UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 46 )*
LIN Broadcasting Corporation
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
0005327630
(CUSIP Number)
Marilyn J. Wasser Andrew A. Quartner
AT&T Corp. McCaw Cellular Communications, Inc.
32 Avenue of the Americas 1150 Connecticut Ave., NW
New York, NY 10013-2412 Washington, DC 20036
(212) 387-5400 (202) 223-9222
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 30, 1995
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3)
or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement
[ ]. (A fee is not required only if the reporting person: (1)
has a previous statement on file reporting beneficial ownership
of more than five percent of the class of securities described in
Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are sent.<PAGE>
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))<PAGE>
<PAGE>
This Amendment No. 46 (the "Amendment") amends the Schedule
13D originally filed on April 7, 1988, as previously amended (the
"Schedule 13D"), with regard to the Common Stock, par value $.01
per share ("Common Stock"), of LIN Broadcasting Corporation, a
Delaware corporation ("LIN" or the "Issuer"), as set forth below.
Capitalized terms used without definition in this Amendment
shall have the meanings ascribed thereto in the Schedule 13D.
Item 4. Purpose of Transaction
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer
The information contained in Items 4 and 6 of the Schedule
13D is hereby supplemented by the following:
On June 30, 1995, McCaw, MMM, Acquisition and LIN entered
into an amended and restated Agreement and Plan of Merger (the
"Amended Merger Agreement"). The Amended Merger Agreement
provides for the acquisition by McCaw of the Public Shares by
means of a merger of Acquisition into LIN (the "Merger") in which
each publicly held Share (other than Dissenting Shares, as
defined in the Amended Merger Agreement) would be converted into
the right to receive $129.50 in cash, plus up to an additional
$0.25 under the circumstances set forth in the Amended Merger
Agreement, plus an amount, if any, equal to interest thereon at a
rate of 5.5% per annum from September 15, 1995 until consummation
of the Merger if the Merger has not been consummated by September
15, 1995.
The economic terms set forth in the Amended Merger Agreement
were determined in connection with the proposed settlement of the
Stockholders Litigation and discussions with the Independent
Directors. At a meeting held June 30, 1995, the Board of
Directors of LIN unanimously approved the Amended Merger
Agreement.
The full text of the Amended Merger Agreement is attached
hereto as Exhibit 99.1.
<PAGE>
Item 7. Material to be Filed as Exhibits
The information contained in Item 7 of the Schedule 13D is
hereby supplemented by the following:
99.1 Agreement and Plan of Merger, dated April 28,
1995, as amended and restated June 30, 1995, by
and among McCaw, MMM, Acquisition and LIN.
<PAGE>
<PAGE>
SIGNATURE
The undersigned hereby agree that this Amendment to Schedule
13D is filed on behalf of each of them and, after reasonable
inquiry and to the best of their knowledge and belief, certify
that the information set forth in this statement is true,
complete and correct.
AT&T CORP.
By: MARILYN J. WASSER
-----------------------------
Date: June 30, 1995 Marilyn J. Wasser
Vice President-Law and Secretary
McCAW CELLULAR COMMUNICATIONS, INC.
By: ANDREW A. QUARTNER
-----------------------------
Date: June 30, 1995 Andrew A. Quartner
Senior Vice President-Law
MMM HOLDINGS, INC.
By: ANDREW A. QUARTNER
-----------------------------
Date: June 30, 1995 Andrew A. Quartner
Senior Vice President-Law
<PAGE>
<PAGE>
EXHIBIT INDEX
99.1 Agreement and Plan of Merger, dated April 28,
1995, as amended and restated June 30, 1995, by
and among McCaw, MMM, Acquisition and LIN.
EXHIBIT 99.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MCCAW CELLULAR COMMUNICATIONS, INC.,
MMM HOLDINGS, INC.,
MMM ACQUISITION CORP.
AND
LIN BROADCASTING CORPORATION
Dated April 28, 1995,
As Amended and Restated June 30, 1995
<PAGE>
TABLE OF CONTENTS
ARTICLE I
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
2. The Merger; Terms of the Merger . . . . . . . . . . . . . . . . . 5
2.1. The Merger . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2. Effective Time . . . . . . . . . . . . . . . . . . . . . . . 6
2.3. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4. Certificate of Incorporation . . . . . . . . . . . . . . . . 6
2.5. The By-Laws. . . . . . . . . . . . . . . . . . . . . . . . . 6
2.6. Directors. . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.7. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
3. Conversion of Shares; Option Plan;
Stockholders Meeting. . . . . . . . . . . . . . . . . . . . . . . 7
3.1. Merger Consideration; Conversion or Cancellation
of Shares in the Merger. . . . . . . . . . . . . . . . . . . 7
3.2. Option Plan; Stock Purchase Plan . . . . . . . . . . . . . . 8
3.3. Stockholders' Meeting. . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
4. Dissenting Shares; Payment for Shares . . . . . . . . . . . . . .10
4.1. Dissenting Shares . . . . . . . . . . . . . . . . . . .10
4.2. Payment for Shares. . . . . . . . . . . . . . . . . . .11
4.3. Payment for Shares If Additional Amount Is
Not Determined As of the Effective Time . . . . . . . .12
ARTICLE V
5. Representations and Warranties of LIN . . . . . . . . . . . . . .14
5.1. Organization, Etc. of LIN . . . . . . . . . . . . . . .14
5.2. Operations of Subsidiaries. . . . . . . . . . . . . . .14
5.3. Agreement . . . . . . . . . . . . . . . . . . . . . . .15
5.4. Capital Stock . . . . . . . . . . . . . . . . . . . . .15
5.5. Brokers and Finders . . . . . . . . . . . . . . . . . .15
5.6. Proxy Statement . . . . . . . . . . . . . . . . . . . .16
5.7. Delaware Section 203. . . . . . . . . . . . . . . . . .16
5.8. Rights Agreement. . . . . . . . . . . . . . . . . . . .16
ARTICLE VI
6. Representations and Warranties of McCaw, Holdings
and Merger Sub. . . . . . . . . . . . . . . . . . . . . . . . . .17
6.1. Organization, Etc. of McCaw, Holdings
and Merger Sub. . . . . . . . . . . . . . . . . . . . .17
6.2. Agreement . . . . . . . . . . . . . . . . . . . . . . .17
6.3. Brokers and Finders . . . . . . . . . . . . . . . . . .17
6.4. Proxy Statement . . . . . . . . . . . . . . . . . . . .18
6.5. No Prior Activities . . . . . . . . . . . . . . . . . .18
6.6. Solvency. . . . . . . . . . . . . . . . . . . . . . . .18
ARTICLE VII
7. Additional Covenants and Agreements . . . . . . . . . . . . . . .19
7.1. Conduct of Business of LIN. . . . . . . . . . . . . . .19
7.2. Reasonable Efforts. . . . . . . . . . . . . . . . . . .19
7.3. Indemnification; Insurance. . . . . . . . . . . . . . .20
7.4. New York Real Property Gains and
Transfer Tax. . . . . . . . . . . . . . . . . . . . . .21
ARTICLE VIII
8. Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . .22
8.1. Conditions to Each Party's Obligations. . . . . . . . .22
8.2. Conditions to Obligations of McCaw,
Holdings and Merger Sub . . . . . . . . . . . . . . . .22
8.3. Conditions to Obligations of LIN. . . . . . . . . . . .23
ARTICLE IX
9. Termination, Amendment and Waiver . . . . . . . . . . . . . . . .24
9.1. Termination by Mutual Consent . . . . . . . . . . . . .24
9.2. Termination by Either McCaw or LIN. . . . . . . . . . .24
9.3. Amendment . . . . . . . . . . . . . . . . . . . . . . .25
9.4. Extension; Waiver . . . . . . . . . . . . . . . . . . .25
9.5. Effect of Termination and Abandonment . . . . . . . . .25
9.6. Procedure for Termination, Amendment,
Extension or Waiver . . . . . . . . . . . . . . . . . .25
<PAGE>
ARTICLE X
10. Miscellaneous and General . . . . . . . . . . . . . . . . . . . .26
10.1. Expenses. . . . . . . . . . . . . . . . . . . . . . .26
10.2. Notices, Etc. . . . . . . . . . . . . . . . . . . . .26
10.3. Nonsurvival of Representations and
Warranties. . . . . . . . . . . . . . . . . . . . . .27
10.4. No Assignment . . . . . . . . . . . . . . . . . . . .28
10.5. Entire Agreement. . . . . . . . . . . . . . . . . . .28
10.6. Specific Performance. . . . . . . . . . . . . . . . .28
10.7. Remedies Cumulative . . . . . . . . . . . . . . . . .28
10.8. No Waiver . . . . . . . . . . . . . . . . . . . . . .28
10.9. No Third Party Beneficiaries. . . . . . . . . . . . .28
10.10. Public Announcements. . . . . . . . . . . . . . . . .29
10.11. Certain Actions by LIN. . . . . . . . . . . . . . . .29
10.12. Governing Law . . . . . . . . . . . . . . . . . . . .29
10.13. Name, Captions, Etc.. . . . . . . . . . . . . . . . .29
10.14. Counterparts. . . . . . . . . . . . . . . . . . . . .29
10.15. McCaw Guarantee . . . . . . . . . . . . . . . . . . .29
Exhibit A -- Private Market Value Guarantee, as amended
<PAGE>
<PAGE> 1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated April 28, 1995, as amended and restated June
30, 1995, by and among McCaw Cellular Communications, Inc., a
Delaware corporation ("McCaw"), MMM Holdings, Inc., a Delaware
corporation and a direct Wholly Owned Subsidiary of McCaw
("Holdings"), MMM Acquisition Corp., a Delaware corporation and a
direct Wholly Owned Subsidiary of Holdings ("Merger Sub"), and
LIN Broadcasting Corporation, a Delaware corporation ("LIN").
