CONFORMED COPY
TAX SHARING AGREEMENT
BY AND AMONG
C-TEC CORPORATION
RCN CORPORATION
AND
CABLE MICHIGAN INC.
DATED AS OF
September 5, 1997
THIS TAX SHARING AGREEMENT, dated as of September 5, 1997, is by and
among C-TEC Corporation, a Pennsylvania corporation
("C-TEC"), RCN Corporation, a Delaware corporation ("RCN"), and Cable
Michigan, Inc., a Pennsylvania corporation ("Cable Michigan"). Capitalized
terms used herein shall have the respective meanings assigned to them in the
Distribution Agreement unless otherwise defined herein.
WHEREAS, C-TEC, RCN and Cable Michigan have executed the Distribution
Agreement pursuant to which C-TEC's existing businesses will be separated into
three independent public companies; and
WHEREAS, it is appropriate and desirable to set forth the principles
and responsibilities of the parties to this Agreement regarding future
Adjustments with respect to Taxes, Tax Contests and other related Tax matters.
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement the following terms shall have the
following meanings:
SECTION 1.01. Definitions.
"Adjustment" means the deemed increase or decrease in a Tax, determined
on an issue-by-issue or transaction-by-transaction basis, as appropriate, and
using the assumptions set forth in the next sentence, resulting from an
adjustment made or proposed by a Taxing Authority with respect to any amount
reflected or required to be reflected on any Return relating to such Tax. For
purposes of determining such deemed increase or decrease in a Tax, the following
assumptions will be used (a) in the case of any income Tax, the highest marginal
Tax rate or, in the case of any other Tax, the highest applicable Tax rate, in
each case in effect with respect to that Tax for the Taxable period or any
portion of the Taxable period to which the adjustment relates; an (b) such
determination shall be made without regard to whether any actual increase or
decrease in such Tax will in fact be realized with respect to the Return to
which such adjustment relates.
"Agreement" means this Tax Sharing Agreement, including any schedules,
exhibits and appendices attached hereto.
"Cable Michigan Tax Benefit" means, with respect to any Taxable period
or portion of a Taxable period, and as computed separately with respect to each
Tax, the net decrease in each such Tax equal to the sum of all Adjustments made
pursuant to a Final Determination with respect to each such Tax for each such
Taxable period or portion of a Taxable period that are clearly attributable to
the Cable Michigan Group.
"Cable Michigan Tax Detriment" means, with respect to any Taxable
period or portion of a Taxable period, and as computed separately with respect
to
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each Tax, the net increase in each such Tax equal to the sum of all Adjustments
made pursuant to a Final Determination with respect to each such Tax for each
such Taxable period or portion of a Taxable period that are clearly attributable
to the Cable Michigan Group.
"Consolidation" means, as appropriate, any Taxable period or any
portion of a Taxable period during which one or more members of the RCN Group
and/or the Cable Michigan Group are members of a C-TEC Consolidated Return
"Consolidated Return" means, as appropriate, for any Taxable period or
any portion of a Taxable period ending or deemed to end on or prior to the
Distribution Date, any consolidated or combined Return that includes one or more
members of the C-TEC Group and/or one or more members of the RCN Group and/or
one or more members of the Cable Michigan Group.
"Controlling Party" means C-TEC or any other member of the C-TEC Group,
RCN or any other member of the RCN Group or Cable Michigan or any other member
of the Cable Michigan Group, as the case may be, that filed or, if no such
Return has been filed, was required to file, a Return that is the subject of any
Tax Contest, or any successor and/or assign of any of the foregoing; provided,
however, that in the case of any Consolidated Return, the Person that actually
filed such Consolidated Return (or any successor and/or assign of such Person)
will be the Controlling Party, unless such Tax Contest arises from the business
activities of only (a) RCN or any other member of the RCN Group, in which case
RCN will be the Controlling Party, or (b) Cable Michigan or any other member of
the Cable Michigan Group, in which case Cable Michigan will be the Controlling
Party.
"Correlative Adjustment" means, in the case of an Adjustment comprising
a Non-Line of Business Adjustment, the net present value of any future increases
or decreases in a Tax that would be realized, using the assumptions set forth in
the next sentence, by either C-TEC or any other member of the C-TEC Group, RCN
or any other member of the RCN Group or Cable Michigan or any other member of
the Cable Michigan Group, as the case may be, in one or more Taxable periods (or
any portion of a Taxable period) but only if such increases or decrease (a) are
a direct result of the Non-Line of Business Adjustment and (b) will take effect
or begin to take effect in the Taxable period or portion of a Taxable period of
or immediately following the Taxable period or portion of a Taxable period in
which the Non-Line of Business Adjustment to
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such Tax is made. For purposes of determining the net present value of any such
future increases or decreases in a tax, the following assumptions will be used:
(i) a discount rate equal to the sum of the Federal Short-Term Rate as of the
date of the Final Determination relating to such Non-Line of Business Adjustment
plus 3.5%; (ii) in the case of any income Tax, the highest marginal Tax rate or,
in the case of any other Tax, the highest applicable Tax rate, in each case in
effect with respect to that Tax for the Taxable period, or portion of the
Taxable period, in which the Non-Line of Business Adjustment was made; (iii) the
depreciation, amortization or credit rate or lives, if applicable, in effect for
the Taxable period, or portion of the Taxable period, in which the Non-Line of
Business Adjustment was made; and (iv) such determination shall be made without
regard to whether any actual increases or decreases in such Tax will in fact be
realized with respect to the future Returns to which such Correlative Adjustment
relates.
"C-TEC Tax Detriment" means, with respect to any Taxable period or
portion of a Taxable period, and as computed separately with respect to each
Tax, the net increase in each such Tax equal to the sum of all Adjustments made
pursuant to a Final Determination with respect to each such Tax for each such
Taxable period or portion of a Taxable period that are clearly attributable to
the C-TEC Group, including, but not limited to, any Adjustments attributable to
or resulting from any of the following: the sale of (x) stock of Iowa City
Cellular Telephone Company, Inc. or Commonwealth Cellular Telephone Services,
Inc.; and (y) the sale of the assets of Mobile Plus, Inc. (formerly Cellular
Plus, Inc.), C-TEC Cellular Centre County, Inc., Mobile Plus of Iowa, Inc.
