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)
Lillian R. Berkman
c/o The Associated Group, Inc.
650 Madison Avenue
25th Floor
New York, New York 10022
(212) 301-2800
(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)
Lillian R. Berkman
###-##-####
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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)
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 -0- (Class A)
SHARES -0- (Class B)
BENEFICIALLY -----------------------------------------
OWNED BY 8. SHARED VOTING POWER (See Item 5)
EACH 3,234,020 (Class A)
REPORTING 3,111,870 (Class B)
PERSON -----------------------------------------
WITH 9. SOLE DISPOSITIVE POWER (See Item 5)
-0- (Class A)
450,000 (Class B)
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10. SHARED DISPOSITIVE POWER (See Item 5)
3,234,020 (Class A)
2,661,870 (Class B)
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,234,020 (Class A)
3,111,870 (Class B)
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES (See Instructions) (X)
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
17.2% (Class A)
16.0% (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"), as amended by this Amendment No. 1, this
"Statement"), filed on behalf of Lillian R. Berkman, 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 by Lillian Berkman 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, of which Ms.
Berkman is an Executor, to the Sybiel Berkman Foundation (the
"SBF"), of which Ms. Berkman is a trustee. 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 reflect 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
(except that previously filed paper exhibits to such Schedule
13D are not required to be restated), 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) The Schedule 13D, as amended by this Amendment No. 1,
is filed on behalf of Lillian R. Berkman who is referred to
herein as "Ms. Berkman".
(b) Ms. Berkman's business address is c/o The Associated
Group, Inc., 650 Madison Avenue, 25th Floor, New York, New York
10022.
(c) Ms. Berkman is a Vice President of the Company.
(d) and (e) During the past five years, Ms. Berkman 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) Ms. Berkman 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 Ms. Berkman as one of three executors (each an "Executor," and
collectively the "Executors") of the estate of her late husband, 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. Ms. Berkman and Mr.
Myles P. Berkman are the trustees of the SBF (each a "Trustee", and
together the "Trustees"). The Trustees share equally the power to dispose
of and vote the 200,000 shares of Class A Common Stock beneficially owned
by 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"), Ms. Berkman acquired beneficial ownership of 701,604
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. Ms. Berkman did not pay any consideration in connection
with her receipt of shares of Company Common Stock pursuant to the
Distribution.
As an inducement for 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, Ms. Berkman, in her individual capacity and in her
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 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), Ms. Berkman, in her capacity as an Executor, intends to
hold the 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, Ms. Berkman, in her 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 she has no present
intention of doing so, and depending on, among other things, fiduciary
duties, market conditions and business developments, Ms. Berkman, in her
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 Ms. Berkman 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.
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.
Subject to the terms of the Voting Agreement, and to the conversion
of shares of Company Common Stock pursuant to the Merger, Ms. Berkman, in
her capacity as a Trustee, intends to hold the shares of Class A Common
Stock gifted to and owned by the SBF for investment on behalf of the SBF.
Depending on, among other things, fiduciary duties, market conditions and
business developments, Ms. Berkman, in her capacity as a Trustee, may from
time to time, on behalf of the SBF, subject to the terms of the Voting
Agreement, dispose of some or all of the shares of Class A Common Stock
beneficially owned by the SBF. The foregoing is qualified in its entirety
by reference to the fact that Ms. Berkman shares equally with the other
Trustee the power to dispose of and vote such shares of Class A Common
Stock and may not act alone in the disposition or voting of the shares of
Class A Common Stock beneficially owned by the SBF.
With respect to the shares of Company Common Stock acquired by Ms.
Berkman 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.
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, Ms. Berkman 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
Ms. Berkman as an inducement to AT&T and Liberty to enter into the Merger
Agreement.
Pursuant to the Voting Agreement, Ms. Berkman has agreed with
Liberty, severally and not jointly with the other Stockholders, to vote all
of the shares of Company Common Stock that she 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, taken as a whole (an "Alternative
Proposal").
In addition, in the Voting Agreement, Ms. Berkman has agreed with
Liberty that she 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 Ms. Berkman
directly or indirectly controls the right to Transfer, except that she may
(i) pledge such shares of Class A Common Stock so long as she retains full
voting rights with respect to such pledged shares (even in the event of
foreclosure by the 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 Ms. Berkman to transfer
or otherwise dispose of any shares of Class B Common Stock beneficially
owned by her.
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 A hereto and, in the
case of the Voting Agreement, is attached hereto as Exhibit B, both of
which agreements are incorporated herein by reference.
Although she has no current plans to do so (other than as disclosed
in this Statement), from time to time Ms. Berkman may acquire additional
shares of Company Common Stock or, subject to the terms of the Voting
Agreement, dispose of some or all of the shares of Company Common Stock
beneficially owned by her.