RECITALS
WHEREAS, McCaw and Holdings are the beneficial owners
of approximately 52% of the outstanding LIN Common Shares;
WHEREAS, pursuant to and in accordance with the terms
of the PMVG, the Private Market Price was set at $127.50 per LIN
Common Share;
WHEREAS, on April 28, 1995, McCaw, Holdings, Merger Sub
and LIN entered into the Original Merger Agreement, providing for
the merger of Merger Sub with and into LIN in which the public
stockholders of LIN would receive $127.50 per LIN Common Share;
WHEREAS, in connection with (i) the settlement of the
Stockholders Litigation and (ii) discussions with the LIN
Independent Directors, McCaw subsequently determined that it was
willing to increase the Merger Consideration above the Private
Market Price, as set forth herein, and to agree to other
revisions to the Original Merger Agreement;
WHEREAS, the Boards of Directors of McCaw, Holdings,
Merger Sub and LIN (in the case of LIN, with the approval of the
LIN Independent Directors) each have determined that it is in the
best interests of their respective stockholders for Merger Sub to
merge with and into LIN, upon the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, McCaw, Holdings, Merger Sub and LIN desire to
make certain representations, warranties, covenants and
agreements in connection with the Merger and also to prescribe
various conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements set forth
herein, McCaw, Holdings, Merger Sub and LIN hereby agree as
follows:<PAGE>
<PAGE> 2
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall
have the respective meanings set forth below:
"Accretion Amount": As defined in Section 3.1(a).
"Additional Amount": As defined in Section 3.1(a).
"Affiliate": As defined in Rule 12b-2 under the
Exchange Act.
"Agreement": As defined in the preamble hereto.
"Assumption Ratio": As defined in Section 3.2(a).
"AT&T": AT&T Corp., a New York corporation.
"AT&T Common Shares": Shares of common stock, $1.00
par value per share, of AT&T.
"Authorization": Any consent, approval or
authorization of, or any expiration or termination of any waiting
period requirement (including pursuant to the HSR Act) of, or any
filing, registration, qualification, declaration or designation
with or by, any Governmental Body.
"Certificate of Merger": The certificate of merger
with respect to the Merger, containing the provisions required
by, and executed in accordance with, Section 251 of the DGCL.
"Certificates": As defined in Section 4.2.
"Closing": The closing of the Merger.
"Closing Date": The date on which the Closing occurs.
"Code": The Internal Revenue Code of 1986, as amended,
and all regulations promulgated thereunder, as in effect from
time to time.
"DGCL": The Delaware General Corporation Law.
"Dissenting Shares": As defined in Section 4.1.
"Effective Time": As defined in Section 2.2.
<PAGE>
<PAGE> 3
"Escrow Account": As defined in Section 4.3(b).
"Exchange Act": The Securities Exchange Act of 1934,
as amended.
"FCC": The Federal Communications Commission.
"Governmental Body": Any Federal, state, municipal,
political subdivision or other governmental department,
authority, commission, board, bureau, agency or instrumentality,
domestic or foreign.
"HSR Act": The Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Holdings": As defined in the preamble to this
Agreement.
"Indemnified Parties": As defined in Section 7.3(a).
"LIN": As defined in the preamble to this Agreement.
"LIN Board": The board of directors of LIN.
"LIN Common Shares": Shares of common stock, par value
$0.01 per share, of LIN;
"LIN Independent Directors": The three members of the
LIN Board designated as Independent Directors pursuant to and in
accordance with Section 1 of the PMVG.
"LIN Merger Shares": LIN Common Shares issued and
outstanding immediately prior to the Effective Time, other than
LIN Common Shares owned by McCaw or any of its Wholly Owned
Subsidiaries and LIN Common Shares held in the treasury of LIN or
by any Wholly Owned Subsidiary of LIN.
"LIN Public Shares": LIN Common Shares not owned by
McCaw or any of its affiliates or any member of a "group", as
such term is used for purposes of Schedule 13D under the Exchange
Act, of which McCaw or its affiliates are members with respect to
securities of LIN.
"McCaw": As defined in the preamble to this Agreement.
"Memorandum of Understanding": The Memorandum of
Understanding dated June 22, 1995, setting forth the proposed
terms for the settlement of the Stockholders Litigation.<PAGE>
<PAGE> 4
"Merger": The merger of Merger Sub with and into LIN
as contemplated by Section 2.1.
"Merger Consideration": As defined in Section 3.1(a).
"Merger Sub": As defined in the preamble to this
Agreement.
"NASDAQ": The National Association of Securities
Dealers Automated Quotations System.
"NYSE": The New York Stock Exchange, Inc.
"Options": As defined in Section 3.2.
"Option Plan": As defined in Section 3.2.
"Original Merger Agreement": The Merger Agreement,
dated April 28, 1995, by and among McCaw, Holdings, Merger Sub
and LIN, prior to the amendment and restatement thereof reflected
in this Agreement.
"PMVG": The Private Market Value Guarantee, dated
December 11, 1989, as amended, between McCaw and LIN, attached
hereto as Exhibit A.
"Paying Agent": As defined in Section 4.2.
"Person": Any individual or corporation, company,
partnership, trust, incorporated or unincorporated association,
joint venture or other entity of any kind.
"Private Market Price": The private market price per
LIN Common Share determined pursuant to Section 2(C) of the PMVG.
"Proxy Statement": As defined in Section 3.3.
"Rights": The Preferred Share Purchase Rights issued
pursuant to the Rights Agreement.
"Rights Agreement": The Rights Agreement, dated as of
May 2, 1988, as amended and restated as of January 13, 1989 and
June 19, 1989 and as subsequently further amended, between LIN
and Manufacturers Hanover Trust Company, as Rights Agent.
"Schedule 13E-3": The Transaction Statement on
Schedule 13E-3 to be filed under the Exchange Act by AT&T, McCaw,
Holdings, Merger Sub and LIN with respect to the Merger.<PAGE>
<PAGE> 5
"SEC": The Securities and Exchange Commission.
"Significant Subsidiary": As defined under Rule 12b-1
of the Exchange Act.
"Solvent": As defined in Section 6.6.
"Stock Purchase Plan": As defined in Section 3.2(c).
"Stockholders Litigation": The litigations brought by
stockholder plaintiffs in connection with the Merger and the PMVG
and certain related matters, as set forth in the Memorandum of
Understanding.
"Stockholders Meeting": As defined in Section 3.3.
