SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
The Associated Group, Inc.
(Name of Issuer)
Class A Common Stock, par value $.10 per
share Class B Common Stock, par value
$.10 per share
(Title of Class of Securities)
045651 10 6 (Class A)
045651 20 5 (Class B)
(CUSIP Number)
Donald H. Jones
c/o The Associated Group, Inc.
200 Gateway Towers
Pittsburgh, Pennsylvania 15222
(412) 281-1907
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copies to:
Scott G. Bruce, Esq. Kent A. Coit, Esq.
The Associated Group, Inc. Skadden, Arps, Slate, Meagher
Three Bala Plaza East & Flom LLP
Suite 502 One Beacon Street
Bala Cynwyd, Pennsylvania 19004 Boston, Massachusetts 02108
(610) 660-4910 (617) 573-4800
May 28, 1999
(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 that is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Section
240.13d-7(b) for other parties to whom copies are to be sent.
* 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).
SCHEDULE 13D
CUSIP Nos. 045651 10 6 (Class A)
045651 20 5 (Class B)
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1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
Donald H. Jones
###-##-####
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions)
(a) ( )
(b) (X)
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3. SEC USE ONLY
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4. SOURCE OF FUNDS (See Instructions)
PF/00 (See Item 3)
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) ( )
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7. SOLE VOTING POWER (See Item 5)
NUMBER OF 80,622 (Class A)
SHARES 159,372 (Class B)
BENEFICIALLY ------------------------------------------
OWNED BY 8. SHARED VOTING POWER (See Item 5)
EACH 2,332,416 (Class A)
REPORTING 2,410,266 (Class B)
PERSON ------------------------------------------
WITH 9. SOLE DISPOSITIVE POWER (See Item 5)
80,622 (Class A)
159,372 (Class B)
------------------------------------------
10. SHARED DISPOSITIVE POWER (See Item 5)
2,332,416 (Class A)
2,410,266 (Class B)
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
2,413,038 (Class A)
2,569,638 (Class B)
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES (See Instructions) ( )
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.9% (Class A)
13.2% (Class B)
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14. TYPE OF REPORTING PERSON (See Instructions)
IN
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Note: This Amendment No. 1 to Schedule 13D (this "Amendment No.
1") amends a Statement on Schedule 13D dated October 3, 1995
(the "Schedule 13D"; the Schedule 13D, as amended by this
Amendment No. 1, this "Statement"), filed on behalf of
Donald H. Jones, relating to the Class A Common Stock (as
defined herein) and the Class B Common Stock (as defined
herein). This Amendment No. 1 is being filed to report the
Voting Agreement (as defined herein) entered into on behalf
of the Estate of Jack N. Berkman (the "Estate"), of which
Mr. Jones is an Executor, on May 28, 1999, and also reflects
a gift of 200,000 shares of Class A Common Stock made on
behalf of the Estate of Jack N. Berkman, to the Sybiel
Berkman Foundation (the "SBF"). The share amounts set forth
in this Amendment No. 1 reflect the two-for-one split of the
Class A Common Stock and the Class B Common Stock, effected
by a stock dividend paid on October 27, 1997, so that any
share amounts relating to an event preceding such stock
split reflects such stock split as if such stock split
preceded such event.
Pursuant to Section 232.101 of Regulation S-T, which
provides that an amendment to a paper format Schedule 13D
filed by a registrant that has become subject to mandated
electronic filing shall be in electronic format and the
first such amendment shall restate the entire text of the
Schedule 13D, this Amendment No. 1 amends, supplements and
restates, as of the date set forth on the signature page
below, the Schedule 13D.
Item 1. Security and Issuer.
The titles of the classes of equity securities to which the
Schedule 13D, as amended by this Amendment No. 1, relates are the Class A
Common Stock, par value $.10 per share (together with the preferred stock
purchase rights associated therewith, the "Class A Common Stock") and the
Class B Common Stock, par value $.10 per share (together with the preferred
stock purchase rights associated therewith, the "Class B Common Stock" and
together with the Class A Common Stock, the "Company Common Stock"), of The
Associated Group, Inc., a Delaware corporation (the "Company"), 200 Gateway
Towers, Pittsburgh, Pennsylvania 15222.
Item 2. Identity and Background.
(a) This Statement is filed on behalf of Donald H. Jones
who is referred to herein as "Mr. Jones".
(b) Mr. Jones' business address is c/o Triangle Capital
Corporation, Two Gateway Center, 17th Floor, Pittsburgh, Pennsylvania
15222.
(c) Mr. Jones is Chairman of Triangle Capital Corporation, a firm
engaged in the development of new business enterprises and
investment activities.
(d) and (e) During the past five years, Mr. Jones has not (i) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction which resulted in a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating any activities subject to, federal or state securities laws or
finding any violation of such laws.
(f) Mr. Jones is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
On October 3, 1995, Preliminary Letters Testamentary, and
subsequently, on January 3, 1996, Full Letters Testamentary (the "Letters
Testamentary") were issued by the Surrogate's Court of New York County, New
York, to Mr. Jones as one of three executors (each an "Executor," and
collectively the "Executors") of the estate of the Jack N. Berkman (the
"Estate"), which beneficially owned, at the time the Schedule 13D was
filed, 2,532,416 shares of Class A Common Stock and 2,560,266 shares of
Class B Common Stock, which amount included options to purchase 27,850
shares of Class B Common Stock (the "Estate Options"). The three Executors
share equally the power to dispose of and vote the shares of Company Common
Stock beneficially owned by the Estate.