(formerly Cellular Plus of Iowa, Inc.), or Mobile Plus Service of Pennsylvania,
Inc. (formerly Paging Plus, Inc.).
"C-TEC Tax Benefit" means, with respect to any Taxable period or
portion of a Taxable period, and as computed separately with respect to each
Tax, the net decrease in each such Tax equal to the sum of all Adjustments made
pursuant to a Final Determination with respect to each such Tax for each such
Taxable period or portion of a Taxable period that are clearly attributable to
the C-TEC Group, including, but not limited to, any Adjustments attributable to
or resulting from any of the following: the sale of (x) stock of Iowa City
Cellular Telephone Company, Inc. or Commonwealth Cellular Telephone Services,
Inc.; and (y) the sale of the assets of Mobile Plus, Inc. (formerly Cellular
Plus, Inc.), C-TEC Cellular Centre County, Inc., Mobile Plus of Iowa, Inc.
(formerly Cellular Plus of Iowa, Inc.), or Mobile Plus Service of Pennsylvania,
Inc. (formerly Paging Plus, Inc.)
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"Disputed Adjustment" has the meaning set forth in Section 3.04(b)
hereof.
"Federal Short-Term Rate" means the applicable federal short-term rate
as determined under Section 1274(d) of the Code.
"Final Determination" means (a) a decision, judgment, decree or other
order by any court of competent jurisdiction, which has become final and is
either no longer subject to appeal or for which a determination not to appeal
has been made (b) a closing agreement made under Section 7121 of the Code or any
comparable foreign, state, local, municipal or other Taxing statute (c) a final
disposition by any Taxing Authority of a claim for refund; or (d) any other
written agreement relating to an Adjustment between any Taxing Authority and any
Controlling Party the execution of which is formal and prohibits such Taxing
Authority or the Controlling Party from seeking any further legal or
administrative remedies with respect to such Adjustment.
"Independent Third Party" means a nationally recognized law firm or any
of the following accounting firms or their successors: Xxxxxx Xxxxxxxx & Co.;
Ernst & Young; KPMG Peat Marwick; Deloitte & Touche; Coopers & Xxxxxxx; and
Price Waterhouse & Co.
"Indemnified Party" has the meaning set forth in Section 4.01, 4.01
hereof.
"Indemnifying Party" has the meaning set forth in Section 4.01, 4.01
hereof.
"Interested Party" means C-TEC or any other member of the C-TEC Group,
RCN or any other member of the RCN Group or Cable Michigan or any other member
of the Cable Michigan Group (including any successor and/or assign of any of
each of the foregoing), as the case may be, to the extent (a) such Person is not
the Controlling Party with respect to a Tax Contest; an (b) such Person (i) may
be liable for, or required to make, any indemnity payment, reimbursement or
other payment pursuant to the provisions of this Agreement with respect to such
Tax Contest; or (ii) may be entitled to receive any indemnity payment,
reimbursement or other payment pursuant to the provisions of this Agreement with
respect to such Tax Contest.
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"Interested Party Notice" has the meaning set forth in Section 3.04(b)
hereof.
"Non-line of Business Adjustment" means, with respect to any Taxable
period or portion of a Taxable period, and as computed separately with respect
to each Tax, the net increase or decrease in each such Tax, as the case may be,
equal to the sum of all Adjustments made pursuant to a Final Determination with
respect to each such Tax for each such Taxable period or portion of a Taxable
period other than (a) any Tax Detriments or (b) any Tax Benefits.
Notwithstanding any other provisions of this Agreement (except Section 2.03(f))
or the Distribution Agreement to the contrary, Non-Line of Business Adjustments
shall include, but not be limited to, Restructuring Adjustments.
"RCN ESOP" means the employee stock ownership plan to be established by
RCN after the Distribution.
"RCN Tax Detriment" means, with respect to any Taxable period or
portion of a Taxable period, and as computed separately with respect to each
Tax, the net increase in each such Tax equal to the sum of all Adjustments made
pursuant to a Final Determination with respect to each such Tax for each such
Taxable period or portion of a Taxable period that are clearly attributable to
the RCN Group.
"RCN Tax Benefit" means, with respect to any Taxable period or portion
of a Taxable period, and as computed separately with respect to each Tax, the
net decrease in each such Tax equal to the sum of all Adjustments made pursuant
to a Final Determination with respect to each such Tax for each such Taxable
period or portion of a Taxable period that are clearly attributable to the RCN
Group.
"Restructuring Adjustment" means, with respect to any Taxable period or
portion of a Taxable period, and as computed separately with respect to each
Tax, the net increase or decrease in each such Tax, as the case may be, equal to
the sum of all Adjustments made pursuant to a Final Determination with respect
to each such Tax for each Taxable period or portion of a Taxable period that are
attributable to, or as a result of, any transactions undertaken to effectuate
the separation of C-TEC's existing businesses into three independent businesses
as contemplated under the Distribution Agreement including, but not limited to,
any transactions undertaken pursuant to or relating to the Distribution, the
formation
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of the RCN ESOP, and any offering of equity or equity-linked instruments by
C-TEC within one year of the Distribution Date.
"Return" means any return, report, form or similar statement or
document (including, without limitation, any related or supporting information
or schedule attached thereto and any information return, claim for refund,
amended return and declaration of estimated tax) that has been or is required to
be filed with any Taxing Authority or that has been or is required to be
furnished to any Taxing Authority in connection with the determination,
assessment or collection of any Taxes or the administration of any laws,
regulations or administrative requirements relating to any Taxes.
"Separate Return" means any Return other than a Consolidated Return.
the "Shared Cable Michigan Percentage" shall be 20%.
the "Shared C-TEC Percentage" shall be 50%.
the "Shared RCN Percentage" shall be 30%.
"Significant Obligation" means, in the case of an Interested Party, and
with respect to any Adjustment, an obligation to make or right to receive any
indemnity payment, reimbursement or other payment with respect to any such
Adjustment (including the effect of any Correlative Adjustment relating thereto)
pursuant to the terms of this Agreement that is greater than $10,000.