"Subsidiary": As to any Person, any other Person of
which at least 50% of the equity or voting interest is owned,
directly or indirectly, by such first Person.
"Surviving Corporation": The surviving corporation in
the Merger.
"Wholly Owned Subsidiary": A Subsidiary of which 100%
of the equity interest is owned, directly or indirectly, by the
parent company.
ARTICLE II
THE MERGER; TERMS OF THE MERGER
2.1. The Merger. Subject to the terms and conditions
of this Agreement, at the Effective Time, Merger Sub shall be
merged with and into LIN in accordance with the provisions of
Section 251 of the DGCL and with the effect provided in Sections
259 and 261 of the DGCL. The separate corporate existence of
Merger Sub shall thereupon cease and LIN shall be the Surviving
Corporation and shall continue to be governed by the laws of the
State of Delaware. At the election of McCaw, any Wholly Owned
Subsidiary of McCaw may be substituted for Merger Sub as a
constituent corporation in the Merger, provided that the parties
shall have executed an appropriate amendment to this Agreement in
accordance with Section 9.3 in form and substance reasonably
satisfactory to LIN and McCaw in order to reflect such
substitution.
<PAGE>
<PAGE> 6
2.2. Effective Time. The Merger shall become
effective on the date and at the time (the "Effective Time") that
the Certificate of Merger shall have been accepted for filing by
the Secretary of State of the State of Delaware (or such later
date and time as may be specified, with the approval of LIN and
McCaw, in the Certificate of Merger).
2.3. Closing. Unless this Agreement shall have been
terminated and the transactions contemplated shall have been
abandoned pursuant to Section 9.1 or 9.2 and subject to the
fulfillment or waiver of the conditions set forth in Article
VIII, the Closing shall take place (i) at the offices of
Wachtell, Lipton, Rosen & Katz, New York, New York, as promptly
as practicable (but in any event within three business days)
following satisfaction of the condition set forth in Section
8.1(a) or (ii) at such other place and/or time and/or on such
other date as McCaw and LIN may agree or as may be necessary to
permit the fulfillment or waiver of the other conditions set
forth in Article VIII. The parties hereto shall use all
reasonable efforts to cause the Certificate of Merger to be filed
with the Secretary of State of the State of Delaware on the
Closing Date or as soon as practicable thereafter.
2.4. Certificate of Incorporation. The Certificate of
Incorporation of Merger Sub as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation of the
Surviving Corporation, until duly amended in accordance with the
terms thereof and of the DGCL, except that Article SECOND thereof
shall be amended to read as follows:
"The name of the Corporation (which is hereinafter
called the "Corporation") is LIN Broadcasting
Corporation."
2.5. The By-Laws. The By-Laws of Merger Sub in effect
at the Effective Time shall be the By-Laws of the Surviving
Corporation, until duly amended in accordance with the terms
thereof, of the Certificate of Incorporation of the Surviving
Corporation and of the DGCL.
2.6. Directors. The directors of Merger Sub at the
Effective Time shall, from and after the Effective Time, be the
directors of the Surviving Corporation until their successors
have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the
Surviving Corporation's Certificate of Incorporation and By-Laws.
<PAGE>
<PAGE> 7
2.7. Officers. The officers of LIN at the Effective
Time shall, from and after the Effective Time, be the officers of
the Surviving Corporation until their successors have been duly
elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving
Corporation's Certificate of Incorporation and By-Laws.
ARTICLE III
CONVERSION OF SHARES; OPTION
PLAN; STOCKHOLDERS MEETING
3.1. Merger Consideration; Conversion or Cancellation
of Shares in the Merger. Subject to the provisions of this
Article III, at the Effective Time, by virtue of the Merger and
without any action on the part of the holders thereof, the shares
of the constituent corporations shall be converted as follows:
(a) Each LIN Common Share issued and outstanding
immediately prior to the Effective Time (other than LIN
Common Shares owned by McCaw or any of its Wholly Owned
Subsidiaries and LIN Common Shares held in the treasury of
LIN or by any Wholly Owned Subsidiary of LIN, which LIN
Common Shares, by virtue of the Merger and without any
action on the part of the holders thereof, shall be
automatically cancelled and retired and shall cease to exist
with no payment being made with respect thereto, and other
than any Dissenting Shares) shall be converted into the
right to receive (i) $129.50 in cash, plus (ii) the
Additional Amount, if any, plus (iii) the Accretion Amount,
if any (collectively, the "Merger Consideration"), as set
forth in Section 4.2. The term "Additional Amount" shall
mean $0.25 less an amount equal to (x) the excess over $4
million of the total fee awarded by a final and
nonappealable order of the Delware Chancery Court to the
plaintiffs' attorneys in connection with the settlement of
the Stockholders Litigation divided by (y) the number of LIN
Merger Shares. The term "Accretion Amount" shall mean an
amount, if any, equal to the amount of simple interest that
would accrue on $129.50 plus the Additional Amount (if any)
at a rate of five and one-half percent (5-1/2%) per annum from,
but not including, September 15, 1995 through, and
including, the Closing Date.
(b) Each share of capital stock of Merger Sub issued
and outstanding immediately prior to the Effective Time
shall be converted into and become one validly issued, fully
paid and nonassessable share of Common Stock, par value
$0.01 per share, of the Surviving Corporation.<PAGE>
<PAGE> 8
3.2. Option Plan; Stock Purchase Plan. (a) Pursuant
to the terms of the Amended and Restated 1969 Stock Option Plan
of LIN (the "Option Plan"), each option to purchase LIN Common
Shares outstanding at the Effective Time (each, an "Option")
issued pursuant to the Option Plan shall be assumed by AT&T and
shall constitute an option to acquire, on the same terms and
conditions as were applicable under such assumed Option, a number
of AT&T Common Shares equal to the product of the Assumption
Ratio and the number of LIN Common Shares remaining subject to
such Option as of the Effective Time, at a price per AT&T Common
Share equal to the aggregate exercise price for the LIN Common
Shares remaining subject to such Option divided by the number of
full AT&T Common Shares deemed to be purchasable pursuant to such
Option; provided, however, that (i) subject to the provisions of
clause (ii) below, the number of AT&T Common Shares that may be
purchased upon exercise of such Option shall not include any
fractional shares and, upon the last such exercise of such
Option, a cash payment shall be made for any fractional share
based upon the per share closing price of AT&T Common Shares as
reported in the NYSE Composite Transactions on the date of such
exercise, and (ii) in the case of any Option to which Section
421 of the Code applies by reason of its qualification under
Section 422 or Section 423 of the Code ("qualified stock
options"), the option price, the number of shares purchasable
pursuant to such Option and the terms and conditions of exercise
of such Option shall be determined in order to comply with
Section 424 of the Code. For purposes of the foregoing, the
"Assumption Ratio" shall mean the per share closing price of the
LIN Common Shares on the date of approval of the Merger by the
LIN stockholders, as reported on NASDAQ, divided by the per share
closing price of AT&T Common Shares on the date of approval of
the Merger by the LIN stockholders, as reported in the NYSE
Composite Transactions (or if such date is not a trading day, on
the immediately preceding trading day). The Assumption Ratio
will be adjusted appropriately, if necessary, to reflect any
stock split, reverse stock split or similar change in the AT&T
Common Shares or the LIN Common Shares that is not reflected in
their respective per share closing prices on the date of approval
of the Merger; provided that in no event will any such adjustment
be made in respect of quarterly cash dividends payable on the
AT&T Common Shares or the LIN Common Shares.
(b) McCaw shall cause AT&T to take all corporate
action necessary to reserve for issuance a sufficient number of
AT&T Common Shares for delivery upon exercise of the Options
assumed in accordance with Section 3.2(a). AT&T shall file a
registration statement on Form S-8 (or any successor form) or
another appropriate form, effective as of the Effective Time,
with respect to AT&T Common Shares subject to such Options and <PAGE>
<PAGE> 9
shall use all reasonable efforts to maintain the effectiveness of
such registration statement or registration statements (and
maintain the current status of the prospectus or prospectuses
contained therein) for so long as such Options remain
outstanding.