On June 20, 1996, the Executors made a gift, on behalf of the
Estate, of 200,000 shares of Class A Common Stock to the SBF. Myles P.
Berkman and Lillian R. Berkman are the trustees of the SBF. In June, 1996,
the Executors exercised, on behalf of the Estate, all of the outstanding
Estate Options for 27,850 shares of Class B Common Stock, at an exercise
price of $.45 per share which was paid from funds in the Estate. On March
5, 1997, the Executors made a gift, on behalf of the Estate, of 150,000
shares of Class B Common Stock to Harvard University.
Prior to the acquisition of beneficial ownership of shares of
Company Common Stock as a result of becoming an Executor, on December 15,
1994 (the "Distribution Date"), Mr. Jones acquired beneficial ownership of
80,622 shares of each class of Company Common Stock through a pro rata
dividend distribution (the "Distribution") to holders of common stock of
Associated Communications Corporation, a Delaware corporation ("ACC"), as
of the close of business on December 15, 1994, the record date for the
Distribution (the "Record Date"). Pursuant to the Distribution, each holder
of shares of ACC common stock received 1/4 share of Class A Common Stock
and 1/4 share of Class B Common Stock for each share of ACC common stock
held by such holder on the Record Date. Mr. Jones did not pay any
consideration in connection with his receipt of shares of Company Common
Stock pursuant to the Distribution.
Additionally, as of the time immediately prior to the Distribution
and the Merger (as such terms are hereinafter defined) on December 15,
1994, Mr. Jones held options ("ACORN Options") to acquire 10,000 shares of
Class A Common Stock ("ACORN Class A Common Stock") of Associated
Communications Resources, Inc., a Delaware corporation ("ACORN"), which had
been previously granted under the Associated Communications Resources, Inc.
1989 Stock Option Plan (the "ACORN Plan"). In connection with the
Distribution and the Merger, all outstanding ACORN Options (except for
those held by persons who were not continuing as employees of the Company,
which ACORN Options were cashed out), including those held by Mr. Jones,
were "rolled over" (the "Roll-Over") into and became fully vested,
immediately exercisable options (the "Roll-Over Options") under the 1994
Plan (as hereinafter defined) to purchase a number of shares of Class B
Common Stock not exceeding (for all Roll-Over Options) 5% of all
outstanding shares of common stock of the Company at the time of the
Distribution, at an exercise price per share such that the "spread value"
of such ACORN Options (and the proportionality between the $2.50 exercise
price per share of such ACORN Options and the fair market value of a share
of ACORN Class A Common Stock, as determined by the committee of
non-employee directors which administered the ACORN Plan) would be
maintained in the Roll-Over Options. On January 10, 1995, the exact number
of shares of Class B Common Stock subject to, and the exercise price of,
Mr. Jones' Roll-Over Options were determined to be 38,120 and $.65,
respectively, based on the average of the closing prices per share of Class
B Common Stock on the Nasdaq National Market over the ten trading days
commencing five trading days after the Distribution Date. Mr. Jones did not
pay any consideration in connection with his receipt of Roll-Over Options.
The foregoing description of the Roll-Over is qualified in its
entirety by reference to the description thereof set forth on pages 38
through 40, inclusive, of the Company's Registration Statement on Form 10/A
filed with the Securities and Exchange Commission on November 15, 1994,
which pages were filed as Exhibit A to the Original Statement and are
incorporated herein by reference. Such Exhibit has been omitted in this
electronic filing pursuant to Section 232.102 of Regulation S-T.
On March 4 and March 5, 1998, Mr. Jones exercised all of the
outstanding Roll-Over Options for 38,120 shares of Class B Common Stock, at
an exercise price of $.655 per share, which Mr. Jones paid from personal
funds. Mr. Jones then sold, on March 4 and 5, 1998, an aggregate of 28,120
shares of Class B Common Stock, realizing a gain of $985,347.40. Mr. Jones
holds the remaining 10,000 shares of Class B Common Stock acquired as a
result of his exercise of the Roll-Over Options.
On each of December 15, 1994, June 15, 1995, June 6, 1996, June 5,
1997, June 4, 1998 and June 3, 1999, Mr. Jones was granted options to
purchase 5,000 shares of Class B Stock, at an exercise price of $11.31,
$8.75, $14.75, $19.75, $34.375 and $63.625 per share, respectively. Such
options, which were granted pursuant to the Non-Employee Directors Formula
Award Program under The Associated Group, Inc. Amended and Restated 1994
Stock Option and Incentive Award Plan (the "1994 Plan"), vest and become
exercisable in 50% increments over the two years following the date of
grant. As of June 5, 1999, options to purchase 22,500 shares of Class B
Common Stock are fully vested and currently exercisable (collectively, the
"Company Options").
As of the time immediately prior to the Conversion (as hereinafter
defined) which was effective as of February 27, 1998, Mr. Jones held
options ("MSI Options") to acquire 5,000 shares of the common stock of
Microwave Services, Inc., a Delaware corporation and a wholly owned
subsidiary of the Company ("MSI"), which had previously been granted under
the Microwave Services, Inc. 1996 Stock Incentive Plan (the "MSI Plan").
