Exhibit 1.1
20,500,000 Shares
INSIGHT COMMUNICATIONS COMPANY, INC.
Class A Common Stock
UNDERWRITING AGREEMENT
July __, 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CIBC WORLD MARKETS CORP.
DEUTSCHE BANK SECURITIES INC.
DLJDIRECT INC.
As representatives of the several Underwriters
named in Schedule I hereto
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Madams:
Insight Communications Company, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell 20,500,000 shares of its Class A Common
Stock, par value $.01 per share (the "Firm Shares"), to the several underwriters
named in Schedule I hereto (the "Underwriters"). The Company also proposes to
issue and sell to the several Underwriters not more than an additional 3,075,000
shares of its Class A Common Stock, par value $.01 per share (the "Additional
Shares"), if requested by the Underwriters as provided in Section 2 hereof. The
Firm Shares and the Additional Shares are hereinafter referred to collectively
as the "Shares." The shares of Class A Common Stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "Common Stock."
Immediately prior to the Closing Date (as hereinafter defined) of the
Firm Shares, the Company will exchange (the "Exchange") shares of its Common
Stock, along with shares of its Class B Common Stock, for all outstanding
limited partnership interests in Insight Communications Company, L.P. (the
"Partnership"). Immediately following the Exchange, the Partnership will be a
wholly owned subsidiary of the Company. All references herein to "Subsidiaries"
shall be deemed to include the Partnership and each of the other Subsidiaries
listed on Schedule II hereto, at all times prior to and after the Exchange.
1
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1, including a
prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is hereinafter referred to as the "Registration Statement;"
and the prospectus in the form first used to confirm sales of Shares is
hereinafter referred to as the "Prospectus." If the Company has filed or is
required pursuant to the terms hereof to file a registration statement pursuant
to Rule 462(b) under the Act registering additional shares of Common Stock (a
"Rule 462(b) Registration Statement"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462(b) Registration Statement.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On
the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per Share of $______ (the "Purchase Price") the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to _______ Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof to
the Company within 30 days after the date of this Agreement. You shall give any
such notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such exercise
and the date for payment and delivery thereof, which date shall be a business
day (i) no earlier than two business days after such notice has been given (and,
in any event, no earlier than the Closing Date) and (ii) no later than ten
business days after such notice has been given. If any Additional Shares are to
be purchased, each Underwriter, severally and not jointly, agrees to purchase
from the Company the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from the
Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other
2
securities, in cash or otherwise), except to the Underwriters pursuant to this
Agreement, for a period of 180 days after the date of the Prospectus without the
prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
("DLJ"). Notwithstanding the foregoing, during such period (i) the Company may
grant stock options pursuant to the Company's existing stock option plan and
(ii) the Company may issue shares of Common Stock upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof. The
Company also agrees not to file any registration statement with respect to any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock for a period of 180 days after the date of the
Prospectus without the prior written consent of DLJ. The Company shall, prior to
or concurrently with the execution of this Agreement, deliver an agreement
executed by (i) each of the directors and executive officers of the Company and
(ii) each stockholder listed on Annex I hereto to the effect that such person
will not, during the period commencing on the date such person signs such
agreement and ending 180 days after the date of the Prospectus, without the
prior written consent of DLJ, (A) engage in any of the transactions described in
the first sentence of this paragraph or (B) make any demand for, or exercise any
right with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
The Company hereby confirms its engagement of DLJ as, and DLJ hereby
confirms its agreement with the Company to render services as, a "qualified
independent underwriter", within the meaning of Section (b)(15) of Rule 2720 of
the National Association of Securities Dealers, Inc. with respect to the
offering and sale of the Shares. DLJ, solely in its capacity as the qualified
independent underwriter and not otherwise, is referred to herein as the "QIU".
As compensation for the services of the QIU hereunder, the Company agrees to pay
the QIU $5,000 on the Closing Date. The price at which the Shares will be sold
to the public shall not be higher than the maximum price recommended by the QIU.