(c) LIN shall take such action as may be necessary so
that, from and after the Effective Time, no employee of LIN shall
be eligible to purchase LIN Common Shares pursuant to the LIN
Broadcasting Corporation Employee Stock Purchase Plan (the "Stock
Purchase Plan"). In lieu thereof, LIN employees who meet the
eligibility requirements thereof will be eligible to purchase
AT&T Common Shares pursuant to the McCaw Cellular Communications,
Inc. Employee Stock Purchase Plan.
(d) LIN shall take such action as may be necessary to
ensure that, following the Effective Time, no holder of Options
or any participant in the Option Plan, the Stock Purchase Plan or
any other plans, programs or arrangements of LIN or any of its
Subsidiaries shall have any right thereunder to acquire any
equity securities of LIN, the Surviving Corporation or any
Subsidiary thereof.
3.3. Stockholders' Meeting. (a) As promptly as
practicable following the date hereof, LIN shall, in accordance
with applicable law and its Certificate of Incorporation and By-Laws:
(i) duly call, give notice of, convene and hold a
special meeting of its stockholders (the "Stockholders
Meeting") for the purpose of considering and taking action
upon the Merger and this Agreement and such other matters as
may be necessary to consummate the transactions contemplated
herein;
(ii) prepare and file with the SEC a preliminary proxy
statement relating to the matters to be considered at the
Stockholders Meeting pursuant to this Agreement and use its
reasonable best efforts to obtain and furnish
the information required to be included by the SEC in the
Proxy Statement and, after consultation with McCaw, to
respond promptly to any comments made by the SEC with
respect to the preliminary proxy statement and to cause a
definitive proxy statement (the "Proxy Statement") to be
mailed to its stockholders; and
<PAGE>
<PAGE> 10
(iii) subject to the fiduciary obligations of the LIN
Board under applicable law as advised in writing by outside
counsel selected by the LIN Board, include in the Proxy
Statement the recommendation of the LIN Board that
stockholders of LIN vote in favor of the approval of the
Merger, the adoption of this Agreement and such other
matters as may be necessary to consummate the transactions
contemplated hereby.
(b) McCaw agrees that, if the Merger is approved by
the affirmative vote of at least a majority of the LIN Public
Shares present and entitled to vote at the Stockholders Meeting
pursuant to clause (ii) of Section 8.1(a), McCaw will vote, or
cause to be voted, all of the LIN Common Shares beneficially
owned by it, its affiliates or any of its Subsidiaries in favor
of the approval of the Merger, the adoption of this Agreement and
such other matters as may be necessary to consummate the
transactions contemplated hereby. In addition, each of LIN,
McCaw, Holdings and Merger Sub agrees that it will fully
cooperate in the preparation of the Proxy Statement and the
Schedule 13E-3.
ARTICLE IV
DISSENTING SHARES; PAYMENT FOR SHARES
4.1. Dissenting Shares. Notwithstanding anything in
this Agreement to the contrary, LIN Common Shares outstanding
immediately prior to the Effective Time and held by a holder (if
any) who has not voted in favor of the Merger or consented
thereto in writing and who has demanded appraisal for such LIN
Common Shares in accordance with Section 262 of the DGCL
("Dissenting Shares") shall not be converted into the right to
receive the Merger Consideration, as provided in Section 3.1,
unless and until such holder fails to perfect or withdraws or
otherwise loses his right to appraisal and payment under the
DGCL. If, after the Effective Time, any such holder fails to
perfect or withdraws or loses his right to appraisal, such
Dissenting Shares shall thereupon be treated as if they had been
converted as of the Effective Time into the right to receive the
Merger Consideration to which such holder is entitled, without
interest thereon. LIN shall give McCaw prompt notice of any
demands received by LIN for appraisal of LIN Common Shares and
McCaw shall have the right to participate in all negotiations and
proceedings with respect to such demands. LIN shall not, except
with the prior written consent of McCaw, make any payment with
respect to, or settle or offer to settle, any such demands.
<PAGE>
<PAGE> 11
4.2. Payment for Shares. (a) From and after the
Effective Time, a bank or trust company to be designated by McCaw
shall act as paying agent (the "Paying Agent") in effecting the
payment of the Merger Consideration for certificates (the
"Certificates") formerly representing LIN Common Shares and
entitled to payment of the Merger Consideration pursuant to
Section 3.1. At the Effective Time, and from time to time
thereafter, McCaw or Merger Sub shall deposit, or cause to be
deposited, in trust with the Paying Agent for the benefit of the
holders of LIN Common Shares such amounts as may be necessary to
permit the Paying Agent to make the payments contemplated by
paragraph (b) of this Section 4.2 and, if applicable, paragraph
(d) of Section 4.3.
(b) Promptly after the Effective Time, but in no event
later than two business days after the date of the Effective
Time, the Paying Agent shall mail to each record holder of
Certificates that immediately prior to the Effective Time
represented LIN Common Shares (other than Certificates
representing LIN Common Shares owned by McCaw or any of its
Wholly Owned Subsidiaries and LIN Common Shares held in the
treasury of LIN or by any Wholly Owned Subsidiary of LIN) a form
of letter of transmittal which shall specify that delivery shall
be effected, and risk of loss and title to the Certificates shall
pass, only upon proper delivery of the Certificates to the Paying
Agent and instructions for use in surrendering such Certificates
and receiving the Merger Consideration therefor. Upon the
surrender of each such Certificate, together with such letter of
transmittal duly executed and any other required documents, the
Paying Agent shall pay the holder of such Certificate, in
consideration therefor, the Merger Consideration multiplied by
the number of LIN Common Shares formerly represented by such
Certificate and, if applicable, the payment contemplated by
Section 4.3(d), and such Certificate shall forthwith be
cancelled. Until so surrendered, each such Certificate (other
than Certificates representing Dissenting Shares and Certificates
representing LIN Common Shares owned by McCaw or any of its
Wholly Owned Subsidiaries and LIN Common Shares held in the
treasury of LIN or by any Wholly Owned Subsidiary of LIN) shall
represent solely the right to receive the aggregate Merger
Consideration relating thereto and, if applicable, the payment
contemplated by Section 4.3(d). No interest shall be paid or
accrued on the Merger Consideration.
(c) Promptly following the date which is one year
after the Effective Time, the Paying Agent shall deliver to McCaw
all cash, Certificates and other documents in its possession
relating to the transactions described in this Agreement, and the
Paying Agent's duties shall terminate. Thereafter, each holder <PAGE>
<PAGE> 12
of a Certificate formerly representing a LIN Common Share (other
than Certificates representing Dissenting Shares and Certificates
representing LIN Common Shares owned by McCaw or any of its
Wholly Owned Subsidiaries and LIN Common Shares held in the
treasury of LIN or by any Wholly Owned Subsidiary of LIN) may
surrender such Certificate to McCaw and (subject to applicable
abandoned property, escheat and similar laws) receive, in
consideration therefor, the aggregate Merger Consideration
relating thereto and, if applicable, the payment contemplated by
Section 4.3(d), without any interest or dividends thereon.
(d) The Merger Consideration and, if applicable, any
additional payment as contemplated by Section 4.3(c) or 4.3(d)
shall be net to each holder of Certificates in cash, subject to
reduction only for any applicable federal back-up withholding or
stock transfer taxes payable by such holder.
(e) If payment of cash in respect of any Certificate
is to be made to a Person other than the Person in whose name
such Certificate is registered, it shall be a condition to such
payment that the Certificate so surrendered shall be properly
endorsed or shall be otherwise in proper form for transfer and
that the Person requesting such payment shall have paid any
transfer and other taxes required by reason of such payment in a
name other than that of the registered holder of the Certificate
surrendered or shall have established to the satisfaction of
McCaw or the Paying Agent that such tax either has been paid or
is not payable.
(f) After the Effective Time, there shall be no
transfers on the stock transfer books of the Surviving
Corporation of any LIN Common Shares which were outstanding
immediately prior to the Effective Time. If, after the Effective
Time, Certificates formerly representing LIN Common Shares (other
than Certificates representing LIN Common Shares owned by McCaw
or any of its Wholly Owned Subsidiaries and LIN Common Shares
held in the treasury of LIN or by any Wholly Owned Subsidiary of
LIN) are presented to the Surviving Corporation or the Paying
Agent, they shall be surrendered and cancelled in return for the
payment of the aggregate Merger Consideration relating thereto
and, if applicable, the payment contemplated by Section 4.3(d),
as provided in this Article IV, subject to applicable law and the
other provisions of this Agreement in the case of Dissenting
Shares.