"Taxes" (and, with correlative meanings, "Taxes" and "Taxable") means,
without limitation, and as determined on a jurisdiction-by-jurisdiction basis,
each foreign or U.S. federal, state, local or municipal income, alternative or
add-on minimum, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, license, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property or any other tax, custom, tariff, impost, levy,
duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, addition to tax or additional
amount related thereto, imposed by any Taxing Authority.
"Tax Detriments" means any C-TEC Tax Detriment, any Cable Michigan Tax
Detriment or any RCN Tax Detriment, as the case may be.
"Tax Benefits" means any C-TEC Tax Benefit, any Cable Michigan Tax
Benefit or any RCN Tax Benefit, as the case may be.
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"Tax Contest" means, without limitation, any audit, examination, claim,
suit, action or other proceeding relating to Taxes in which an Adjustment may be
proposed, collected or assessed and in respect of which an indemnity payment,
reimbursement or other payment may be sought under this Agreement.
"Taxing Authority" means any governmental authority or any subdivision,
agency, commission or authority thereof, or any quasi-governmental or private
body having jurisdiction over the assessment, determination, collection or other
imposition of Taxes.
"Ultimate Determination" has the meaning set forth in Section
3.05(b)(i) hereof.
ARTICLE 2
ADJUSTMENTS
SECTION 2.01. In General. In determining any liability and/or
obligation to make, or right to receive, any indemnity payment, reimbursement or
other payment to or from any party to this Agreement pursuant to this Agreement,
any Taxable period or portion of a Taxable period that includes the Distribution
Date shall be deemed to include and end on such Distribution Date and no party
to this Agreement shall have any liability and/or obligation to make, or right
to receive, any such indemnity payment, reimbursement or other payment with
respect to any Taxable period or portion of a Taxable period that begins or is
deemed to begin after the Distribution Date.
SECTION 2.02. Tax Detriments and Benefit. (a) RCN shall be liable for,
and shall indemnify and hold harmless, subject to Section 3.04 and Section 3.05
hereof, any member of the C-TEC Group or Cable Michigan Group against any and
all RCN Tax Detriments for any Taxable period or portion of a Taxable period
ending or deemed to end on or before the Distribution Date with respect to any
Return of any member of the RCN Group, the C-TEC Group or the Cable Michigan
Group. RCN shall be entitled to receive, and shall be paid, subject to Section
3.04 and Section 3.05 hereof, (i) by C-TEC, the amount of any RCN Tax Benefits
for any Taxable period or portion of a Taxable period ending or deemed to end on
or before the Distribution Date with respect to any Return of any member of the
C-TEC Group; and/or (ii) by Cable Michigan, the amount of any RCN Tax Benefits
for any Taxable period or portion of a Taxable period ending or deemed to end on
or before the Distribution Date with respect to any Return of any member of the
Cable Michigan Group.
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(b) C-TEC shall be liable for, and shall indemnify and hold harmless,
as appropriate, and subject to Section 3.04 and Section 3.05 hereof, any member
of the RCN Group or Cable Michigan Group against any and all C-TEC Tax
Detriments for any Taxable period or portion of a Taxable period ending or
deemed to end on or before the Distribution Date with respect to any Return of
any member of the RCN Group, the C-TEC Group or the Cable Michigan Group. C-TEC
shall be entitled to receive, and shall be paid, subject to Section 3.04 and
Section 3.05 hereof, (i) by RCN, the amount of any C-TEC Tax Benefits for any
Taxable period or portion of a Taxable period ending or deemed to end on or
before the Distribution Date with respect to any Return of any member of the RCN
Group; and/or (ii) by Cable Michigan, the amount of any C-TEC Tax Benefits for
any Taxable period or any portion of a Taxable period ending or deemed to end on
or before the Distribution Date with respect to any Return of any member of the
Cable Michigan Group.
(c) Cable Michigan shall be liable for, and shall indemnify and hold
harmless, as appropriate, and subject to Section 3.04 and Section 3.05 hereof,
any member of the C-TEC Group or the RCN Group against any and all Cable
Michigan Tax Detriments for any Taxable period or portion of a Taxable period
ending or deemed to end on or before the Distribution Date with respect to any
Return of any member of the RCN Group, the C-TEC Group or the Cable Michigan
Group. Cable Michigan shall be entitled to receive, and shall be paid, subject
to Section 3.04 and Section 3.05 hereof, (i) by C-TEC, the amount of any Cable
Michigan Tax Benefits for any Taxable period or portion of a Taxable period
ending or deemed to end on the Distribution Date with respect to any Return of
any member of the C-TEC Group; and/or (ii) by RCN, the amount of any Cable
Michigan Tax Benefits for any Taxable period or portion of a Taxable period
ending or deemed to end on the Distribution Date with respect to any Return of
any member of the RCN Group.
SECTION 2.03. Non-line of Business Adjustments. (a) RCN shall be liable
for, and shall indemnify and hold harmless, as appropriate, any member of the
C-TEC Group or Cable Michigan Group against RCN's share, as determined in
Section 2.03(d) below, of any Non-Line of Business Adjustment the amount of
which increases a Tax for any Taxable period or portion of a Taxable period
ending or deemed to end on or before the Distribution Date; with respect to any
Return of any member of the RCN Group, the C-TEC Group or the Cable Michigan
Group. RCN shall be entitled to receive, and shall be paid (i) by C-TEC, RCN's
share, as determined in Section 2.03(d) below, of any Non-Line of Business
Adjustment the amount of which decreases a Tax for any Taxable period or portion
of a Taxable period ending or deemed to end on or before the
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Distribution Date with respect to any Return of any member of the C-TEC Group;
and/or (ii) by Cable Michigan, RCN's share, as determined in Section 2.03(d)
below, of any Non-Line of Business Adjustment the amount of which decreases a
Tax for any Taxable period or portion of a Taxable period ending or deemed to
end on or before the Distribution Date with respect to any Return of any member
of the Cable Michigan Group.