SECTION 3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as DLJ shall request no later than two business days
prior to the Closing Date or the applicable Option Closing Date (as defined
below), as the case may be. The Company shall deliver the Shares, with any
transfer taxes thereon duly paid by the Company, to DLJ through the facilities
of The Depository Trust Company ("DTC"), for the respective accounts of the
several Underwriters, against payment to the Company of the Purchase Price
therefore by wire transfer of Federal or other funds immediately available in
New York City. The certificates representing the Shares shall be made available
for inspection not later than 9:30 A.M., New York City time, on the business day
prior to the Closing Date or the applicable Option Closing Date, as the case may
be, at the office of DTC or its designated custodian (the "Designated Office").
The time and date of delivery and payment for the Firm Shares shall be 9:00
A.M., New York City time, on ________ __, 1999 or such other time on the same or
such other date as DLJ and the Company shall agree in writing. The
3
time and date of delivery and payment for the Firm Shares are hereinafter
referred to as the "Closing Date." The time and date of delivery and payment for
any Additional Shares to be purchased by the Underwriters shall be 9:00 A.M.,
New York City time, on the date specified in the applicable exercise notice
given by you pursuant to Section 2 or such other time on the same or such other
date as DLJ and the Company shall agree in writing. The time and date of
delivery and payment for any Additional Shares are hereinafter referred to as
the "Option Closing Date."
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ and the Shares shall be delivered at the Designated Office, all
on the Closing Date or such Option Closing Date, as the case may be.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to you five signed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
4
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus so that
the statements in the Prospectus, as so amended or supplemented, will not, in
the light of the circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Shares, in
any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending June
30, 2000 that shall satisfy the provisions of Section 11(a) of the Act and Rule
158 promulgated thereunder, and to advise you in writing when such statement has
been so made available.
(h) During the period of three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries listed on Schedule II
hereto (collectively, the "Subsidiaries") as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Company's obligations under this
Agreement, including: (i) the fees, disbursements and
5
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Act and all other
fees and expenses in connection with the preparation, printing, filing and
distribution of the Registration Statement (including financial statements and
exhibits), any preliminary prospectus, the Prospectus and all amendments and
supplements to any of the foregoing, including the mailing and delivering of
copies thereof to the Underwriters and dealers in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Shares to the Underwriters, including any transfer or other taxes payable
thereon, (iii) all costs of printing or producing this Agreement and any other
agreements or documents in connection with the offering, purchase, sale or
delivery of the Shares, (iv) all expenses in connection with the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states and all costs of printing or producing any
Preliminary and Supplemental Blue Sky Memoranda in connection therewith
(including the filing fees and fees and disbursements of counsel for the
Underwriters in connection with such registration or qualification and memoranda
relating thereto), (v) the filing fees and disbursements of counsel for the
Underwriters in connection with the review and clearance of the offering of the
Shares by the National Association of Securities Dealers, Inc., (vi) all fees
and expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Common Stock and all costs and expenses
incident to the listing of the Shares on the Nasdaq National Market, (vii) the
cost of printing certificates representing the Shares, (viii) the costs and
charges of any transfer agent, registrar and/or depositary, (ix) the fees and
expenses of the QIU (including the fees and disbursements of counsel to the
QIU), which shall not exceed $5,000, and (x) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section.
(j) To use its best efforts to list for quotation the Shares on the
Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq
National Market or the New York Stock Exchange for a period of three years after
the date of this Agreement.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company, prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so covered
in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any
6
Rule 462(b) Registration Statement filed after the effectiveness of this
Agreement will become effective no later than 10:00 P.M., New York City time, on
the date of this Agreement; and no stop order suspending the effectiveness of
the Registration Statement is in effect, and, to the Company's knowledge, no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
(iii) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (B) will comply in all material respects with the Act and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority to carry on its business as described
in the Prospectus and to own, lease and operate its properties, and is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole (a "Material Adverse Effect").
(e) Each of the Subsidiaries has been duly formed and is validly
existing as a limited liability company or limited partnership, as the case may
be, in good standing under the laws of its jurisdiction of organization and has
the power and authority to carry on its business as described in
7
the Prospectus and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign limited liability company or
limited partnership, as the case may be, authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect.
(f) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its Subsidiaries, relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock or other equity
interests of the Company or any of its Subsidiaries, except as otherwise
disclosed in the Registration Statement.
