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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 1)*
RCN CORPORATION
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
7493 6101
(CUSIP Number)
William D. Savoy Alvin G. Segel, Esq.
Vulcan Ventures Incorporated Irell & Manella LLP
110-110th Avenue N.E., Suite 550 1800 Avenue of the Stars
Bellevue, WA 98004 Suite 900
(206) 453-1940 Los Angeles, CA 90067
(310) 277-1010
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 28, 2000
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box [_].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
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CUSIP NO. 7493 6101 Page 1 of 2 Pages
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NAME OF REPORTING PERSON
1. S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Vulcan Ventures Incorporated
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2. (a)
(b)
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SEC USE ONLY
3.
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SOURCE OF FUNDS*
4.
WC
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(E)
5.
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CITIZENSHIP OR PLACE OF ORGANIZATION
6.
State of Washington
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SOLE VOTING POWER
7.
NUMBER OF
-0- SHARES
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8.
OWNED BY 30,020,003 SHARES (1)
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9.
REPORTING
-0- SHARES
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10.
30,020,003 SHARES (1)
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11.
30,020,003 SHARES (1)
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
13.
29.2%
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TYPE OF REPORTING PERSON
14.
CO
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(1) These shares are directly owned by Vulcan Ventures Incorporated.
Paul G. Allen is the sole shareholder of Vulcan Ventures
Incorporated and may be deemed to have shared voting and
dispositive power with respect to such shares. The reported
shares include 1,650,000 shares of Series B 7% Senior
Convertible Preferred Stock (and the shares of Common Stock that
may be obtained upon conversion thereof) that Vulcan Ventures
Incorporated acquired on February 28, 2000 pursuant to the Stock Purchase
Agreement (as defined below) and 3,407,100 shares of Common Stock that it
owned prior to the execution of the Stock Purchase Agreement.
* SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
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CUSIP NO. 7493 6101 Page 2 of 2 Pages
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NAME OF REPORTING PERSON
1. S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Paul G. Allen
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2. (a)
(b)
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SEC USE ONLY
3.
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SOURCE OF FUNDS*
4.
PF
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(E)
5.
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CITIZENSHIP OR PLACE OF ORGANIZATION
6.
United States of America
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SOLE VOTING POWER
7.
NUMBER OF
-0- SHARES
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8.
OWNED BY 30,020,003 SHARES (1)
-----------------------------------------------------------
EACH SOLE DISPOSITIVE SHARES
9.
REPORTING
-0- SHARES
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10.
30,020,003 SHARES (1)
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11.
30,020,003 SHARES (1)
- ------------------------------------------------------------------------------
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12.
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
13.
29.2%
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TYPE OF REPORTING PERSON
14.
IN
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(1) These shares are directly owned by Vulcan Ventures Incorporated.
Paul G. Allen is the sole shareholder of Vulcan Ventures
Incorporated and may be deemed to have shared voting and
dispositive power with respect to such shares. The reported
shares include 1,650,000 shares of Series B 7% Senior
Convertible Preferred Stock (and the shares of Common Stock that
may be obtained upon conversion thereof) that Vulcan Ventures
Incorporated acquired on February 28, 2000 pursuant to the Stock
Purchase Agreement (as defined below) and 3,407,100 shares of
Common Stock that it owned prior to the execution of the Stock
Purchase Agreement.
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SCHEDULE 13D
This Statement, which is being filed by Vulcan Ventures Incorporated, a
Washington corporation ("Vulcan Ventures"), and Paul G. Allen, the Chairman,
President and sole shareholder of Vulcan ("Mr. Allen"), constitutes Amendment
No. 1 to the Schedule 13D originally filed with the Securities and Exchange
Commission on October 18, 1999 (the "Schedule 13D"). The Schedule 13D relates to
the Common Stock, par value $1.00 per share ("Common Stock"), of RCN
Corporation, a Delaware corporation (the "Issuer"). The item numbers and
responses thereto below are in accordance with the requirements of Schedule 13D.