Effective as of February 27, 1998, all outstanding MSI Options, including
those held by Mr. Jones, were converted into (the "Conversion") options
(which options are fully vested and exercisable) under the 1994 Plan (the
"Conversion Options") to purchase a number of shares of Class B Common
Stock at an exercise price per share such that the "spread value" of such
MSI Options (and the proportionality between the exercise price of such MSI
Options and the fair market value of a share of MSI common stock, as
determined by the committee of non-employee directors which administered
the MSI Plan) would be maintained in the Conversion Options. On February
27, 1998, the exact number of shares of Class B Common Stock subject to,
and the exercise price of, Mr. Jones' Conversion Options were determined to
be 46,250 and $2.69, respectively. Mr. Jones did not pay any consideration
in connection with his receipt of Conversion Options.
As an inducement to AT&T Corp., a New York corporation ("AT&T"),
and Liberty Media Corporation, a Delaware corporation ("Liberty"), to enter
into the Agreement and Plan of Merger, dated as of May 28, 1999, by and
among AT&T, Liberty, A-Group Merger Corp., a wholly owned subsidiary of
AT&T ("Merger Sub"), and the Company (the "Merger Agreement") and in
consideration thereof, Mr. Jones, solely in his capacity as an Executor,
entered into the Voting Agreement (described in Item 4 of this Statement
and incorporated herein by reference). Except as set forth in the preceding
sentence, neither AT&T nor Liberty has paid any consideration in connection
with entering into the Voting Agreement.
Item 4. Purpose of the Transaction.
Subject to the terms of the Voting Agreement (as defined below),
and to the conversion of shares of Company Common Stock pursuant to the
Merger (as defined below), Mr. Jones, in his capacity as an Executor,
intends to hold such shares of Company Common Stock owned by the Estate for
investment on behalf of the Estate. However, in order to satisfy
testamentary bequests, taxes and estate administration expenses, and
depending on, among other things, fiduciary duties, market conditions and
business developments, Mr. Jones, in his capacity as an Executor, may from
time to time, on behalf of the Estate, subject to the terms of the Voting
Agreement with respect to the shares of Class A Common Stock beneficially
owned by the Estate, dispose of some or all of the shares of Company Common
Stock beneficially owned by the Estate. Additionally, although he has no
present intention of doing so, and depending on, among other things,
fiduciary duties, market conditions and business developments, Mr. Jones,
in his capacity as an Executor, may from time to time acquire additional
shares of Company Common Stock on behalf of the Estate. The foregoing is
qualified in its entirety by reference to the fact that Mr. Jones shares
equally with the other two Executors the power to dispose of and vote such
shares of Company Common Stock and may not act alone in the disposition or
voting of the shares of Company Common Stock beneficially owned by the
Estate.
On May 28, 1999, the Company entered into the Merger Agreement
providing, upon the terms and subject to the conditions set forth therein,
for the acquisition of the Company by means of a merger of Merger Sub with
and into the Company (the "Merger"), with the Company surviving the Merger.
At the effective time of the Merger (the "Effective Time") each share of
Class A Common Stock and Class B Common Stock will be converted into AT&T
common stock and Class A Liberty Media Group Stock of AT&T. Consummation of
the Merger is subject to the approval of the Merger Agreement by the
Company's stockholders, the expiration of the applicable waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
the receipt of all required approvals of the Federal Communications
Commission and any other required regulatory approvals, and the
satisfaction or waiver of certain other conditions as more fully described
in the Merger Agreement.
On May 28, 1999, the Executors, on behalf of the Estate, and
certain other stockholders of the Company (the "Stockholders") entered into
a voting agreement (the "Voting Agreement") with AT&T and Liberty. The
Voting Agreement was entered into by the Executors, on behalf of the
Estate, as an inducement to AT&T and Liberty to enter into the Merger
Agreement.
Pursuant to the Voting Agreement, the Executors, on behalf of the
Estate, have agreed with Liberty, severally and not jointly with the other
Stockholders, to vote all of the shares of Company Common Stock that the
Estate has the right to vote or direct the voting as of the applicable
record date (a) in favor of adoption and approval of the Merger Agreement
and the Merger and (b) against any other merger, consolidation,
reorganization, other business combination, or recapitalization involving
the Company, for the acquisition of a 25% or greater interest in the equity
of the Company, for the acquisition of the right to cast 25% or more of the
votes on any matter with respect to the Company, or for the acquisition of
more than 25% of the assets of the Company and certain of its subsidiaries
(an "Alternative Proposal").
In addition, in the Voting Agreement, the Executors, on behalf of
the Estate, have agreed with Liberty that they will not directly or
indirectly sell, pledge, encumber, grant any proxy or enter into any voting
or similar agreement with respect to, transfer or otherwise dispose of
(collectively, a "Transfer"), or agree or contract to Transfer, any shares
of Class A Common Stock (or interest therein) subject to the Voting
Agreement with respect to which the Estate directly or indirectly controls
the right to Transfer, except that they may (i) pledge such shares of Class
A Common Stock so long as they retain for the Estate full voting rights
with respect to such pledged shares (even in the event of foreclosure by
pledgee), or (ii) Transfer to any person or entity (including without
limitation an estate) who or which shall have agreed in writing with
Liberty to be bound by the Voting Agreement. The Voting Agreement imposes
no restrictions on the ability of the Estate to transfer or otherwise
dispose of any shares of Class B Common Stock beneficially owned by it.