(g) All the shares of capital stock of the Company outstanding on the
Closing Date will have been duly authorized and validly issued and be fully
paid, non-assessable and not subject to any preemptive or similar rights; and
the Shares to be issued and sold by the Company have been duly authorized and,
when issued and delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(h) All the outstanding shares of capital stock or other securities
evidencing equity ownership of each of the Company's Subsidiaries have been duly
authorized and validly issued and are fully paid and (except in the case of
limited partnership interests, except to the extent that the provisions of the
applicable limited partnership act requiring partners to return distributions
may be deemed to constitute assessability) non-assessable, and, other than as
set forth in the Prospectus, are owned by the Partnership, and after giving
effect to the Exchange, other than as set forth in the Prospectus, will be owned
by the Company, directly or indirectly through one or more Subsidiaries, free
and clear of any security interest, claim, lien, encumbrance or adverse interest
of any nature.
(i) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(j) Neither the Company nor any of its Subsidiaries is in violation of
its respective charter, by-laws, limited partnership agreement or other
organizational documents, or in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the Company
and its Subsidiaries, taken as a whole, to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries or
their respective property is bound.
(k) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may have been obtained or
may be required under the securities or Blue Sky laws of the various states),
(ii) conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the charter, by-laws, limited partnership agreement or other
organizational documents of the Company
8
or any of its Subsidiaries, or any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to the Company and its
Subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries or their
respective property is bound, (iii) violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of its
Subsidiaries or their respective property or (iv) result in the suspension,
termination or revocation of any Authorization (as defined below) of the Company
or any of its Subsidiaries, or any other material impairment of the rights of
the holder of any such Authorization.
(l) There are no legal or governmental proceedings pending to which the
Company or any of its Subsidiaries is a party or to which any of their
respective property is subject or, to the Company's knowledge, threatened to
which the Company or any of its Subsidiaries could be a party or to which any of
their respective property could be subject that are required to be described in
the Registration Statement or the Prospectus and are not so described; nor are
there any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not so described or filed as
required.
(m) Neither the Company nor any of its Subsidiaries, has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or any provisions
of the Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(n) Each of the Company and its Subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its Subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its Subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
9
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(p) Other than as set forth in the Prospectus (including those matters
referred to therein relating to general rulemakings and similar matters relating
generally to the cable television industry), there are no legal or governmental
proceedings pending to which the Company or any of its Subsidiaries, is a party
or of which any property of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material Adverse
Effect and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or by others; and except
with respect to general rulemakings and similar matters relating generally to
the cable television industry, during the time the Systems (as defined below)
have been owned or managed by the Company or a Subsidiary (i) there has been no
adverse judgment, order, or decree issued by the United States Federal
Communications Commission (the "FCC") relating to any of the Systems that has
not been disclosed in the Prospectus that would be required to be disclosed in
the Prospectus or the Registration Statement; (ii) there are no actions, suits,
proceedings, inquiries or investigations by the FCC pending or threatened in
writing against or affecting the Company, any of its Subsidiaries or any System;
and (iii) to the Company's knowledge, after due inquiry, there is no reasonable
basis for any such action, suit, proceeding or investigation.
(q) Except for matters covered by paragraph (l) above or with respect
to matters that would not individually or in the aggregate have a Material
Adverse Effect, (i) the Company and its Subsidiaries have made all material
filings, recordings and registrations with, and possess all validations or
exemptions, approvals, orders, authorizations, consents, licenses, certificates
and permits from, the FCC, applicable public utilities and other federal, state
and local regulatory or governmental bodies and authorities or any subdivision
thereof, including, without limitation, cable television franchises, pole
attachment agreements, and cable antenna relay service, broadcast auxiliary,
earth station, business radio, microwave or special safety radio service
licenses issued by the FCC (collectively, the "FCC Authorizations") necessary or
appropriate to own, operate and construct the cable communication systems owned
or managed by them (the "Systems") or otherwise for the operation of their
businesses and are not in violation thereof; (ii) all such FCC Authorizations
are in full force and effect, and no event has occurred that permits, or after
notice or lapse of time could permit, the revocation, termination or
modification of any FCC Authorization which is necessary or appropriate to own,
operate and construct the Systems or otherwise for the operation of any such
business; (iii) none of the Company or any of its Subsidiaries is in breach or
violation of, or in default under, any duty or obligation required by any of the
terms, conditions or provisions of the United States Communications Act of 1934,
as amended (the "Communications Act"), or any FCC rule, regulation or policy
applicable to the operation of any portion of any of the Systems; (iv) none of
the Company or any of its Subsidiaries, is in violation of any duty or
obligation required by state or local laws, or local rules or regulations
applicable to the operation of any portion of any of the Systems; (v) there is
not pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened, any action by the FCC or state or local regulatory authority to
10
modify, revoke, cancel, suspend or refuse to renew any FCC Authorization; (vi)
other than as described in the Prospectus, there is not now issued or
outstanding or, to the knowledge of the Company or any of its Subsidiaries,
threatened, any notice of any hearing, material violation or material complaint
against the Company or any of its Subsidiaries, with respect to the operation of
any portion of the Systems and none of the Company or its Subsidiaries has any
knowledge that any person intends to contest renewal of any material FCC
Authorization.