Capitalized terms used herein and not defined shall have the meaning set forth
in the Schedule 13D.
ITEM 3: SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 of the Schedule 13D is hereby amended and restated in its entirety
to read as follows:
On February 28, 2000, Vulcan Ventures purchased from the Issuer 1,650,000
shares of Series B 7% Senior Convertible Preferred Stock (the "Preferred Stock")
for an aggregate purchase price of $1,650,000,000 pursuant to a Stock Purchase
Agreement entered into by Vulcan Ventures and the Issuer on October 1, 1999 (as
amended, the "Stock Purchase Agreement"). Vulcan Ventures funded its purchase of
the Preferred Stock from its working capital following a capital contribution
from Mr. Allen, which was funded by Mr. Allen's personal funds.
Vulcan Ventures funded its purchase of the 3,407,100 shares of Common Stock
that it owned prior to the execution of the Stock Purchase Agreement from its
own working capital.
None of the funds used to purchase such shares of Common Stock or Preferred
Stock consisted of funds or other consideration borrowed or otherwise obtained
for the purpose of acquiring, holding, trading or voting the shares of Common
Stock.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 of the Schedule 13D is hereby amended and restated in its entirety
to read as follows:
(a) On February 28, 2000, the sale of 1,650,000 shares of the Preferred
Stock by the Issuer to Vulcan Ventures pursuant to the Stock Purchase Agreement
was consummated. As of the date of this Amendment, Vulcan Ventures and Mr. Allen
each beneficially owns 30,020,003 shares of the Issuer's Common Stock. These
shares include the shares of Common Stock and Class B Common Stock that may be
obtained upon conversion of the Preferred Stock that Vulcan Ventures acquired
pursuant to the Stock Purchase Agreement and 3,407,100 shares of Common Stock
that Vulcan Ventures owned prior to the execution of the Stock Purchase
Agreement. The Class B Common Stock is identical to the Common Stock except that
it is not entitled to vote.
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Vulcan Ventures' and Mr. Allen's stockholdings, assuming immediate
conversion of all of the shares of Preferred Stock into shares of Common Stock,
represent approximately 29.2% of the shares of the Issuer's Common Stock
outstanding (27.4% if the Issuer's Series A 7% Convertible Preferred Stock
outstanding as of September 30, 1999 were converted into shares of Common
Stock). But see Item 6 of the Schedule 13D.
All of the percentages set forth in this Item 5(a) are based upon
76,324,222 shares of the Issuer's Common Stock outstanding as of September 30,
1999, as reported by the Issuer in its Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999.
To the best knowledge of Vulcan Ventures and Mr. Allen, none of the other
parties named in Item 2 of the Schedule 13D owns any of the Issuer's Common
Stock.
(b) Vulcan Ventures and Mr. Allen have shared voting and dispositive power
with respect to the 30,020,003 shares of Common Stock beneficially owned by
Vulcan Ventures.
(c) Vulcan Ventures and Mr. Allen have not, nor to the knowledge of Vulcan
Ventures, has any of its executive officers, directors or controlling persons
named in Item 2 of the Schedule 13D, effected any transactions in the Issuer's
Common Stock during the past sixty days.
(d) Neither Vulcan Ventures nor Mr. Allen knows any other person who has
the right to receive or the power to direct the receipt of dividends from or the
proceeds from the sale of any Common Stock beneficially owned by Vulcan Ventures
or Mr. Allen.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 of the Schedule 13D is hereby amended by adding the following:
Amendment Number One to Stock Purchase Agreement
------------------------------------------------
On February 28, 2000, the Issuer and Vulcan Ventures entered into Amendment
Number One to Stock Purchase Agreement ("Amendment One") which provides that if
Vulcan Ventures' covenant to vote all Voting Securities owned by it for nominees
to the Board of Directors who have been recommended by the Issuer's Board of
Directors is unenforceable, then Vulcan Ventures shall vote all Voting
Securities owned by it for nominees of the Board of Directors of the Issuer, at
Vulcan Ventures' election, either for the nominees to the Board of Directors of
the Issuer who have been recommended by the Issuer's Board of Directors or in
proportion to the votes cast by the other holders of Voting Securities.