The Voting Agreement terminates upon the earliest to occur of (i)
the Effective Time, or (ii) the date on which the Merger Agreement is
terminated in accordance with its terms, provided, however, that if the
Merger Agreement is terminated as a result of (A) the stockholders of the
Company failing to approve the Merger Agreement and Merger, or (B) the
Company's Board of Directors withdrawing or modifying (in a manner adverse
to AT&T or Liberty) its approval or recommendation of the Merger, or
approving, recommending or authorizing the Company to enter into, an
agreement with respect to an Alternative Proposal, then the Voting
Agreement shall terminate upon the earlier of (A) six months after such
termination of the Merger Agreement, or (B) the date of payment of any
termination fee that may be payable as a result of such termination of the
Merger Agreement.
The foregoing description of the Merger Agreement and the Merger,
and the Voting Agreement, respectively, do not purport to be complete and
are qualified in their entirety by reference to the Merger Agreement and
the Voting Agreement, respectively, a copy of which, in the case of the
Merger Agreement, is incorporated by reference as Exhibit B hereto and, in
the case of the Voting Agreement, is attached hereto as Exhibit C, both of
which agreements are incorporated herein by reference.
The purpose of the gifts of 200,000 shares of Class A Common Stock
and 150,000 shares of Class B Common Stock made by the Executors on behalf
of the Estate was to satisfy testamentary bequests under Jack N. Berkman's
will.
With respect to the shares of Company Common Stock acquired by Mr.
Jones in the Distribution, reference is made to Item 3 for information
relating to the Distribution discussed therein, which information is
incorporated herein by reference. Prior to the Distribution, ACC owned all
of the outstanding shares of Company Common Stock. On the Distribution
Date, subsequent to the Distribution, pursuant to the Agreement and Plan of
Merger and Reorganization, dated as of February 23, 1994 (the "SBC Merger
Agreement"), among ACC, Southwestern Bell Corporation d/b/a SBC
Communications Inc., a Delaware corporation ("SBC"), and SBMS Acquisition
Corp., a Delaware corporation and an indirect, wholly owned subsidiary of
SBC ("SBMS"), SBMS merged with and into ACC (the "SBC Merger"), and ACC
became an indirect, wholly owned subsidiary of SBC. Under the SBC Merger
Agreement, it was a condition to the consummation of the SBC Merger that
the Distribution be completed prior thereto.
Reference is made to Item 3 hereof for information regarding the
Roll-Over discussed therein, which information is incorporated herein by
reference. The purpose of the Roll-Over was to enable the holders of
outstanding ACORN Options to retain, through options to acquire Class B
Common Stock, the value of the equity incentive represented by such ACORN
Options after consummation of the Distribution and the Merger. Mr. Jones
exercised all of the outstanding Roll-Over Options for 38,210 shares of
Class B Common Stock and sold 28,210 of such shares for investment
purposes.
Reference is made to Item 3 hereof for information regarding the
Conversion discussed therein, which information is incorporated herein by
reference. The purpose of the Conversion was to provide the holders of
outstanding MSI Options with a more liquid form of equity award following
the initial public offering in November, 1997, of Teligent, Inc.
("Teligent"), a company originally founded by MSI, and which, immediately
after consummation of such public offering was approximately 41% owned by
MSI. The MSI Plan provided that in the event of certain transactions,
including an initial public offering by Teligent, MSI's Board of Directors
or the committee which administered the MSI Plan could make such equitable
changes or adjustments or take any other action that it deemed necessary or
appropriate with respect to the MSI Options.
Although he has no current plans to do so (other than as disclosed
in this Statement), from time to time Mr. Jones may acquire additional
shares of Class B Common Stock (including without limitation through the
exercise of options to purchase Class B Common Stock held by Mr. Jones as
described herein) or dispose of some or all of the shares of Class B Common
Stock beneficially owned by him. Mr. Jones is a director of the Company and
he participates in the formulation, determination and direction of the
business policies of the Company. Therefore, Mr. Jones may be deemed a
"controlling person" of the Company.
With respect to the Company and except as set forth or incorporated
by reference in the Schedule 13D, as amended by this Amendment No. 1, Mr.
Jones currently has no plans or proposals which would relate to or which
would result in:
(a) the acquisition by any person of additional securities
of the Company or the disposition of securities of the Company;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
(c) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries;
(d) any change in the present board of directors or management of
the Company, including any plans or proposals to change the number or term
of directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of the Company;
(f) any other material change in the Company's business or
corporate structure;
(g) changes in the Company's certificate of incorporation, by-laws
or instruments corresponding thereto or other actions which may impede the
acquisition of control of the Company by any person;
(h) causing a class of securities of the Company to be delisted
from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(i) a class of equity securities of the Company becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934; or
(j) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) Mr. Jones beneficially owns 2,413,038 shares of Class A Common
Stock, representing approximately 12.9% of the total number of shares of
Class A Common Stock outstanding as of May 28, 1999. Such shares of Class A
Common Stock include (i) 80,622 shares beneficially owned by Mr. Jones
individually and (ii) 2,332,416 shares beneficially owned by the Estate and
as to which Mr. Jones disclaims beneficial ownership.
Mr. Jones beneficially owns 2,569,638 shares of Class B Common
Stock, representing approximately 13.2% of the total number of shares of
Class B Common Stock outstanding as of May 28, 1999 as set forth in Section
4.3 of the Merger Agreement. Such shares of Class B Common Stock include
(i) 90,622 shares beneficially owned by Mr. Jones individually, (ii) fully
vested, currently exercisable Company Options (as described in Item 3
hereof, which description is incorporated herein by reference) to purchase
22,500 shares of Class B Common Stock (iii) fully vested, currently
exercisable Conversion Options (as described in Item 3 hereof, which
description is incorporated herein by reference) to purchase 46,250 shares
of Class B Common Stock and (iv) 2,410,266 shares beneficially owned by the
Estate and as to which Mr. Jones disclaims beneficial ownership.