(r) (i) (A) The Company and its Subsidiaries have entered into, or have
rights under, all required programming agreements (including, without
limitation, all non-broadcast affiliation agreements under which the Company and
its Subsidiaries are accorded retransmission rights relating to programming that
the Systems provide to their customers) that are material to the conduct of
their business as described in the Prospectus; and (B) all such material
agreements are in full force and effect and none of the Company, any of its
Subsidiaries or any of its affiliates has received any written notice of
revocation or material modifications of such material agreements; and (ii) (A)
either the Company or its Subsidiaries has entered into agreements with the
television stations that have notified the Company or its Subsidiaries that such
station's respective consent is required to carry such stations on the Systems
or has ceased carrying such stations; (B) all such agreements grant the Company
or one of its Subsidiaries retransmission consent in exchange for various
non-cash consideration; and (C) all such agreements are in full force and effect
and are not subject to revocation (except in the case of material breach by the
Company or its Subsidiaries) or material modifications, and no event has
occurred that permits, or after notice or lapse of time could permit, the
revocation, termination or material modification of any such agreement, except
where the failure of such agreements to be in full force and effect or such
revocation would not, in either case, individually or in the aggregate have a
Material Adverse Effect.
(s) Except for matters that would not individually or in the aggregate
have a Material Adverse Effect, (i) all registration statements and all other
documents (including but not limited to annual reports) required by the FCC in
connection with the operation of the Systems have been filed with the FCC; (ii)
all frequencies within the restricted aeronautical and navigational bands (i.e.,
108-136 MHz and 225-400 MHz) which are currently being used in connection with
the operation of the Systems have been authorized for such use by the FCC; (iii)
each of the Systems subject to Equal Employment Opportunity Commission ("EEO")
compliance certification by the FCC has been certified by the FCC for annual EEO
compliance during the time such Systems have been owned by the Company or its
Subsidiaries; and (iv) all towers associated with the Systems are in compliance
with the rules and regulations of the United States Federal Aviation
Administration.
(t) (i) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, all statements of accounts and any
other filings that are required under Section 111 of the United States Copyright
Act of 1976, as amended, in connection with the retransmission of any broadcast
television and radio signals on the Systems have been timely filed with the
United States Copyright Office and indicated royalty payments have been made for
each System for each accounting period during which such Systems have been owned
or managed by the Company or its Subsidiaries; (ii) none of the Company, any of
its Subsidiaries or any System has received any inquiry or request from the
United States Copyright Office or from any other party challenging or
questioning any such statements of account or royalty payments; and (iii) no
claim of copyright
11
infringement has been made or threatened in writing against the Company, any of
its Subsidiaries or any System.
(u) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby or by the Prospectus under
"Use of Proceeds," nor compliance with the terms, conditions and provisions
hereof and thereof by the Company, will conflict with the Communications Act or
the rules, regulations or policies of the FCC thereunder, or will cause any
suspension, revocation, impairment, forfeiture, nonrenewal or termination of any
material license, permit, franchise, certificate, consent, authorization,
designation, declaration, filing, registration or qualification.
(v) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is the legally valid and binding agreement of the
Company, enforceable against it in accordance with its terms, except insofar as
indemnification and contribution provisions may be limited by applicable law or
equitable principles and subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity.