(b) C-TEC shall be liable for, and shall indemnify and hold harmless,
as appropriate, any member of the RCN Group or the Cable Michigan Group against
C-TEC's share, as determined in Section 2.03(d) below, of any Non-Line of
Business Adjustment the amount of which increases a Tax for any Taxable period
or portion of a Taxable period ending or deemed to end on or before the
Distribution Date with respect to any Return of any member of the RCN Group, the
C-TEC Group or the Cable Michigan Group. C-TEC shall be entitled to receive, and
shall be paid (i) by RCN, C-TEC's share, as determined in Section 2.03(d) below,
of any Non-Line of Business Adjustment the amount of which decreases a Tax for
any Taxable period or portion of a Taxable period ending or deemed to end on or
before the Distribution Date with respect to any Return of any member of the RCN
Group; and/or (ii) by Cable Michigan, C-TEC's share, as determined in Section
2.03(d) below, of any Non-Line of Business Adjustment the amount of which
decreases a Tax for any Taxable period or portion of a Taxable period ending or
deemed to end on or before the Distribution Date with respect to any Return of
any member of the Cable Michigan Group.
(c) Cable Michigan shall be liable for, and shall indemnify and hold
harmless, as appropriate, any member of the RCN Group or the C-Tec Group against
Cable Michigan's share, as determined in Section 2.03(d) below, of any Non-Line
of Business Adjustment the amount of which increases a Tax for any Taxable
period or portion of a Taxable period ending or deemed to end on or before the
Distribution Date with respect to any Return of any member of the RCN Group, the
C-TEC Group or the Cable Michigan Group. Cable Michigan shall be entitled to
receive, and shall be paid (i) by RCN, Cable Michigan's share, as determined in
Section 2.03(d) below, of any Non-Line of Business Adjustment the amount of
which decreases a Tax for any Taxable period or portion of a Taxable period
ending or deemed to end on or before the Distribution Date with respect to any
Return of any member of the RCN Group; and/or (ii) by C-TEC, Cable Michigan's
share, as determined in Section 2.03(d) below, of any Non-Line of Business
Adjustment the amount of which decreases a Tax for any Taxable period or portion
of a Taxable period ending or deemed to end on or before the date of the Cable
Michigan Distribution Date with respect to any Return of any member of the C-TEC
Group.
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(d) C-TEC, RCN and Cable Michigan shall share the amount of any
Non-Line of Business Adjustment to the extent each such party is liable for
and/or has an obligation to make, or has the right to receive, as the case may
be, any indemnity payment, reimbursement or other payment with respect to such
Non-Line of Business Adjustment under this Agreement, in proportion to the
Shared C-TEC Percentage, the Shared RCN Percentage and the Shared Cable Michigan
Percentage, respectively; provided, however, that in the event that there is any
Correlative Adjustment with respect to any such Non-Line of Business Adjustment,
then C-TEC, RCN and Cable Michigan shall share such Non-Line of Business
Adjustment in the following manner in order to ensure that the party or parties
that will bear the burden or inure to the benefit of the Correlative Adjustment
in the future will share the Non-Line of Business Adjustment in proportion to
each of their respective Shared Percentages after giving effect to such
Correlative Adjustment:
(i) first, the amount of any such Non-Line of Business Adjustment
shall be increased or decreased, as appropriate, by the amount of the
Correlative Adjustment, the net amount resulting from such increase or
decrease being hereinafter referred to as the "Net Non-Line of Business
Adjustment" for purposes of this Section 2.03(d);
(ii) second, the Net Non-Line of Business Adjustment shall be
allocated among C-TEC, RCN and Cable Michigan in proportion to the
Shared C-TEC Percentage, the Shared RCN Percentage and the Shared Cable
Michigan Percentage, respectively, to the extent each such party is
liable for and/or has an obligation to make, or has the right to
receive, as the case may be, any indemnity payment, reimbursement or
other payment with respect to such Non-Line of Business Adjustment
under this Agreement; and
(iii) finally, with respect to a party to which a Correlative
Adjustment is attributable, that party's share of the Net Non-Line of
Business Adjustment as allocated pursuant to paragraph 2.03(d)(ii) of
this Section 2.03(d) will be increased or decreased, as appropriate, by
the amount, if any, of the Correlative Adjustment that is attributable
to such party in order to arrive at such party's share of the Non-Line
of Business Adjustment.
(e) Following the determination of a party's share of a Non-Line of
Business Adjustment pursuant to Section 2.03(d) above, and subject to Section
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3.04 and 3.05 hereof, the Controlling Party that controls the Tax Contest to
which such Non-Line of Business Adjustment relates shall (i) be entitled to
reimbursement from C-TEC, RCN and/or Cable Michigan, as the case may be, for
each of their respective shares, if any, of any Non-Line of Business Adjustment
the amount of which increases a Tax; and (ii) reimburse C-TEC, RCN or Cable
Michigan, as the case may be, for each of their respective shares, if any, of
any Non-Line of Business Adjustment the amount of which decreases a Tax.
(f) Notwithstanding any other provision of this Agreement or the
Distribution Agreement to the contrary, if after the Distribution Date C-TEC,
RCN or Cable Michigan takes any action or fails to take any action that results
in the Distribution not qualifying as a tax-free distribution under Section 355
of the Code, then C-TEC, RCN or Cable Michigan, as the case may be, will be
liable for any increased tax liability of C-TEC, RCN and Cable Michigan arising
therefrom.
ARTICLE 3
TAX CONTESTS
SECTION 3.01. Notification of Tax Contests. The Controlling Party shall
promptly notify all Interested Parties of (a) the commencement of any Tax
Contest pursuant to which such Interested Parties may be required to make or
entitled to receive an indemnity payment, reimbursement or other payment under
this Agreement; an (b) as required and specified in Section 3.04 hereof, any
Final Determination made with respect to any Tax Contest pursuant to which such
Interested Parties may be required to make or entitled to receive any indemnity
payment, reimbursement or other payment under this Agreement. The failure of a
Controlling Party to promptly notify any Interested Party as specified in the
preceding sentence shall not relieve any such Interested Party of any liability
and/or obligation which it may have to the Controlling Party under this
Agreement except to the extent that the Interested Party was prejudiced by such
failure, and in no event shall such failure relieve the Interested Party from
any other liability or obligation which it may have to such Controlling Party.