Mr. Jones disclaims beneficial ownership of any shares of Company
Common Stock beneficially owned by the two other Executors.
By virtue of the Voting Agreement, Mr. Jones, solely in his
capacity as an Executor, may be deemed to have formed a "group" with
Liberty, for purposes of Section 13(d)(3) of the Exchange Act and Rule
13d-5(b)(1) thereunder. However, Mr. Jones expressly declares that the
filing of this Statement shall not be construed as an admission by him, and
Mr. Jones expressly disclaims, that he has formed or is a member of any
such group, and he disclaims beneficial ownership of any shares of Class B
Stock that may be beneficially owned or be deemed to be beneficially owned
by Liberty or any such group.
(b) Mr. Jones has the sole power to vote or to direct the vote and
sole power to dispose or direct the disposition of each of the 80,622
shares of Class A Common Stock and the 159,372 shares of Class B Common
Stock beneficially owned by him individually (assuming the exercise of the
Company Options and the Conversion Options held by him). Mr. Jones shares
with the two other Executors the power to vote and to direct the vote of
the 2,332,416 shares of Class A Common Stock and the 2,410,266 shares of
Class B Common Stock beneficially owned by the Estate, subject to the terms
of the Voting Agreement, and, subject to the terms of the Voting Agreement
with respect to such 2,332,416 shares of Class A Common Stock, the power to
dispose or direct the disposition of such shares.
By virtue of the Voting Agreement, the Estate may be deemed to
share with Liberty the power to vote or direct the vote of the shares of
Company Common Stock, and the power to dispose or direct the disposition of
the shares of Class A Common Stock, beneficially owned by the Estate.
However, (i) Liberty is not entitled to any rights as a stockholder of the
Company as to any such shares of Company Common Stock and (ii) the filing
of this Amendment No. 2 should not be construed as an admission by Mr.
Jones in his capacity as Executor, that the Estate, and Mr. Jones, in his
capacity as Executor, expressly disclaims that the Estate shares such
voting or dispositive power with Liberty.
(c) Except for the entering into the Voting Agreement, Mr. Jones
has not effected any transaction in the shares of Company Common Stock
during the past sixty days.
(d) With respect to the shares of Company Common Stock beneficially
owned by the Estate, the Estate or the beneficiaries under Mr. Jack N.
Berkman's will (which indirectly include Myles P. Berkman, his brothers
Monroe Berkman and Stephen Berkman and, under certain circumstances, their
respective spouses and descendants) may be deemed to have the right to
receive or direct the receipt of the dividends from, or the proceeds from
the sale of, such shares. With respect to all other shares of Company
Common Stock beneficially owned by Mr. Jones, Mr. Jones is not aware of any
other person who may be deemed to have the right to receive or direct the
receipt of the dividends from, or the proceeds from the sale of, such
shares.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
Reference is made to Items 3 and 4 above for information relating
to (i) the Roll-Over Options, the Company Options and the Conversion
Options, (ii) the Distribution, (iii) the Letters Testamentary and the
Estate Options and (iv) the Voting Agreement, which information is
incorporated herein by reference. Reference is also made to Item 5(d) above
for information relating to Mr. Jack N. Berkman's will, which information
is incorporated herein by reference.
Except as described in this Statement, Mr. Jones does not have any
contracts, arrangements, understandings or relationships (legal or
otherwise) with any person with respect to any securities of the Company,
including but not limited to the transfer or voting of any of such
securities, finder's fees, joint ventures, loan or option agreements, puts
or calls, guarantees of profits, division of profits or loss, or the giving
or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit A: Pages 38 through 40, inclusive, of the
Company's Registration Statement on Form 10/A
filed with the Securities and Exchange
Commission on November 15, 1994.*
Exhibit B: Merger Agreement**
Exhibit C: Voting Agreement
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* This material was filed as Exhibit A to the Schedule 13D. Such
Exhibit has been omitted in this electronic filing pursuant to
Section 232.102 of Regulation S-T.
** Incorporated herein by reference to Exhibit 2.1 to the Current Report
on Form 8-K of The Associated Group, Inc. dated June 2, 1999.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: June 11, 1999
/s/ Donald H. Jones
---------------------------
Donald H. Jones
<PAGE>
EXHIBIT INDEX
Exhibit Description
- ------- -----------
A Pages 38 through 40, inclusive, of the Company's
Registration Statement on Form 10/A filed with the
Securities and Exchange Commission on November 15, 1994.*
B Merger Agreement**
C Voting Agreement
- -------------
* Incorporated herein by reference to the Schedule 13D dated October 3,
1995 and filed with the Securities and Exchange Commission on October
10, 1995. Such Exhibit has been omitted in this electronic filing
pursuant to Section 232.102 of Regulation S-T.
** Incorporated herein by reference to Exhibit 2.1 to the Current Report
on Form 8-K of The Associated Group, Inc. dated June 2, 1999.