(w) (i) Ernst & Young LLP ("E&Y") are independent public accountants
with respect to the Partnership, the Company and Insight Communications of
Central Ohio, LLC ("Insight Ohio"); (ii) KPMG LLP ("KPMG") are independent
public accountants with respect to (A) the cable systems and related advertising
sales offices serving certain customers in Indiana, which are now held by
Insight Communications of Indiana, LLC (the "TCI Insight Systems"), and (B) the
cable systems in Kentucky in which the Company will own a 50% equity interest
and serve as manager (the "Kentucky Systems"); (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ("AA")
are independent public accountants with respect to Central Ohio Cable System
Operating Unit, an operating unit within Coaxial Communications of Central Ohio,
Inc. (the "Ohio System"); and (iv) PricewaterhouseCoopers LLP ("PWC") are
independent public accountants with respect to the Kentucky Systems, each as
required by the Act.
(x) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly in all material respects the
consolidated financial position, results of operations and changes in financial
position of the Partnership and its subsidiaries on the basis stated therein at
the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; the supporting schedules, if any,
included in the Registration Statement present fairly in accordance with
generally accepted accounting principles the information required to be stated
therein; and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Partnership and the Company. The pro forma financial statements
included in the Registration Statement and the Prospectus have been prepared on
a basis consistent with such historical statements, except for the pro forma
adjustments specified therein, and give effect to
12
assumptions made on a reasonable basis and present fairly the historical and
proposed transactions contemplated by this Agreement and as set forth in the
Prospectus; and such pro forma financial statements comply as to form in all
material respects with the requirements applicable to pro forma financial
statements included in registration statements on Form S-1 under the Securities
Act. The other historical and pro forma financial and statistical information
and data included in the Prospectus and the Registration Statement are
accurately presented in all material respects and prepared on a basis consistent
with the financial statements, historical and pro forma, included in the
Registration Statement, the Prospectus and the books and records of the
Partnership and the Company, the Subsidiaries or the entities or businesses
acquired or to be acquired by the Partnership, the Company and the Subsidiaries
included in the Prospectus and the Registration Statement.
(y) Neither the Partnership nor the Company is, and after giving effect
to the offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, neither of them will be, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(z) Except as disclosed in the Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(aa) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
Subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock, other equity interests or long-term debt of the Company or any of
its Subsidiaries, and (iii) neither the Company and any of its Subsidiaries has
incurred any material liability or obligation, direct or contingent.
(bb) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
SECTION 7. Indemnification. (a) The Company, the Partnership and
Insight Holdings of Ohio, LLC ("Insight Ohio") agree, jointly and severally, to
indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
13
statement of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter who failed to deliver a Prospectus (as then
amended or supplemented, provided by the Company to the several Underwriters in
the requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims, damages
and liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in such Prospectus and such Prospectus was required by law to
be delivered at or prior to the written confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Subsidiaries to such
Underwriter but only with reference to information relating to such Underwriter
furnished in writing to the Company by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto), the Prospectus
(or any amendment or supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or
14
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by DLJ, in the case
of parties indemnified pursuant to Section 7(a), and by the Company, in the case
of parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company or its Subsidiaries on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total net proceeds from the
offering (after deducting underwriting discounts and commissions, but before
deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the
15
Company or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price discounts and commissions received by such Underwriter with respect
to the Shares underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
Section 8. Indemnification of QIU. (a) The Company, the Partnership and
Insight Ohio agree, jointly and severally, to indemnify and hold harmless the
QIU, its directors, its officers and each person, if any, who controls the QIU
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) related to, based upon or arising out of (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) the QIU's
activities as QIU under its engagement pursuant to Section 2 hereof, except in
the case of this clause (ii) insofar as any such losses, claims, damages,
liabilities or judgments are found in a final judgment by a court of competent
jurisdiction, not subject to further appeal, to have resulted solely from the
willful misconduct or gross negligence of the QIU.
(b) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) (the "QIU
Indemnified Party"), the QIU Indemnified Party shall promptly notify the Company
in writing and the Company shall assume the
16
defense of such action, including the employment of counsel reasonably
satisfactory to the QIU Indemnified Party and the payment of all fees and
expenses of such counsel, as incurred. Any QIU Indemnified Party shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the QIU Indemnified Party unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the QIU Indemnified Party or (iii) the named parties
to any such action (including any impleaded parties) include both the QIU
Indemnified Party and the Company, and the QIU Indemnified Party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the defense of
such action on behalf of the QIU Indemnified Party). In any such case, the
Company shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all QIU Indemnified Parties, which firm shall be designated by the
QIU, and all such fees and expenses shall be reimbursed as they are incurred.