SECTION 3.02. Tax Contest Settlement Rights. The Controlling Party
shall have the sole right to contest, litigate, compromise and settle any
Adjustment that is made or proposed in a Tax Contest without obtaining the prior
consent of any Interested Party; provided, however, that, unless the parties
provide notice of the waiver of such right, the Controlling Party shall, in
connection with any proposed or assessed Adjustment in a Tax Contest for which
an Interested Party may be required to make or entitled to receive an indemnity
payment, reimbursement or other payment under this Agreement (a) keep all such
Interested Parties informed
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in a timely manner of all actions taken or proposed to be taken by the
Controlling Party; an (b) provide all such Interested Parties with copies of any
correspondence or filings submitted to any Taxing Authority or judicial
authority, in each case in connection with any contest, litigation, compromise
or settlement relating to any such Adjustment in a Tax Contest. The failure of a
Controlling Party to take any action as specified in the preceding sentence with
respect to an Interested Party shall not relieve any such Interested Party of
any liability and/or obligation which it may have to the Controlling Party under
this Agreement except to the extent that the Interested Party was prejudiced by
such failure, and in no event shall such failure relieve the Interested Party
from any other liability or obligation which it may have to such Controlling
Party. The Controlling Party may, in its sole discretion, take into account any
suggestions made by an Interested Party with respect to any such contest,
litigation, compromise or settlement of any Adjustment in a Tax Contest. All
costs of any Tax Contest are to be borne by the Controlling Party and all
Interested Parties in proportion to their respective liability to make indemnity
payments, reimbursements or other payments under this Agreement with respect to
an Adjustment made in such Tax Contest; provided, however, that (x) any costs
related to an Interested Party's attendance at any meeting with a Taxing
Authority or hearing or proceeding before any judicial authority pursuant to
Section 3.03 hereof, and (y) the costs of any legal or other representatives
retained by an Interested Party in connection with any Tax Contest that is
subject to the provisions of this Agreement, shall be borne by such Interested
Party.
SECTION 3.03. Tax Contest Participation. Unless waived by the parties
in writing, the Controlling Party shall provide an Interested Party with notice
reasonably in advance of, and such Interested Party shall have the right to
attend, any formally scheduled meetings with Taxing Authorities or hearings or
proceedings before any judicial authorities in connection with any contest,
litigation, compromise or settlement of any proposed or assessed Adjustment that
is the subject of any Tax Contest pursuant to which such Interested Party may be
required to make or entitled to receive an indemnity payment, reimbursement or
other payment under this Agreement, but only if the Interested Party bears, or
in the good faith judgment of the Controlling Party, may bear, a Significant
Obligation with respect to such Adjustment; provided, however, that the
Controlling Party may, in its sole discretion, permit an Interested Party that
does not bear, or potentially bear, such a Significant Obligation with respect
to such an Adjustment, to attend any such meetings, hearings or proceedings that
relate to such Adjustment. In addition, unless waived by the parties in writing,
the Controlling Party shall provide each Interested Party with draft copies of
any correspondence or filings to be submitted to any Taxing Authority or
judicial
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authority with respect to such Adjustments for such Interested Party's review
and comment. The Controlling Party shall provide such draft copies reasonably in
advance of the date that they are to be submitted to the Taxing Authority or
judicial authority and the Interested Party shall provide its comments, if any,
with respect thereto within a reasonable time before such submission. The
failure of a Controlling Party to provide any notice, correspondence or filing
as specified in this Section 3.03 to an Interested Party shall not relieve any
such Interested Party of any liability and/or obligation which it may have to
the Controlling Party under this Agreement except to the extent that the
Interested Party was prejudiced by such failure, and in no event shall such
failure relieve the Interested Party from any other liability or obligation
which it may have to such Controlling Party.
SECTION 3.04. Tax Contest Waiver. (a) The Controlling Party shall
promptly provide notice to all Interested Parties in a Tax Contest (i) that a
Final Determination has been made with respect to such Tax Contest; and (ii)
enumerating the amount of the Interested Party's share of each Adjustment
reflected in such Final Determination of the Tax Contest for which such
Interested Party may be required to make or entitled to receive an indemnity
payment, reimbursement or other payment under this Agreement.
(b) Within thirty (30) days after an Interested Party receives the
notice described in Section 3.04(a) hereof from the Controlling Party, such
Interested Party shall give notice to the Controlling Party (i) that the
Interested Party agrees with each Adjustment (and its share thereof) enumerated
in the notice described in Section 3.04(a) hereof except with respect to those
Adjustments (and/or its shares thereof) that, in the good faith judgment of the
Interested Party, it disagrees with and has specifically enumerated its
disagreement with, including the amount of such disagreement, in the statement
(each such disagreed Adjustment (and/or share thereof) hereinafter referred to
as a "Disputed Adjustment"); and (ii) that the Interested Party thereby waives
its right to a determination by an Independent Third Party pursuant to the
provisions of Section 3.05 hereof with respect to all Adjustments to which it
agrees with its share (this statement hereinafter referred to as the "Interested
Party Notice"). The failure of an Interested Party to provide the Interested
Party Notice to the Controlling Party within the thirty (30) day period
specified in the preceding sentence shall be deemed to indicate that such
Interested Party agrees with its share of all Adjustments enumerated in the
notice described in Section 3.04(a) hereof and that such Interested Party waives
it right to a determination by an Independent Third Party with respect to all
such Adjustments (and its shares thereof) pursuant to Section 3.05 hereof.
14
(c) During the thirty (30) day period immediately following the
Controlling Party's receipt of the Interested Party Notice described in Section
3.04(b) above, the Controlling Party and the Interested Party shall in good
xxxxx xxxxxx with each other to resolve any disagreement over each Disputed
Adjustment that was specifically enumerated in such Interested Party Notice. At
the end of the thirty (30) day period specified in the preceding sentence,
unless notice is provided of the mutual consent of the parties to the extension
of such time period, the Interested Party shall be deemed to agree with all
Disputed Adjustments that were specifically enumerated in the Interested Party
Notice and waive its right to a determination by an Independent Third Party
pursuant to Section 3.05 hereof with respect to all such Disputed Adjustments
unless, and to the extent, that at any time during such thirty (30) day (or
extended) period, the Interested Party has given the Controlling Party notice
that it is seeking a determination by an Independent Third Party pursuant to
Section 3.05 hereof regarding the propriety of any such Disputed Adjustment.
