<PAGE>
FORM 8-B
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CoreComm Incorporated
(Exact name of registrant as specified in its charter)
Delaware 13-3927257
(State of incorporation) (I.R.S. Employer
Identification No.)
110 East 59th Street, 26th Floor, New York, New York 10022
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered which each class is to be registered
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share (and associated rights)
Item 1. General Information
(a) CoreComm Incorporated (the "Company") was organized on January 16,
1997 as a corporation under the laws of the State of Delaware.
(b) The Company's fiscal year ends on the 31st day of December.
Item 2. Transaction of Succession
(a) The Company's predecessor, Cellular Communications of Puerto Rico,
Inc., a Delaware corporation ("CCPR"), had securities registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Act").
As a result of the consummation of the Merger (as defined below), CCPR
terminated such registration with respect to its common stock, $0.01 par value
("CCPR Common Stock").
(b) On January 31, 1997, the Agreement and Plan of Merger was filed by the
Company with the Secretary of State of the State of Delaware (the "Effective
Date"). Pursuant to the Agreement and Plan of Merger, shareholders of CCPR
became shareholders of the Company upon the completion of a merger of a wholly-
owned subsidiary of the Company with and into CCPR (the "Merger"). In accordance
with the terms of the Merger, each
<PAGE>
share of CCPR Common Stock then outstanding was exchanged on a share-for-share
basis for a share of the Company Common Stock (as defined below) without any
action on the part of the holder thereof. As the Merger was consummated in
accordance with (S)251(g) of the General Corporation Law of the State of
Delaware, no approval of the holders of CCPR Common Stock was necessary to
approve the Merger. All outstanding stock options to acquire CCPR Common Stock
were converted into stock options to acquire an equivalent number of shares of
Company Common Stock on identical terms and conditions; and each existing CCPR
preferred stock purchase right was converted into an identical preferred stock
purchase right of the Company on identical terms and conditions. As of the
Effective Date, CCPR became a wholly-owned subsidiary (as defined in Rule 12b-2
promulgated under the Act) of the Company, and the Company replaced CCPR as the
publicly held corporation.
Item 3. Securities to be Registered
The number of shares of Company Common Stock presently authorized is
30,000,000, of which 13,073,648 shares were issued and outstanding immediately
following the effective time of the Merger and 378,000 additional shares were
held in treasury.
Item 4. Description of Registrant's Securities to be Registered
The title of the equity securities to be registered is the Company's common
stock, par value $0.01 (the "Company Common Stock"). The Company Common Stock
is subject to the express terms of its preferred stock, of which 2,500,000
shares are authorized, but none are outstanding. Each share of Company Common
Stock also represents a right, exercisable under certain circumstances, to
acquire shares of Series A Junior Participating Preferred Stock in connection
with the Rights Agreement, dated as of January 24, 1992 and amended as of
January 31, 1997, between CCPR and the Continental Stock Transfer & Trust
Company. The holders of Company Common Stock have equal, ratable rights to
dividends from funds legally available therefor, when, as and if declared by the
board of directors of the Company, and are entitled to share ratably in all of
the assets of the Company available for distribution to holders of Company
Common Stock upon the liquidation, dissolution or winding up of the affairs of
the Company. Holders of Company Common Stock do not have preemptive,
subscription or conversion rights. There are no redemption or sinking fund
provisions in the Company's Restated Certificate of Incorporation. The
outstanding shares of Company Common Stock are fully paid and nonassessable.
Holders of the Company Common Stock are entitled to cast one vote for each share
held of record on all matters submitted to a vote of the shareholders. The
Company's Restated Certificate of Incorporation does not provide for cumulative
voting by shareholders.
Item 5. Financial Statement and Exhibits
(a) Financial Statements
No financial statements are required to be filed herewith because the
consolidated capital structure and balance sheet of the Company immediately
after consummation of the Merger will be substantially the same as that of CCPR
immediately prior to consummation of the Merger.
(b) Exhibits
2.1* The Agreement and Plan of Merger, dated January 31, 1997, by and among
CCPR, the Company and CoreCom Sub Inc.
3.1* Company's Restated Certificate of Incorporation.
2
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3.2* Company's Bylaws.
4.1.1 Company's Rights Agreement. Incorporated herein by reference to Exhibit
4.2 to the Company's annual report on Form 10-K for the year ended
December 31, 1995, File Number 0-19869. (Incorporated by reference to
Exhibit 4.1, 1991 Form 10-K, File Number 0-19869)
4.1.2* Company's Amendment No. 1 to the Rights Agreement.
10.1.1 Company's 1992 Stock Option Plan. Incorporated herein by reference to
Exhibit 10.5 to the Company's annual report on Form 10-K for the year
ended December 31, 1995, File Number 0-19869. (Incorporated by reference
to Exhibit 10.6, 1993 Form 10-K, File Number 0-19869)
10.1.2 Company's Employee Stock Purchase Plan. Incorporated herein by reference
to the Company's Proxy Statement on Schedule 14A dated April 29, 1996.
10.1.3 Company's Non-Employee Director Stock Option Plan. Incorporated herein by
reference to Exhibit 10.6 to the Company's annual report on Form 10-K for
the year ended December 31, 1995, File Number 0-19869. (Incorporated by
reference to Exhibit 10.7, 1993 Form 10-K, File Number 0-19869)
10.2* Tax Sharing Agreement among the Company, CCPR and CCPR Services, Inc.,
dated January 31, 1997.
10.3* Administrative Services Agreement between the Company and CCPR, dated
January 31, 1997.
11* Statement re: computation of per share earnings.
21* Subsidiaries of the Company.
____________
* Filed herewith.
3
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Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Company has caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
CORECOMM INCORPORATED
By: /s/ Richard J. Lubasch
Name: Richard J. Lubasch
Title: Senior Vice President-General Counsel
and Secretary
Dated: February 12, 1997
4
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EXHIBIT 2.1
- --------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
by and among
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC.
(a Delaware corporation)
and
CORECOMM INCORPORATED
(a Delaware corporation)
and
CORECOM SUB INC.
(a Delaware corporation)
_______________________
Dated as of January 31, 1997
_______________________
- --------------------------------------------------------------------------------
<PAGE>
AGREEMENT AND PLAN OF MERGER
----------------------------
AGREEMENT AND PLAN OF MERGER, dated as of January 31, 1997, by and
among CELLULAR COMMUNICATIONS OF PUERTO RICO, INC., a Delaware corporation
("CCPR"), CORECOMM INCORPORATED, a Delaware corporation and a wholly-owned
subsidiary of CCPR ("CoreComm"), and CORECOM SUB INC., a Delaware corporation
and a wholly-owned subsidiary of CORECOMM ("CoreCom Sub").
This Agreement provides for the merger of CoreCom Sub with and into
CCPR (the "Merger"), which will be the surviving corporation, in accordance
with Section 251(g) of the General Corporation Law of the State of Delaware (the
"DGCL"), upon the terms and conditions set forth herein and in accordance with
the applicable provisions of the DGCL. The purpose of the Merger is to
implement a holding company organizational structure under which CoreComm would
be the holding company for CCPR's operating subsidiaries and CCPR would become a
direct wholly-owned subsidiary of CoreComm.
The respective Boards of Directors of CCPR, CoreComm and CoreCom Sub
have approved the Merger upon the terms and subject to the conditions set forth
herein.
Accordingly, in consideration of the mutual promises and agreements
set forth herein, and in order to set forth the terms and conditions of the
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Merger and the mode of carrying the same into effect, the parties hereby agree
as follows:
1. The Merger.
----------
1.1 The Merger. At the Effective Time (as defined in Section 1.3
----------
hereof), and subject to the terms and conditions of this Agreement and the DGCL,
CoreCom Sub shall be merged with and into CCPR in the Merger, the separate
corporate existence of CoreCom Sub shall thereupon cease, and CCPR shall be the
surviving corporation in the Merger (the "Surviving Corporation").
1.2 Surviving Corporation. At the Effective Time, CCPR shall
---------------------
continue its corporate existence under the laws of the State of Delaware and
shall thereupon and thereafter possess all rights, privileges, powers and
franchises and all property of CoreCom Sub and shall be subject to all debts,
liabilities and duties of CoreCom Sub, all as provided under the DGCL.
1.3 Effective Time of the Merger. The Merger shall become effective
----------------------------
and be consummated when the Surviving Corporation shall have caused to be filed
a certified copy of this Agreement with the Secretary of State of the State of
Delaware (the "Delaware Secretary of State") in accordance with the DGCL (the
"Effective Time"), as set forth in Section 3.4 hereof.
1.4 Certificate of Incorporation of the Surviving Corporation.
---------------------------------------------------------
Immediately following the Effective Time, the Certificate of Incorporation of
2
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CCPR, as amended and restated and in effect immediately prior to the Effective
Time, shall be restated as set forth in Exhibit B and as so amended and restated
shall thereafter continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until further amended or restated as
provided therein and under the DGCL.
1.5 By-Laws of the Surviving Corporation. The By-Laws of CCPR (as
------------------------------------
amended and restated effective December 4, 1991), as in effect immediately prior
to the Effective Time, shall continue in full force and effect as the By-Laws of
the Surviving Corporation until thereafter amended or repealed as provided
therein and under the DGCL.
1.6 Directors and Officers of the Surviving Corporation. At the
---------------------------------------------------
Effective Time, the directors and officers of the Surviving Corporation shall be
those persons listed on Exhibit A attached hereto, in the case of directors,
until their successors are elected and qualified and, in the case of officers,
to serve at the pleasure of the Board of Directors of the Surviving Corporation.
2. Conversion of Securities and Assumption of Certain Obligations.
--------------------------------------------------------------
2.1 Conversion of Securities. At the Effective Time, by virtue of
------------------------
the Merger and without any action on the part of CCPR, CoreComm, CoreCom Sub or
the holders of any securities of the foregoing corporations:
3
<PAGE>
2.1.1 Common Stock of CoreCom Sub. Each share of common stock, par
---------------------------
value $0.01 per share, of CoreCom Sub issued and outstanding immediately prior
to the Effective Time, including each share that is owned by CCPR or its
subsidiaries, shall be converted into one share of common stock, par value $0.01
per share, of the Surviving Corporation.
2.1.2 Common Stock of CCPR. Each share of common stock, par value
--------------------
$0.01 per share, of CCPR ("CCPR Common Stock") issued and outstanding or held in
its treasury immediately prior to the Effective Time shall be converted into one
share of common stock, par value $0.01 per share, of CoreComm ("CoreComm Common
Stock"), and shall have the same designations, rights and powers and
preferences, and the qualifications, limitations and restrictions thereof, as
the CCPR Common Stock being converted. Each certificate representing shares of
CCPR Common Stock immediately prior to the Effective Time shall be deemed,
without the need for any exchange or transfer, to represent the same number of
shares of CoreComm Common Stock.
2.1.3 Common Stock of CoreComm. Each share of CoreComm Common
------------------------
Stock issued and outstanding immediately prior to the Effective Time shall
automatically be canceled and retired and shall cease to exist.