The Company shall indemnify and hold harmless the QIU Indemnified Party from and
against any and all losses, claims, damages, liabilities and judgments by reason
of any settlement of any action (i) effected with its written consent or (ii)
effected without its written consent if the settlement is entered into more than
twenty business days after the Company shall have received a request from the
QIU Indemnified Party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the Company) and,
prior to the date of such settlement, the Company shall have failed to comply
with such reimbursement request. The Company shall not, without the prior
written consent of the QIU Indemnified Party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the QIU Indemnified Party is or could
have been a party and indemnity or contribution may be or could have been sought
hereunder by the QIU Indemnified Party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the QIU Indemnified Party from
all liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the QIU Indemnified Party.
(c) To the extent the indemnification provided for in this Section 8 is
unavailable to a QIU Indemnified Party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then the Company,
in lieu of indemnifying such QIU Indemnified Party, shall contribute to the
amount paid or payable by such QIU Indemnified Party as a result of such losses,
claims, damages, liabilities and judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the QIU on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 8(c)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(c)(i) above but also the relative fault of the
Company on the one hand and the QIU on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the QIU on the
17
other hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
as set forth in the table on the cover page of the Prospectus, and the fee
received by the QIU pursuant to Section 2 hereof, bear to the sum of such total
net proceeds and such fee. The relative fault of the Company on the one hand and
the QIU on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the QIU and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission and whether the QIU's activities as QIU under its engagement pursuant
to Section 2 hereof involved any willful misconduct or gross negligence on the
part of the QIU.
The Company and the QIU agree that it would not be just and equitable
if contribution pursuant to this Section 8(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by a QIU Indemnified Party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such QIU Indemnified Party
in connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(d) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
QIU Indemnified Party at law or in equity.
SECTION 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇, in their capacities
as the Chief Executive Officer and Chief Operating and Financial Officer of the
Company, respectively, confirming the matters set
18
forth in Sections 6(aa), 9(a) and 9(b) and that the Company has complied with
all of the agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied by the Company on or prior to the
Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its Subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock, other equity interests or long-term
debt of the Company or any of its Subsidiaries and (iii) neither the Company nor
any of its Subsidiaries shall have incurred any liability or obligation, direct
or contingent, the effect of which, in any such case described in clause
9(d)(i), 9(d)(ii) or 9(d)(iii), in your judgment, is material and adverse and,
in your judgment, makes it impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company and
its Subsidiaries, to the effect that:
(i) each of the Company and its Subsidiaries has been duly
incorporated or organized, as appropriate, is validly existing as a
corporation, a limited liability company or a limited partnership, as
appropriate, in good standing under the laws of its jurisdiction of
incorporation or organization, as appropriate, and has the corporate,
limited liability company or partnership, as appropriate, power and
authority to carry on its business and to own, lease and operate its
properties, in each case as described in the Prospectus;
(ii) each of the Company and its Subsidiaries is duly
qualified and is in good standing as a foreign corporation, limited
liability company or partnership, as appropriate, authorized to do
business in the jurisdictions set forth on Schedule II hereto. Based
solely on a certificate of an officer of the Company as to where the
Company and the Subsidiaries presently own, lease or operate property,
or carry on business, such counsel knows of no other jurisdiction where
the failure to be so qualified or be in good standing would have a
Material Adverse Effect;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights under the Company's Certificate of Incorporation, any agreement
filed as an exhibit to the Registration Statement, any other agreement
known to such counsel or the Delaware General Corporation Law;
(iv) the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by
this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any preemptive
or similar rights under the Company's Certificate of Incorporation, any
19
agreement filed as an exhibit to the Registration Statement, any other
agreement known to such counsel or the Delaware General Corporation
Law;
(v) all of the outstanding shares of capital stock or other
securities evidencing equity ownership of each of the Company's
Subsidiaries have been duly authorized and validly issued and are fully
paid and (except in the case of limited partnership interests, except
to the extent that the provisions of the applicable limited partnership
act requiring partners to return distributions may be deemed to
constitute assessability) non-assessable, and, other than as set forth