With respect to the Company and except as set forth or incorporated
by reference in this Statement, Ms. Berkman 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) Ms. Berkman beneficially owns 3,234,020 shares of Class A Common
Stock, representing approximately 17.2% 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) 450,000 shares beneficially owned by Ms. Berkman
individually, (ii) an aggregate of 251,604 shares held by two trusts (the
"Trusts") for the benefit of two of Mr. Jack N. Berkman's children, the
trustees of which are Ms. Berkman and Bank One of Eastern Ohio, N.A. ("Bank
One"), and as to which Ms. Berkman disclaims beneficial ownership, (iii)
2,332,416 shares beneficially owned by the Estate and as to which Ms.
Berkman disclaims beneficial ownership and (iv) 200,000 shares beneficially
owned by the SBF, as to which Ms. Berkman disclaims beneficial ownership.
Ms. Berkman beneficially owns 3,111,870 shares of Class B Common
Stock, representing approximately 16.0% of the total number of shares of
Class B Common Stock outstanding as of May 28, 1999. Such shares of Class B
Common Stock include (i) 450,000 shares beneficially owned by Ms. Berkman
individually, (ii) an aggregate of 251,604 shares held by the Trusts, the
trustees of which are Ms. Berkman and Bank One, and as to which Ms. Berkman
disclaims beneficial ownership and (iii) 2,410,266 shares beneficially
owned by the Estate and as to which Ms. Berkman disclaims beneficial
ownership.
Ms. Berkman disclaims beneficial ownership of any shares of Company
Common Stock beneficially owned by the two other Executors of the Estate,
the other Trustee of the SBF, and the other Trustee of the Trusts.
By virtue of the Voting Agreement, Ms. Berkman 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, Ms. Berkman
expressly declares that the filing of this Statement shall not be construed
as an admission by her, and Ms. Berkman expressly disclaims that she has
formed or is a member of any such group, and she disclaims beneficial
ownership of any shares of Company Common Stock that may be beneficially
owned or be deemed to be beneficially owned by Liberty or any such group.
(b) Ms. Berkman has the sole power to vote or to direct the vote,
subject to the terms of the Voting Agreement, and, subject to the terms of
the Voting Agreement with respect to the 450,000 shares of Class A Common
Stock, sole power to dispose or direct the disposition of each of the
450,000 shares of each class of Company Common Stock beneficially owned by
her individually. Ms. Berkman shares with Bank One the power to vote and to
direct the vote of the 251,604 shares of each class of Company Common Stock
beneficially owned by the Trusts, subject to the terms of the Voting
Agreement, and the power to dispose or direct the disposition of such
shares, subject to the terms of the Voting Agreement with respect to such
251,604 shares of Class A Common Stock. Ms. Berkman 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 the power to dispose or direct the disposition of such
shares, subject to the terms of the Voting Agreement with respect to such
2,332,416 shares of Class A Common Stock. Ms. Berkman shares with the other
Trustee the power to vote and direct the vote and to dispose or to direct
the disposition of the 200,000 shares of Class A Common Stock owned
beneficially by the SBF, subject to the terms of the Voting Agreement.
By virtue of the Voting Agreement, Ms. Berkman may be deemed to share
with Liberty the power to vote or to 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 her. However, (i)
Liberty is not entitled to any rights as a stockholder of the Company as to
any such shares of Class A Common Stock or Class B Common Stock and (ii)
the filing of this Amendment No. 2 should not be construed as an admission
that Ms. Berkman, and Ms. Berkman expressly disclaims that she, shares such
voting or dispositive power with Liberty.
(c) Except for the entering into the Voting Agreement, Ms. Berkman
has not effected any transaction in the shares of Company
Common Stock during the past sixty days.
(d) With respect to the 251,604 shares of each class of Company
Common Stock held by the Trusts as described in Item 5(a) above, the
applicable trust, trustees or trust beneficiaries 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 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
Mr. 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 the shares of Class A Common Stock beneficially owned by the SBF, the
SBF 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 Ms.
Berkman, Ms. Berkman 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 Letters Testamentary and the Estate Options, (ii) the Distribution
and (iii) the Voting Agreement, and to Item 5 above to the description of
the Trusts, which information is incorporated herein by reference.
Reference is 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 or incorporated by reference in this Statement,
Ms. Berkman 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: Merger Agreement(*)
Exhibit B: Voting Agreement
- --------
(*) Incorporated hereby 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/ Lillian R. Berkman
-----------------------
Lillian R. Berkman
EXHIBIT INDEX
Exhibit Description
A Merger Agreement(*)
B Voting Agreement
- --------
(*) Incorporated hereby by reference to Exhibit 2.1 to the Current Report
on Form 8-K of The Associated Group, Inc. dated June 2, 1999.
