Exhibit B
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of May 28, 1999, is
entered into by and among AT&T Corp., a New York corporation ("Parent"),
Liberty Media Corporation, a Delaware corporation ("Liberty"), on the one
hand, and the other parties named on the signature pages of this Agreement
(collectively, the "Stockholders"), on the other hand.
WHEREAS, concurrently herewith, Parent, Liberty, A-Group Merger
Corp., a Delaware corporation and a wholly owned subsidiary of Parent
("Merger Sub"), and The Associated Group, Inc., a Delaware corporation (the
"Company"), are entering into an Agreement and Plan of Merger (as amended
or supplemented from time to time, the "Merger Agreement");
WHEREAS, as of the date hereof, the Stockholders own and/or
have the power to vote, as applicable, the number of Shares (as defined
below) set forth in Schedule I hereto;
WHEREAS, the Board of Directors of the Company has, prior to
the execution of this Agreement, duly and validly approved and adopted the
Merger Agreement, and has approved this Agreement (solely for purposes of
paragraph (a)(1) of Section 203 of the DGCL as may be applicable to Parent
or Liberty with respect to the Company by virtue of this Agreement) and
such approvals and adoption have not been withdrawn;
WHEREAS, approval of the Merger Agreement by the Company's
stockholders is a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger
Agreement, Liberty has required that each Stockholder agree, and each
Stockholder has agreed, to enter into this
Agreement;
WHEREAS, capitalized terms used herein (including in Schedules
I and II hereto) but not defined herein shall have the respective meanings
ascribed thereto in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree
as follows:
Section 1. Agreement to Vote.
(a) Each Stockholder hereby agrees with Liberty to attend the
Special Meeting of the Company (or any other meeting of stockholders of the
Company at which the Merger Proposal is to be submitted to a vote of the
stockholders of the Company), in person or by proxy, and to vote (or cause
to be voted) all Shares and any other voting securities of the Company
(including any such securities acquired hereafter) that such Stockholder
has the right to vote or direct the voting as of the applicable record date
(collectively, the "Covered Shares"), for approval and adoption of the
Merger Agreement, the Merger and any related action reasonably required in
furtherance thereof and duly submitted to a vote of the stockholders at the
Special Meeting or any other meeting of stockholders of the Company, such
agreement to vote to apply also to any adjournment or adjournments or
postponement or postponements of the Special Meeting (or any such other
meeting). Each Stockholder hereby further agrees with Liberty that he, she
or it shall, from time to time, in connection with any consent or proxy
solicitation relating to the Merger Agreement, timely execute and deliver
(or cause to be timely executed and delivered) a written consent or proxy
with respect to any Covered Shares in favor of the approval and adoption of
the Merger Agreement, the Merger and any related action reasonably required
in furtherance thereof as contemplated by the immediately preceding
sentence.
(b) Each Stockholder hereby agrees with Liberty to vote (or
cause to be voted) any Covered Shares against any Alternative Proposal and
any related action reasonably required in furtherance thereof, at any
meeting of stockholders of the Company (including any adjournments or
postponements thereof) called to consider and vote on any Alternative
Proposal. Each Stockholder further agrees with Liberty that, in connection
with any consent or proxy solicitation relating to a Alternative Proposal,
such Stockholder will timely execute and deliver (or cause to be timely
executed and delivered) a written consent or proxy with respect to any
Covered Shares against any Alternative Proposal as contemplated by the
immediately preceding sentence.
(c) To the extent inconsistent with the foregoing provisions of
this Section 1, each Stockholder acknowledges and agrees with Liberty that
such Stockholder hereby revokes any and all previous proxies with respect
to such Stockholder's Covered Shares.
(d) Notwithstanding any other provision of this Agreement,
nothing contained herein shall (i) restrict, limit or prohibit in any
manner any Stockholder (including in such Stockholder's representative
capacity) who is a director or officer of the Company, any Subsidiary of
the Company or of Tokyo or any Subsidiary of Tokyo, from taking any action
or omitting to act in his capacity as such a director or officer or (ii)
require any Stockholder (including in such Stockholder's representative
capacity) to, or to seek to, cause any director or officer of the Company,
any Subsidiary of the Company or of Tokyo or any Subsidiary of Tokyo, to
take or omit to take any action in his capacity as such a director or
officer; provided that nothing in this Section 1(d) shall be deemed to
relieve any Stockholder from such Stockholder's obligations under Sections
1, 2 and 3 of this Agreement.
