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EXHIBIT 2.1
DISTRIBUTION AGREEMENT
Dated as of August 19, 1998
between
CORECOMM INCORPORATED
and
CORECOMM LIMITED
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DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of August 19, 1998, by and
between CoreComm Incorporated, a Delaware corporation ("CoreComm") and CoreComm
Limited, a Bermuda corporation and a wholly owned subsidiary of CoreComm
("CoreComm").
WHEREAS, CoreComm and Newco desire to effect a distribution
(the "Distribution") by CoreComm to the holders of common stock, par value of
$.01 per share, (the "CoreComm Common Stock") of CoreComm of 100% of the issued
and outstanding common stock, par value $.01 per share (the "Newco Common
Stock"), of Newco owned by CoreComm immediately prior to the Distribution;
WHEREAS, CoreComm and Newco have determined that it is
necessary and desirable to set forth the principal corporate transactions
required to effect the Distribution and to set forth other agreements that will
govern certain other matters in connection with the Distribution;
NOW, THEREFORE, in consideration of the promises and the
mutual covenants and agreements contained herein and intending to be legally
bound hereby, CoreComm and Newco hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. As used in this Agreement, capitalized
terms defined immediately after their use shall have the respective meanings
thereby provided and the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
Action: any action, claim, suit, arbitration, inquiry,
subpoena, discovery request, proceeding or investigation by or before any court
or grand jury, any governmental or other regulatory or administrative agency or
commission or any arbitration tribunal.
Affiliate: with respect to any specified person, a person
that, directly or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under
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common control with, such specified person; provided, however, that CoreComm and
Newco shall not be deemed to be Affiliates of each other for purposes of this
Agreement.
Agent: Continental Stock Transfer & Trust Company, the
distribution agent appointed by CoreComm and Newco to distribute shares of Newco
Common Stock pursuant to the Distribution.
Code: the Internal Revenue Code of 1986, as amended.
Distribution: the distribution as a dividend to holders of
CoreComm Common Stock of Newco Common Stock on the basis provided in Section
2.01 hereof, which shall be effected on the Distribution Date.
Distribution Date: the date as of which the Distribution shall
be effected as determined by the CoreComm Board of Directors.
Record Date: the date determined by CoreComm's Board of
Directors as the record date for the Distribution.
Tax Disaffiliation Agreement: the Tax Disaffiliation
Agreement, in the form of Exhibit A hereto, pursuant to which CoreComm and Newco
have provided for certain tax matters.
ARTICLE II
THE DISTRIBUTION
Section 2.01 The Distribution. On the Distribution Date and
prior to giving effect to the Distribution, CoreComm shall deliver to the Agent,
a certificate or certificates representing shares of Newco Common Stock, equal
to 100% of the shares outstanding and owned by CoreComm. Upon receipt of a
certificate from the Secretary (or such other appropriate officer) of CoreComm
certifying the number of shares of CoreComm Common Stock outstanding on the
Record Date, Newco shall deliver to CoreComm or the Agent on behalf of CoreComm,
for the benefit of holders of record of CoreComm Common Stock on the Record
Date, a stock certificate representing, in the aggregate (and rounded to the
nearest whole share), one share of Newco Common Stock for every share of
CoreComm Common Stock outstanding on the Record Date and shall instruct the
Agent to distribute as promptly as practicable
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following the Distribution Date to holders of CoreComm Common Stock on the
Record Date one share of Newco Common Stock for every share of CoreComm Common
Stock held by each such stockholder. Newco agrees to provide to CoreComm or the
Agent on behalf of CoreComm, as the case may be, sufficient certificates in such
denominations as may be requested in order to effect the Distribution. All of
the shares of Newco Common Stock issued in the Distribution shall be fully paid,
nonassessable and free of preemptive rights.
Section 2.02 CoreComm Board Action. This Agreement and the Tax
Disaffiliation Agreement have been approved by the Board of Directors of
CoreComm and the Distribution and the Record Date have been declared by the
Board of Directors of CoreComm.
ARTICLE III
SURVIVAL
Section 3.01 Survival of Agreements.
(a) Except as specifically provided herein, all covenants and
agreements of the parties contained in this Agreement shall survive the
Distribution Date.
(b) The provisions of this Article III shall terminate and be
of no further force and effect on the third anniversary of the Distribution
Date.
ARTICLE IV
CERTAIN ADDITIONAL MATTERS
Section 4.01 Certain Intercompany Arrangements.
