UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 44 )*
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)
April 28, 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. 44 (the "Amendment") amends the Schedule
13D filed on April 7, 1988, as previously amended (the "Schedule
13D"), with regard to the Common Stock, par value $0.01 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 April 28, 1995, McCaw, MMM, MMM Acquisition Corp, a
wholly owned subsidiary of MMM ("Acquisition"), and LIN
entered into a definitive Agreement and Plan of Merger (the
"Merger Agreement"). The Merger Agreement provides for the
acquisition by McCaw of the Public Shares at the Private
Market Price of $127.50 per share in cash by means of a
merger of Acquisition into LIN (the "Merger"). The full
text of the Merger Agreement is attached hereto as Exhibit
99.1. The full text of the press release issued by AT&T and
McCaw on April 28, 1995, announcing approval of the Merger
by a majority of the LIN Board of Directors, is attached
hereto as Exhibit 99.2.
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, by and among McCaw, MMM, Acquisition and
LIN.
99.2 Press release issued by AT&T and McCaw on April
28, 1995.
<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: May 1, 1995 Marilyn J. Wasser
Vice President-Law and Secretary
McCAW CELLULAR COMMUNICATIONS, INC.
By: ANDREW A. QUARTNER
-----------------------------
Date: May 1, 1995 Andrew A. Quartner
Senior Vice President-Law
MMM HOLDINGS, INC.
By: ANDREW A. QUARTNER
-----------------------------
Date: May 1, 1995 Andrew A. Quartner
Senior Vice President-Law
<PAGE>
<PAGE>
EXHIBIT INDEX
99.1 Agreement and Plan of Merger, dated April 28,
1995, by and among McCaw, MMM, Acquisition and
LIN.
99.2 Press release issued by AT&T and McCaw on April
28, 1995.
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
<PAGE>
TABLE OF CONTENTS
ARTICLE I
1. Definitions.... . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
2. The Merger; Terms of the Merger . . . . . . . ............... 4
2.1. The Merger . . . . . . . . . . . . . . . . . . . . . . . 4
2.2. Effective Time . . . . . . ............................. 5
2.3. Closing. . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4. Certificate of Incorporation . . . . . . . . . . . . . . 5
2.5. The By-Laws. . . . . . . . . . . . . . . . . . . . . . . 5
2.6. Directors. . . . . . . . . . . . . . . . . . . . . . . . 5
2.7. Officers . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
3. Conversion of Shares; Option Plan;
Stockholders Meeting. . . . . . . . . . . . . . . . . . . . 6
3.1. Merger Consideration; Conversion or
Cancellation of Shares in the Merger . . . . . . . . . 6
3.2. Option Plan; Stock Purchase Plan . . . . . . . . . . . . 6
3.3. Stockholders' Meeting. . . . . . . . . . . . . . . . . . 8
ARTICLE IV
4. Dissenting Shares; Payment for Shares . . . . . . . . . . . . 9
4.1. Dissenting Shares. . . . . . . . . . . . . . . . . . . . 9
4.2. Payment for Shares . . . . . . . . . . . . . . . . . . . 9
ARTICLE V
5. Representations and Warranties of LIN . . . . . . . . . . . . 11
5.1. Organization, Etc. of LIN. . . . . . . . . . . . . . . . 11
5.2. Operations of Subsidiaries . . . . . . . . . . . . . . . 11
5.3. Agreement. . . . . . . . . . . . . . . . . . . . . . . . 12
5.4. Capital Stock. . . . . . . . . . . . . . . . . . . . . . 12
5.5. Brokers and Finders. . . . . . . . . . . . . . . . . . . 12
<PAGE>
5.6. Proxy Statement. . . . . . . . . . . . . . . . . . . . . 13
5.7. Delaware Section 203 . . . . . . . . . . . . . . . . . . 13
5.8. Rights Agreement . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
6. Representations and Warranties of McCaw, Holdings
and Merger Sub. . . . . . . . . . . . . . . . . . . . . . . 14
6.1. Organization, Etc. of McCaw, Holdings
and Merger Sub . . . . . . . . . . . . . . . . . . . . 14
6.2. Agreement. . . . . . . . . . . . . . . . . . . . . . . . 14
6.3. Brokers and Finders. . . . . . . . . . . . . . . . . . . 14
6.4. Proxy Statement. . . . . . . . . . . . . . . . . . . . . 14
6.5. No Prior Activities. . . . . . . . . . . . . . . . . . . 15
6.6. Solvency . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII
7. Additional Covenants and Agreements . . . . . ............... 15
7.1. Conduct of Business of LIN . . . . . . . . . . . . . . . 15
7.2. Reasonable Efforts . . . . . . . . . . . ............... 16
7.3. Indemnification; Insurance . . . . . . . . . . . . . . . 16
7.4. New York Real Property Gains and
Transfer Tax . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII
8. Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1. Conditions to Each Party's Obligations . . . . . . . . . 17
8.2. Conditions to Obligations of McCaw, Holdings
and Merger Sub . . . . . . . . . . . . . . . . . . . . 18
8.3. Conditions to Obligations of LIN . . . . . . . . . . . . 19
ARTICLE IX
9. Termination, Amendment and Waiver . . . . . . . . . . . . . . 19
9.1. Termination by Mutual Consent. . . . . . . . . . . . . . 19
9.2. Termination by Either McCaw
or LIN . . . . . . . . . . . . . . . . . . . . . . . . 19
9.3. Amendment. . . . . . . . . . . . . . . . . . . . . . . . 20
9.4. Extension; Waiver. . . . . . . . . . . . . . . . . . . . 20
9.5. Effect of Termination and Abandonment. . . . . . . . . . 20
ARTICLE X
10. Miscellaneous and General . . . . . . . . . . ............... 21
10.1. Expenses . . . . . . . . . . . . . . . . . . . . . . . 21
10.2. Notices, Etc.. . . . . . . . . . . . . . . . . . . . . 21
10.3. Nonsurvival of Representations and
Warranties . . . . . . . . . . . . . . . . . . . . . . 22
10.4. No Assignment. . . . . . . . . . . . . . . . . . . . . 22
10.5. Entire Agreement . . . . . . . . . . . . . . . . . . . 22
10.6. Specific Performance . . . . . . . . . . . . . . . . . 23
10.7. Remedies Cumulative. . . . . . . . . . . . . . . . . . 23
10.8. No Waiver. . . . . . . . . . . . . . . . . . . . . . . 23
10.9. No Third Party Beneficiaries . . . . . . . . . . . . . 23
10.10. Public Announcements . . . . . . . . . . . . . . . . . 23
10.11. Certain Actions by LIN . . . . . . . . . . . . . . . . 23
10.12. Governing Law. . . . . . . . . . . . . . . . . . . . . 24
10.13. Name, Captions, Etc. . . . . . . . . . . . . . . . . . 24
10.14. Counterparts . . . . . . . . . . . . . . . . . . . . . 24
10.15. McCaw Guarantee. . . . . . . . . . . . . . . . . . . . 24
Exhibit A -- Private Market Value Guarantee, as amended
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated April 28, 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 has been set at $127.50
per LIN Common Share;
WHEREAS, pursuant to and in accordance with the terms
of the PMVG, McCaw has determined that it desires to proceed
with an acquisition of the LIN Public Shares at the Private
Market Price, on the terms and subject to the conditions set