Exhibit B
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of May 28, 1999, is
entered into by and among AT&T Corp., a New York corporation ("Parent"),
Liberty Media Corporation, a Delaware corporation ("Liberty"), on the one
hand, and the other parties named on the signature pages of this Agreement
(collectively, the "Stockholders"), on the other hand.
WHEREAS, concurrently herewith, Parent, Liberty, A-Group Merger
Corp., a Delaware corporation and a wholly owned subsidiary of Parent
("Merger Sub"), and The Associated Group, Inc., a Delaware corporation (the
"Company"), are entering into an Agreement and Plan of Merger (as amended
or supplemented from time to time, the "Merger Agreement");
WHEREAS, as of the date hereof, the Stockholders own and/or
have the power to vote, as applicable, the number of Shares (as defined
below) set forth in Schedule I hereto;
WHEREAS, the Board of Directors of the Company has, prior to
the execution of this Agreement, duly and validly approved and adopted the
Merger Agreement, and has approved this Agreement (solely for purposes of
paragraph (a)(1) of Section 203 of the DGCL as may be applicable to Parent
or Liberty with respect to the Company by virtue of this Agreement) and
such approvals and adoption have not been withdrawn;
WHEREAS, approval of the Merger Agreement by the Company's
stockholders is a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger
Agreement, Liberty has required that each Stockholder agree, and each
Stockholder has agreed, to enter into this Agreement;
WHEREAS, capitalized terms used herein (including in Schedules
I and II hereto) but not defined herein shall have the respective meanings
ascribed thereto in the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree
as follows:
Section 1. Agreement to Vote.
(a) Each Stockholder hereby agrees with Liberty to attend the
Special Meeting of the Company (or any other meeting of stockholders of the
Company at which the Merger Proposal is to be submitted to a vote of the
stockholders of the Company), in person or by proxy, and to vote (or cause
to be voted) all Shares and any other voting securities of the Company
(including any such securities acquired hereafter) that such Stockholder
has the right to vote or direct the voting as of the applicable record date
(collectively, the "Covered Shares"), for approval and adoption of the
Merger Agreement, the Merger and any related action reasonably required in
furtherance thereof and duly submitted to a vote of the stockholders at the
Special Meeting or any other meeting of stockholders of the Company, such
agreement to vote to apply also to any adjournment or adjournments or
postponement or postponements of the Special Meeting (or any such other
meeting). Each Stockholder hereby further agrees with Liberty that he, she
or it shall, from time to time, in connection with any consent or proxy
solicitation relating to the Merger Agreement, timely execute and deliver
(or cause to be timely executed and delivered) a written consent or proxy
with respect to any Covered Shares in favor of the approval and adoption of
the Merger Agreement, the Merger and any related action reasonably required
in furtherance thereof as contemplated by the immediately preceding
sentence.
(b) Each Stockholder hereby agrees with Liberty to vote (or
cause to be voted) any Covered Shares against any Alternative Proposal and
any related action reasonably required in furtherance thereof, at any
meeting of stockholders of the Company (including any adjournments or
postponements thereof) called to consider and vote on any Alternative
Proposal. Each Stockholder further agrees with Liberty that, in connection
with any consent or proxy solicitation relating to a Alternative Proposal,
such Stockholder will timely execute and deliver (or cause to be timely
executed and delivered) a written consent or proxy with respect to any
Covered Shares against any Alternative Proposal as contemplated by the
immediately preceding sentence.
(c) To the extent inconsistent with the foregoing provisions of
this Section 1, each Stockholder acknowledges and agrees with Liberty that
such Stockholder hereby revokes any and all previous proxies with respect
to such Stockholder's Covered Shares.
(d) Notwithstanding any other provision of this Agreement,
nothing contained herein shall (i) restrict, limit or prohibit in any
manner any Stockholder (including in such Stockholder's representative
capacity) who is a director or officer of the Company, any Subsidiary of
the Company or of Tokyo or any Subsidiary of Tokyo, from taking any action
or omitting to act in his capacity as such a director or officer or (ii)
require any Stockholder (including in such Stockholder's representative
capacity) to, or to seek to, cause any director or officer of the Company,
any Subsidiary of the Company or of Tokyo or any Subsidiary of Tokyo, to
take or omit to take any action in his capacity as such a director or
officer; provided that nothing in this Section 1(d) shall be deemed to
relieve any Stockholder from such Stockholder's obligations under Sections
1, 2 and 3 of this Agreement.
Section 2. Disposition of Shares. Each Stockholder hereby
agrees with Liberty that such Stockholder will not directly or indirectly
sell, pledge, encumber, grant any proxy or enter into any voting or similar
agreement with respect to, transfer or otherwise dispose of (collectively,
"Transfer"), or agree or contract to Transfer, any Shares (or any interest
therein) with respect to which a Stockholder directly or indirectly
controls the right to Transfer, except for (i) any pledge by a Stockholder
of Shares so long as the Stockholder retains full voting rights with
respect to such Shares (even in the event of a foreclosure by the pledgee)
or (ii) any such Transfer to any Person or entity (including without
limitation an estate) who or which shall have agreed in writing with
Liberty to be bound by this Agreement as a Stockholder (any direct or
indirect transferee referred to in clauses (i) and (ii) above being
referred to as a "Permitted Transferee").