4
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2.1.4 CCPR Stock Options and Other Awards. CoreComm shall assume and
-----------------------------------
continue all the rights and obligations of CCPR under the 1992 Stock Option
Plan, the Employee Stock Purchase Plan, the Non-Employee Director Stock Option
Plan and all other stock option and employee benefit plans and agreements of
CCPR (collectively, the "Plans"). The outstanding options and other awards
assumed by CoreComm shall be exercisable upon the same terms and conditions as
under the Plans immediately prior to the Effective Time, except that, upon the
exercise of each such option or award, shares of CoreComm Common Stock shall be
issuable in lieu of each share of CCPR Common Stock issuable upon the exercise
thereof immediately prior to the Effective Time.
2.1.5 It is the intent of the parties hereto that CoreComm, as of the
Effective Time, be deemed a "successor issuer" for purposes of continuing
offerings under the Securities Exchange Act of 1934, as amended.
2.1.6 Effect on Rights. As a result of the share-for-share
----------------
conversion of CCPR Common Stock for CoreComm Common Stock pursuant to the Merger
and the adoption of the Rights Agreement dated as of January 24, 1992 between
CCPR and Continental Stock Transfer & Trust Company, as the Rights Agent, each
CCPR preferred stock purchase right will be converted into an identical
preferred stock purchase right of CoreComm.
5
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2.2 Retention of Certificates. Each outstanding certificate that
-------------------------
prior to the Effective Time represented shares of CCPR Common Stock shall be
deemed, for all corporate purposes, to evidence ownership of the number of
shares of CoreComm Common Stock into which such shares of CCPR Common Stock have
been converted pursuant to Section 2.1.2 hereof.
2.3 CCPR Stock Transfer Books. At the Effective Time, the stock
-------------------------
transfer books for the shares of CCPR Common Stock which will be converted to
CoreComm Common Stock pursuant to Section 2.1 hereof shall be deemed closed, and
no transfer of such shares shall thereafter be made or consummated.
2.4 Other Agreements. At the Effective Time, CoreComm shall assume
----------------
any obligation of CCPR to deliver or make available shares of CCPR Common Stock
under any agreement or employee benefit plan not referred to in this Section 2
to which CCPR or any of its subsidiaries is a party. Any reference to CCPR
Common Stock under any such agreement or employee benefit plan shall be deemed
to be a reference to CoreComm Common Stock and one share of CoreComm Common
Stock shall be issuable in lieu of each share of CCPR Common Stock required to
be issued by any such agreement or employee benefit plan, subject to subsequent
adjustment as provided in any such agreement or employee benefit plan.
6
<PAGE>
3. Compliance with Section 251(g) of the DGCL. Prior to the
------------------------------------------
Effective Time, the parties hereto will take all steps necessary to comply with
Section 251(g) of the DGCL, including without limitation, the following:
3.1 Certificate of Incorporation and By-Laws of CoreComm. At the
----------------------------------------------------
Effective Time, the Certificate of Incorporation and By-Laws of CoreComm shall
be in the form of the Certificate of Incorporation and By-Laws of CCPR, as in
effect immediately prior to the Effective Time.
3.2 Directors and Officers of CoreComm. At the Effective Time, the
----------------------------------
directors and officers of CCPR immediately prior to the Effective Time shall be
the directors and officers of CoreComm, in the case of directors, until their
successors are elected and qualified and, in the case of officers, to serve at
the pleasure of the Board of Directors of CoreComm.
3.3 Listing of CoreComm Common Stock. The CoreComm Common Stock to
--------------------------------
be issued and initially reserved for issuance pursuant to the transactions
contemplated herein shall have been approved for quotation, upon official notice
of issuance, by the Nasdaq National Market.
3.4 Filings. At the Effective Time, the Surviving Corporation shall
-------
cause a certified copy of this Agreement to be executed and filed with the
Delaware Secretary of State. At the Effective Time, to the extent necessary to
effectuate the amendments to the certificates of incorporation of the Surviving
7
<PAGE>
Corporation and CoreComm contemplated by this Agreement, each of the Surviving
Corporation and CoreComm shall cause to be filed with the Delaware Secretary of
State such certificates or documents required to give effect thereto.
4. Miscellaneous.
-------------
4.1 Amendment. At any time prior to the Effective Time, the parties
---------
hereto may, to the extent permitted by the DGCL, by written agreement amend,
modify or supplement any provision of this Agreement.
4.2 Termination. This Agreement may be terminated and the Merger
-----------
abandoned by the Board of Directors or duly authorized committees thereof of
CCPR at any time prior to the filing of the certified copy of this Agreement
with the Delaware Secretary of State.
4.3 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed entirely within such State.
4.4 Headings. The headings set forth herein are for convenience
--------
only and shall not be used in interpreting the text of the section in which they
appear.
4.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts which together shall constitute a single agreement.
8
<PAGE>
IN WITNESS WHEREOF, CCPR, CoreComm and CoreCom Sub, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Boards of Directors, have caused this Agreement to be executed as of the date
first above written by their respective officers thereunto duly authorized.
CELLULAR COMMUNICATIONS OF
PUERTO RICO, INC.
By:___________________________
Richard J. Lubasch
Senior Vice President-General Counsel and Secretary
CORECOMM INCORPORATED
By:______________________________
Richard J. Lubasch
Senior Vice President-General Counsel and Secretary
CORECOM SUB INC.
By:______________________________
Richard J. Lubasch
Senior Vice President-General Counsel and Secretary
9
<PAGE>
CERTIFICATE OF SECRETARY
------------------------
The undersigned, Assistant Secretary of CCPR, a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), hereby
certifies that the Agreement and Plan of Merger (the "Agreement") to which this
Certificate is attached has been executed on behalf of the Corporation by the
Senior Vice President-General Counsel and Secretary, on behalf of CoreCom Sub
Inc., a Delaware corporation, by the Senior Vice President-General Counsel and
Secretary, and on behalf of CoreComm Incorporated, a Delaware corporation, by
the Senior Vice President-General Counsel and Secretary. The Agreement has
been adopted by the Board of Directors of the Corporation pursuant to Section
251(g) of the Delaware General Corporation Law and the conditions specified in
the first sentence of such subsection have been satisfied.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of this 31st day of January, 1997.
__________________________
Sandra Barnett
Assistant Secretary
10
<PAGE>
Exhibit A
---------
Directors and Officers of Cellular Communications of Puerto Rico, Inc.
----------------------------------------------------------------------
George S. Blumenthal Chief Executive Officer, Treasurer and Director
(Principal Executive Officer)
J. Barclay Knapp President and Director (Principal Operating and
Financial Officer)
Richard J. Lubasch Senior Vice President--General Counsel, Secretary and
Director
Leigh Costikyan Wood Vice President--Operations
Gregg Gorelick Vice President--Controller (Principal Accounting
Officer)
Stephen M. Shapiro Senior Vice President--General Manager
Jose J. Davila Vice President--Finance
<PAGE>
Exhibit B
---------
CERTIFICATE OF RESTATED
CERTIFICATE OF INCORPORATION
January 31, 1997
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC.
The undersigned, Richard J. Lubasch and Sandra Barnett, certify that
they are the Senior Vice President-General Counsel and Assistant Secretary,
respectively, of Cellular Communications of Puerto Rico, Inc., a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), and do hereby certify as follows:
(1) The name of the Corporation is Cellular Communications of Puerto Rico,
Inc.
(2) The name under which the Corporation was originally incorporated was
"EC Acquisition Corp., Inc.," and the original Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on May 18, 1988.
(3) This Restated Certificate of Incorporation was duly adopted by
stockholder written consent in accordance with Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
(4) The text of the Certificate of Incorporation as amended hereby is
restated to read in its entity as follows:
FIRST: The name of the Corporation is CELLULAR COMMUNICATIONS OF
-----
PUERTO RICO, INC. (hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation
------
in the State of Delaware is 9 East Loockerman Street, in the City of Dover,
County of Kent. The name of its registered agent at that address is National
Registered Agents, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful
-----
act or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL").
<PAGE>
FOURTH: The total number of shares of stock which the Corporation
------
shall have the authority to issue is 1,000 shares of common stock, par value
$0.01 per share (the "Common Stock").
FIFTH: The business and affairs of the Corporation shall be managed
-----
by or under the direction of the Board of Directors. The number of directors of
the Corporation shall be as from time to time fixed by, or in the manner
provided in, the By-laws of the Corporation. A director shall hold office until
the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. Any vacancy
on the Board of Directors, howsoever resulting, may be filled by a majority of
the directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy shall hold office for a term
that shall coincide with the term of the class to which such director shall have
been elected.
SIXTH: Any or all of the directors of the Corporation may be removed
-----
from office at any time, but only for cause and only by the affirmative vote of
the holders of a majority of the outstanding shares of the Corporation then
entitled to vote generally in the election of directors, considered for purposes
of this Article SIXTH as one class.
SEVENTH: Any action required or permitted to be taken at any annual
-------
or special meeting of stockholders may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, as
provided in the By-laws of the Corporation, and may not be taken by a written
consent of the stockholders pursuant to the GCL.
EIGHTH: Special meetings of the stockholders of the Corporation for
------
any purpose or purposes may be called at any time by the Board of Directors, the
Chairman of the Board of Directors or the President. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons.
NINTH: No director of the Corporation shall be personally liable to
-----
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct
2
<PAGE>
or a knowing violation of law; (iii) pursuant to Section 174 of the GCL or (iv)
for any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this Article NINTH shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
TENTH: In furtherance and not in limitation of the powers conferred
-----
by statute, the Board of Directors is expressly authorized to adopt, repeal,
alter, amend or rescind the By-laws of the Corporation. In addition, the By-
laws of the Corporation may be adopted, repealed, altered, amended, or rescinded
by the affirmative vote of sixty-six and two-thirds percent (66-2/3%) of the
outstanding stock of the Corporation entitled to vote thereon.
ELEVENTH: Notwithstanding anything contained in this Certificate of
--------
Incorporation to the contrary, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the Voting Stock, voting together
as a single class, shall be required to amend, repeal or adopt any provision
inconsis tent with Articles FIFTH, SEVENTH, EIGHTH, NINTH and TENTH of this
Certificate of Incorporation.
TWELFTH: The Corporation reserves the right to repeal, alter, amend,
-------
or rescind any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred on stockholders herein are granted subject to this
reservation.
3
<PAGE>
THIRTEENTH: Any act or transaction by or involving the Corporation
----------
that requires for its adoption under the GCL or under this Certificate of
Incorporation the approval of the Corporation's stockholders shall, pursuant to
Section 251(g) of the GCL, require, in addition, the approval of the
stockholders of the Corporation's holding company, CoreComm Incorporated, or any
successor by merger, by the same vote as is required by the GCL and/or by the
Certificate of Incorporation of the Corporation.
IN WITNESS WHEREOF, Cellular Communications of Puerto Rico, Inc. has
caused its corporate seal to be hereunto affixed and this Restated Certificate
of Incorporation to be signed by Richard J. Lubasch, its Senior Vice President-
General Counsel and attested by Sandra Barnett, its Assistant Secretary, this
31st day of January, 1997.