(a) Except as specifically provided by this Agreement or the
Tax Disaffiliation Agreement, to the extent that CoreComm, on the one hand, and
Newco, on the other hand, are providing or selling at the Distribution Date to
the other, or
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charging each other for, any services, pursuant to any written agreement or
arrangement, then such agreement or arrangement shall not be deemed altered,
amended or terminated as a result of this Agreement or the consummation of the
transactions contemplated hereby.
Section 4.02 Other Agreements. As of the date hereof, CoreComm
and Newco shall enter into the Tax Disaffiliation Agreement.
Section 4.03 Sales and Transfer Taxes. Newco and CoreComm
agree to cooperate to determine the amount of taxes or fees payable in
connection with the transactions contemplated by this Agreement (the
"Transaction Taxes"). CoreComm agrees to file promptly and timely the returns
for such Transaction Taxes with the appropriate taxing authorities and remit
payment of the Transaction Taxes and Newco will join in the execution of any
such tax returns or other documentation. Payment of all such Transaction Taxes
shall be the responsibility of Newco and shall be reimbursed to CoreComm by
Newco promptly upon request by CoreComm.
ARTICLE V
ACCESS TO INFORMATION AND SERVICES
Section 5.01 Confidentiality. CoreComm and Newco shall hold,
and shall cause its officers, employees, agents, consultants and advisors to
hold, in strict confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of its independent, legal counsel, by
other requirements of law, all confidential information concerning the other
party furnished it by such other party or its representatives pursuant to this
Agreement (except to the extent that such Information can be shown to have been
(a) available to such party on a non-confidential basis prior to its disclosure
by the other party, (b) in the public domain through no fault of such party or
(c) later lawfully acquired from other sources by the party to which it was
furnished), and each party shall not release or disclose such Information to any
other person, except its auditors, attorneys, financial advisors, bankers and
other consultants and advisors who shall be bound by the provisions of this
Section 5.01. Each party shall be deemed to have satisfied its obligation to
hold confidential Information concerning or supplied by the other party if it
exercises the same care as it takes to preserve confidentiality for its own
similar Information.
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ARTICLE VI
MISCELLANEOUS
Section 6.01 Complete Agreement. This Agreement, including the
Annexes and Exhibits and the agreements and other documents referred to herein,
shall, together with the Tax Disaffiliation Agreement constitute the entire
agreement between CoreComm and Newco with respect to the subject matter hereof
and shall supersede all previous negotiations, commitments and writings with
respect to such subject matter.
Section 6.02 Expenses. Except as otherwise provided in this
Agreement, the Tax Disaffiliation Agreement or any other agreement being entered
into by CoreComm and Newco pursuant to this Agreement, CoreComm or Newco shall
each pay their own costs and expenses incurred in connection with the
Distribution (whether or not payable as of the Distribution Date) and with the
consummation of the transactions contemplated by this Agreement. Such costs and
expenses shall include, without limitation, investment banking, legal,
accounting and printing costs and expenses and transfer taxes.
Section 6.03 Governing Law. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Delaware without giving effect to the conflicts of law principles thereof.
Section 6.04 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
cable, telegram, telex or other standard form of telecommunications, or by
registered or certified mail or overnight courier service, postage prepaid,
return receipt requested, addressed as follows:
If to CoreComm: CoreComm Incorporated
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
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If to Newco: CoreComm Limited
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
Any party may change its address by giving the other party written notice of its
new address in the manner set forth above.
Section 6.05 Amendment and Modification. This Agreement may be
amended, modified or supplemented only by written agreement of the parties.
Section 6.06 Successors and Assigns. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party without the prior written consent of the other party.
Section 6.07 No Third Party Beneficiaries. This Agreement is
solely for the benefit of the parties hereto and is not intended to confer upon
any other person except the parties hereto any rights or remedies hereunder.
Section 6.08 Counterparts. This Agreement may be execute in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 6.09 Severability. Each provision of this Agreement
shall be considered severable and it for any reason any provision which is not
essential to the effectuation of the basic purposes of the Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable
and contrary to existing or future applicable law, such invalidity shall not
impair the operation of or affect those provisions of this Agreement which are
valid. In that case, this Agreement shall be construed so as to limit any term
or provision so as to make it enforceable or valid within the requirements of
any applicable law, and in the event such term or provision cannot be so
limited, this Agreement shall be construed to omit such invalid or unenforceable
provisions.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the day and year first above
written.
CORECOMM INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-General Counsel
CORECOMM LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-General Counsel
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