4.3. Payment for Shares If Additional Amount Is Not
Determined As of the Effective Time. Notwithstanding anything to
the contrary in this Agreement, in the event the Effective Time
occurs prior to the determination of the Additional Amount, if
any, the following provisions shall apply:<PAGE>
<PAGE> 13
(a) The Merger Consideration will be determined and
paid in accordance with the terms hereof, and all references
herein to the Merger Consideration shall be construed, as if
the Additional Amount were equal to zero.
(b) McCaw or Merger Sub shall deposit or cause to be
deposited with the Paying Agent, in an interest bearing
account (the "Escrow Account"), an amount equal to (i) $0.25
plus the Accretion Amount, if any, applicable to $0.25,
multiplied by (ii) the number of LIN Merger Shares. Such
amount and any interest thereon will be retained in the
Escrow Account pending the payments contemplated by
paragraph (c) of this Section 4.3.
(c) If the total fee awarded by a final and
nonappealable order of the Delaware Chancery Court to the
plaintiffs' attorneys in connection with the settlement of
the Stockholders Litigation is greater than $4 million, the
excess of such fee over $4 million will be paid to the
plaintiffs' attorneys from the Escrow Account (together with
any interest accrued on such excess amount in the Escrow
Account). If any amount remains in the Escrow Account
following such payment, an additional payment will be made
to former holders of Certificates who have previously
received payment of the Merger Consideration, in an amount
per LIN Common Share formerly represented by such
Certificates equal to (i) the aggregate amount remaining in
the Escrow Account immediately following such payment to the
plaintiffs' attorneys divided by (ii) the total number of
LIN Merger Shares (the "Escrow Amount"). If any amount
remains in the Escrow Account following all the foregoing
payments, such remaining amount shall be governed by the
provisions of Section 4.2(c) with respect to the deposit and
retention of funds held by the Paying Agent.
(d) Holders of Certificates who have not received
payment of the Merger Consideration as of the time of
determination of the Escrow Amount, if any, pursuant to
paragraph (c) of this Section 4.3 will be entitled to
receive, at such time as they receive payment of the Merger
Consideration in accordance with Section 4.2, an additional
payment, if any, equal to the Escrow Amount, without
interest thereon, with respect to each LIN Common Share in
respect of which such holder receives payment of the Merger
Consideration.
<PAGE>
<PAGE> 14
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LIN
LIN hereby represents and warrants to McCaw, Holdings
and Merger Sub as follows:
5.1. Organization, Etc. of LIN. LIN is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate
power and authority to own and operate its properties, to carry
on its business as now conducted and proposed by LIN to be
conducted, to enter into this Agreement and (subject to the
approval of the LIN stockholders) to carry out the provisions of
this Agreement and consummate the transactions contemplated
hereby. LIN has obtained from the appropriate Governmental
Bodies (including, without limitation, the FCC) all approvals and
licenses necessary for the conduct of its business and operations
as currently conducted, which approvals and licenses are valid
and remain in full force and effect, except where the failure to
have obtained such approvals or licenses or the failure of such
licenses and approvals to be valid and in full force and effect
does not have and would not be reasonably expected (so far as can
be foreseen at the time) to have a material adverse effect on the
business, properties, operations, condition (financial or other)
or prospects of LIN and its Subsidiaries taken as a whole.
5.2. Operations of Subsidiaries. Each Significant
Subsidiary of LIN (a) is a corporation or other legal entity duly
organized, validly existing and (if applicable) in good standing
under the laws of the jurisdiction of its organization and has
the full power and authority to own its properties and conduct
its business and operations as currently conducted, except where
the failure to be duly organized, validly existing and in good
standing does not have, and would not be reasonably expected (so
far as can be foreseen at the time) to have, a material adverse
effect on the business, properties, operations, condition
(financial or other) or prospects of LIN and its Subsidiaries
taken as a whole and (b) has obtained from the appropriate
Governmental Bodies (including, without limitation, the FCC) all
approvals and licenses necessary for the conduct of its business
and operations as currently conducted, which licenses and
approvals are valid and remain in full force and effect, except
where the failure to have obtained such approvals and licenses or
the failure of such licenses and approvals to be valid and in
full force and effect does not have and would not be reasonably
expected (so far as can be foreseen at the time) to have a
material adverse effect on the business, properties, operations,
condition (financial or other) or prospects of LIN and its
Subsidiaries taken as a whole.<PAGE>
<PAGE> 15
5.3. Agreement. This Agreement and the consummation
of the transactions contemplated hereby have been duly approved
by the LIN Board and have been duly authorized by all other
necessary corporate action on the part of LIN (except for the
approval of LIN's stockholders contemplated by Section 8.1(a)).
This Agreement has been duly executed and delivered by a duly
authorized officer of LIN and constitutes a valid and binding
agreement of LIN, enforceable against LIN in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
5.4. Capital Stock. The authorized capital stock of
LIN consists of (a) 150,000,000 LIN Common Shares, of which
51,714,366 shares were outstanding as of April 28, 1995, and (b)
2,000,000 shares of preferred stock, no par value, none of which
were outstanding as of April 28, 1995. All outstanding LIN
Common Shares are duly authorized, validly issued, fully paid and
nonassessable, and no class of capital stock of LIN is entitled
to preemptive rights. There were outstanding on April 28, 1995
no options, warrants or other rights to acquire capital stock
from LIN, except (i) Options representing in the aggregate the
right to purchase up to 1,610,931 LIN Common Shares pursuant to
the Option Plan and (ii) the Rights. Since April 28, 1995, LIN
has not issued any capital stock or any options, warrants or
other rights to acquire capital stock from LIN, except for LIN
Common Shares issued upon due exercise of Options outstanding on
April 28, 1995 and except for LIN Common Shares issued pursuant
to the Stock Purchase Plan in accordance with its terms. Except
as disclosed in LIN's public filings under the Exchange Act filed
since January 1, 1995, all outstanding shares of capital stock of
the Significant Subsidiaries of LIN are owned by LIN or a direct
or indirect Wholly Owned Subsidiary of LIN, free and clear of all
liens, charges, encumbrances, claims and options of any nature.
5.5. Brokers and Finders. Except for the fees and
expenses payable to Lehman Brothers Inc. and Bear Stearns & Co.,
Inc., which fees and expenses are reflected in their agreements
with LIN, copies of which have been furnished to McCaw, and
except for Wasserstein Perella & Co., Inc., whose fees and
expenses are reflected in their agreement with LIN and their
agreement with LIN and McCaw, neither LIN nor the LIN Independent
Directors has employed any investment banker, broker, finder,
consultant or intermediary in connection with the transactions
contemplated by this Agreement which would be entitled to any <PAGE>
<PAGE> 16
investment banking, brokerage, finder's or similar fee or
commission in connection with this Agreement or the transactions
contemplated hereby.
5.6. Proxy Statement. The Proxy Statement will comply
in all material respects with the requirements of the Exchange
Act. The Proxy Statement will not, at the time filed with the
SEC, at the date it or any amendment or supplement is mailed to
stockholders and at the time of the Stockholders Meeting, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the
circumstances under which they were made, not misleading;
provided that the foregoing shall not apply to information
supplied by McCaw, Holdings or Merger Sub with respect to any
thereof or to AT&T specifically for inclusion or incorporation by
reference in the Proxy Statement. If at any time prior to the
Effective Time any event with respect to LIN, its officers and
directors or any of its Subsidiaries should occur which is
required to be described in an amendment of, or a supplement to,
the Proxy Statement, LIN shall notify McCaw thereof by reference
to this Section 5.6 and such event shall be so described, and
such amendment or supplement shall be promptly filed with the SEC
and, as required by law, disseminated to the stockholders of LIN
and such amendment or supplement shall comply with all provisions
of applicable law. The Proxy Statement will also form a part of
the Schedule 13E-3, which Schedule 13E-3 will comply in all
material respects with the requirements of the Exchange Act.
