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holders of the Initial Member’s [MB Parent’s] common
equity and not to the holders of any other class of the
Initial Member’s [MB Parent’s] equity.
Petitioner’s brief, in attacking respondent’s valuation experts,
asserts:
The LLC Agreement was written with the
understanding that the manager, TM, would be the 100%
indirect owner of the MBP [MB Parent] Common. * * *
* * * * * * *
* * * the management authority and the MBP Common were
not owned by two parties; TM was not only the manager,
but also the 100% indirect owner of the MBP Common,
which was directly owned by a holding company which TM
had created to hold TM’s property. The rights to be
valued are in fact the rights held by one party. * * *
Petitioner does not point to any provision in the
documentation of the transaction that restricts Times Mirror’s
use of the LLC’s cash, although petitioner asserts limitations
under Delaware law. Representations of Times Mirror to its
shareholders indicated that the cash in the LLC would not be used
for working capital but would be used for repurchase of stock and
strategic investments. However, nothing in the documents
contains this restriction on the use of cash for working capital,
which was a management decision consistent only with tax advice
given to Times Mirror. The advisers, Shefter and Behnia, had
made it clear to Reed before the transaction that “the LLC
agreement will not contain any restrictions on the use of the
cash.” In any event, cash is fungible. Use of the LLC’s cash in
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