(d) Notwithstanding anything in this Agreement to the contrary, an
Interested Party that does not have a Significant Obligation with respect to an
Adjustment has no right to a determination by an Independent Third Party under
section 3.05 hereof with respect to any such Adjustment.
SECTION 3.05. Tax Contest Dispute Resolution. (a) In the event that an
Interested Party has given the Controlling Party notice as required in Section
3.04(c) hereof that it is seeking a determination by an Independent Third Party
pursuant to this Section 3.05 with respect to any Disputed Adjustment that was
enumerated in an Interested Party Notice, then the parties shall, within ten
(10) days after the Controlling Party has received such notice, jointly select
an Independent Third Party to make such determination. In the event that the
parties cannot jointly agree on an Independent Third Party to make such
determination within such ten (10) day period, then the Controlling Party and
the Interested Party shall each immediately select an Independent Third Party
and the Independent Third Parties so selected by the parties shall jointly
select, within ten (10) days of their selection, another Independent Third Party
to make such determination.
(b) In making its determination as to the propriety of any Disputed
Adjustment, the Independent Third Party selected pursuant to Section 3.05(a)
above shall assume that the Interested Party is not required or entitled under
applicable law to be a member of any Consolidated Return. In addition, the
Independent Third Party shall make its determination according to the following
procedure:
15
(i) The Independent Third Party shall analyze each Disputed
Adjustment for which a determination is sought pursuant to this Section
3.05 to determine what is a fair and appropriate outcome (hereinafter
referred to as the "Ultimate Determination") with respect to any such
Disputed Amount, taking into account the following exclusive criteria:
(A) the facts relating to such Adjustment; (B) the applicable law, if
any, with respect to such Adjustment; (C) the position of the
applicable Taxing Authority with respect to compromise, settlement or
litigation of such Adjustment; (D) the strength of the factual and
legal arguments made by the Controlling Party in reaching the outcome
with respect to such Adjustment as reflected in the Final Determination
of the Tax Contest; (E) the strength of the factual and legal arguments
being made by the Interested Party for the alternative outcome being
asserted by such Interested Party (including the availability of facts,
information and documentation to support such alternative outcome); (F)
the strength of the legal and factual support for other potential, non-
frivolous Adjustments with respect to matters that were actually raised
and contested by the applicable Taxing Authority in the Tax Contest for
which the Interested Party could have been liable under this Agreement
but which were eliminated or reduced as a result of the Controlling
Party agreeing to the Disputed Adjustment as reflected in the Final
Determination of the Tax Contest; (G) the effect of the actual outcome
reached with respect to the Disputed Adjustment on other Taxable
periods and on other positions taken or proposed to be taken in Returns
filed or proposed to be filed by the Interested Party; (H) the
realistic possibility of avoiding examination of potential, non-
frivolous issues for which the Interested Party could be liable under
this Agreement and that were contemporaneously identified in writings
by the party or parties during the course of the Tax Contest but which
had not been raised and contested by the applicable Taxing Authority in
the Tax Contest; and (I) the benefits to the Interested Party in
reaching a Final Determination, and the strategy and rationale with
respect to the Interested Party's Disputed Adjustment that the
Controlling Party had for agreeing to such Disputed Adjustment in
reaching the Final Determination, in each case that were
contemporaneously identified in writings by the party or parties during
the course of the Tax Contest.
(ii) The Interested Party shall only be entitled to modification
of its share of a Disputed Adjustment under this Section 3.05 if, as
the case may be, either (A) the amount that would be paid by the
Interested Party under the Ultimate Determination with respect to such
Disputed Adjustment is less than 80% of the amount that would be paid
by the
16
Interested Party with respect to such Disputed Adjustment under the
actual outcome reached with respect to such Disputed Adjustment; or (B)
the amount that would be received by the Interested Party under the
Ultimate Determination with respect to such Disputed Adjustment is more
than 120% of the amount that the Interested Party would receive with
respect to such Disputed Adjustment under the actual outcome reached
with respected to such Disputed Adjustment. If an Interested Party is
entitled to modification of its share of any Disputed Adjustment under
the preceding sentence, the amount the Interested Party is entitled to
receive, or is required to pay, as the case may be, with respect to
such Disputed Adjustment shall be equal to the amount of the Ultimate
Determination of such Disputed Adjustment. The Independent Third Party
will provide notice to the Controlling Party and the Interested Party
stating whether the Interested Party is entitled to modification of its
share of the Disputed Adjustment pursuant to this paragraph 3.05(b)(ii)
and, if the Interested Party is entitled to such modification, the
amount as determined in the preceding sentence that the Interested
Party is entitled to receive from, or required to pay to, the
Controlling Party with respect to such Disputed Adjustment.
(c) Any determination made or notice given by an Independent Third
Party pursuant to this Section 3.05 shall be (i) in writing; (ii) made within
thirty (30) days following the selection of the Independent Third Party as set
forth in Section 3.05(a) of this Agreement unless such period is otherwise
extended by the mutual consent of the parties; and (iii) final and binding upon
the parties. The costs of any Independent Third Party retained pursuant to this
Section 3.05 shall be shared equally by the parties. The Controlling Party and
the Interested Party shall provide the Independent Third Party jointly selected
pursuant to Section 3.05(a) hereof with such information or documentation as may
be appropriate or necessary in order for such Independent Third Party to make
the determination requested of it. Upon issuance of an Independent Third Party's
notice under Section 3.05(b)(ii) hereof, the Controlling Party or the Interested
Party, as the case may be, shall pay as specified in Article 4 of this
Agreement, the amount, if any, of the Disputed Adjustment to the appropriate
party.
17
ARTICLE 4
PROCEDURE AND PAYMENT
SECTION 4.01. Procedure. (a) If an Interested Party has any liability
and/or obligation to make, or the right to receive, any indemnity payment,
reimbursement or other payment with respect to an Adjustment under this
Agreement for which it does not have a right to a determination by an
Independent Third Party under Section 3.05 hereof, then the amount of such
Adjustment shall be immediately due and payable upon receipt by the Interested
Party of a notice of Final Determination of a Tax Contest as required and
specified in Section 3.04(a) hereof.