CELLULAR COMMUNICATIONS
OF PUERTO RICO, INC.
By: ______________________
Richard J. Lubasch
Senior Vice President-General Counsel
[SEAL]
ATTEST:
___________________
Sandra Barnett
Assistant Secretary
4
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF RESTATED
CERTIFICATE OF INCORPORATION
January 31, 1997
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
CORECOMM INCORPORATED
The undersigned, Richard J. Lubasch and Sandra Barnett, certify that
they are the Senior Vice President-General Counsel and Assistant Secretary,
respectively, of CoreComm Incorporated, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), and do hereby
certify as follows:
(1) The name of the Corporation is CoreComm Incorporated.
(2) The name under which the Corporation was originally incorporated
was "CoreCom Inc.," and the original Certificate of Incorporation was filed with
the Secretary of State of the State of Delaware on January 16, 1997.
(3) This Restated Certificate of Incorporation was duly adopted by
stockholder written consent in accordance with Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
(4) The text of the Certificate of Incorporation as amended hereby is
restated to read in its entirety as follows:
FIRST: The name of the Corporation is CORECOMM INCORPORATED
-----
(hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation in
------
the State of Delaware is 1013 Centre Road, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is The Prentice-
Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engaged in any lawful act
-----
or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL").
<PAGE>
FOURTH: The total number of shares of stock which the Corporation
------
shall have the authority to issue is 32,500,000 consisting of 30,000,000 shares
of common stock, par value $0.01 per share (the "Common Stock"), and 2,500,000
shares of preferred stock, par value $0.01 per share (the "Preferred Stock").
Shares of the Preferred Stock of the Corporation may be issued from
time to time in one or more classes or series, each of which class or series
shall have such distinctive designation or title as shall be fixed by the Board
of Directors of the Corporation (the "Board of Directors") prior to the issuance
of any shares thereof. Each such class or series of Preferred Stock shall have
such voting powers, full or limited, or no voting powers, and such preferences
and relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated in such
resolution or resolutions providing for the issue of such class or series of
Preferred Stock as may be adopted from time to time by the Board of Directors
prior to the issuance of any shares thereof pursuant to the authority hereby
expressly vested in it, all in accordance with the laws of the State of
Delaware.
FIFTH: The business and affairs of the Corporation shall be managed
-----
by or under the direction of the Board of Directors. The number of directors of
the Corporation shall be as from time to time fixed by, or in the manner
provided in, the By-laws of the Corporation. The directors shall be divided
into three classes, designated Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. The term of the initial
Class I directors shall terminate on the date of the 1997 annual meeting of
stockholders; the term of the initial Class II directors shall terminate on the
date of the 1998 annual meeting of stockholders and the term of the initial
Class III directors shall terminate on the date of the 1999 annual meeting of
stockholders. At each annual meeting of stockholders beginning in 1997,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as
2
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possible, and any additional directors of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any vacancy on the Board of Directors, howsoever
resulting, may be filled by a majority of the directors then in office, even if
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy shall hold office for a term that shall coincide with the term of
the class to which such director shall have been elected.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article FOURTH applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
Article FIFTH unless expressly provided by such terms.
SIXTH: Subject to the rights, if any, of the holders of shares of
-----
Preferred Stock then outstanding, any or all of the directors of the Corporation
may be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of a majority of the outstanding shares of the
Corporation then entitled to vote generally in the election of directors,
considered for purposes of this Article SIXTH as one class.
SEVENTH: Any action required or permitted to be taken at any annual
-------
or special meeting of stockholders may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, as
provided in the By-laws of the Corporation, and may not
3
<PAGE>
be taken by a written consent of the stockholders pursuant to the GCL.
EIGHTH: Special meetings of the stockholders of the Corporation for
------
any purpose or purposes may be called at any time by the Board of Directors, the
Chairman of the Board of Directors or the President. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons.
NINTH:
-----
A. In addition to any affirmative vote required by law or this
Certificate of Incorporation or the By-laws of the Corporation, and except as
otherwise expressly provided in Section B of this Article NINTH, a Business
Combination (as hereinafter defined) with, or proposed by or on behalf of, any
Interested Stockholder (as hereinafter defined) or any Affiliate or Associate
(as hereinafter defined) of any Interested Stockholder or any person who
thereafter would be an Affiliate or Associate of such Interested Stockholder
shall require the affirmative vote of not less than sixty-six and two-thirds
percent (66-2/3%) of the votes entitled to be cast by the holders of all the
then outstanding shares of Voting Stock (as hereinafter defined), voting
together as a single class, excluding Voting Stock beneficially owned by any
Interested Stockholder or any Affiliate or Associate of such Interested
Stockholder. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage or separate class vote
may be specified, by law or in any agreement with any national securities
exchange or otherwise.
B. The provisions of Section A of this Article NINTH shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required by
law or any other provision of this Certificate of Incorporation or the By-laws
of the Corporation, if all of the conditions specified in either of the
following Paragraph 1 or 2 are met:
1. The Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter defined).
4
<PAGE>
2. All of the following conditions shall have been met:
a. the aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share by holders
of Common Stock in such Business Combination shall be at least equal to the
highest amount determined under clauses (i) and (ii) below:
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Interested Stockholder for any share of Common
Stock in connection with the acquisition by the Interested Stockholder of
beneficial ownership of shares of Common Stock acquired by it (x) within
the two-year period immediately prior to the first public announcement of
the proposed Business Combination (the "Announcement Date") or (y) in the
transaction in which it became an Interested Stockholder, whichever is
higher, in either case as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to the Common Stock;
and
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became
an Interested Stockholder (the "Determination Date"), whichever is higher,
as adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to the Common Stock.
b. The aggregate amount of the cash and the Fair Market Value as of
the date of the consummation of the Business Combination, of consideration other
than cash to be received per share by holders of shares of any class or series
of outstanding Capital Stock (as hereinafter defined), other than Common Stock,
shall be at least equal to the highest amount determined under clauses (i), (ii)
and (iii) below;
5
<PAGE>
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Interested Stockholder for any share of such class
or series of Capital Stock in connection with the acquisition by the
Interested Stockholder of beneficial ownership of shares of such class or
series of Capital Stock (x) within the two-year period immediately prior to
the Announcement Date or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher, in either case as adjusted for
any subsequent stock split, stock dividend, subdivision or reclassification
with respect to such class or series of Capital Stock;
(ii) the Fair Market Value per share of such class or series of
Capital Stock on the Announcement Date or on the Determination Date,
whichever is higher, as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to such class or
series of Capital Stock; and
(iii) (if applicable) the highest preferential amount per share
to which the holders of shares of such class or series of Capital Stock
would be entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation regardless of
whether the Business Combination to be consummated constitutes such an
event.
The provisions of this Paragraph 2 shall be required to be met with respect to
every class or series of outstanding Capital Stock, whether or not the
Interested Stockholder has previously acquired beneficial ownership of any
shares of a particular class or series of Capital Stock.
c. The consideration to be received by holders of a particular class
or series of outstanding Capital Stock shall be in cash or in the same form as
previously has been paid by or on behalf of the Interested Stockholder in
connection with its direct or indirect
6
<PAGE>
acquisition of beneficial ownership of shares of such class or series of Capital
Stock. If the consideration so paid for shares of any class or series of
Capital Stock varied as to form, the form of consideration for such class or
series of Capital Stock shall be either cash or the form used to acquire
beneficial ownership of the largest number of shares of such class or series of
Capital Stock previously acquired by the Interested Stockholder.
d. After the Determination Date and prior to the consummation of such
Business Combination: (i) except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and pay at the regular
date therefor any full quarterly dividends (whether or not cumulative) payable
in accordance with the terms of any outstanding Capital Stock; (ii) there shall
have been no reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any stock split, stock dividend or subdivision
of the Common Stock), except as approved by a majority of the Continuing
Directors; (iii) there shall have been an increase in the annual rate of
dividends paid on the Common Stock as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization or any
similar transaction that has the effect of reducing the number of outstanding
shares of Common Stock, unless the failure so to increase such annual rate is
approved by a majority of the Continuing Directors; and (iv) such Interested
Stock holder shall not have become the beneficial owner of any additional shares
of Capital Stock except as part of the transaction that results in such
Interested Stockholder becoming an Interested Stockholder and except in a
transaction that, after giving effect thereto, would not result in any increase
in the Interested Stockholder's percentage beneficial ownership of any class or
series of Capital Stock.
e. A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934, as amended, and the rules and regulations there under (the "Act") (or
any subsequent provisions replacing such Act, rules or regulations) shall be
mailed to all stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or
7
<PAGE>
not such proxy or information statement is required to be mailed pursuant to
such Act or subsequent provisions). The proxy or information statement shall
contain on the first page thereof, in a prominent place, any statement as to the
advisability (or inadvisability) of the Business Combination that the
Continuing Directors, or any of them, may choose to make and, if deemed
advisable by a majority of the Continuing Directors, an opinion of an investment
banking firm selected by a majority of the Continuing Directors as to the
fairness (or unfairness) of the terms of the Business Combination from a
financial point of view to the holders of the outstanding shares of Capital
Stock other than the Interested Stockholder and its Affiliates or Associates,
such investment banking firm to be paid a reasonable fee for its services by the
Corporation.
f. Such Interested Stockholder shall not have made any major change in
the Corporation's business or equity capital structure without the approval of a
majority of the Continuing Directors.
C. The following definitions shall apply with respect to this
Article NINTH:
1. The term "Business Combination" shall mean:
a. any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (i) any Interested Stockholder or (ii) any other
company (whether or not itself an Interested Stockholder) which is or after such
merger or consolidation would be an Affiliate or Associate of an Interested
Stockholder; or
b. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition or security arrangement, investment, loan, advance, guarantee,
agreement to purchase, agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a series of
transactions) with or for the benefit of any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder involving any assets,
securities or commitments of the Corporation, any Subsidiary or any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder (except
for
8
<PAGE>
any arrangement, whether as employee, consultant or otherwise, other than as a
director, pursuant to which any Interested Stockholder or any Affiliate or
Associate thereof shall, directly or indirectly, have any control over or
responsibility for the management of any aspect of the business or affairs of
the Corporation, with respect to which arrangements the value tests set forth
below shall not apply), together with all other such arrangements (including all
contemplated future events), has an aggregate Fair Market Value and/or involves
aggregate commitments of $5,000,000 or more or constitutes more than 5 percent
of the book value of the total assets (in the case of transactions involving
assets or commitments other than capital stock) or 5 percent of the
stockholders' equity (in the case of transactions in capital stock) of the
entity in question (the "Substantial Part"), as reflected in the most recent
fiscal year-end consolidated balance sheet of such entity existing at the time
the stockholders of the Corporation would be required to approve or authorize
the Business Combination involving the assets, securities and/or commitments
constituting any Substantial Part; or
c. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation or for any amendment to the Corporation's By-
laws; or
d. any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or consolidation
of the Corporation with any of its Subsidiaries or any other transaction
(whether or not with or into or otherwise involving an Interested Stockholder)
that has the effect, directly or indirectly, of increasing the proportionate
share of any class or Series of Capital Stock, or any securities convertible
into Capital Stock or into equity securities of any Subsidiary, that is
beneficially owned by any Interested Stockholder or any Affiliate or Associate
of any Interested Stockholder; or
e. any agreement, contract or other arrangement providing for any one
or more of the actions specified in the foregoing clauses (a) to (d).