The foregoing description of Amendment One is not, and does not purport to
be, complete and is qualified in its entirety by reference to Amendment One, a
copy of which is filed as Exhibit 10.3.
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Voting Agreement between Vulcan Ventures and the Issuer
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On February 28, 2000, the Issuer and Vulcan Ventures entered into a Voting
Agreement (the "Vulcan Voting Agreement") in furtherance of Vulcan Ventures'
covenant in the Stock Purchase Agreement to, subject to certain exceptions, vote
all shares of Preferred Stock owned by it pro rata with the voting of the
Issuer's other stockholders on matters submitted to a vote of such stockholders.
The foregoing description of the Vulcan Voting Agreement is not, and does
not purport to be, complete and is qualified in its entirety by reference to the
Voting Agreement, a copy of which is filed as Exhibit 10.4.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit 10.3 Amendment Number One to Stock Purchase Agreement dated
February 28, 2000 between RCN Corporation and Vulcan Ventures
Incorporated.
Exhibit 10.4 Voting Agreement dated as of February 28, 2000 between RCN
Corporation and Vulcan Ventures Incorporated.
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: March 2, 2000 VULCAN VENTURES
INCORPORATED
By: /s/ William D. Savoy
---------------------------
Name: William D. Savoy
Title: Vice President
Dated: March 2, 2000 By: /s/ Paul G. Allen
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Paul G. Allen
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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10.3 Amendment Number One to Stock Purchase Agreement dated
February 28, 2000 between RCN Corporation and Vulcan
Ventures Incorporated.
10.4 Voting Agreement dated as of February 28, 2000 between RCN
Corporation and Vulcan Ventures Incorporated.
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EXHIBIT 10.3
Amendment Number One
To
Stock Purchase Agreement
This Amendment Number One (this "Amendment") is made as of
February 28, 2000, between RCN Corporation, a Delaware corporation
(the "Corporation"), and Vulcan Ventures Incorporated, a Washington
corporation ("Buyer"), to the Stock Purchase Agreement between the
Corporation and Buyer dated as of October 1, 1999 (the "Stock Purchase
Agreement"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms as set forth in
the Stock Purchase Agreement.
WHEREAS, the Corporation and Buyer desire to amend certain provisions of
the Stock Purchase Agreement, as set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment. Section 6.05 of the Stock Purchase Agreement is
hereby amended and restated in its entirety as follows:
"Section 6.05. Voting Arrangements. During the Standstill Period,
Buyer shall vote and cause to be voted all Voting Securities
owned by the Buyer (i) for nominees to the Board of Directors of
the Corporation who have been recommended by the Corporation's
Board of Directors and (ii) on all other matters submitted to the
holders of Voting Securities, either in accordance with the
recommendations of the Corporation's Board of Directors or in
proportion to the votes cast by the other holders of Voting
Securities; provided that (A) with respect to any Takeover
Proposal submitted to the vote of the Corporation's stockholders,
Buyer shall be free to vote without restriction all Voting
Securities beneficially owned by it and (B) with respect to any
proposal to approve the issuance of equity securities by the
Corporation (not including a proposal to approve a stock option
or other director or officer compensation plan and not in
connection with a Takeover Proposal) (a "Stock Issuance
Proposal") submitted to the vote of the Corporation's
stockholders, Buyer shall be free to vote without restriction
Voting Securities beneficially owned by it representing up to the
Agreed Percentage (disregarding clause (i) of the proviso in the
definition of such term) of the Total Voting Power. Buyer shall
cause all Voting Securities owned by Buyer to be represented, in
person or by proxy, at all meetings of holders of Voting
Securities of which Buyer has actual notice, so that such Voting
Securities may be counted for the purpose of determining the
presence of a quorum at such meetings. The
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Corporation agrees to give Buyer reasonable advance notice of the
record date of any meeting of stockholders (or consent
solicitation) to which a Takeover Proposal or a Stock Issuance
Proposal will be submitted for approval (or in respect of which
consents will be sought) so that Buyer may, subject to the other
provisions of this Agreement, convert shares of Preferred Stock
into Common Stock prior to the applicable record date and vote
such shares of Common Stock at such meeting (or execute such
consent) as permitted hereby. Notwithstanding the foregoing, if
Buyer's covenant to vote and cause to be voted all Voting
Securities owned by the Buyer for nominees to the Board of
Directors who have been recommended by the Corporation's Board of
Directors is unenforceable, then Buyer shall vote and cause to be
voted all Voting Securities owned by Buyer for nominees to the
Board of Directors of the Corporation, at Buyer's election,
either for the nominees to the Board of Directors of the
Corporation who have been recommended by the Corporation's Board
of Directors or in proportion to the votes cast by the other
holders of Voting Securities.