Exhibit C
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of May 28, 1999,
is entered into by and among AT&T Corp., a New York corporation ("Parent"),
Liberty Media Corporation, a Delaware corporation ("Liberty"), on the one
hand, and the other parties named on the signature pages of this Agreement
(collectively, the "Stockholders"), on the other hand.
WHEREAS, concurrently herewith, Parent, Liberty, A-Group
Merger Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and The Associated Group, Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of
Merger (as amended or supplemented from time to time, the "Merger
Agreement");
WHEREAS, as of the date hereof, the Stockholders own and/or
have the power to vote, as applicable, the number of Shares (as defined
below) set forth in Schedule I hereto;
WHEREAS, the Board of Directors of the Company has, prior to
the execution of this Agreement, duly and validly approved and adopted the
Merger Agreement, and has approved this Agreement (solely for purposes of
paragraph (a)(1) of Section 203 of the DGCL as may be applicable to Parent
or Liberty with respect to the Company by virtue of this Agreement) and
such approvals and adoption have not been withdrawn;
WHEREAS, approval of the Merger Agreement by the Company's
stockholders is a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger
Agreement, Liberty has required that each Stockholder agree, and each
Stockholder has agreed, to enter into this Agreement;
WHEREAS, capitalized terms used herein (including in
Schedules I and II hereto) but not defined herein shall have the respective
meanings ascribed thereto in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree
as follows:
Section 1. Agreement to Vote.
(a) Each Stockholder hereby agrees with Liberty to attend
the Special Meeting of the Company (or any other meeting of stockholders of
the Company at which the Merger Proposal is to be submitted to a vote of
the stockholders of the Company), in person or by proxy, and to vote (or
cause to be voted) all Shares and any other voting securities of the
Company (including any such securities acquired hereafter) that such
Stockholder has the right to vote or direct the voting as of the applicable
record date (collectively, the "Covered Shares"), for approval and adoption
of the Merger Agreement, the Merger and any related action reasonably
required in furtherance thereof and duly submitted to a vote of the
stockholders at the Special Meeting or any other meeting of stockholders of
the Company, such agreement to vote to apply also to any adjournment or
adjournments or postponement or postponements of the Special Meeting (or
any such other meeting). Each Stockholder hereby further agrees with
Liberty that he, she or it shall, from time to time, in connection with any
consent or proxy solicitation relating to the Merger Agreement, timely
execute and deliver (or cause to be timely executed and delivered) a
written consent or proxy with respect to any Covered Shares in favor of the
approval and adoption of the Merger Agreement, the Merger and any related
action reasonably required in furtherance thereof as contemplated by the
immediately preceding sentence.
(b) Each Stockholder hereby agrees with Liberty to vote (or
cause to be voted) any Covered Shares against any Alternative Proposal and
any related action reasonably required in furtherance thereof, at any
meeting of stockholders of the Company (including any adjournments or
postponements thereof) called to consider and vote on any Alternative
Proposal. Each Stockholder further agrees with Liberty that, in connection
with any consent or proxy solicitation relating to a Alternative Proposal,
such Stockholder will timely execute and deliver (or cause to be timely
executed and delivered) a written consent or proxy with respect to any
Covered Shares against any Alternative Proposal as contemplated by the
immediately preceding sentence.
(c) To the extent inconsistent with the foregoing provisions
of this Section 1, each Stockholder acknowledges and agrees with Liberty
that such Stockholder hereby revokes any and all previous proxies with
respect to such Stockholder's Covered Shares.
(d) Notwithstanding any other provision of this Agreement,
nothing contained herein shall (i) restrict, limit or prohibit in any
manner any Stockholder (including in such Stockholder's representative
capacity) who is a director or officer of the Company, any Subsidiary of
the Company or of Tokyo or any Subsidiary of Tokyo, from taking any action
or omitting to act in his capacity as such a director or officer or (ii)
require any Stockholder (including in such Stockholder's representative
capacity) to, or to seek to, cause any director or officer of the Company,
any Subsidiary of the Company or of Tokyo or any Subsidiary of Tokyo, to
take or omit to take any action in his capacity as such a director or
officer; provided that nothing in this Section 1(d) shall be deemed to
relieve any Stockholder from such Stockholder's obligations under Sections
1, 2 and 3 of this Agreement.
Section 2. Disposition of Shares. Each Stockholder hereby
agrees with Liberty that such Stockholder will not directly or indirectly
sell, pledge, encumber, grant any proxy or enter into any voting or similar
agreement with respect to, transfer or otherwise dispose of (collectively,
"Transfer"), or agree or contract to Transfer, any Shares (or any interest
therein) with respect to which a Stockholder directly or indirectly
controls the right to Transfer, except for (i) any pledge by a Stockholder
of Shares so long as the Stockholder retains full voting rights with
respect to such Shares (even in the event of a foreclosure by the pledgee)
or (ii) any such Transfer to any Person or entity (including without
limitation an estate) who or which shall have agreed in writing with
Liberty to be bound by this Agreement as a Stockholder (any direct or
indirect transferee referred to in clauses (i) and (ii) above being
referred to as a "Permitted Transferee").
Section 3. Further Assurances. Each Stockholder agrees with
Liberty that such Stockholder will execute and deliver such additional
instruments and other documents and shall take such further actions as may
be reasonably necessary to effectuate, carry out and comply with such
Stockholder's obligations under this Agreement in accordance with the terms
hereof. Without limiting the generality of the foregoing, each Stockholder
agrees with Liberty that such Stockholder will not enter into any agreement
or arrangement (or alter, amend or terminate any existing agreement or
arrangement) or take any other action (or fail to take any other action) if
such action (or failure) would materially impair the ability of such
Stockholder to effectuate, carry out or comply with all the terms of this
Agreement. Parent and Liberty each agree to cooperate with each Stockholder
in connection with any filings required to be made by such Stockholder
relating to this Agreement, the Merger Agreement or the transactions
contemplated hereby or thereby.