5.7. Delaware Section 203. The Board of Directors of
LIN has taken all appropriate and necessary action such that the
provisions of Section 203 of the DGCL will not apply to any of
the transactions contemplated by this Agreement.
5.8. Rights Agreement. The Rights Agreement has been
amended to provide that (i) none of AT&T, McCaw, Holdings or
Merger Sub will become an "Acquiring Person," (ii) no "Triggering
Event," "Share Acquisition Date" or "Distribution Date" (as such
terms are defined in the Rights Agreement) will occur and (iii)
Section 13 of the Rights Agreement will not be triggered, in each
case as a result of the execution or delivery of this Agreement
or any amendment hereto or the consummation of the transactions
contemplated hereby (including, without limitation, the Merger),
with the effect that (x) none of such events will trigger the
exercisability of the Rights, the separation of the Rights from
the stock certificates to which they are attached or any other
provision of the Rights Agreement and (y) the Rights will no
longer be outstanding upon the consummation of the Merger.
<PAGE>
<PAGE> 17
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF
MCCAW, HOLDINGS AND MERGER SUB
McCaw, Holdings and Merger Sub each represents and
warrants to LIN as follows:
6.1. Organization, Etc. of McCaw, Holdings and Merger
Sub. Each of McCaw, Holdings and Merger Sub is a corporation
duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation, and each
has all requisite corporate power and authority to own and
operate its properties, to carry on its business as now conducted
and proposed by it to be conducted, to enter into this Agreement
and to carry out the provisions of this Agreement and consummate
the transactions contemplated hereby.
6.2. Agreement. This Agreement and the consummation
of the transactions contemplated hereby have been duly approved
by the respective Boards of Directors of McCaw, Holdings and
Merger Sub, by the unanimous vote of those directors present, and
by Holdings as the sole stockholder of Merger Sub (no other
corporate action on the part of McCaw, Holdings or Merger Sub
being necessary). This Agreement has been duly executed and
delivered by a duly authorized officer of each of McCaw, Holdings
and Merger Sub and constitutes a valid and binding agreement of
each of McCaw, Holdings and Merger Sub, enforceable against each
in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
6.3. Brokers and Finders. Except for the fees and
expenses payable to Morgan Stanley & Co., Incorporated, which
fees and expenses will be paid by AT&T and McCaw, and except for
Wasserstein Perella & Co., Inc., whose fees and expenses are
reflected in their agreement with LIN and McCaw, none of AT&T,
McCaw, Holdings or Merger Sub has employed any investment banker,
broker, finder, consultant or intermediary in connection with the
transactions contemplated by this Agreement which would be
entitled to any investment banking, brokerage, finder's or
similar fee or commission in connection with this Agreement or
the transactions contemplated hereby.
<PAGE>
<PAGE> 18
6.4. Proxy Statement. None of the information to be
supplied by McCaw, Holdings or Merger Sub with respect to any
thereof or to AT&T for inclusion or incorporation by reference in
the Proxy Statement will, at the time of the mailing of the Proxy
Statement or at the time of the Stockholder Meeting, contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein not misleading. If at any time
prior to the Effective Time any event with respect to McCaw,
Holdings or Merger Sub, or their officers and directors or any of
their Subsidiaries shall occur which is required to be described
in the Proxy Statement, McCaw shall notify LIN thereof by
reference to this Section 6.4 and such event shall be so
described, and an amendment or supplement shall be promptly filed
with the SEC and, as required by law, disseminated to the
stockholders of LIN. The Proxy Statement will also form a part
of the Schedule 13E-3, which Schedule 13E-3 will comply in all
material respects with the requirements of the Exchange Act.
6.5. No Prior Activities. Merger Sub has not
incurred, and will not incur, directly or through any Subsidiary,
any liabilities or obligations for borrowed money or otherwise,
except incidental liabilities or obligations not for borrowed
money incurred in connection with its organization. Except as
contemplated by this Agreement, Merger Sub (i) has not engaged,
directly or through any Subsidiary, in any business activities of
any type or kind whatsoever, (ii) has not entered into any
agreements or arrangements with any person or entity and (iii) is
not subject to or bound by any obligation or undertaking.
6.6. Solvency. Assuming that LIN is Solvent
immediately prior to the Effective Time, the Surviving
Corporation will be Solvent at and immediately after the
Effective Time, after giving effect to the transactions
contemplated hereby. For purposes of this Agreement, "Solvent"
shall mean, with respect to LIN or the Surviving Corporation, (i)
that the fair valuation of such corporation's property (on a
consolidated basis) is, on the date of determination, greater
than the total amount of consolidated liabilities of such
corporation as of such date and (ii) that the present fair
saleable value of such corporation's assets is, on the date of
determination, greater than the amount that will be required to
pay such corporation's probable liability on its existing debts
as they become absolute and matured.
<PAGE>
<PAGE> 19
ARTICLE VII
ADDITIONAL COVENANTS AND AGREEMENTS
7.1. Conduct of Business of LIN. Except as
contemplated by this Agreement, during the period from the date
of this Agreement to the Effective Time, LIN will, and will cause
each of its Subsidiaries to, conduct its operations according to,
and not enter into any transaction other than in accordance with,
its ordinary course of business consistent with past practice.
Notwithstanding the foregoing, pending the Effective Time, LIN
and its Subsidiaries may convert their cellular systems (to the
extent they are not already so converted) to provide equal access
for long-distance carriers in connection with long-distance
communications using LIN's or its Subsidiaries' services and,
following such conversion, may market their services under the
AT&T service mark, in each case on such schedule as may be
determined by McCaw. AT&T hereby covenants and agrees to make
the use of the AT&T service mark available to LIN and its
Subsidiaries, for purposes of marketing their services pursuant
to the immediately preceding sentence, on a non-exclusive,
royalty free basis. Following the commencement of the marketing
of any service of LIN or any of its Subsidiaries pursuant to the
immediately preceding two sentences, AT&T shall continue to make
the use of the AT&T service mark available on such basis with
respect to such service, and such service shall continue to be so
marketed under the AT&T service mark, for so long as AT&T
directly or indirectly owns at least a majority of the voting
power of LIN's capital stock entitled to vote generally in the
election of directors, unless a majority of the LIN Independent
Directors otherwise consents.
7.2. Reasonable Efforts. LIN, McCaw, Holdings and
Merger Sub shall, and shall use all reasonable efforts to cause
their respective Subsidiaries to: (i) use all reasonable efforts
to promptly take, or cause to be taken, all other actions and do,
or cause to be done, all things necessary, proper or appropriate
to satisfy the conditions set forth in Article VIII and to
consummate and make effective the transactions contemplated by
this Agreement on the terms and conditions set forth herein as
soon as practicable (including seeking to remove promptly any
injunction or other legal barrier that may prevent such
consummation); and (ii) not take any action (including, without
limitation, effecting or agreeing to effect or announcing an
intention or proposal to effect, any acquisition, business
combination or other transaction) which might reasonably be
expected to impair the ability of the parties to consummate the
Merger at the earliest possible time (regardless of whether such
action would otherwise be permitted or not prohibited hereunder).
<PAGE>
<PAGE> 20
7.3. Indemnification; Insurance. (a) McCaw and
Holdings agree that all rights to indemnification now existing in
favor of any of the present or former directors, officers or
employees of LIN or any of its Subsidiaries (the "Indemnified
Parties") as provided in its Certificate of Incorporation or
Bylaws, or otherwise in effect on the date of this Agreement
(including, without limitation, as provided in the PMVG), will
survive the Merger and continue in full force and effect and
McCaw and Holdings will cause the Surviving Corporation to honor
all such rights to indemnification.