2. Effect on Stock Purchase Agreement. Except to the extent of the
amendment set forth specifically herein, all provisions of the
Stock Purchase Agreement are and shall remain in full force and
effect, and the execution, delivery and performance of this
Amendment shall not operate as a waiver or amendment of any
provision of the Stock Purchase Agreement not specifically
amended herein.
3. Execution in Counterparts; Effectiveness. This Amendment may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Amendment shall become
effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the
day and year first above written.
RCN CORPORATION
By: /s/ Timothy J. Stoklosa
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Name: Timothy J. Stoklosa
Title: Chief Financial Officer and
Executive Vice President
VULCAN VENTURES
INCORPORATED
By: /s/ William D. Savoy
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Name: William D. Savoy
Title: Vice President
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EXHIBIT 10.4
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated as of February 28, 2000 between
RCN Corporation, a Delaware corporation (the "Corporation"), and Vulcan Ventures
Incorporated ("Vulcan"), a Washington corporation.
WHEREAS, the Corporation and Vulcan entered into a Stock Purchase Agreement
dated as of October 1, 1999 (as amended from time to time, the "Stock Purchase
Agreement"), which provides for the purchase by Vulcan of 1,650,000 shares of
Series B 7% Senior Convertible Preferred Stock (the "Preferred Stock") of the
Corporation (capitalized terms used and not defined herein shall have the
meanings given to such terms in the Stock Purchase Agreement);
WHEREAS, it is a condition to the obligation of the Corporation to
consummate the Closing under the Stock Purchase Agreement that Vulcan enter into
an arrangement, agreement or proxy with respect to the voting of the Vulcan
Preferred Stock (other than a voting trust) as requested by the Corporation, in
its reasonable discretion, for purposes of ensuring that all shares of Preferred
Stock (together with any shares of Preferred Stock issued as dividends)
beneficially owned (as defined in the Stock Purchase Agreement) by Vulcan
(collectively, the "Vulcan Preferred Stock") will be (i) represented, in person
or by proxy at all meetings of holders of Voting Securities of which Vulcan has
actual notice in proportion to the representation of votes entitled to be cast
by holders of Voting Securities, so that such portion of such shares of
Preferred Stock may be counted for the purpose of determining the presence of a
quorum at such meetings and (ii) voted (and abstained) in proportion to the
votes cast (and abstained) by the holders of Voting Securities; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
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ARTICLE 1
VOTING OF THE SHARES
SECTION 1.1. Voting Agreement. (a) Vulcan hereby agrees that (i) all shares
of Vulcan Preferred Stock will be represented, in person or by proxy, at all
meetings of holders of Voting Securities of which Vulcan has actual notice in
proportion to the representation of votes entitled to be cast by holders of
Voting Securities, so that such portion of such shares of Preferred Stock may be
counted for the purpose of determining the presence of a quorum at such meetings
and (ii) that all shares so represented will be voted (and abstained) in
proportion to the votes cast (and abstained) by the holders of Voting Securities
represented at such meeting.