in the Prospectus, are owned by the Company, directly or indirectly
through one or more Subsidiaries, free and clear of any security
interest, claim, lien or encumbrance;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the authorized capital stock of the Company conforms as
to legal matters in all material respects to the description thereof
contained in the Prospectus;
(viii) the Registration Statement has become effective under
the Act, no stop order suspending its effectiveness has been issued and
no proceedings for that purpose are, to the best of such counsel's
knowledge after due inquiry, pending before or contemplated by the
Commission;
(ix) the statements under the captions "Description of Recent
Transactions," "Description of Certain Indebtedness," "Description of
Capital Stock," "Certain Transactions" and "Management -- 1999 Stock
Option Plan" in the Prospectus and Items 14 and 15 of Part II of the
Registration Statement, insofar as such statements constitute a summary
of the legal matters, documents or proceedings referred to therein,
fairly present in all material respects the information called for with
respect to such legal matters, documents and proceedings and the
statements under the caption "Underwriting" in the Prospectus, insofar
as such statements constitute a summary of the terms of this Agreement,
fairly present, in all material respects, the information called for
with respect to such terms;
(x) to the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its Subsidiaries is in violation of its
respective charter, by-laws, limited partnership agreement or other
organizational documents and neither the Company nor any of its
Subsidiaries is in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its Subsidiaries, taken as a whole, to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or their respective property is
bound;
(xi) the execution, delivery and performance of this Agreement
by the Company, the compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
will not (A) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency (except
20
such as may have been obtained or may be required under the securities
or Blue Sky laws of the various states), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a default
under, the charter, by-laws, limited partnership agreement or other
organizational documents of the Company or any of its Subsidiaries,
any agreement filed as an exhibit to the Registration Statement or any
other agreement known to such counsel that is material to the Company
and its Subsidiaries, taken as a whole, to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or their respective property is bound, (C) violate or
conflict with any applicable law, rule or regulation or, to such
counsel's knowledge, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any
of its Subsidiaries or their respective property or (D) result in the
suspension, termination or revocation of any Authorization of the
Company or any of its Subsidiaries or any other impairment of the
rights of the holder of any such Authorization except where the
suspension, termination or revocation of any such Authorization or
other impairment of the rights of the holder of any such Authorization
would not, individually or in the aggregate, have a Material Adverse
Effect;
(xii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the
Company or any of its Subsidiaries is a party or to which any of their
respective property is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described, or
of any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed as required;
(xiii) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended;
(xiv) to the best of such counsel's knowledge after due
inquiry, except as disclosed in the Registration Statement or the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement;
(xv) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements,
schedules and other financial data included therein as to which no
opinion need be expressed) comply as to form in all material respects
with the Act; and
(xvi) we have no reason to believe that the Registration
Statement, as of its effective date, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements
21
therein not misleading or that the Prospectus contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
in each case we express no belief with respect to the financial
statements, schedules or other financial data contained in the
Registration Statement or the Prospectus.
The opinion of Cooperman, Levitt, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ described
in Section 9(e) above shall be rendered to you at the request of the Company and
shall so state therein.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., special regulatory counsel for the Company and
its Subsidiaries to the effect that:
(i) The communities listed in Section A of Attachment 1 to the
opinion have been registered with the FCC in connection with the
operation of the Systems. The filing of a registration statement
constitutes initial FCC authorization for the commencement of cable
television operations in the community registered;
(ii) The Company and the Subsidiaries hold certain FCC
licenses, as that term is defined below ("FCC Licenses"). All FCC
Licenses and receive-only earth station registrations held by the
Company and the Subsidiaries in connection with the operation of the
Systems are listed on Attachment 1 to the opinion. To the best of our
knowledge, all such FCC Licenses have been validly issued or assigned
to the present licensee and are currently in full force and effect. We
have no knowledge of any event which would allow, or after notice or
lapse of time which would allow, revocation or termination of any FCC
License held by the Company and the Subsidiaries or would result in any
other material impairment of the rights of the holder of such license.