2. The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article FOURTH of
this
9
<PAGE>
Certificate of Incorporation, and the term "Voting Stock" shall mean all Capital
Stock which by its terms may be voted on all matters submitted to stockholders
of the Corporation generally.
3. The term "person" shall mean any individual, firm, company or
other entity and shall include any group comprised of any person and any other
person with whom such person or any Affiliate or Associate of such person has
any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Capital Stock.
4. The term "Interested Stockholder" shall mean any person (other
than the Corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the Corporation or
any Subsidiary or any trustee of or fiduciary with respect to any such plan
when acting in such capacity who (a) is or has announced or publicly disclosed
a plan or intention to become the beneficial owner of Voting Stock representing
ten percent (10%) or more of the vote entitled to be cast by the holders of all
then outstanding shares of Voting Stock; or (b) is an Affiliate or Associate of
the Corporation and at any time within the two-year period immediately prior to
the date in question was the beneficial owner of Voting Stock representing ten
percent (10%) or more of the votes entitled to be cast by the holders of all
then outstanding shares of Voting Stock.
5. A person shall be a "beneficial owner" of any Voting Stock: (a)
which such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to acquire (whether such
right is exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares
10
<PAGE>
of Capital Stock. For the purposes of determining whether a person is an
Interested Stockholder pursuant to Paragraph 4 of this Section C, the number of
shares of Capital Stock deemed to be outstanding shall include shares deemed
beneficially owned by such person through application of this Paragraph 5 of
Section C, but shall not include any other shares of Capital Stock that may be
issuable pursuant to an agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
6. The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Act, as in effect on November 8, 1990 (the term
"registrant" in said Rule 12b-2 meaning in this case the Corporation).
7. "Subsidiary" means any company of which a majority of any class of
equity security is beneficially owned by the Corporation; provided, however,
that for the purposes of the definition of Interested Stockholder set forth in
Paragraph 4 of this Section C, the term "Subsidiary" shall mean only a company
of which a majority of each class of equity security is beneficially owned by
the Corporation.
8. The term "Continuing Director" means any member of the Board of
Directors of the Corporation, while such person is a member of the Board of
Directors, who is not an Affiliate or Associate or representative of the
Interested Stockholder and was a member of the Board of Directors prior to the
time that the Interested Stockholder became an Interested Stockholder, and any
successor of a Continuing Director while such successor is a member of the
Board of Directors, who is not an Affiliate or Associate or representative of
the Interested Stockholder and is recommended or elected to succeed the
Continuing Director by a majority of Continuing Directors.
9. The term "Fair Market Value" means: (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing sale price
during the 30-day period immediately preceding the date in question of a share
of such stock on the Composite Tape for New York Stock Exchange-Listed Stocks,
or, if such stock
11
<PAGE>
is not quoted on the Composite Tape, on the New York Stock Exchange, or, if such
stock is not listed on such Exchange, on the principal United States securities
exchange registered under the Act on which such stock is listed or, if such
stock is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotations System, in the pink sheets of the National Quotation Bureau
or any similar system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as determined
by a majority of the Continuing Directors in good faith; and (c) in the case of
property other than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the Continuing
Directors.
10. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be received"
as used in Paragraphs 2.a. and 2.b. of Section B of this Article NINTH shall
include the shares of Common Stock and/or the shares of any other class or
series of Capital Stock retained by the holders of such shares.
D. A majority of the Continuing Directors shall have the power and
duty to determine for the purpose of this Article NINTH, on the basis of
information known to them after reasonable inquiry, all questions arising under
this Article NINTH, including, without limitation, (a) whether a person is an
Interested Stockholder, (b) the number of shares of Capital Stock or other
securities beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, (d) whether a Proposed Action (as hereinafter
defined) is with, or proposed by, or on behalf of an Interested Stockholder or
an Affiliate or Associate of an Interested Stockholder, (e) whether the assets
that are the subject of any Business Combination have, or the consideration to
be received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value of
$5,000,000 or more and (f) whether the assets or securities that are the subject
of any Business Combination constitute a Substantial Part. Any such
determination made in good
12
<PAGE>
faith shall be binding and conclusive on all parties. The good faith
determination of a majority of the Continuing Directors on such matters shall
be conclusive and binding for all purposes of this Article NINTH.
E. Nothing contained in this Article NINTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
F. The fact that any Business Combination complies with the
provisions of Section 5 of this Article NINTH shall not be construed to impose
any fiduciary duty, obligation or responsibility on the Board of Directors, or
any member thereof, to approve such Business Combination or recommend its
adoption or approval to the stockholders of the Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner the Board of
Directors, or any member thereof, with respect to evaluations of or actions and
responses taken with respect to such Business Combination.
G. For the purposes of this Article NINTH, a Business Combination or
any proposal to amend, repeal or adopt any provision of this Certificate of
Incorporation inconsistent with this Article NINTH (collectively, "Proposed
Action") is presumed to have been proposed by, or on behalf of, an Interested
Stockholder or a person who thereafter would become such if (1) after the
Interested Stockholder became such, the Proposed Action is proposed following
the election of any director of the Corporation who with respect to such
Interested Stockholder, would not qualify to serve as a Continuing Director or
(2) such Interested Stockholder, Affiliate, Associate or person votes for or
consents to the adoption of any such Proposed Action, unless as to such
Interested Stockholder, Affiliate, Associate or person a majority of the
Continuing Directors makes a good faith determination that such Proposed
Action is not proposed by or on behalf of such Interested Stockholder,
Affiliate, Associate or person, based on information known to them after
reasonable inquiry.
H. Notwithstanding any other provisions of this Certificate of
Incorporation or the By-laws of the Corporation (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, this
Certificate of Incorporation or the By-laws of
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<PAGE>
the Corporation), any proposal to amend, repeal or adopt any provision of this
Certificate of Incorporation inconsistent with this Article NINTH which is
proposed by or on behalf of an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder shall require the affirmative vote of the
holders of not less than sixty-six and two-thirds percent (66-2/3%) of the votes
entitled to be cast by the holders of all the then outstanding shares of
Voting Stock, voting together as a single class, excluding Voting Stock
beneficially owned by such Interested Stockholder; provided, however, that this
Section H shall not apply to, and such sixty-six and two-thirds percent (66-
2/3%) vote shall not be required for, any amendment, repeal or adoption
unanimously recommended by the Board of Directors if all of such directors are
persons who would be eligible to serve as Continuing Directors within the
meaning of Section C, Paragraph 8 of this Article NINTH.
TENTH: No director of the Corporation shall be personally liable to
-----
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) pursuant to Section
174 of the GCL or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article TENTH
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
ELEVENTH: In furtherance and not in limitation of the powers
--------
conferred by statute, the Board of Directors is expressly authorized to adopt,
repeal, alter, amend or rescind the By-laws of the Corporation. In addition,
the By-laws of the Corporation may be adopted, repealed, altered, amended, or
rescinded by the affirmative vote of sixty-six and two-thirds percent (66-2/3%)
of the outstanding stock of the Corporation entitled to vote thereon.
14
<PAGE>
TWELFTH: Notwithstanding anything contained in this Certificate of
-------
Incorporation to the contrary, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the Voting Stock, voting together
as a single class, shall be required to amend, repeal or adopt any provision
inconsistent with Articles FIFTH, SEVENTH, EIGHTH, NINTH, TENTH and ELEVENTH of
this Certificate of Incorporation.
THIRTEENTH: The Corporation reserves the right to repeal, alter,
----------
amend, or rescind any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred on stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, CoreComm Incorporated has caused its corporate
seal to be hereunto affixed and this Restated Certificate of Incorporation to be
signed by Richard J. Lubasch, its Senior Vice President-General Counsel and
attested by Sandra Barnett, its Assistant Secretary, this 31st day of January,
1997.
CORECOMM INCORPORATED
By: ______________________
Richard J. Lubasch
Senior Vice President- General Counsel
[SEAL]
ATTEST:
___________________
Sandra Barnett
Assistant Secretary
15
<PAGE>
EXHIBIT 3.2
BY-LAWS
Adopted January 21, 1997
<PAGE>
BY-LAWS
OF
CORECOMM INCORPORATED
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
-------
Section 1. Registered Office. The registered office of the
--------- -----------------
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. Other Offices. The Corporation may also have offices at
--------- -------------
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
Section 1. Place of Meetings. Meetings of the stockholders for the
------- -----------------
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders shall be
---------------
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting
in accordance with these By-laws. Written notice of the annual meeting stating
the place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
<PAGE>
Section 3. Special Meetings. Special meetings of stockholders, for
--------- ----------------
any purpose or purposes, may be called by the Board of Directors, the Chairman
of the Board of Directors or the President. Special meetings of stockholders
may not be called by any other person or persons. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called shall be given not less than ten nor
more than sixty days before the date of the meeting to each stockholder entitled
to vote at such meeting, and only such business as is stated in such notice
shall be acted upon thereat.
Section 4. Advance Notification of Business to be Transacted at
----------------------------------------------------
Stockholder Meetings. To be properly brought before the annual or any special
- --------------------
stockholders' meeting, business must be either (a) specified in the notice of
meeting (or any supplement or amendment there to) given by or at the direction
of the Board of Directors, (b) otherwise properly brought before the meeting by
or at the direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a stockholder. In addition to any other applicable
requirements, for business to be properly brought before an annual or any
special stockholders' meeting by a stock holder, the stockholder must have given
timely notice thereof in writing to the secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 75 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 90 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the fifteenth day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made, whichever first occurs. Such stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the meeting (i) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting, (ii) the name and record address of the stockholder
proposing such business, (iii) the class, series and number of shares of capital
stock of the Corporation which are beneficially
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<PAGE>
owned by the stockholder and (iv) any material interest of the stockholder in
such business.
Notwithstanding anything in these By-laws to the contrary, no business
shall be conducted at the annual or any special meeting except in accordance
with the procedures set forth in this Article II, Section 4, provided, however,
that nothing in this Section 5 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the meeting. The officer of
the Corporation presiding at the meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Article II, Section 4, and if
he should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
Section 5. Quorum. Except as otherwise provided by law or by the
---------
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
entitled to vote at the meeting.
Section 6. Voting. Unless otherwise required by law, the Certificate
------
of Incorporation or these By-laws, any question brought before any meeting of
stock holders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Unless otherwise provided in
the Certificate of Incorporation, each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for
3
<PAGE>
each share of the capital stock entitled to vote thereat held by such
stockholder. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
Section 7. List of Stockholders Entitled to Vote. The officer of the
--------- -------------------------------------
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
Section 8. Stock Ledger. The stock ledger of the Corporation shall
--------- ------------
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 7 of this Article II or the books of
the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
ARTICLE III
DIRECTORS
---------
Section 1. Number and Election of Directors.