(b) Notwithstanding the foregoing, if, immediately prior to the record
date for a meeting of the Corporation's stockholders at which a Takeover
Proposal or Stock Issuance Proposal is to be considered, the conversion by
Vulcan of Vulcan Preferred Stock into Common Stock would violate any material
legal impediment imposed by any Regulatory Authority, Vulcan shall be permitted
to vote in its sole discretion Vulcan Preferred Stock in respect of such
Takeover Proposal or Stock Issuance Proposal to the extent necessary to increase
Vulcan's vote to the Agreed Percentage and the remaining shares of Vulcan
Preferred Stock will be represented and voted in accordance with Section 1.1(a).
With respect to such vote and the implementation of this Section 1.1(b) only,
the applicable amount of Vulcan Preferred Stock that Vulcan is permitted to vote
in its sole discretion will be deemed to have been converted to Common Stock for
purposes of the definition of the terms "Agreed Percentage" and "Voting
Securities" in Section 1.01 of the Stock Purchase Agreement. The parties will
cooperate with each other so as to effect the intent of this Section 1.1(b).
SECTION 1.2. Irrevocable Proxy. Vulcan hereby revokes any and all
previous proxies granted with respect to the shares of Vulcan Preferred Stock
that are inconsistent with the voting agreement set forth in Section 1.1. By
entering into this Agreement, Vulcan hereby grants a proxy appointing David C.
McCourt (or if he ceases to be Chief Executive Officer of the Corporation, the
person holding the office of Chief Executive Officer of the Corporation from
time to time) as Vulcan's attorney-in-fact and proxy, with full power of
substitution, for and in Vulcan's name, to be represented at meetings of holders
of Voting Securities and to vote or consent or otherwise to utilize such voting
power solely in the manner contemplated by Section 1.1. The proxy granted by
Vulcan pursuant to this Section 1.2 is irrevocable and is coupled with an
interest and is granted in consideration of the Corporation entering into this
Agreement and consummating the Closing under the Stock Purchase Agreement and as
security for the obligations of Vulcan under Section 1.1. Without limiting the
foregoing, Vulcan will, upon Corporation's request, take all action as shall be
reasonably required from time to time in order to appoint the person described
in the second
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sentence of this Section 1.2 as its duly authorized proxy holder for the shares
of Vulcan Preferred Stock solely for the purpose set forth in Section 1.1.
SECTION 1.3. Record Holder. If Vulcan is not the record owner of any
shares of Preferred Stock as to which it is the beneficial owner, Vulcan agrees
to cause or direct the record holder to act in respect of such shares of
Preferred Stock in accordance with the terms of this Agreement or, to the extent
permitted by law, to provide a proxy to the Corporation with respect thereto.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF VULCAN
Vulcan hereby represents and warrants to the Corporation as follows:
SECTION 2.1. Authority Relative to this Agreement. Vulcan is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Washington. Vulcan has all necessary power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by Vulcan and the consummation by Vulcan of the transactions
contemplated hereby have been duly and validly authorized by Vulcan, and no
other proceedings on the part of Vulcan are necessary to authorize the execution
and delivery of this Agreement or to consummate such transactions. This
Agreement has been duly and validly executed and delivered by Vulcan and
constitutes a legal, valid and binding obligation of Vulcan, enforceable against
Vulcan in accordance with its terms.
SECTION 2.2. No Conflict. (a) The execution and delivery of this Agreement
by Vulcan do not, and the performance of this Agreement by Vulcan will not, (i)
conflict with or violate the certificate of incorporation or bylaws of Vulcan,
(ii) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to Vulcan or by which the shares of Vulcan Preferred Stock are
bound or affected or (iii) require any consent or other action by any person or
private or governmental entity, result in any breach of or constitute a default
(or an event that, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any lien or encumbrance on any of
the shares of Vulcan Preferred Stock pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Vulcan is a party or by which Vulcan or the
shares of Vulcan Preferred Stock are bound or affected, except, in the case of
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clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults
or other occurrences that would not prevent, delay or impair the performance by
Vulcan of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by Vulcan do not, and the
performance of this Agreement by Vulcan will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any federal,
state, local or foreign regulatory body, except (i) filings with the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, and (ii) where the failure
to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent, delay or impair the performance by
Vulcan of its obligations under this Agreement.
