx
Xxxxx X. XxXxxxx
Chairman and Chief Executive Officer
/s/ Xxxxxx Xxxxx, Xx.
Xxxxxx Xxxxx, Xx.
