EXHIBIT 10.1
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adoption have not been withdrawn;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.
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(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
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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
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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.
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(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.
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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
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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.
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(a) Notices, Etc. All notices, requests, demands or other
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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. 00x 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,
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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
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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
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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
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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
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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
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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,
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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
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Party Beneficiaries; Severability; No Liability of Stockholders to Parent. It is
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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
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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
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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
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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
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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
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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
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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
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Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
Estate of Xxxx X. Xxxxxxx
By: /s/ Miles X. Xxxxxxx
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Xxxxx X. Xxxxxxx, as
Executor
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, as
Executor
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxx,
as Executor
Xxxxxx X. Xxxxxxx Foundation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx,
as Trustee
Xxxxxx X. Xxxxxxx Family
Limited Partnership
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, as
General Partner
Xxxxxxx X. Xxxxxxx Trust
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
as Trustee
Xxxxxx X. Xxxxxxx Trust
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
as Trustee
Schedule I
Company Class A
Stockholder Common Stock
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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
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Total 4,200,226