SECTION 2.3. Title to the Shares. Subject to the terms and conditions of
the Stock Purchase Agreement, Vulcan is the owner of the shares of Vulcan
Preferred Stock, free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on voting
rights, charges and other encumbrances of any nature whatsoever. Vulcan has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the shares of Vulcan Preferred Stock. Subject to the terms and
conditions of the Stock Purchase Agreement, Vulcan has sole voting power with
respect to the shares of Vulcan Preferred Stock and Vulcan has the sole power to
direct the voting of the shares of Vulcan Preferred Stock.
ARTICLE 3
COVENANTS OF VULCAN
SECTION 3.1. No Inconsistent Agreement. Vulcan hereby covenants and agrees
that it shall not enter into any voting agreement or grant a proxy or power of
attorney or take any other action with respect to the shares of Vulcan Preferred
Stock which is inconsistent with this Agreement.
SECTION 3.2. Transfer of Title. Vulcan hereby covenants and agrees that
Vulcan will not sell, pledge, encumber or otherwise transfer any of its shares
of Preferred Stock unless (i) the transfer is permitted under the Stock Purchase
Agreement and (ii) the transfer is to a transferee that agrees in writing to be
bound by the terms and conditions of this Agreement on terms satisfactory to the
Corporation in its reasonable discretion.
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SECTION 3.3. Further Assurances. Vulcan will execute and deliver, or cause
to be executed and delivered, all further documents and instruments and use all
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable to take the actions
required to be taken by Vulcan hereunder. Vulcan agrees, at the request of the
Corporation, to enter into such other arrangement, agreement or proxy with
respect to the voting of the Vulcan Preferred Stock (other than a voting trust)
to effect the intent of Section 6.06 of the Stock Purchase Agreement with
respect to voting of the Vulcan Preferred Stock as the Corporation may request
in its reasonable discretion.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Termination. This Agreement (including, without limitation,
the proxy granted hereunder) shall terminate on the earlier of (i) the
conversion of all shares of Vulcan Preferred Stock into Common Stock or Class B
Stock and (ii) the redemption of all shares of Vulcan Preferred Stock.
SECTION 4.2. Specific Performance. The parties hereto agree that the
remedy at law for any breach of this Agreement will be inadequate and that any
party by whom this Agreement is enforceable shall be entitled to specific
performance in addition to any other appropriate relief or remedy. Such party
may, in its sole discretion, apply to any court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
SECTION 4.3. Entire Agreement. This Agreement, the Stock Purchase
Agreement (including the Exhibits thereto) and the Certificate of Designations
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter
hereof and thereof (except for the provisions of the letter agreement dated July
29, 1999 that relate to the solicitation and employment of employees of the
Corporation, which remain in effect).
SECTION 4.4. Amendments and Waivers. Any provision of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party to this
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Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective. No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative.
SECTION 4.5. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If
any provision of this Agreement, or the application thereof to any person or
entity or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons, entities or circumstances shall
not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
SECTION 4.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, without regard to
the conflicts of law rules of such state.
SECTION 4.7. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 4.8. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
SECTION 4.9. Assignments. This Agreement shall not be assigned by any
party hereto.
SECTION 4.10. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
other than the parties hereto any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
RCN CORPORATION
By: /s/ Timothy J. Stoklosa
------------------------------------
Name: Timothy J. Stoklosa
Title: Chief Financial Officer and
Executive Vice President
VULCAN VENTURES INCORPORATED
By: /s/ William D. Savoy
------------------------------------
Name: William D. Savoy
Title: Vice President
7