Section 4. Representations and Warranties of Parent and
Liberty.
(a) Parent represents and warrants to each Stockholder as
follows: This Agreement has been duly executed and delivered by a duly
authorized officer of Parent and constitutes a valid and binding agreement
of Parent, enforceable against Parent.
(b) Liberty represents and warrants to each Stockholder as
follows: Each of this Agreement and the Merger Agreement has been approved
by the Board of Directors of Liberty, in each case representing all
necessary corporate action on the part of Liberty. Each of this Agreement
and the Merger Agreement has been duly executed and delivered by a duly
authorized officer of Liberty. Each of this Agreement and the Merger
Agreement constitutes a valid and binding agreement of Liberty, enforceable
against Liberty.
Section 5. Representations and Warranties of the Stockholders.
Each Stockholder severally represents and warrants (solely
with respect to such Stockholder) to Liberty as follows:
(a) Such Stockholder has the power and authority to execute
and deliver this Agreement. This Agreement has been duly executed and
delivered by such Stockholder. This Agreement constitutes the valid and
binding agreement of such Stockholder. Such Stockholder has the full power
and authority to vote (or cause to be voted), or execute (or cause to be
executed) a consent with respect to, all Shares as contemplated hereby. The
securities of the Company listed next to the name of such Stockholder on
Schedule I hereto are the only shares of Company Class A Common Stock of
the Company over which such Stockholder has the power to vote (or direct
the voting) (such shares of Company Class A Common Stock being referred to
as the "Shares").
(b) Each Stockholder is the lawful owner of the Shares
listed on Schedule I as owned by such Stockholder, free and clear of all
liens, charges, encumbrances and commitments of every kind, other than this
Agreement and as set forth on Schedule II hereto, and each Stockholder has
the power to vote or cause to be voted (including by granting an
irrevocable power to vote or executing a written consent) such Shares so
listed. The execution and delivery by such Stockholder of this Agreement do
not violate or breach any contract, instrument, agreement or arrangement to
which such Stockholder is a party or by which such Stockholder is bound or,
to the best knowledge and belief of such Stockholder, any law applicable to
such Stockholder.
Section 6. Effectiveness; Term of Agreement; Termination. It
is a condition precedent to the effectiveness (and the commencement of the
term) of this Agreement that the Merger Agreement shall have been duly
adopted and approved and executed and delivered by the parties thereto.
Subject to the immediately preceding sentence, the term of this Agreement
shall commence on the date hereof, and such term and this Agreement shall
terminate automatically upon the earliest to occur of (a) the Effective
Time or (b) the termination of the Merger Agreement in accordance with its
terms, provided, however, that if the Merger Agreement is terminated
pursuant to Section 9.1(ii)(D) or Section 9.1(iii) thereof, in either case
without regard to whether any Termination Fee becomes payable following
such termination, this Agreement shall terminate upon the earlier of (i)
the date which is six months after such termination of the Merger Agreement
or (ii) the date on which a Termination Fee is paid. Upon such termination
of this Agreement, no party shall have any obligation or liability
hereunder; provided that if such termination is pursuant to clause (b)
immediately above, such termination shall not relieve any party from
liability for any breach of this Agreement prior to such termination.
Section 7. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement
shall be in writing and shall be deemed to have been duly given to any
party when delivered personally (by courier service or otherwise), when
delivered by telecopy and confirmed by return telecopy, or one day after
being sent by courier service that guarantees overnight delivery to the
applicable addresses (or facsimile numbers) set forth below:
If to Parent:
AT&T Corp.
295 North Maple Avenue
Basking Ridge, NJ 07920
Attention: Vice President-Law and Corporate Secretary
Facsimile: (908) 221-6618
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, NY 10019
Attention: David Silk, Esq.
Facsimile: (212) 403-2000
If to Liberty:
Liberty Media Corporation
9197 South Peoria Street
Englewood, CO 80112
Attention: Charles Y. Tanabe, Esq.
Facsimile: (720) 875-5382
with a copy to:
Baker & Botts, L.L.P.
599 Lexington Ave.
New York, NY 10022
Attention: John L. Graham, Esq.
Facsimile: (212) 705-5125
If to any Stockholder, to such Stockholder c/o:
Myles P. Berkman
The Associated Group, Inc.
200 Gateway Towers
Pittsburgh, PA 15222
Facsimile: (412) 281-1914
with a copies to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, MA 02108
Attention: Kent A. Coit, Esq.
Facsimile: (617) 573-4822
and
Scott G. Bruce, Esq.
The Associated Group, Inc.
Three Bala Plaza East
Suite 502
Bala Cynwyd, PA 19004
Facsimile: (610) 660-4920
and
Dechert Price & Rhoads
1717 Arch Street
Philadelphia, PA 19103
Attention: Barton J. Winokur, Esq.
Facsimile: (215) 994-2222
or to such other address as such party shall have designated by notice so
given to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by Liberty and each Stockholder.
