CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), made this 27th day of
February, 1998, by and between RCN CORPORATION, a Delaware corporation (the
"Company"), and SUSAN SOLOMON ("Consultant").
WHEREAS, the Company desires to retain Consultant and Consultant desires to
be retained by the Company in the capacity of a consultant upon the terms and
conditions hereinafter set forth; and
WHEREAS, the execution and delivery of this Agreement by the Consultant in
connection with the consummation of the transactions contemplated by the
Agreement and Plan of Merger ("Merger Agreement") between the Company, Lancit
Media Entertainment, Ltd and LME Acquisition Corporation is a material
inducement to the Company's agreement to consummate such transaction.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and intending to be legally bound hereby, the parties, subject
to the terms and conditions set forth herein, agree as follows:
1. Retention and Duration. The Company hereby retains Consultant and
Consultant hereby accepts retention with the Company as a consultant
for a period commencing on the Effective Time, as defined in the
Merger Agreement, and continuing until such time as this Agreement is
terminated by the Company or Consultant (the "Term") pursuant to
paragraph 6 hereof.
2. Character and Extent of Services. It is the mutual intent of the
parties that the Consultant shall act strictly in a professional
consulting capacity as an independent contractor for all purposes and
in all situations and shall not be considered an employee of the
Company. While retained by the Company, Consultant shall serve the
Company faithfully and to the best of her ability and shall provide
such services and perform such tasks as may be reasonably requested of
Consultant from time to time by the Company. Such services will be
provided in New York City metropolitan area. Consultant agrees to be
available on a full-time basis to provide services to the Company, as
and when requested by the Company, during regular business hours
unless requested by the Company to do otherwise.
3. Compensation. The Company shall pay Consultant, and Consultant hereby
agrees to accept, as compensation for all services rendered hereunder,
compensation at an annualized rate of $357,500, payable in equal
monthly installments. Payment will be made bi-weekly during the Term.
In addition, during the Term, Company shall pay Consultant the cost of
her COBRA continuation coverage and disability insurance coverage,
provided that Consultant shall provide the Company with evidence as to
the monthly cost of such coverage.
4. Entitlement to Employee Benefits. Consultant acknowledges that she
will not be eligible to participate in any retirement, welfare, bonus,
incentive or other benefit plan maintained by the Company during the
Term or otherwise by virtue of her retention by the Company and agrees
that she will not make any claim for such benefits.
5. Expenses. The Company will reimburse Consultant for all reasonable and
necessary out-of-pocket expenses directly incurred by Consultant in
the course of her engagement by the Company. Expenses will be
reimbursed at actual cost. Payment for such expenses will be due
within 30 days of the submission by Consultant of appropriate
documentation in accordance with the Company's regular practices.
6. Termination. Consultant's retention as a consultant hereunder may be
terminated by either Consultant or the Company effective upon 45 days'
advance written notice to the other party. Upon such termination,
Consultant will be entitled to receive all accrued but unpaid
compensation and all incurred but unreimbursed expense (as of the
effective date of such termination).
7. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and Consultant and their respective
successors, executors, administrators, heirs and/or permitted assigns;
provided, however, that neither Consultant nor the Company may make
any assignments of this Agreement or any interest herein, by operation
of law or otherwise, without the prior written consent of the other
parties hereto, except that, without such consent, the Company may
assign this Agreement to any successor to all or substantially all of
its assets and business by means of liquidation, dissolution, merger,
consolidation, transfer of assets, or otherwise, provided that such
successor assumes in writing all of the obligations of the Company
under this Agreement.
8. Notice. Any notice or communication required or permitted under this
Agreement shall be made in writing and (a) sent by overnight courier,
(b) mailed by certified or registered mail, return receipt requested
or (c) sent by telecopier, addressed as follows:
If to Consultant:
Susan Solomon
c/o Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022
Attention: Lisa Gersh Hall, Esq.
If to Company:
Gary Isaacs
Vice President, Human Resources
RCN Corporation
105 Carnegie Center
Princeton, New Jersey 08540
or to such other address as either party may from time to time duly
specify by notice given to the other party in the manner specified
above.
9. Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the
subject matter hereof, and merges and supersedes all prior and
contemporaneous discussions, agreements and understandings of every
nature between the parties hereto relating to the retention of
Consultant by the Company. This Agreement may not be changed or
modified, except by an Agreement in writing signed by each of the
parties hereto.
10. Waiver. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any
other or subsequent breach of this Agreement.
11. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York without regard to
the application of the principals of conflicts or choice of laws.
12. Invalidity. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the validity of any other provision
of this Agreement, and such provision(s) shall be deemed modified to
the extent necessary to make it enforceable.
13. Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not
affect its interpretation.
14. Independent Contractor. Nothing herein shall be construed as evidence
of an employment relationship between Consultant and Company,
consultant being an independent contractor to the Company. Consultant
shall be treated as an independent contractor for all purposes,
including without limitation, federal, state and local withholding,
employment and payroll tax purpose.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of
which together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officers, and Consultant has executed this Agreement as of
the date first above written.
RCN CORPORATION
By: /s/ PAUL SIGMUND
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Name: Paul Sigmund
Title:Executive Vice President
EXECUTIVE
/s/ SUSAN L. SOLOMON
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Susan L. Solomon