AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
dated as of
April 7, 1999
among
RCN CORPORATION
and
HMTF LIVE WIRE INVESTORS, LLC
and
HM4 RCN PARTNERS
TABLE OF CONTENTS
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PAGE
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SECTION 1. Definitions; References..........................................1
SECTION 2. Representations and Warranties of Buyer..........................1
SECTION 3. Representations and Warranties of Assignee.......................1
SECTION 4. Covenants of the Assignee........................................2
SECTION 5. Amendment to Article 3...........................................2
SECTION 6. Amendment to Article 5...........................................2
SECTION 7. Certificate of Designations......................................2
SECTION 8. Amendments.......................................................2
SECTION 9. Governing Law....................................................2
SECTION 10. Counterparts.....................................................2
Exhibit A Certificate of Designations, Preferences and Rights
of Series A 7% Senior Convertible Preferred Stock
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT dated as of April 7, 1999
among RCN Corporation, a Delaware corporation (the "Corporation"), HMTF Live
Wire Investors, LLC, a Delaware limited liability company ("Buyer") and HM4 RCN
Partners, a Texas general partnership ("Assignee").
WHEREAS, the Corporation and Buyer have entered into a Stock Purchase
Agreement (the "Stock Purchase Agreement") dated as of March 18, 1999;
WHEREAS, Buyer and Assignee have entered into an Assignment and
Assumption Agreement (the "Assignment Agreement") dated as of April 7, 1999, in
accordance with Section 11.04 of the Stock Purchase Agreement, pursuant to which
Buyer assigned and Assignee assumed all of Buyers rights and obligations under
the Stock Purchase Agreement (and the Corporation acknowledged such assignment
and assumption);
WHEREAS, the Corporation, Buyer and Assignee have agreed to amend the
Stock Purchase Agreement as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Stock Purchase
Agreement shall have the meaning assigned to such term in the Stock Purchase
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Stock Purchase Agreement shall from and
after the date hereof refer to the Stock Purchase Agreement as amended hereby.
SECTION 2. Representations and Warranties of Buyer. Buyer represents
and warrants to the Corporation as of the date hereof that Assignee is an
Affiliate of Buyer.
SECTION 3. Representations and Warranties of Assignee. Assignee
represents and warrants to the Corporation as of the date hereof that each
representation and warranty of Buyer set forth in Article 4 of the Stock
Purchase Agreement is true and correct as of the date hereof with respect to
Assignee (except that references to limited liability company status, power and
authority in
Sections 4.01, 4.02 and 4.04 shall be deemed references to general partnership
status, power and authority).
SECTION 4. Covenants of the Assignee. The Assignee agrees with the
Corporation that, pursuant to the Assignment Agreement, it will perform all of
the obligations of Buyer under the Stock Purchase Agreement subject to and in
accordance with the terms and conditions of the Stock Purchase Agreement.
SECTION 5. Amendment to Article 3. Section 3.03 of the Stock Purchase
Agreement is amended by (i) deleting "Except as set forth in Schedule 3.03
hereto, the" and (ii) inserting "The" in its place.
SECTION 6. Amendment to Article 5. Section 5.04 of the Stock Purchase
Agreement is amended by adding the following sentence to the end of such
section:
"At such time as Buyer ceases to hold the minimum amount of Preferred
Shares or Common Stock that would entitle Buyer to designate a Buyer
Director under this Section 5.04, then Buyer's right to designate such
additional director shall cease and, upon notice of termination from the
Corporation to Buyer, the term of office of the Buyer Director shall
forthwith terminate and the size of the Board of Directors shall be
reduced accordingly."
SECTION 7. Certificate of Designations. The form of Certificate of
Designations attached to the Stock Purchase Agreement as Exhibit A thereto is
amended and restated in its entirety to read as set forth on Exhibit A attached
hereto.
SECTION 8. Amendments. Except as expressly set forth herein, the
amendments contained herein shall not constitute an amendment of any term or
condition of the Stock Purchase Agreement and all such terms and conditions
shall remain in full force and effect and are hereby ratified and confirmed in
all respects.
SECTION 9. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of New York, without regard to
the conflicts of law rules of such state.
SECTION 10. Counterparts. 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
2
Amendment shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto.
3
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:
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Name:
Title:
HMTF LIVE WIRE INVESTORS, LLC
By:
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Name:
Title:
HM4 RCN PARTNERS
By: HM4 RCN Qualified Fund, L.P., its
managing partner
By: ▇▇▇▇▇, ▇▇▇▇ ▇▇ Partners IV, L.P., its
general partner
By: ▇▇▇▇▇, Muse Fund IV LLC, its
general partner
By:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Principal