Section 3. Further Assurances. Each Stockholder agrees with
Liberty that such Stockholder will execute and deliver such additional
instruments and other documents and shall take such further actions as may
be reasonably necessary to effectuate, carry out and comply with such
Stockholder's obligations under this Agreement in accordance with the terms
hereof. Without limiting the generality of the foregoing, each Stockholder
agrees with Liberty that such Stockholder will not enter into any agreement
or arrangement (or alter, amend or terminate any existing agreement or
arrangement) or take any other action (or fail to take any other action) if
such action (or failure) would materially impair the ability of such
Stockholder to effectuate, carry out or comply with all the terms of this
Agreement. Parent and Liberty each agree to cooperate with each Stockholder
in connection with any filings required to be made by such Stockholder
relating to this Agreement, the Merger Agreement or the transactions
contemplated hereby or thereby.
Section 4. Representations and Warranties of Parent and Liberty.
(a) Parent represents and warrants to each Stockholder as
follows: This Agreement has been duly executed and delivered by a duly
authorized officer of Parent and constitutes a valid and binding agreement
of Parent, enforceable against
Parent.
(b) Liberty represents and warrants to each Stockholder as
follows: Each of this Agreement and the Merger Agreement has been approved
by the Board of Directors of Liberty, in each case representing all
necessary corporate action on the part of Liberty. Each of this Agreement
and the Merger Agreement has been duly executed and delivered by a duly
authorized officer of Liberty. Each of this Agreement and the Merger
Agreement constitutes a valid and binding agreement of Liberty, enforceable
against Liberty.
Section 5. Representations and Warranties of the Stockholders.
Each Stockholder severally represents and warrants (solely with
respect to such Stockholder) to Liberty as follows:
(a) Such Stockholder has the power and authority to execute and
deliver this Agreement. This Agreement has been duly executed and delivered
by such Stockholder. This Agreement constitutes the valid and binding
agreement of such Stockholder. Such Stockholder has the full power and
authority to vote (or cause to be voted), or execute (or cause to be
executed) a consent with respect to, all Shares as contemplated hereby. The
securities of the Company listed next to the name of such Stockholder on
Schedule I hereto are the only shares of Company Class A Common Stock of
the Company over which such Stockholder has the power to vote (or direct
the voting) (such shares of Company Class A Common Stock being referred to
as the "Shares").
(b) Each Stockholder is the lawful owner of the Shares listed
on Schedule I as owned by such Stockholder, free and clear of all liens,
charges, encumbrances and commitments of every kind, other than this
Agreement and as set forth on Schedule II hereto, and each Stockholder has
the power to vote or cause to be voted (including by granting an
irrevocable power to vote or executing a written consent) such Shares so
listed. The execution and delivery by such Stockholder of this Agreement do
not violate or breach any contract, instrument, agreement or arrangement to
which such Stockholder is a party or by which such Stockholder is bound or,
to the best knowledge and belief of such Stockholder, any law applicable to
such Stockholder.
Section 6. Effectiveness; Term of Agreement; Termination. It is
a condition precedent to the effectiveness (and the commencement of the
term) of this Agreement that the Merger Agreement shall have been duly
adopted and approved and executed and delivered by the parties thereto.
Subject to the immediately preceding sentence, the term of this Agreement
shall commence on the date hereof, and such term and this Agreement shall
terminate automatically upon the earliest to occur of (a) the Effective
Time or (b) the termination of the Merger Agreement in accordance with its
terms, provided, however, that if the Merger Agreement is terminated
pursuant to Section 9.1(ii)(D) or Section 9.1(iii) thereof, in either case
without regard to whether any Termination Fee becomes payable following
such termination, this Agreement shall terminate upon the earlier of (i)
the date which is six months after such termination of the Merger Agreement
or (ii) the date on which a Termination Fee is paid. Upon such termination
of this Agreement, no party shall have any obligation or liability
hereunder; provided that if such termination is pursuant to clause (b)
immediately above, such termination shall not relieve any party from
liability for any breach of this Agreement prior to such termination.
Section 7. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement
shall be in writing and shall be deemed to have been duly given to any
party when delivered personally (by courier service or otherwise), when
delivered by telecopy and confirmed by return telecopy, or one day after
being sent by courier service that guarantees overnight delivery to the
applicable addresses (or facsimile numbers) set forth below:
If to Parent:
AT&T Corp.
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 Partnership 270,938
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