--------------------------------
Subject to the rights, if any, of holders of preferred stock of the Corporation,
the Board of Directors shall consist of not less than three nor more than
fifteen members, the exact number of which shall be fixed from time to time by
the Board of Directors. Except as provided in Section 3 of this Article III,
directors shall be elected by a plurality of the votes cast at Annual
4
<PAGE>
Meetings of Stockholders, and each director so elected shall hold office as
provided by Article FIFTH of the Certificate of Incorporation. Any director may
resign at any time upon written notice to the Corporation. Directors need not
be stockholders.
Section 2. Nomination of Directors. Only persons who are nominated
--------- -----------------------
in accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of
the Corporation at the Annual Meeting may be made at such meeting by or at the
direction of the Board of Directors, by any committee or persons appointed by
the Board of Directors or by any stockholder of the Corporation entitled to vote
for the election of directors at the meeting who complies with the notice
procedures set forth in this Article III, Section 2. Such nominations, other
than those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 75 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 90 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the fifteenth day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made, whichever first occurs. Such stockholder's
notice to the Secretary shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class, series and
number of shares of capital stock of the Corporation which are beneficially
owned by the person and (iv) any other information relating to the person that
is required to be disclosed in solicitations for proxies for election of
directors pursuant to the Rules and Regulations of the Securities and Exchange
Commission under Section 14 of the Securities Exchange Act of 1934, as amended;
and (b) as to the stockholder giving the notice (i) the name and record address
of the stockholder and (ii) the class, series and number of shares of capital
stock of the Cor-
5
<PAGE>
poration which are beneficially owned by the stockholder. Such notice shall be
accompanied by the executed consent of each nominee to serve as a director if so
elected. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as a director of the
Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
The officer of the Corporation presiding at an Annual Meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should so determine,
he shall so declare to the meeting, and the defective nomination shall be
disregarded.
Section 3. Vacancies. Any vacancy on the Board of Directors,
--------- ---------
howsoever resulting, may be filled by a majority of the directors then in
office, though less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy shall hold office for a term that shall
coincide with the term of the class to which such director shall have been
elected.
Section 4. Duties and Powers. The business of the Corporation shall
--------- -----------------
be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-laws directed or required to be exercised or done by the stockholders.
Section 5. Meetings. The Board of Directors of the corporation may
--------
hold meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman of the Board of Directors, the President or by a majority of the
Board of Directors. Notice thereof stating the place, date and hour of the
meeting shall be given to each director either by mail not less than forty-eight
(48) hours before the date of the meeting, or personally or by telephone,
telegram, telex or similar means of communication on twenty-four (24) hours'
6
<PAGE>
notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
Section 6. Quorum; Action of the Board of Directors. Except as may
----------------------------------------
be otherwise specifically provided by law, the Certificate of Incorporation or
these By-laws, at all meetings of the Board of Directors, a majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, with out notice other
than announcement at the meeting, until a quorum shall be present.
Section 7. Action by Written Consent. Any action required or
--------- -------------------------
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all the members of the
Board of Directors or committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
Section 8. Meetings by Means of Conference Telephone. Members of the
--------- -----------------------------------------
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 8 shall constitute
presence in person at such meeting.
Section 9. Committees. The Board of Directors may, by resolution
--------- ----------
passed by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the
7
<PAGE>
absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof present
at any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. Any committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Unless the Board of Directors or such committee
shall otherwise provide, regular and special meetings and other actions of any
shall be governed by the provisions of this Article III applicable to meetings
and actions of the Board of Directors. Each committee shall keep regular minutes
and report to the Board of Directors when required.
Section 10. Fees and Compensation. Directors and members of
---------- ---------------------
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by the Board of
Directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 11. Interested Directors. No contract or transaction between
---------- --------------------
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (a) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (b) the material facts as to
his or their relationship or inter-
8
<PAGE>
est and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (c) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
--------
Section 1. General. The officers of the Corporation shall be chosen
--------- -------
by the Board of Directors and shall be a President, one or more Vice Presidents,
a Secretary and a Treasurer. The Board of Directors, in its discretion, may
also choose a Chairman of the Board of Directors (who must be a director) and
Assistant Secretaries, Assistant Treasurers and other officers. Such officers
as the Board of Directors may choose shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors.
The Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective duties
and powers. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these By-laws.
The officers of the Corporation need not be stockholders of the Corporation nor,
except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting
--------- --------
held after each Annual Meeting of Stockholders shall elect the officers of the
Corporation, who shall be subject to the control of the Board of Directors and
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors, and all officers of the Corporation shall hold office until their
successors are chosen and qualified,
9
<PAGE>
or until their earlier resignation or removal. Any officer elected by the
Board of Directors may be removed at any time by the Board of Directors with or
without cause. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of
--------- ------------------------------------------
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the President or any Vice President and any
such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and power incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
ARTICLE V
STOCK
-----
Section 1. Form of Certificates. Every holder of stock in the
--------- --------------------
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (a) by the Chairman of the Board of Directors, the President or a
Vice President and (b) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number of
shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (a) a
--------- ----------
transfer agent other than the Corporation or its employee or (b) a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall
10
<PAGE>
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a
--------- -----------------
new certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and/or to give the Corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be
--------- ---------
transferable in the manner prescribed by law and in these By-laws. Transfers of
stock shall be made on the books of the Corporation only by the person named in
the certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine
--------- -----------
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meet-
11
<PAGE>
ing; provided, however, that the Board of Directors may fix a new record date
for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
--------- -----------------
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI
NOTICES
-------
Section 1. Notices. Whenever written notice is required by law, the
--------- -------
Certificate of Incorporation or these By-laws, to be given to any director or
stockholder, such notice may be given by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Written notice
may also be given personally or by telegram, telex, cable or facsimile
transmission.
Section 2. Waivers of Notice. Whenever any notice is required by
--------- -----------------
law, the Certificate of Incorporation or these By-laws, to be given to any
director or stockholder, a waiver thereof in writing, signed, by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
------------------
Section 1. Dividends. Dividends upon the capital stock of the
--------- ---------
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or
12
<PAGE>
special meeting pursuant to law. Dividends may be paid in cash, in property or
in shares of capital stock. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes
--------- -------------
of the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
--------- -----------
fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed
--------- --------------
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
---------------
The Corporation shall indemnify to the full extent authorized or
permitted by law (as now or hereafter in effect) any person made, or threatened
to be made, a defendant or witness to any action, suit or proceeding (whether
civil or criminal or otherwise) by reason of the fact that he, his testator or
intestate, is or was a director or officer of the Corporation or by reason of
the fact that such director or officer, at the request of the Corporation, is or
was serving any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in any capacity.
13
<PAGE>
ARTICLE IX
AMENDMENTS
----------
These By-laws may be altered, amended or repealed, in whole or in
part, or new By-laws may be adopted by either the affirmative vote of the
holders of sixty-six and two-thirds percent (66-2/3%) of the outstanding
capital stock of the Corporation entitled to vote thereon or by the Board of
Directors.
14
<PAGE>
EXHIBIT 4.1.2
AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
Amendment No. 1, dated as of January 31, 1997 (the "Amendment"),
between CELLULAR COMMUNICATIONS OF PUERTO RICO, INC., a Delaware corporation
(the "Company"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York
corporation (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into a Rights
Agreement, dated as of January 24, 1992 (the "Rights Agreement"); and
WHEREAS, the Distribution Date (as defined in the Rights Agreement)
has not occurred, and that accordingly, the Company and the Rights Agent hereby
amend the Rights Agreement in accordance with Section 27 thereof.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereby agree as follows:
Section 1. Amendment to Definition of "Acquiring Person." Section
-----------------------------------------------
1(a) of the Rights Agreement is amended to add the following sentence after the
last sentence thereof: Notwithstanding the foregoing, neither CoreComm
Incorporated nor any of its Affiliates shall become an Acquiring Person as a
result of the execution of the Agreement and Plan of Merger, dated as of January
31, 1997, by and among CoreComm Incorporated, CoreCom Sub Inc. and the Company
(the "Merger Agreement") or the consummation of the Merger (as defined in the
Merger Agreement) pursuant to the terms of the Merger Agreement.
Section 2. Rights Agreement as Amended. The term "Agreement" as used
---------------------------
in the Rights Agreement shall be deemed to refer to the Rights Agreement as
amended here by. The foregoing amendments shall be effective as of the date
hereof and, except as set forth herein, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
Section 3. Counterparts. This Amendment may be executed in any
------------
number of counterparts, and each of such counterparts shall for all purposes be
deemed an original, but all such counterparts shall together constitute but one
and the same instrument.
<PAGE>
Section 4. Governing Law. This Amendment shall be deemed to be a
-------------
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such State.
Section 5. Descriptive Headings. Descriptive headings of the several
--------------------
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
Attest: CELLULAR COMMUNICATIONS
OF PUERTO RICO, INC.
By
- ------------------------- --------------------------
Name: Name: George S. Blumenthal
Title: Title: Chief Executive
Officer and Treasurer
Attest: CONTINENTAL STOCK
TRANSFER & TRUST COMPANY
as Rights Agent
By
- --------------------------- ---------------------------
Name: Name:
Title: Title:
3
<PAGE>
EXHIBIT 10.2
Tax Sharing Agreement
THIS AGREEMENT, dated as of January 31, 1997, by and among CoreComm
Incorporated, a Delaware corporation ("New CCI"), Cellular Communications of
Puerto Rico, Inc., a Delaware corporation and wholly-owned subsidiary of New CCI
("CCPR"), and CCPR Services, Inc., a Delaware corporation and wholly-owned
subsidiary of CCPR ("Services").
WHEREAS, CCPR was the common parent of an affiliated group (the
"Group") of domestic corporations (as such terms are defined in Section 1504(a)
of the Internal Revenue Code of 1986, as amended) (the "Code") and has included
Services in its consolidated Federal income tax returns relating to all taxable
periods ending before the formation of New CCI ("Pre-New CCI Periods");
WHEREAS, New CCI has become the common parent of the Group in a
reverse acquisition defined in Reg. (S) 1.1502-75(d)(3) and, as such, will
include CCPR and Services and their respective subsidiaries in its consolidated
Federal income tax return for all taxable periods for which New CCI is in
existence ("Affiliation Periods"); and
WHEREAS, the parties wish that this Tax Sharing Agreement set forth
the agreement among New CCI, CCPR and Services and their respective subsidiaries
with respect to the allocation and settlement of the Federal, state, local and
foreign taxes of the Group attributable to Affiliation Periods and Pre-New CCI
Periods.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Filing of Returns. With respect to each Affiliation Period, New
-----------------
CCI shall file, and CCPR and Services shall agree to join in the filing of,
consolidated Federal income tax returns on behalf of the Group. CCPR and
Services shall execute and file such consents, elections and other documents as
New CCI reasonably requests with respect to the filing of the Group's
consolidated Federal income tax returns, and shall, consistent with paragraph 4
hereof, timely provide to New CCI such information as may be necessary for the
filing of
<PAGE>
such returns or for the determination of amounts due under this Tax Sharing
Agreement. CCPR shall file, or cause to be filed, all Federal, state, local and
foreign tax returns with respect to all periods for which CCPR and/or Services
is not includable on a tax return of New CCI (including without limitation with
respect to Pre-New CCI Periods), and Services shall file such returns, consents
and elections as CCPR reasonably requests in connection therewith.