(b) If after (i) notice of a Final Determination of a Tax Contest as
required and specified in Section 3.04(a) hereof has been given by a Controlling
Party to an Interested Party; and (ii) the Interested Party receiving such
notice has either:
(i) failed to provide the Interested Party Notice specified in
Section 3.04(b) hereof within the thirty (30) day period set forth in
Section 3.04(b);
(ii) provided the Interested Party Notice specified in Section
3.04(b) hereof within the thirty (30) day period specified in Section
3.04(b) agreeing to all Adjustments (and the Interested Party's share
of all such Adjustments) and waiving the right to an Independent Third
Party determination pursuant to Section 3.05 hereof with respect to all
such Adjustments (and the Interested Party's share of such
Adjustments);
(iii) provided the Interested Party Notice specified in Section
3.04(b) hereof within the thirty (30) day period specified in Section
3.04(b) agreeing with some, but not all, Adjustments (and the
Interested Party's share of such agreed Adjustments) and waiving the
right to an Independent Third Party Determination pursuant to Section
3.05 hereof with respect to all such agreed Adjustments (and the
Interested Party's share of such Adjustments); or
(iv) provided the Interested Party Notice specified in Section
3.04(b) hereof within the thirty (30) day period specified in Section
3.04(b) specifically enumerating the Disputed Adjustments to which it
does not agree and for which the notice specified in either Section
18
3.05(b)(ii) hereof relating to any such Disputed Adjustment has been
given by an Independent Third Party,
then the amount of any Adjustment agreed to or deemed to be agreed to by the
Interested Party, or for which an Independent Third Party notice has been given
pursuant to either Section 3.05(b)(ii) hereof, as set forth in each of clauses
(A), (B, (C) or (D) above, shall be immediately due and payable.
(c) Any Person entitled to any indemnification, reimbursement or other
payment under this Agreement with respect to the amount of any Adjustment that
has become immediately due and payable under Section 4.01(b) (the "Indemnified
Party") shall notify the Person against whom such indemnification, reimbursement
or other payment is sought (the "Indemnifying Party") of its right to and the
amount of such indemnification, reimbursement or other payment; provided,
however, that the failure to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability and/or obligation which it may have to an
Indemnified Party on account of the provisions contained in this Agreement
except to the extent that the Indemnifying Party was prejudiced by such failure,
and in no event shall such failure relieve the Indemnifying Party from any other
liability or obligation which it may have to such Indemnified Party. The
Indemnifying Party shall make such indemnity payment, reimbursement or other
payment to the Indemnified Party within thirty (30) days of the receipt of the
notice specified in the preceding sentence; provided, however, that, in the case
of any Final Determination of a Tax Contest involving a state, local or
municipal Tax in which the Indemnifying Party is also the Controlling Party with
respect to such Tax Contest and, as Controlling Party, is entitled to receive an
overall net refund from the applicable state, local or municipal Taxing
Authority with respect to such state, local or municipal Tax, then the
Indemnifying Party shall make such indemnity payment, reimbursement or other
payment to the Indemnified Party within thirty (30) days from the date the
Indemnifying Party actually receives payment of or obtains the benefit of the
net refund due from the applicable state, local or municipal Taxing Authority.
SECTION 4.02. Payment. Any indemnity payment, reimbursement or other
payment required to be made pursuant to this Agreement by an Indemnifying Party
to an Indemnified Party shall be made, at the option of the Indemnifying Party,
b (a) certified check payable to the order of the Indemnified Party; or (b) wire
transfer of immediately available funds to such bank and/or other account of the
Indemnified Party as from time to time the Indemnified Party shall have directed
the Indemnifying Party, in writing. Any indemnity payment, reimbursement or
other payment required to be made by an Interested Party
19
pursuant to this Agreement shall bear interest at the Federal Short-Term Rate
plus 2 %, per annum, from the date such Interested Party receives the notice of
Final Determination made with respect to a Tax Contest as provided in Section
3.04(a) hereof. Any indemnity payment, reimbursement or other payment required
to be made by a Controlling Party to an Interested Party pursuant to this
Agreement shall bear interest at the Federal Short-Term Rate plus 2%, per annum,
from a date thirty (30) days after the date of a Final Determination made with
respect to a Tax Contest; provided, however, that, in the case of any Final
Determination of a Tax Contest involving a state, local or municipal Tax in
which the Controlling Party is entitled to receive an overall net refund from
the applicable state, local or municipal Taxing Authority with respect to such
state, local or municipal Tax, such indemnity payment, reimbursement or other
payment to be made by the Controlling Party shall bear interest at the Federal
Short-Term Rate plus 2%, per annum, from the date the Controlling Party actually
receives payment of or obtains the benefit of the net refund due from the
applicable state, local or municipal Taxing Authority.
ARTICLE 5
OTHER TAX MATTERS
SECTION 5.01. Tax Policies and Procedures During Consolidation. It is
understood and agreed that during Consolidation:
(a) Members of the RCN Group and members of the Cable Michigan Group,
respectively, shall each adopt and follow the Tax policies and procedures that
have been established by C-TEC, unless C-TEC shall otherwise consent as provided
herein.
(b) C-TEC shall establish all Return positions and make all Tax
elections relating to a Consolidated Return. Members of the RCN Group and
members of the Cable Michigan Group shall take such Consolidated Return
positions and make such Tax elections relating to a Consolidated Return as may
be taken or made by C-TEC, or as reasonably requested by C-TEC to be taken or
made by any member of the RCN Group and/or any member of the Cable Michigan
Group, as the case may be, unless C-TEC shall otherwise consent, as provided
herein.