forth in this Agreement;
WHEREAS, the Boards of Directors of McCaw, Holdings,
Merger Sub and LIN 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:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall
have the respective meanings set forth below:
"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.
"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 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.
"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.
"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.
"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 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>
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.
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 $127.50 in cash, without interest
thereon (the "Merger Consideration"), as set forth in
Section 4.2 hereof.
(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.
Section 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
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.
Section 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
(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.
<PAGE>
ARTICLE IV
DISSENTING SHARES; PAYMENT FOR SHARES
Section 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
hereof, 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.
Section 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.
(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 held by McCaw, Holdings or Merger
Sub, any Wholly Owned Subsidiary of McCaw, Holdings or Merger
Sub, 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 the Merger
Consideration multiplied by the number of LIN Common Shares
formerly represented by such Certificate, in consideration
therefor, 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 held by McCaw, Holdings or Merger
Sub, any Wholly Owned Subsidiary of McCaw, Holdings or Merger
Sub, 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. 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 of a Certificate formerly representing
a LIN Common Share (other than Certificates representing
Dissenting Shares and Certificates representing LIN Common
Shares held by McCaw, Holdings or Merger Sub, any Wholly Owned
Subsidiary of McCaw, Holdings or Merger Sub, 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,
without any interest or dividends thereon.
(d) The Merger Consideration 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
held by McCaw, Holdings or Merger Sub, any Wholly Owned
Subsidiary of McCaw, Holdings or Merger Sub, 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, as provided in
this Article IV, subject to applicable law and the other
provisions of this Agreement in the case of Dissenting Shares.
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.
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 are outstanding as of the date hereof, and (b)
2,000,000 shares of preferred stock, no par value, none of which
are outstanding as of the date hereof. 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 are outstanding on the
date hereof 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. 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 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 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.
Section 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.
Section 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>
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.
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.
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.
<PAGE>
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).
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 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,
(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.
(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.
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 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) No Proceeding or Litigation. No suit, action,
investigation, inquiry or other proceeding by or before any
Governmental Body shall have been instituted and be pending
which questions the validity or legality of the PMVG or the
proceedings thereunder or of this Agreement or the
transactions contemplated hereby, or which imposes or could
impose any remedy, condition or restriction in connection
therewith unacceptable to McCaw.
(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:
(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 by
action of the Board of Directors of either McCaw or LIN if (a)
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, (b) 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
(c) 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).
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. 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. Except as and to the extent 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.
<PAGE>
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
and
Jeffrey Weinberg, Esq.
Weil, Gotshal & Manges
767 Fifth Avenue
New York, NY 10153
Telecopy: (212) 310-8007
<PAGE>
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.
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.
<PAGE>
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
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. Notwithstanding
anything contained herein to the contrary, 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 <PAGE>
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>
IN WITNESS WHEREOF, this Agreement has been executed
and delivered by the parties set forth below.
MCCAW CELLULAR
COMMUNICATIONS, INC.
By: /s/ Wayne Perry
MMM HOLDINGS, INC.
By: /s/ Wayne Perry
MMM ACQUISITION CORP.
By: /s/ Marilyn Wasser
LIN BROADCASTING CORPORATION
By: /s/ Lewis Chakrin
EXHIBIT 99.2
NEWS RELEASE
LIN BOARD APPROVES MERGER WITH McCAW
FOR RELEASE: Friday, April 28, 1995
NEW YORK - AT&T and McCaw Cellular today announced that a
majority of the LIN Broadcasting board of directors has approved
the merger of LIN with McCaw.
As announced April 7, McCaw decided to proceed with an
acquisition of the public shares of the LIN Broadcasting at
$127.50 per share in cash.
Next steps in the merger process include filing proxy
information for review by the Securities and Exchange Commission.
The proxy will then be sent to LIN shareowners who will vote on
the merger at a special meeting. A majority of the LIN public
shares is required for approval. McCaw's obligation to complete
the merger is also subject to the absence of pending litigation,
including satisfactory resolution of pending shareholder suits.
LIN has a total of about 53.3 million shares on a fully
diluted basis.
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