2. Tax Payments.
------------
(a) Time and Manner of Payment. Except as otherwise provided herein,
--------------------------
CCPR will pay to New CCI, and Services will pay to CCPR, the amount due New CCI
and CCPR, respectively, as determined under Section 2(b) below, and New CCI will
pay to CCPR, and CCPR will pay to Services, the amount due CCPR and Services,
respectively, as determined under Section 2(c) below, no later than five days
prior to the due date for the filing of any Federal income tax return of the
Group; provided, however, that no later than five days prior to each estimated
Federal income tax payment date or March 15 extension date of the Group for
which the Group actually incurs a Federal income tax liability, CCPR shall pay
to New CCI the minimum amount required to be paid to avoid the imposition of any
penalties or additions to tax under the Code, and Services shall pay to CCPR the
minimum amount required to be paid to avoid the imposition of any penalties or
additions to tax under the Code assuming CCPR were the common parent of the
Group, in each case, deter mined on the same basis as the total amount due under
Section 2(b). The amount of any overpayment or underpayment pursuant to this
Section 2(a) shall be credited against, or added to, as the case may be, the
amount otherwise required to be paid for the period within which the amount of
such overpayment or underpayment first becomes reasonably ascertainable. The
settlements may be satisfied by check, wire transfer or through intercompany
accounts as the parties may mutually agree.
(b) Amount Due to New CCI and CCPR. To the extent CCPR has "Separate
------------------------------
Company Tax Liability" for an Affiliation Period, CCPR shall pay New CCI in the
time and manner described in Section 2(a). To the extent Services has "Separate
Company Tax Liability" for an Affiliation Period or a Pre-New CCI Period,
Services
2
<PAGE>
shall pay CCPR in the time and manner described in Section 2(a). "Separate
Company Tax Liability" for any Affiliation Period or Pre-New CCI Period shall be
the amount, if any, of the Federal income tax liability (including, without
limitation, liability for any penalty, fine, additions to tax, interest,
minimum tax and other items applicable to CCPR or Services, as the case may be,
in connection with the determination of CCPR's or Services' tax liability) which
CCPR or Services, as the case may be, would have incurred if CCPR or Services,
as the case may be, had filed a separate Federal income tax return for such
period, except that no carryforward or carryback of losses or credits shall be
allowed.
Separate Company Tax Liability shall be determined by New CCI (with
the cooperation and assistance of CCPR and Services) in a manner consistent with
(i) general tax accounting principles, (ii) the Code and the regulations
thereunder and (iii) so long as a reasonable legal basis exists therefor, prior
custom and practice. In addition, transactions or items between CCPR and New
CCI, Services and New CCI, CCPR and Services, or between other members of the
Group that are deferred under the Federal income tax return shall also be
deferred for purposes of this Tax Sharing Agreement until such time as they are
restored or otherwise triggered into income under the Code or regulations. In
the event CCPR or Services owns subsidiaries that are members of the Group,
Separate Company Tax Liability for each Affiliation Period and Pre-New CCI
Period shall be computed on a deemed consolidated basis as if CCPR or Services,
as the case may be, were the common parent of an affiliated group of domestic
corporations (within the meaning of Section 1504(a) of the Code) consisting of
itself and its includable subsidiaries (a "Hypothetical Subsidiary Group"). For
purposes of this Tax Sharing Agreement, CCPR's Hypothetical Subsidiary Group
shall include, without limitation, Services, to the extent CCPR owns the
requisite percentage of Services' outstanding stock in order for Services to
constitute a member of a consolidated group under the Code. Each of CCPR and
Services shall be entitled to cause members of their Hypothetical Subsidiary
Group to reimburse each of them for amounts due New CCI or CCPR, respectively,
to the extent such members' income created an obligation for payments under this
Tax Sharing Agreement.
3
<PAGE>
(c) Amount Due to CCPR and Services. In the event CCPR (or CCPR's
-------------------------------
Hypothetical Subsidiary Group, if applicable) does not have Separate Company Tax
Liability for an Affiliation Period, but instead incurs net losses or credits
for such period, New CCI shall pay CCPR in the time and manner prescribed in
Section 2(a) hereof the amount by which the Group's Federal income tax liability
for such period is actually reduced by reason of the actual use of such losses
or credits in the Group's Federal income tax return. CCPR shall immediately
remit to Services the portion of such amount that CCPR received from New CCI
that New CCI reasonably determines to be by reason of the use of Services'
(or Services' Hypothetical Subsidiary Group, if applicable) losses or credits
in the Group's Federal income tax return.
In the event CCPR (or CCPR's Hypothetical Subsidiary Group, if
applicable) incurs any tax losses or tax credits that, as permitted under the
Code and regulations, are carried back or forward to one or more Affiliation
Periods, New CCI shall pay CCPR an amount equal to the amount by which the
Group's Federal income tax liability is actually reduced by reason of the
actual use of such carried-over losses or credits in the Group's Federal income
tax return. Any payment from New CCI to CCPR required on account of such
carryover shall be paid within 15 days of the date the benefit of the carryover
is realized by New CCI by reason of the receipt of a refund or credit of taxes.
CCPR shall immediately remit to Services the portion of such amount that CCPR
received from New CCI that New CCI reasonably determines to be by reason of the
use of Services' (or Services' Hypothetical Subsidiary Group, if applicable)
carried-over losses or credits in the Group's Federal income tax return.
Notwithstanding the foregoing, CCPR and Services and their respective
subsidiaries will relinquish the carryback of any net operating losses under
Section 172(b)(3) of the Code (or any successor provision) from or to
Affiliation Periods unless New CCI expressly agrees to such carryback; further,
CCPR and Services will not be entitled to any payments under this Tax Sharing
Agreement or otherwise if either of it or its subsidiary sustains losses or
credits in taxable periods that are eligible to be carried back to Affiliation
Periods, unless (a) New CCI, in its sole and absolute discretion, elects to file
a claim for refund with respect to such carryback items
4
<PAGE>
or agrees to permit CCPR or Services to file such claim, (b) New CCI actually
receives a refund or credit of taxes with respect thereto (in which event, any
other provision herein notwithstanding, CCPR and Services shall be entitled to
the amount determined in the previous paragraph including any interest actually
paid by the taxing authority attributable thereto less the amount reasonably
determined by New CCI to be equal to the present value (using the then
applicable short-term Federal rate under the Code as the discount rate) of any
tax benefit of the Group that may be deferred or eliminated and any future
increase in tax liability of the Group that may be incurred because of such
carryback) and (c) New CCI is indemnified by CCPR and Services in a form
satisfactory to New CCI for its costs and expenses incurred in pursuing such
refund (which costs shall be paid by CCPR and Services regardless of whether any
refund is obtained). Any subsequent adjustment to a loss or credit carryback
shall be treated as an adjustment to tax liability in Section 3 below.
(d) Paying Agent. New CCI agrees to make all required payments to
------------
the Internal Revenue Service ("IRS") of the consolidated Federal income tax
liability, if any, of the Group with respect to Affiliation Periods. CCPR
agrees to make all required payments to the IRS of the consolidated Federal
income tax liability, if any, of the Group with respect to Pre-New CCI Periods.
3. Adjustments to Tax Liability. If the consolidated Federal income
----------------------------
tax liability of the Group or any of its members is adjusted for any taxable
period for any reason other than a loss or credit carryback to the extent
already provided for in Section 2(c), whether by means of an amended return,
judicial decision, claim for refund or tax audit by the IRS, Separate Company
Tax Liability or the amount of tax benefits realized by the Group by reason of
the use of CCPR's or CCPR's Hypothetical Subsidiary Group's losses or credits
shall be recomputed to give effect to such adjustment, and the amount of any
payments due under Section 2 hereof shall be appropriately adjusted. Any
additional payment between New CCI and CCPR, or between CCPR and Services,
required by reason of such recomputed Separate Company Tax Liability or Group
tax benefits shall include an allocable share of any refunded interest received
from the IRS, if applicable, or deficiency interest, penalties
5
<PAGE>
and additions to tax, if applicable (such allocable share of refunded interest
or deficiency interest, penalties and additions to tax shall be paid or charged,
respectively, to CCPR or Services, as appropriate, to the extent such amount
relates to (a) reduced Group tax liability due to decreased Separate Company Tax
Liability or increased Group tax benefits resulting from increased use of CCPR
or Services, as appropriate, losses or credits, on the one hand, or (b)
increased Group tax liability due to increased Separate Company Tax Liability
or decreased Group tax benefits arising from decreased use of CCPR or Services,
as appropriate, losses or credits, on the other hand).
Any payments to be paid to or by Services or CCPR under this Section 3
shall be made on or before the earliest to occur of (i) a decision by a court of
competent jurisdiction that is not subject to further judicial review (by
appeal or otherwise) and has become final, (ii) the expiration of the time for
(a) filing a claim for refund or (b) instituting suit in respect of a claim for
refund disallowed in whole or in part by the IRS or for which the IRS took no
action, (iii) the execution of a closing agreement under Section 7121 of the
Code or the acceptance by the IRS or its counsel of an offer in compromise under
Section 7122 of the Code (or any successor provisions) except as to reserved
matters specified therein, (iv) the expiration of 30 days after (a) IRS
acceptance of a Waiver of Restrictions on Assessment and Collection of
Deficiency in Tax on Overassessment on Internal Revenue Form 870 or 870-AD (or
any successor comparable form) except as to reserved matters specified therein,
or (b) the expiration of the ninety-day period after receipt of the statutory
notice of deficiency resulting in immediate assessment, unless within such 30
days New CCI notifies CCPR of its intent to attempt recovery of any relevant
amounts paid under the waiver by filing a timely claim for refund or CCPR has
requested New CCI attempt recovery of relevant amounts paid and complied with
and subject to paragraph 7 hereof, (v) the expiration of the statute of
limitations with respect to the relevant period or (vi) any other event the
parties reasonably agree is a final determination of the tax liability at issue.