Section 2. Disposition of Shares. Each Stockholder hereby
agrees with Liberty that such Stockholder will not directly or indirectly
sell, pledge, encumber, grant any proxy or enter into any voting or similar
agreement with respect to, transfer or otherwise dispose of (collectively,
"Transfer"), or agree or contract to Transfer, any Shares (or any interest
therein) with respect to which a Stockholder directly or indirectly
controls the right to Transfer, except for (i) any pledge by a Stockholder
of Shares so long as the Stockholder retains full voting rights with
respect to such Shares (even in the event of a foreclosure by the pledgee)
or (ii) any such Transfer to any Person or entity (including without
limitation an estate) who or which shall have agreed in writing with
Liberty to be bound by this Agreement as a Stockholder (any direct or
indirect transferee referred to in clauses (i) and (ii) above being
referred to as a "Permitted Transferee").
Section 3. Further Assurances. Each Stockholder agrees with
Liberty that such Stockholder will execute and deliver such additional
instruments and other documents and shall take such further actions as may
be reasonably necessary to effectuate, carry out and comply with such
Stockholder's obligations under this Agreement in accordance with the terms
hereof. Without limiting the generality of the foregoing, each Stockholder
agrees with Liberty that such Stockholder will not enter into any agreement
or arrangement (or alter, amend or terminate any existing agreement or
arrangement) or take any other action (or fail to take any other action) if
such action (or failure) would materially impair the ability of such
Stockholder to effectuate, carry out or comply with all the terms of this
Agreement. Parent and Liberty each agree to cooperate with each Stockholder
in connection with any filings required to be made by such Stockholder
relating to this Agreement, the Merger Agreement or the transactions
contemplated hereby or thereby.
Section 4. Representations and Warranties of Parent and
Liberty.
(a) Parent represents and warrants to each Stockholder as
follows: This Agreement has been duly executed and delivered by a duly
authorized officer of Parent and constitutes a valid and binding agreement
of Parent, enforceable
against Parent.
(b) Liberty represents and warrants to each Stockholder as
follows: Each of this Agreement and the Merger Agreement has been approved
by the Board of Directors of Liberty, in each case representing all
necessary corporate action on the part of Liberty. Each of this Agreement
and the Merger Agreement has been duly executed and delivered by a duly
authorized officer of Liberty. Each of this Agreement and the Merger
Agreement constitutes a valid and binding agreement of Liberty, enforceable
against Liberty.
Section 5. Representations and Warranties of the
Stockholders.
Each Stockholder severally represents and warrants (solely with
respect to such Stockholder) to Liberty as follows:
(a) Such Stockholder has the power and authority to execute and
deliver this Agreement. This Agreement has been duly executed and delivered
by such Stockholder. This Agreement constitutes the valid and binding
agreement of such Stockholder. Such Stockholder has the full power and
authority to vote (or cause to be voted), or execute (or cause to be
executed) a consent with respect to, all Shares as contemplated hereby. The
securities of the Company listed next to the name of such Stockholder on
Schedule I hereto are the only shares of Company Class A Common Stock of
the Company over which such Stockholder has the power to vote (or direct
the voting) (such shares of Company Class A Common Stock being referred to
as the "Shares").
(b) Each Stockholder is the lawful owner of the Shares listed
on Schedule I as owned by such Stockholder, free and clear of all liens,
charges, encumbrances and commitments of every kind, other than this
Agreement and as set forth on Schedule II hereto, and each Stockholder has
the power to vote or cause to be voted (including by granting an
irrevocable power to vote or executing a written consent) such Shares so
listed. The execution and delivery by such Stockholder of this Agreement do
not violate or breach any contract, instrument, agreement or arrangement to
which such Stockholder is a party or by which such Stockholder is bound or,
to the best knowledge and belief of such Stockholder, any law applicable to
such Stockholder.
Section 6. Effectiveness; Term of Agreement; Termination. It is
a condition precedent to the effectiveness (and the commencement of the
term) of this Agreement that the Merger Agreement shall have been duly
adopted and approved and executed and delivered by the parties thereto.
Subject to the immediately preceding sentence, the term of this Agreement
shall commence on the date hereof, and such term and this Agreement shall
terminate automatically upon the earliest to occur of (a) the Effective
Time or (b) the termination of the Merger Agreement in accordance with its
terms, provided, however, that if the Merger Agreement is terminated
pursuant to Section 9.1(ii)(D) or Section 9.1(iii) thereof, in either case
without regard to whether any Termination Fee becomes payable following
such termination, this Agreement shall terminate upon the earlier of (i)
the date which is six months after such termination of the Merger Agreement
or (ii) the date on which a Termination Fee is paid. Upon such termination
of this Agreement, no party shall have any obligation or liability
hereunder; provided that if such termination is pursuant to clause (b)
immediately above, such termination shall not relieve any party from
liability for any breach of this Agreement prior to such termination.
Section 7. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement
shall be in writing and shall be deemed to have been duly given to any
party when delivered personally (by courier service or otherwise), when
delivered by telecopy and confirmed by return telecopy, or one day after
being sent by courier service that guarantees overnight delivery to the
applicable addresses (or facsimile numbers) set forth below:
If to Parent:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Vice President-Law and Corporate Secretary
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx, Esq.