(b) In the event of any claim, action, suit,
proceeding or investigation (whether arising before or after the
Effective Time) subject to the rights to indemnification provided
by paragraph (a) of this Section 7.3, (i) the Surviving
Corporation shall have the right, from and after the Effective
Time, to assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Parties and McCaw and Holdings
shall not be liable to such Indemnified Parties for any legal
expenses of other counsel or any other expenses subsequently
incurred by such Indemnified Parties in connection with the
defense thereof (provided that such Indemnified Parties shall
have the right to be represented by up to one separate counsel
for the LIN Independent Directors and one separate counsel for
the other Indemnified Parties as a group in connection with the
defense thereof, in each case selected by such Indemnified
Parties and reasonably satisfactory to the Surviving Corporation,
if such Indemnified Parties shall have been advised by such
counsel that there may be one or more substantial legal defenses
available to them which are different from or additional to those
available to the Surviving Corporation and in the reasonable
judgment of such counsel it is advisable for such Indemnified
Parties to be represented by such separate counsel, in which
case, if such Indemnified Parties notify McCaw and Holdings in
writing that they elect to be represented by such separate
counsel at the expense of the Surviving Corporation in accordance
with the terms of this proviso, the Surviving Corporation shall
not have the right to assume the defense of such action on behalf
of such Indemnified Parties), (ii) the Indemnified Parties will
cooperate in the defense of any such matter and (iii) McCaw and
Holdings will not be liable for any settlement effected without
their prior written consent; provided that McCaw and Holdings
will not have any obligation hereunder to any Indemnified Party
when and if a court of competent jurisdiction shall ultimately
determine, and such determination shall have become final, that
the indemnification of such Indemnified Party in the manner
contemplated hereby is prohibited by applicable law; and
provided, further, that nothing herein shall prevent the
Surviving Corporation from settling any such claim, action, suit,<PAGE>
<PAGE> 21
proceeding or investigation as to any Indemnified Party subject
to the rights to indemnification provided by paragraph (a) of
this Section 7.3, so long as such settlement is based on the
payment of money and the Surviving Corporation agrees to make all
such payments due in connection with such settlement on behalf of
such Indemnified Party.
(c) McCaw and Holdings shall cause to be maintained in
effect for not less than six years after the Effective Time the
current policies of directors' and officers' liability insurance
maintained by LIN with respect to matters occurring prior to and
including the Effective Time for all present and past directors
and officers of LIN or any of its Subsidiaries; provided,
however, that (i) McCaw and Holdings may substitute therefor
policies of at least the same coverage containing terms and
conditions which are no less advantageous to the directors and
officers covered thereby and (ii) McCaw and Holdings shall not be
required to pay in the aggregate an annual premium for such
insurance in excess of two times the last annual premium paid
prior to the date hereof, but in such case shall purchase as much
coverage as possible for such amount.
(d) In the event that any action, suit, proceeding or
investigation relating hereto or to the transactions contemplated
by this Agreement is commenced, whether before or after the
Closing, the parties hereto agree to cooperate and use their
respective reasonable efforts to vigorously defend against and
respond thereto.
(e) This Section 7.3 is intended to benefit the
persons covered by the indemnification rights and/or insurance
policies referred to in this Section 7.3 and shall be binding on
all successors and assigns of McCaw, Holdings, Merger Sub, LIN
and the Surviving Corporation.
7.4. New York Real Property Gains and Transfer Tax.
Any liability arising out of New York State and/or New York City
Real Property Gains and Transfer Taxes, with respect to interests
in real property owned directly or indirectly by LIN immediately
prior to the Merger, if applicable and due with respect to the
Merger, shall be borne by LIN and expressly shall not be a
liability of the stockholders of LIN.
<PAGE>
<PAGE> 22
ARTICLE VIII
CONDITIONS
8.1. Conditions to Each Party's Obligations. The
respective obligations of each party to consummate the
transactions contemplated by this Agreement are subject to the
fulfillment at or prior to the Effective Time of each of the
following conditions, any or all of which may be waived (other
than the condition set forth in clause (ii) of Section 8.1(a)) in
whole or in part by the party being benefitted thereby, to the
extent permitted by applicable law and the PMVG:
(a) Stockholder Approval. This Agreement and the
transactions contemplated hereby shall have been duly
approved at the Stockholders Meeting by (i) the requisite
holders of LIN Common Shares in accordance with applicable
law and the Certificate of Incorporation and By-Laws of LIN
and (ii) the affirmative vote of the holders of at least a
majority of the LIN Public Shares present and entitled to
vote at the Stockholders Meeting at which a majority of the
LIN Public Shares shall have been present.
(b) No Injunction. There shall not be in effect any
judgment, writ, order, injunction or decree of any court or
Governmental Body of competent jurisdiction, restraining,
enjoining or otherwise preventing consummation of the
transactions contemplated by this Agreement or permitting
such consummation only subject to any condition or
restriction unacceptable to McCaw in its reasonable
judgment; provided, however, that any party invoking this
condition shall use reasonable efforts to have any such
order or injunction vacated or any such other restriction
eliminated.
8.2. Conditions to Obligations of McCaw, Holdings and
Merger Sub. The respective obligations of McCaw, Holdings and
Merger Sub to consummate the transactions contemplated by this
Agreement are subject to the fulfillment at or prior to the
Effective Time of each of the following conditions, any or all of
which may be waived in whole or part by McCaw, Holdings and
Merger Sub, as the case may be, to the extent permitted by
applicable law:
(a) Representations and Warranties True. The
representations and warranties of LIN contained in Section
Article V shall have been true in all material respects when
made and at the time of the Closing with the same effect as
though such representations and warranties had been made at<PAGE>
<PAGE> 23
such time, except for changes resulting from the
consummation of the transactions contemplated by this
Agreement.
(b) Performance. LIN shall have performed or complied
in all material respects with all agreements and conditions
contained herein required to be performed or complied with
by it prior to or at the time of the Closing.
(c) Government Consents, Etc. All Authorizations, if
any, required in connection with the execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby shall have been made or obtained, in
each case without limitation or restriction unacceptable to
McCaw in its reasonable judgment, except where the failure
to have obtained such Authorizations would not be reasonably
expected (so far as can be foreseen at the time) to have a
material adverse effect on the business, properties,
operations, condition (financial or other) or prospects of
(i) LIN and its Subsidiaries taken as a whole or (ii) McCaw
and its Subsidiaries taken as a whole.
(d) Approval of Settlement of Stockholders Litigation.
A stipulation of settlement, as contemplated by the
Memorandum of Understanding, shall have been entered into
providing for the settlement of the Stockholders Litigation
on the terms set forth in the Memorandum of Understanding
and such stipulation shall have been approved by a final and
nonappealable order of the Delaware Chancery Court; provided
that such condition shall be deemed satisfied if the only
aspect of the settlement not approved by such a final and
nonappealable order is the award of the plaintiffs'
attorneys' fee.
(e) Third Party Consents. All required
authorizations, consents or approvals in connection with the
Merger of any third party (other than a Governmental Body),
if any, the failure to obtain which would have a material
adverse effect on (i) LIN and its Subsidiaries taken as a
whole or (ii) McCaw and its Subsidiaries taken as a whole,
shall have been obtained.
8.3. Conditions to Obligations of LIN. The
obligations of LIN to consummate the transactions contemplated by
this Agreement are subject to the fulfillment at or prior to the
Effective Time of each of the following conditions, any or all of
which may be waived in whole or in part by LIN to the extent
permitted by applicable law:<PAGE>
<PAGE> 24
(a) Representations and Warranties True. The
representations and warranties of McCaw, Holdings and Merger
Sub contained in Article VI shall have been true in all
material respects when made and at the time of the Closing
with the same effect as though such representations and
warranties had been made at such time, except for changes
resulting from the consummation of the transactions
contemplated by this Agreement.
(b) Performance. Each of McCaw, Holdings and Merger
Sub shall have performed or complied in all material
respects with all agreements and conditions contained herein
required to be performed or complied with by it prior to or
at the time of the Closing.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.1. Termination by Mutual Consent. This Agreement
may be terminated and the Merger may be abandoned at any time
prior to the Effective Time, before or after the approval by
holders of LIN Common Shares, either by the mutual written
consent of McCaw and LIN, or by mutual action of their respective
Boards of Directors.