4. Books and Records. New CCI, CCPR and Services agree that the
-----------------
preparation of the Federal income
6
<PAGE>
and other tax returns, amended returns, claims for refund or IRS examination or
litigation relating to the foregoing may require the use of records and
information that is within the exclusive possession and control of any of New
CCI, CCPR and Services. New CCI, CCPR and Services will provide such records,
information and assistance (which may include making employees of any of the
foregoing entities available to provide additional information and explanation
material hereunder) as are requested by New CCI, CCPR or Services, as the case
may be, during regular business hours, in connection with any of the
developments described in the preceding sentence; provided, however, that CCPR
and Services shall provide New CCI with all information within their respective
control necessary to enable New CCI to file the Group consolidated Federal
income tax return for each Affiliation Period as soon as practicable (but in no
event later than five months) after the last day of such Affiliation Period, and
on the date the Group Federal income tax returns that include CCPR and Services
are filed, New CCI shall pro vide each of CCPR and Services with those portions
of such returns relating to each of them. Each of the parties agrees that it
shall retain, until the expiration of the applicable statute of limitations
(including extensions), copies of any tax returns for any Affiliation Periods
and for any other periods that might be subject to adjustment under this Tax
Sharing Agreement, and supporting work schedules and other records or infor-
mation that may be relevant to the tax returns of the parties hereto, and that
it will not destroy or otherwise dispose of such records and information without
providing the other party with a reasonable opportunity to review and copy or
take possession of such records and information.
5. Assignment. This Tax Sharing Agreement shall not be assignable by
----------
either party hereto without the prior consent of the other party hereto. The
rights and obligations hereunder of the parties shall be binding on and inure to
the benefit of the parties and their respective successors and permitted
assigns. This Agreement shall be binding upon each corporation in which CCPR
or Services owns, directly or indirectly, stock meeting the requirements of
Section 1504(a)(2) of the Code, whether or not CCPR or Services owns stock in
such corporation upon the execution of this Agreement or at any time during
Affiliation Periods, and CCPR and Services
7
<PAGE>
shall cause each such corporation as soon as practicable to assent formally to
the terms hereof. Except as herein otherwise specifically provided, nothing in
this Tax Sharing Agreement shall confer any right or benefit upon any person or
entity other than the parties hereto and their respective successors and
permitted assigns.
6. Disputes. Any dispute concerning the interpretation of a Section
--------
or amount of payment due under this Tax Sharing Agreement shall be resolved by
an independent accounting firm of national reputation selected by New CCI,
whose judgment shall be conclusive and binding on the parties and who shall act
in consultation with New CCI's tax counsel.
7. Tax Controversies. If any party receives notice of a tax
-----------------
examination, audit or challenge involving amounts subject to this Tax Sharing
Agreement, such party shall timely notify the other party of the information and
shall provide the other party a written copy of any relevant letters, forms or
schedules received from the IRS or otherwise in its possession and shall provide
notice and information relating to all material proceedings in connection
therewith. In any audit conference or other proceeding with the IRS or in any
judicial proceedings concerning the determination of the Federal income tax
liabilities of the Group or any of its members, including CCPR or Services, the
Group and each of its members shall be represented by persons selected by New
CCI. Except as otherwise expressly provided in the succeeding paragraph, the
settlement and terms of settlement of any issues relating to such proceeding
shall be in the sole discretion of New CCI, and CCPR and Services hereby appoint
New CCI as their agent for the purpose of proposing and concluding any such
settlement. Notwithstanding anything to the contrary in this Tax Sharing
Agreement, in no event shall New CCI be obligated to file any amended returns or
claims for refund with respect to Affiliation Periods.
So long as any proposed deficiency involves a tax issue of CCPR or
Services, New CCI shall contest such issue to the extent requested in writing by
CCPR or Services and shall permit CCPR and Services, at their expense, to
participate in all conferences and meetings with taxing authorities with respect
to the issue; provided, however, that if (and so long as) the controversy
8
<PAGE>
also involves a tax issue of New CCI or member of the Group other than CCPR or
Services (whether for the tax able year in question or another taxable year), or
if CCPR and Services shall disagree as to forum or settlement, New CCI shall be
entitled to the choice of forum for the proceedings and shall have the right to
make any decision as to settlement of the contest or any issue; further, in no
event shall New CCI be required to take any action requested by CCPR or Services
unless and until (a) CCPR or Services, as applicable, shall have given New CCI
an indemnity in a form satisfactory to New CCI for any liability, expense or
loss arising out of or relating to CCPR or Services issues involved in the
dispute or contest (including, without limitation, all out-of-pocket expenses,
costs, losses, reasonable legal, accounting, engineers' and like professional
fees, disbursements, penalties, interest and additions to tax relating to such
issues, but excluding any in-house expense of New CCI incurred for the purpose
of monitoring the CCPR or Services issues), (b) CCPR or Services, as applicable,
has delivered to New CCI an opinion of independent tax counsel (which counsel
shall be reasonably acceptable to New CCI) to the effect that it is more likely
than not that New CCI, CCPR or Services will prevail on the CCPR or Services
issue under dispute and (c) if such contest is to be conducted in a manner
requiring payment of a proposed tax deficiency, CCPR or Services, as applicable,
shall have advanced to New CCI on an interest-free basis an amount attributable
to the issue, together with any required interest or penalties.
8. State and Local Taxes. To the extent appropriate, all provisions
---------------------
of this Tax Sharing Agreement shall apply with the same force and effect to any
state or local income tax liabilities that are computed with a combined,
consolidated or unitary method by the parties; provided that appropriate
adjustments shall be made to the provisions hereof, including computation of
Separate Company Tax Liability, with respect to any period within an Affiliation
Period or Pre-New CCI Period during which CCPR, Services or either of their tax
items were not included on a return of New CCI or other members of the Group, or
were included on a return of members of the Group other than New CCI.
9
<PAGE>
9. Representations and Warranties. As an inducement to enter into
------------------------------
this Tax Sharing Agreement, each party represents to and agrees with the others
that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and has all requisite
corporate power to own, lease and operate its properties, to carry on its
business as presently conducted and to carry out the transactions contemplated
by this Tax Sharing Agreement;
(b) it has duly and validly taken all corporate action necessary to
authorize the execution, delivery and performance of this Tax Sharing Agreement
and the consummation of the transaction contemplated hereby;
(c) this Tax Sharing Agreement has been duly executed and delivered
by it and constitutes its legal, valid and binding obligation enforceable in
accordance with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally from time to time
in effect, and subject to equitable limitations on the availability of the
remedy of specific performance); and
(d) none of the execution and delivery of this Tax Sharing Agreement,
or the compliance with any of the provisions of this Tax Sharing Agreement will
(i) conflict with or result in a breach of any provision of its corporate
charter or bylaws, (ii) breach, violate or result in a default under any of the
terms of any agreement or other instrument or obligation to which it is a party
or by which it or any of its properties or assets may be bound or (iii) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
it or affecting any of its properties or assets.
10. Miscellaneous.
-------------
(a) Injunction. The parties acknowledge that irreparable damage
----------
would occur in the event that any of the provisions of this Tax Sharing
Agreement was not performed in accordance with its specific terms or was
10
<PAGE>
otherwise breached. The parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Tax Sharing Agreement
and to enforce specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which they
may be entitled at law or equity.
(b) Severability. If any term, provision, covenant or restriction
------------
of this Tax Sharing Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable. In the event that any such term, provision, covenant or
restriction is held to be invalid, void or unenforceable, the parties hereto
shall use their best efforts to find and employ an alter native means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction.
(c) Further Assurances. Subject to the provisions hereof, the
------------------
parties hereto shall make, execute, acknowledge and deliver such other
instruments and documents, and take all such other actions, as may be reasonably
required in order to effectuate the purposes of this Tax Sharing Agreement and
to consummate the transactions contemplated hereby. Subject to the provisions
hereof, each of the parties shall, in connection with entering this Tax Sharing
Agreement, perform its obligations hereby and take any and all actions relating
hereto, comply with all applicable laws, regulations orders and decrees, obtain
all required consents and approvals and make all required filings with any
governmental agency, other regulatory or administrative agency, commission or
similar authority and promptly provide the parties with all such information as
they may reasonably request in order to be able to comply with the provisions of
this sentence.
11
<PAGE>
(d) Parties in Interest. Except as herein otherwise specifically
-------------------
provided, nothing in this Tax Sharing Agreement express or implied is intended
to confer any right or benefit upon any person, firm or corporation other than
the parties and their respective successors and permitted assigns.
(e) Waivers, etc. No failure or delay on the part of the parties in
-------------
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Tax Sharing
Agreement nor consent to any departure by the parties therefrom shall in any
event be effective unless the same shall be in writing, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given.
(f) Setoff. All payments to be made by any party under this Tax
------
Sharing Agreement shall be made without setoff, counterclaim or withholding, all
of which are expressly waived.
(g) Change of Law. If, due to any change in applicable law or
-------------
regulations or the interpretation thereof by any court of law or other governing
body having jurisdiction subsequent to the date of this Tax Sharing Agreement,
performance of any provision of this Tax Sharing Agreement or any transaction
contemplated thereby shall become impracticable or impossible, the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
provision.
(h) Confidentiality. Subject to any contrary requirement of law and
---------------
the right of each party to enforce its rights hereunder in any legal action,
each party agrees that it shall keep strictly confidential, and shall cause its
employees and agents to keep strictly confidential, any information which it or
any of its agents or employees may acquire pursuant to, or in the course of
performing its obligations under, any provision of this Tax Sharing Agreement;
provided, however, that
12
<PAGE>
such obligation to maintain confidentiality shall not apply to information which
(x) at the time of disclosure was in the public domain not as a result of acts
by the receiving party or (y) was in the possession of the receiving party at
the time of disclosure.
(i) Headings. Descriptive headings are for convenience only and
--------
shall not control or affect the meaning or construction of any provision of this
Tax Sharing Agreement.
(j) Counterparts. For the convenience of the parties, any number of
------------
counterparts of this Tax Sharing Agreement may be executed by the parties
hereto, and each such executed counterpart shall be, and shall be deemed to be,
an original instrument.
(k) Governing Law. This Tax Sharing Agreement shall be governed by
-------------
and construed in accordance with the laws of the State of Delaware, without
regard to its conflict-of-law provisions.
(l) Effect of Agreement. This Tax Sharing Agreement shall supersede
-------------------
any other tax sharing arrangement or agreement in effect among the parties.
Nothing in this Tax Sharing Agreement is intended to change or otherwise affect
any election made by or on behalf of the Group with respect to the calculation
of earnings and profits under Section 1552 of the Code.
(m) Interest. Any payment required to be made hereunder and not made
--------
when due shall bear interest at the rate per annum determined, from time to
time, by the prevailing average borrowing rate of the party required to make
payment.
(n) Unforceability. Notwithstanding anything herein to the contrary,
--------------
in the event any payments by Services or CCPR, respectively, to CCPR or New
CCI, respectively (in either case, the "Shareholder"), pursuant to Section 2 or
Section 3 hereof, would cause any member of the Group to become liable for
Puerto Rico withholding or other taxes, then the Shareholder shall have no right
to receive payments under Section 2 or Section 3 hereof, as the case may be;
further, in the event payments are erroneously made by Services or CCPR to its
- -------
Shareholder, such payments shall be treated as a
13
<PAGE>
non-interest bearing loan between Services or CCPR, as applicable, and its
Shareholder.
(o) Term of Agreement. This Tax Sharing Agreement shall become
-----------------
effective as of the date first above written and, except as otherwise expressly
provided herein, the respective covenants of the parties contained herein shall
continue in full force and effect indefinitely.