(c) With respect to the Consolidated Return for the taxable period
including the Distribution Date, the parties to this Agreement shall indemnify
20
each other in a manner consistent with Article 2 for the amount of any
difference between (i) the Tax liability of such party (including all of the
members of its respective Group) as calculated on a separate basis for purposes
of determining the final tax accrual provision for the period ending on the
Distribution Date and (ii) the Tax liability of such party (including all of the
members of its respective Group) as calculated on a separate basis for purposes
of determining the total Tax liability as reported on the Consolidated Return
filed with respect to the taxable period including the Distribution Date. Any
payments to be made pursuant to this Section 5.01(c) shall be made within
forty-five (45) days of the filing of such Consolidated Return.
SECTION 5.02. Cooperation. Except as otherwise provided in this
Agreement, each member of the C-TEC Group, the RCN Group and/or the Cable
Michigan Group, as the case may be, shall, at their own expense, cooperate with
each other in the filing of, or any Tax Contest relating to, any Return and any
other matters relating to Taxes and, in connection therewith, shall (i) maintain
appropriate books and records for any and all Taxable periods or any portion of
a Taxable period that may be required by C-TEC's record retention policies; (ii)
provide to each other such information as may be necessary or useful in the
filing of, or any Tax Contest relating to, any such Return; (iii) execute and
deliver such consents, elections, powers of attorney and other documents as may
be required or appropriate for the proper filing of any such Return or in
conjunction with any Tax Contest relating to any such Return; and (iv) make
available for responding to inquiries of any other party or any Taxing
Authority, appropriate employees and officers of and advisors retained by any
member of the C-TEC Group, the RCN Group, or the Cable Michigan Group, as the
case may be.
SECTION 5.03. Filing of Returns. The Person that would be the
Controlling Party with respect to any Tax Contest relating to a Return for which
any indemnity payment, reimbursement or other payment may be sought under this
Agreement shall (a) prepare and file, or cause to be prepared and filed, any
such Return within the time prescribed for filing such Return (including all
extensions of time for filing); and (b) shall timely pay, or cause to be timely
paid, the amount of any Tax shown to be due and owing on any such Return. Such
Person shall bear all costs associated with preparing and filing, or causing to
be prepared and filed, any such Return. Except as provided in Section 5.01(b)
hereof (relating to Consolidated Returns), such Person shall establish all
Return positions and make all Tax elections relating to such Returns.
21
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Governing Law. To the extent not preempted by any
applicable foreign or U.S. federal, state, or local Tax law, this Agreement
shall be governed by and construed and interpreted in accordance with the laws
of the State of New York, irrespective of the choice of laws principles of the
State of New York, as to all matters, including matters of validity,
construction, effect, performance and remedies.
SECTION 6.02. Affiliates. Each of the parties hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any Affiliate of such party;
provided, however, that for purposes of the foregoing, no Person shall be
considered an Affiliate of a party if such Person is a member of another party's
Group.
SECTION 6.03. Incorporation of Distribution Agreement Provisions.
Article 9 of the Distribution Agreement (Miscellaneous) is hereby incorporated
herein by reference, and unless otherwise expressly specified herein, shall
apply as if fully set forth herein.
SECTION 6.04. Notices. On behalf of C-TEC, RCN, and Cable Michigan, the
individuals set forth below (or any other individuals delegated in writing by
each of the foregoing) shall serve as the single point of contact to receive or
give any notice or other communication required or permitted to be given to any
member of each of their respective Groups under this Agreement. Unless the
individual designated to receive any notice or other communication is the same
individual designated to give such notice or other communication, all notices or
other communications under this Agreement shall be in writing and shall deemed
to be duly given when (a) delivered in person; or (b) sent by facsimile; or (c)
deposited in the United States mail, postage prepaid and sent certified mail,
return receipt requested; or (d) deposited in private express mail, postage
prepaid, addressed as follows:
If to any member of the C-TEC Group, to:
C-TEC Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
22
Attn: Xxxxx X. Xxxxx, Vice President of Taxation
Facsimile: 000-000-0000
If to any member of the RCN Group, to:
RCN Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Vice President of Taxation
Facsimile: 000-000-0000
If to any member of the Cable Michigan Group, to:
Cable Michigan, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Vice President of Taxation
Facsimile: 000-000-0000
Copies of any and all notices shall be (a) delivered in person; or (b) sent by
facsimile; or (c) deposited in the United States mail, postage prepaid and sent
certified mail, return receipt requested; or (d) deposited in private express
mail, postage prepaid, addressed as follows:
Xxxxxxx X. Xxxxx
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Any party may, by written notice to the other parties, change the address to
which such notices (or copies of notices) are to be given.
23
SECTION 6.05. Conflicting or Inconsistent Provisions. In the event that
any provision or term of this Agreement conflicts or is inconsistent with any
provision or term of any other agreement between or among C-TEC or any other
member of the C-TEC Group, RCN or any other member of the RCN Group and/or Cable
Michigan or any other member of the Cable Michigan Group, as the case may be,
which is in effect on or prior to the date hereof, the provision or term of this
Agreement shall control and apply and the provision or term of any other
agreement shall, to the extent of such conflict or inconsistency, be inoperative
and inapplicable.
SECTION 6.06. Duration. Notwithstanding anything in this Agreement or
the Distribution Agreement to the contrary, the provisions of this Agreement
shall survive for the full period of all applicable statutes of limitations
(giving effect to any waiver, mitigation or extension thereof).
SECTION 6.07. Amendment. Without limiting the provisions contained in
Article 9 of the Distribution Agreement which are incorporated herein by
reference pursuant to Section 6.03 hereof, the parties hereto agree that any
waiver, amendment, supplement or modification of this Agreement that solely
relates to and affects only two of the three parties hereto shall not require
the consent of the third party hereto.
24
IN WITNESS WHEREOF, the parties hereto have caused this Tax Sharing
Agreement to be executed by their duly authorized representatives as of the date
hereof.
C-TEC Corporation
By: Xxxxx XxXxxxx
----------------------------
Name: Xxxxx XxXxxxx
Title: Chairman and Chief Executive
Officer
RCN Corporation
By: Xxxxx XxXxxxx
---------------------------
Name: Xxxxx XxXxxxx
Title: Chairman and Chief Executive
Officer
Cable Michigan, Inc.
By: Xxxxx XxXxxxx
---------------------------
Name: Xxxxx XxXxxxx
Title: Chairman and Chief Executive
Officer
25