9.2. Termination by Either McCaw or LIN. This
Agreement may be terminated (upon notice from the terminating
party to the other parties) and the Merger may be abandoned (a)
by action of the Board of Directors of McCaw if the Merger shall
not have been consummated by November 30, 1995, (b) by action of
the Board of Directors of LIN if the Merger shall not have been
consummated by December 31, 1995 or, if the condition set forth
in Section 8.1(a) shall have been satisfied and the Merger is
being pursued in good faith by McCaw but has not been completed
due to regulatory delays or litigation, August 31, 1996, or (c)
by action of the Board of Directors of either McCaw or LIN if (i)
any court of competent jurisdiction in the United States or
Governmental Body in the United States shall have issued an
order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the Merger and
such order, decree, ruling or other action shall have become
final and nonappealable or (ii) at the Stockholders Meeting, this
Agreement and the Merger shall not receive the affirmative vote
of the holders of at least a majority of the LIN Public Shares
present and entitled to vote at the Stockholders Meeting at which
a majority of the LIN Public Shares shall be present.<PAGE>
<PAGE> 25
9.3. Amendment. Subject to the applicable provisions
of the DGCL, at any time prior to the Effective Time, the parties
hereto may modify, amend or supplement this Agreement, by written
agreement executed and delivered by duly authorized officers of
the respective parties with respect to any of the terms contained
herein; provided, however, that after approval of the Merger by
the stockholders of LIN, no such amendment or modification shall
be made which reduces the form or amount of consideration payable
in the Merger or adversely affects the rights of LIN's
stockholders hereunder without the approval of such stockholders.
This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
9.4. Extension; Waiver. At any time prior to the
Effective Time, the parties may (a) extend the time for the
performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) subject to Section
9.3, waive compliance with any of the agreements or conditions
(other than the condition set forth in clause (ii) of Section
8.1(a)) contained in this Agreement. Any agreement on the part
of a party to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise shall not
constitute a waiver of such rights.
9.5. Procedure for Termination, Amendment, Extension
or Waiver. A termination of this Agreement pursuant to Section
9.1 or 9.2, an amendment of this Agreement pursuant to Section
9.3 or an extension or waiver pursuant to Section 9.4 by any of
the parties shall, in order to be effective, require, in the case
of McCaw, Holdings or Merger Sub, approval by its Board of
Directors or the duly authorized designee of its Board of
Directors and, in the case of LIN, approval by its Board of
Directors or the duly authorized designee of its Board of
Directors and approval by a majority of the LIN Independent
Directors.
9.6. Effect of Termination and Abandonment. In the
event of termination of this Agreement and abandonment of the
Merger pursuant to this Article IX, no party hereto (or any of
its directors or officers) shall have any liability or further
obligation to any other party under this Agreement, except that
nothing herein will relieve any party from liability for any
breach of this Agreement and except that the last two sentences
of Section 7.1 will survive any termination of this Agreement
and/or abandonment of the Merger. Except as and to the extent<PAGE>
<PAGE> 26
provided in the PMVG, the termination of this Agreement and
abandonment of the Merger pursuant to this Article IX shall not
affect in any way the PMVG, which shall continue to be in full
force and effect to the extent of and in accordance with its
terms.
ARTICLE X
MISCELLANEOUS AND GENERAL
10.1. Expenses. Each party shall bear its own
expenses, including the fees and expenses of any attorneys,
accountants, investment bankers, brokers, finders or other
intermediaries or other Persons engaged by it, incurred in
connection with this Agreement and the transactions contemplated
hereby, except as set forth in Section 7.4 and except that
expenses incurred in connection with printing and mailing the
Proxy Statement will be shared equally by McCaw, Holdings and
Merger Sub, on the one hand, and LIN, on the other.
10.2. 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 seven days after being mailed by
first-class mail, postage prepaid and return receipt requested in
each case to the applicable addresses set forth below:
If to LIN:
LIN Broadcasting Corporation
5400 Carillon Point
Kirkland, Washington 98033
Attn: Mr. Tom A. Alberg
Telecopy: (206) 828-1835
with copies to:
David B. Chapnick, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Telecopy: (212) 455-2502
<PAGE>
<PAGE> 27
and
Jeffrey Weinberg, Esq.
Weil, Gotshal & Manges
767 Fifth Avenue
New York, NY 10153
Telecopy: (212) 310-8007
If to McCaw, Holdings or Merger Sub:
McCaw Cellular Communications, Inc.
1150 Connecticut Avenue, N.W.
Suite 400
Washington, DC 20036
Attn: Andrew A. Quartner, Esq.
Telecopy: (202) 223-9095
with copies to:
AT&T Corp.
131 Morristown Rd., C64-A2029
Basking Ridge, New Jersey 07920
Attn: Marilyn J. Wasser, Esq.
Telecopy: (908) 953-4657
and
Steven A. Rosenblum, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: (212) 403-2000
or to such other address as such party shall have designated by
notice so given to each other party.
10.3. Nonsurvival of Representations and Warranties.
None of the representations and warranties in this Agreement
(other than the representations and warranties set forth in
Sections 6.5 and 6.6) or in any instrument delivered pursuant to
this Agreement shall survive the Effective Time. This Section
10.3 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective
Time.
<PAGE>
<PAGE> 28
10.4. No Assignment. 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; provided
that, except as otherwise expressly set forth in this Agreement,
neither the rights nor the obligations of any party may be
assigned or delegated without the prior written consent of the
other party.
10.5. Entire Agreement. This Agreement embodies the
entire agreement and understanding between the parties relating
to the subject matter hereof and supersedes all prior agreements
and understandings relating to such subject matter; provided,
however, that the parties hereto acknowledge and agree that this
Agreement shall not supersede or in any way modify the PMVG which
shall continue to be in full force and effect in accordance with
its terms. The parties further acknowledge and agree that the
Merger contemplated by this Agreement shall be considered an
Acquisition as defined in the PMVG.
10.6. 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.
10.7. 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.
10.8. 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 its right to exercise any such or other right,
power or remedy or to demand such compliance.
10.9. No Third Party Beneficiaries. 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 <PAGE>
<PAGE> 29
hereto, except for the indemnification provisions contained in
Section 7.3, which provisions may be enforced by the parties
referred to therein.
10.10. Public Announcements. McCaw and LIN will agree
upon the timing and content of the initial press release to be
issued describing the transactions contemplated by this
Agreement, and will not make any public announcement thereof
prior to reaching such agreement unless required to do so by
applicable law or regulation. To the extent reasonably requested
by either party, each party will thereafter consult with and
provide reasonable cooperation to the other in connection with
the issuance of further press releases or other public documents
describing the transactions contemplated by this Agreement.
10.11. Certain Actions by LIN. Subject to Section
9.5, LIN shall not be deemed to have breached this Agreement by
virtue of any action taken by LIN that is expressly approved by a
majority of the members of the LIN Board who are employees of
McCaw or its affiliates other than LIN and its Subsidiaries.
10.12. Governing Law. This Agreement and all disputes
hereunder shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware,
without regard to principles of conflict of laws.
10.13. Name, Captions, Etc. The name assigned this
Agreement and the section captions used herein are for
convenience of reference only and shall not affect the
interpretation or construction hereof. Unless otherwise
specified, (a) the terms "hereof", "herein" and similar terms
refer to this Agreement as a whole and (b) references herein to
Articles or Sections refer to articles or sections of this
Agreement.
10.14. 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.
10.15. McCaw Guarantee. McCaw absolutely, irrevocably
and unconditionally guarantees the performance and satisfaction
of the obligations of each of Holdings, Merger Sub and the
Surviving Corporation under this Agreement.
<PAGE>
<PAGE> 30
IN WITNESS WHEREOF, this Agreement has been executed
and delivered by the parties set forth below.
Date: June 30, 1995 MCCAW CELLULAR COMMUNICATIONS, INC.
By: /s/
--------------------------------
Steven W. Hooper
President
Date: June 30, 1995 MMM HOLDINGS, INC.
By: /s/
--------------------------------
Steven W. Hooper
President
Date: June 30, 1995 MMM ACQUISITION CORP.
By: /s/
--------------------------------
H. John Hokenson
Vice President
Date: June 30, 1995 LIN BROADCASTING CORPORATION
By: /s/
--------------------------------
Lewis M. Chakrin
Chairman
<PAGE>
<PAGE> 31
Agreed to for purposes of the last
two sentences of Section 7.1:
AT&T CORP.
By: /s/
--------------------------------
Dennis J. Carey
Vice President