(p) Notices. All notices, consents, requests, instructions,
-------
approvals and other communications provided for herein shall be validly given,
made or served, if in writing and delivered personally, by telegram or sent by
registered mail, postage prepaid to:
New CCI at: CoreComm Incorporated
110 East 59th Street, 26th Floor
New York, NY 10022
Attention: Richard J. Lubasch
CCPR at: Cellular Communications
of Puerto Rico, Inc.
110 East 59th Street, 26th Floor
New York, NY 10022
Attention: Richard J. Lubasch
Services at: CCPR Services, Inc.
110 East 59th Street, 26th Floor
New York, NY 10022
Attention: Richard J. Lubasch
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section 10(p).
14
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be duly executed, and their respective corporate seals to be affixed hereto,
all as of the date first above written.
CORECOMM INCORPORATED
By:
----------------------------
CELLULAR COMMUNICATIONS
OF PUERTO RICO, INC.
By:
----------------------------
CCPR SERVICES, INC.
By:
----------------------------
15
<PAGE>
EXHIBIT 10.3
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made and entered
into as of January 31, 1997, by and between CoreComm Incorporated, a Delaware
corporation ("CCI") and Cellular Communications of Puerto Rico, Inc. ("CCPR").
Recitals
--------
WHEREAS, CCPR is a direct wholly-owned subsidiary of CCI;
WHEREAS, certain officers and employees located in CCI's New York offices
(the "Employees") will provide Services (as defined in Section 1) to CCPR; and
WHEREAS, CCPR shall reimburse CCI for the provision of the Services.
THEREFORE, in consideration of the mutual obligations set forth in this
Agreement, and subject to all conditions set forth herein, the parties hereto
agree as follows:
1. Provision of Services. Employees will, from time to time, provide to
---------------------
CCPR certain administrative, management and operational services (the
"Services"), including, but not limited to, the following:
(i) senior management services;
(ii) legal services;
(iii) financial analysis services;
(iv) accounting services; and
(v) administrative services.
2. Payment for Services. (a) CCPR shall pay CCI for the Services at a rate
--------------------
equal to the time-based portion of CCI's Costs (as defined below). For purposes
of this Agreement, the term "CCI Costs" shall mean the following direct costs of
providing the Services to CCPR: the personnel costs of the Employees, such
personnel costs to be based upon that portion of the New York's offices total
Employee costs that are allocated to CCI from time to time; travel and related
expenses charged directly to CCPR by Employees; and corporate overhead and other
fixed costs relating to the New York office that are allocated to CCPR from time
to time.
(b) CCI shall maintain accurate and complete records substantiating
its
1
<PAGE>
determination of the Costs, and CCPR shall be free, to the extent reasonably
necessary for ascertaining the accuracy of the determination, to examine such
records and to request further information concerning such records from the
officers of CCI.
3. Indemnity. CCPR shall indemnify and hold CCI and its affiliates
---------
(including CCI's officers, directors, employees and agents) harmless against and
from any and all claims and liabilities (including legal fees and other costs
incurred by CCI) arising or alleged to have arisen as a result of or in
connection with or relating to the provision of Services pursuant to this
Agreement including, but not limited to, any liability incurred by CCPR as a
result of (i) any acts or omissions by any Employee providing Services pursuant
to this Agreement which acts or omissions are in connection with the provision
of the Services, (ii) any injury, disability or illness incurred by any Employee
as a result of the provision of the Services or (iii) any claims by any Employee
arising out of the provision of the Services.
4. Representation and Warranties. Each of the parties hereto hereby
-----------------------------
represents and warrants to the other party, which representations and warranties
shall survive the execution of this Agreement and the consummation of the
transactions contemplated hereby, as follows:
(i) It validly exists under the laws of the jurisdiction of its
organization;
(ii) It has full power and authority to execute and perform this
Agreement;
(iii) The execution, delivery and performance of this Agreement
has been duly authorized by all necessary action on its part and is binding and
enforceable against it; and
(iv) The execution, delivery and performance of this Agreement
will not conflict with, result in a breach of, or cause a default under, with or
without the giving of notice or the passage of time, or both, its charter
documents, or any material agreement or instrument to which it is bound, nor
will it conflict with or violate any statute, law, rule, regulation, order,
decree or judgment of ant court or governmental authority which is binding upon
it or its property.
5. Governing Law. This Agreement shall be interpreted, enforced and
-------------
governed in accordance with the laws of New York (without regard to the
provisions thereof on the conflict of laws).
6. Binding Effect. This Agreement shall bind and benefit the parties,
--------------
their representatives, and their permitted assignees and successors in interest.
However, no right or obligation herein may be assigned or delegated by a party,
either directly or indirectly by transfer of control, without the prior written
consent of the other party. This Agreement may be assigned by a party without
the other party's consent to a corporation controlled by the assigning party or
the assigning party's controlling principals, provided that the assigning party
remains obligated hereunder.
7. Entire Agreement. This Agreement constitutes that entire agreement
----------------
2
<PAGE>
between the parties governing this transaction. No prior agreement or
representation, whether verbal or written, shall have any force or effect. This
Agreement may be modified, superseded or canceled only in writing signed by each
of the parties to be affected.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the first
date above written.
CELLULAR COMMUNICATIONS
OF PUERTO RICO, INC.
By:______________________________________
Name: Richard J. Lubasch
Title: Senior Vice President-General Counsel
CORECOMM INCORPORATED
By:______________________________________
Name: Richard J. Lubasch
Title: Senior Vice President-General Counsel
3
<PAGE>
EXHIBIT 11
CORECOMM INCORPORATED
(formerly known as
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC.)
CALCULATION OF NET LOSS PER SHARE
<TABLE>
<CAPTION>
Weighted Average Number of Shares
----------------------------------------------------------------------
Nine Months
Date Total Ended Year Ended Year Ended
Issued Description of Issuance Outstanding 30-Sep-96 31-Dec-95 31-Dec-94
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
12/31/92 Common Stock 9,304,065 9,304,065 9,304,065 9,304,065
12/31/93 Common Stock 455,707 455,707 455,707 455,707
01/12/94 Common Stock 125 125 125 121
01/12/94 Common Stock 4,250 4,250 4,250 4,110
02/16/94 Common Stock 83 83 83 72
03/18/94 Common Stock 625 625 625 493
03/30/94 Common Stock 8,500 8,500 8,500 6,427
04/28/94 Common Stock 486 486 486 329
05/10/94 Common Stock 6,252 6,252 6,252 4,025
05/20/94 Common Stock 7,875 7,875 7,875 4,854
05/20/94 Common Stock 834 834 834 514
06/08/94 Common Stock 83 83 83 47
06/30/94 Common Stock 150,000 150,000 150,000 75,616
07/06/94 Common Stock 208 208 208 101
07/28/94 Common Stock 125 125 125 53
08/19/94 Common Stock 208 208 208 76
10/19/94 Common Stock 51,429 51,429 51,429 10,286
10/26/94 Common Stock 513 513 513 93
11/30/94 Common Stock 236 236 236 20
12/14/94 Common Stock 2,500 2,500 2,500 116
12/30/94 Common Stock 6,511 6,511 6,511 18
01/12/95 Common Stock 6,813 6,813 6,589
02/02/95 Common Stock 1,945 1,945 1,769
02/23/95 Common Stock 521 521 444
04/05/95 Treasury Stock (25,000) (25,000) (18,493)
04/06/95 Treasury Stock (25,000) (25,000) (18,425)
04/06/95 Common Stock 1,200 1,200 884
04/07/95 Treasury Stock (18,000) (18,000) (13,216)
04/07/95 Treasury Stock (4,000) (4,000) (2,937)
04/10/95 Treasury Stock (10,000) (10,000) (7,260)
04/11/95 Treasury Stock (10,000) (10,000) (7,233)
04/12/95 Treasury Stock (8,000) (8,000) (5,764)
05/18/95 Common Stock 3,500 3,500 2,177
06/01/95 Common Stock 3,125 3,125 1,824
06/17/95 Common Stock 1,388 1,388 757
07/12/95 Common Stock 3,125 3,125 1,473
07/24/95 Common Stock 83,333 83,333 36,530
07/28/95 Common Stock 1,388 1,388 593
08/04/95 Common Stock 2,685,398 2,685,398 1,118,231
08/04/95 Common Stock 188 188 77
08/07/95 Common Stock 9,522 9,522 3,809
08/18/95 Treasury Stock (50,000) (50,000) (18,493)
08/21/95 Common Stock 521 521 188
09/26/95 Treasury Stock (20,000) (20,000) (5,260)
09/28/95 Treasury Stock (25,000) (25,000) (6,438)
09/29/95 Treasury Stock (5,000) (5,000) (1,274)
10/12/95 Treasury Stock (7,000) (7,000) (1,534)
02/07/96 Common Stock 820,404 706,625
02/13/96 Common Stock 2,084 1,749
02/27/96 Common Stock 3,500 2,759
03/06/96 Common Stock 313 238
03/12/96 Common Stock 5,555 4,095
04/26/96 Treasury Stock (15,000) (8,759)
04/29/96 Treasury Stock (53,000) (30,755)
04/30/96 Treasury Stock (25,000) (14,416)
05/01/96 Treasury Stock (35,000) (20,055)
05/02/96 Treasury Stock (25,000) (14,051)
05/03/96 Treasury Stock (12,500) (6,980)
05/06/96 Treasury Stock (5,000) (2,774)
05/07/96 Treasury Stock (22,500) (12,400)
06/14/96 Common Stock 542 222
06/14/96 Common Stock 3,000 1,215
09/27/96 Common Stock 1,042 38
----------------------------------------------------------------------------
Weighted average number
of common shares 13,239,022 13,202,333 11,069,633 9,867,143
----------------------------------------------------------------------------
Net effect of dilutive
stock options 914,149
-------------------
Total 14,116,482
===================
Net loss $3,314,000 ($1,451,000) ($4,812,000)
=========================================================
Net loss per common share $0.23 ($0.13) ($0.49)
=========================================================
--------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF
CORECOMM INCORPORATED
All of the corporations listed below were incorporated in Delaware except where
otherwise noted:
Cellular Communications of Puerto Rico, Inc.
CCPR Paging, Inc.
CCPR Services, Inc.
Cellular Communications of Arecibo, Inc.
Cellular Ponce, Inc. (Texas corporation)
Mayaquez Cellular Telephone Co., Inc. (South Carolina corporation)
Aguadilla Cellular Telephone Company, Inc.
CCI PR RSA, Inc.
SJCT, Inc.
San Juan Cellular Telephone Company (D.C. partnership)
Gamma Communications (Louisiana partnership)
Merrimack Telecommunications Corporation (Florida corporation)
Star Associates, Inc.
USVI Cellular Telephone Corporation
CCPR of the Virgin Islands, Inc.
USVI Paging, Inc.
CCPR Panama, Inc.
CCPR Wireless Cable, Inc.
Norwich Communications, Inc.
CCPR PCS, Inc.