(c) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties
and their respective successors and assigns, including without limitation
in the case of Parent or Liberty any corporate successor by merger or
otherwise, and in the case of a Stockholder any Permitted Transferee,
including any trustee, executor, heir, legatee or personal representative
succeeding to the ownership of (or power to vote) such Stockholder's
Covered Shares or other securities subject to this Agreement (including as
a result of the death, disability or incapacity of a Stockholder).
(d) Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties relating to the subject
matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. There are no representations, warranties
or covenants by the parties hereto relating to such subject matter other
than those expressly set forth in this Agreement.
(e) Severability. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such term to the other parties or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
applicable law, provided that in such event the parties shall negotiate in
good faith in an attempt to agree to another provision (in lieu of the term
or application held to be invalid or unenforceable) that will be valid and
enforceable and will carry out the parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and
that any party may, in its sole discretion, apply to a court of competent
jurisdiction for specific performance or injunctive or such other relief as
such court may deem just and proper in order to enforce this Agreement or
prevent any violation hereof and, to the extent permitted by applicable
law, each party waives any objection to the imposition of such relief for
any such violation.
(g) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the exercise
or beginning of the exercise of any thereof by any party shall not preclude
the simultaneous or later exercise of any other such right, power or remedy
by such party.
(h) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, and
any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver by such party of his or her right to exercise
any such or other right, power or remedy or to demand such compliance.
(i) No Personal Liability for Stockholder Representatives;
No Third Party Beneficiaries; Severability; No Liability of Stockholders to
Parent. It is expressly understood and agreed that no executor, trustee,
officer, director, or other representative of a Stockholder shall have any
personal liability hereunder as a result of such person's execution and
delivery of this Agreement or for any acts or omissions in such person's
capacity as such executor, trustee, officer, director or other
representative. This Agreement is not intended to be for the benefit of and
shall not be enforceable by any person or entity who or which is not a
party hereto. The representations and warranties of each Stockholder
contained herein and the obligations of each Stockholder hereunder are
several and not joint, and no Stockholder shall be liable for any
representation, warranty, agreement, action or inaction of any other
Stockholder. Notwithstanding any other provision of this Agreement, no
Stockholder shall have any liability to Parent hereunder in respect of any
representation, warranty, covenant, agreement or any other obligation of
any Stockholder set forth herein.
(j) Jurisdiction. Each party hereby irrevocably submits to
the exclusive jurisdiction of the Court of Chancery in the State of
Delaware or the United States District Court for the Southern District of
New York or any court of the State of New York located in the City of New
York in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be
brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however,
that such consent to jurisdiction is solely for the purpose referred to in
this paragraph (j) and shall not be deemed to be a general submission to
the jurisdiction of said Courts or in the States of Delaware or New York
other than for such purposes. Each party hereto hereby waives any right to
a trial by jury in connection with any such action, suit or proceeding.
(k) Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws
of the State of Delaware, including the General Corporation Law of the
State of Delaware, to the fullest extent possible.
(l) Name, Captions, Gender. The name assigned to this
Agreement and the section captions used herein are for convenience of
reference only and shall not affect the interpretation or construction
hereof. Whenever the context may require, any pronoun used herein shall
include the corresponding masculine, feminine or neuter forms.
(m) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one instrument. Each counterpart
may consist of a number of copies each signed by less than all, but
together signed by all, the parties hereto.
(n) Expenses. Except as may otherwise be agreed in any
agreement between Parent and Liberty (solely with respect to such parties),
Parent, Liberty and each Stockholder shall be responsible for its, his or
her own expenses incurred in connection with this Agreement
and the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
AT&T CORP.
By: /s/ Daniel E. Somers
-----------------------------
Name: Daniel E. Somers
Title: Senior Executive Vice
President and CFO
LIBERTY MEDIA CORPORATION
By: /s/ Charles Y. Tanabe
-----------------------------
Name: Charles Y. Tanabe
Title: Senior Vice President and
General Counsel
STOCKHOLDERS:
/s/ Myles P. Berkman
--------------------------------
Myles P. Berkman
/s/ David J. Berkman
--------------------------------
David J. Berkman
/s/ Lillian R. Berkman
---------------------------------
Lillian R. Berkman
Estate of Jack N. Berkman
By: /s/ Myles P. Berkman
------------------------------
Myles P. Berkman, as
Executor
/s/ Lillian R. Berkman
---------------------------------
Lillian R. Berkman, as
Executor
/s/ Donald H. Jones
----------------------------------
Donald H. Jones,
as Executor
Sybiel B. Berkman Foundation
By: /s/ Myles P. Berkman
------------------------------
Myles P. Berkman, as Trustee
Monroe E. Berkman Family
Limited Partnership
By: /s/ Myles P. Berkman
------------------------------
Myles P. Berkman, as
General Partner
Stephen L. Berkman Trust
By: /s/ Lillian R. Berkman
-----------------------------
Lillian R. Berkman, as Trustee
Monroe E. Berkman Trust
By: /s/ Lillian R. Berkman
-----------------------------
Lillian R. Berkman, as Trustee
Schedule I
Company Class A
Stockholder Common Stock
----------- --------------
David J. Berkman 13,626
Sybiel B. Berkman Foundation 200,000
Monroe E. Berkman Family Limited 270,938
Partnership
Estate of Jack N. Berkman 2,332,416
Lillian R. Berkman 450,000
Stephen L. Berkman Trust 125,802
Monroe E. Berkman Trust 125,802
Myles P. Berkman 681,642
-----------
Total 4,200,226