Facsimile: (000) 000-0000
If to Liberty:
Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to any Stockholder, to such Stockholder c/o:
Xxxxx X. Xxxxxxx
The Associated Group, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
and
Xxxxx X. Xxxxx, Esq.
The Associated Group, Inc.
Three Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
and
Dechert Price & Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as such party shall have designated by notice so
given to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by Liberty and each Stockholder.
(c) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties
and their respective successors and assigns, including without limitation
in the case of Parent or Liberty any corporate successor by merger or
otherwise, and in the case of a Stockholder any Permitted Transferee,
including any trustee, executor, heir, legatee or personal representative
succeeding to the ownership of (or power to vote) such Stockholder's
Covered Shares or other securities subject to this Agreement (including as
a result of the death, disability or incapacity of a Stockholder).
(d) Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties relating to the subject
matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. There are no representations, warranties
or covenants by the parties hereto relating to such subject matter other
than those expressly set forth in this Agreement.
(e) Severability. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such term to the other parties or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
applicable law, provided that in such event the parties shall negotiate in
good faith in an attempt to agree to another provision (in lieu of the term
or application held to be invalid or unenforceable) that will be valid and
enforceable and will carry out the parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and
that any party may, in its sole discretion, apply to a court of competent
jurisdiction for specific performance or injunctive or such other relief as
such court may deem just and proper in order to enforce this Agreement or
prevent any violation hereof and, to the extent permitted by applicable
law, each party waives any objection to the imposition of such relief for
any such violation.
(g) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the exercise
or beginning of the exercise of any thereof by any party shall not preclude
the simultaneous or later exercise of any other such right, power or remedy
by such party.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of his or her right to exercise any such
or other right, power or remedy or to demand such compliance.
(i) No Personal Liability for Stockholder Representatives; No
Third Party Beneficiaries; Severability; No Liability of Stockholders to
Parent. It is expressly understood and agreed that no executor, trustee,
officer, director, or other representative of a Stockholder shall have any
personal liability hereunder as a result of such person's execution and
delivery of this Agreement or for any acts or omissions in such person's
capacity as such executor, trustee, officer, director or other
representative. This Agreement is not intended to be for the benefit of and
shall not be enforceable by any person or entity who or which is not a
party hereto. The representations and warranties of each Stockholder
contained herein and the obligations of each Stockholder hereunder are
several and not joint, and no Stockholder shall be liable for any
representation, warranty, agreement, action or inaction of any other
Stockholder. Notwithstanding any other provision of this Agreement, no
Stockholder shall have any liability to Parent hereunder in respect of any
representation, warranty, covenant, agreement or any other obligation of
any Stockholder set forth herein.
(j) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware or
the United States District Court for the Southern District of New York or
any court of the State of New York located in the City of New York in any
action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in
such court (and waives any objection based on forum non conveniens or any
other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph (j)
and shall not be deemed to be a general submission to the jurisdiction of
said Courts or in the States of Delaware or New York other than for such
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding.
(k) Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws
of the State of Delaware, including the General Corporation Law of the
State of Delaware, to the fullest extent possible.
(l) Name, Captions, Gender. The name assigned to this Agreement
and the section captions used herein are for convenience of reference only
and shall not affect the interpretation or construction hereof. Whenever
the context may require, any pronoun used herein shall include the
corresponding masculine, feminine or neuter forms.
(m) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one instrument. Each counterpart may
consist of a number of copies each signed by less than all, but together
signed by all, the parties hereto.
(n) Expenses. Except as may otherwise be agreed in any
agreement between Parent and Liberty (solely with respect to such parties),
Parent, Liberty and each Stockholder shall be responsible for its, his or
her own expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
AT&T CORP.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Executive Vice
President and CFO
LIBERTY MEDIA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
General Counsel
STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Estate of Xxxx X. Xxxxxxx
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx, as
Executor
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, as
Executor
/s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx,
as Executor
Xxxxxx X. Xxxxxxx Foundation
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx, as Trustee
Xxxxxx X. Xxxxxxx Family
Limited Partnership
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx, as
General Partner
Xxxxxxx X. Xxxxxxx Trust
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx, as Trustee
Xxxxxx X. Xxxxxxx Trust
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx, as Trustee
Schedule I
Company Class A
Stockholder Common Stock
----------- ------------
Xxxxx X. Xxxxxxx 13,626
Xxxxxx X. Xxxxxxx Foundation 200,000
Xxxxxx X. Xxxxxxx Family Limited 270,938
Partnership
Estate of Xxxx X. Xxxxxxx 2,332,416
Xxxxxxx X. Xxxxxxx 450,000
Xxxxxxx X. Xxxxxxx Trust 125,802
Xxxxxx X. Xxxxxxx Trust 125,802
Xxxxx X. Xxxxxxx 681,642
----------
Total 4,200,226