To the best of our knowledge, no other FCC Licenses are required in
connection with the operation of the Systems by the Subsidiaries in the
manner we have been advised they are presently being operated. For the
purposes of this opinion, an FCC License is defined as an
authorization, or renewal thereof, issued by the FCC authorizing the
transmission of radio energy through the airways;
(iii) Other than proceedings affecting the cable television
industry generally, and other than rate proceedings, there is no
action, suit or proceeding pending before or, to the best of our
knowledge, threatened by the FCC which is reasonably likely to have a
materially adverse impact upon the cable television operations of the
Company and its Subsidiaries, taken as a whole;
(iv) To the best of our knowledge after due inquiry, the
Company and the Subsidiaries have filed all FCC forms 320, 395-A, and
159 required under the Communications Act, as amended, and under the
rules and regulations of the FCC;
(v) The Company and the Subsidiaries hold all Authorizations
and/or have filed all notifications required by the FCC in connection
with their operation on all frequencies in the 108-137 and 225-400 MHz
bands which we have been advised are currently being
22
utilized on the Systems. The geographic and technical parameters with
respect to the authorized use of these frequencies are listed on
Attachment 1 hereto;
(vi) The employment units covered by the Systems and operated
by the Company and the Subsidiaries have been certified, where
required, by the FCC for compliance with EEO requirements in each of
calendar years 1992 through 1998 in which such Systems have been owned,
operated and/or managed by the Company or the Subsidiaries. Employment
certification records for the years prior to 1992 have been purged from
the FCC's database and are therefore outside of the scope of this
opinion;
(vii) Statements of Account required by Section 111 of the
Copyright Act of 1976, as amended have been filed, together with
royalty payments accompanying said Statements of Account, with the U.S.
Copyright Office for the Systems covering each of the accounting
periods beginning with January 1 through June 30, 1996 accounting
period and ending with the July 1 through December 31, 1998 accounting
period during which such Systems have been operated by the Company and
the Subsidiaries. We have not reviewed the information or calculations
contained in these statements, and express no opinion with respect to
the accuracy thereof. To the best of our knowledge, there are no
currently outstanding inquiries received from the U.S. Copyright Office
or any other party which question the copyright filings or payments
made by the Company or the Subsidiaries with respect to the Systems. It
is possible that there may be matters pending before the U.S. Copyright
Office relating to the Systems, the Company or the Subsidiaries of
which we do not have knowledge because such matters have not yet been
incorporated into the available public files of the U.S. Copyright
Office. However, we are not aware of any pending or threatened claim,
action or demand for copyright infringement or for non-payment of
royalties with respect to the Statements of Account or related royalty
payments filed by the Company and the Subsidiaries for the Systems;
(viii) The Company has obtained all consents and approvals of
the FCC and FCC Authorizations, if any, required for the consummation
of the transactions contemplated in this Underwriting Agreement where
the failure to obtain the consents, approval, Authorizations, licenses,
certificates, permits or orders would reasonably be expected to have a
materially adverse impact on the Company or the Subsidiaries;
(ix) Neither the execution and delivery of the this
Underwriting Agreement nor the offering of the Shares contemplated
hereby will conflict with or result in a violation of any order or
regulation of the FCC applicable to the Company and the Subsidiaries,
the conflict with or the violation of which would reasonably be
expected to have a materially adverse impact on the Company or the
Subsidiaries. However, we call your attention to the following:
(A) Under the Communications Act as now in effect,
the sale or other disposition of certain pledged collateral
and the exercise of certain other rights and remedies
conferred upon you by any agreement or by applicable law might
constitute an assignment of an FCC license or transfer of
control of an FCC license,
23
requiring for its consummation the prior consent of the FCC
granted upon an appropriate application therefor;
(B) Under the Communications Act as now in effect,
and as now interpreted by the FCC, no valid security interest
may be granted in an FCC license. To the extent that this
Underwriting Agreement and/or related financing documents
purport to grant to you a security interest in any FCC
licenses, such security interest may not be legally
enforceable;
(x) In the course of our representation of the Company and its
Subsidiaries, no matters have come to our attention, other than matters
affecting the cable television industry generally, which would
reasonable be expected to have a materially adverse impact upon the
cable television operations of the Company and the Subsidiaries, taken
as a whole; and
(xi) In our opinion, the statements in the Prospectus under
the headings "Risk Factors -- Our business has been and continues to be
subject to extensive governmental legislation and regulation," "Risk
Factors -- We operate in a very competitive business environment,"
"Legislation and Regulation" and "Business -- Competition" insofar as
the purport to describe the provisions of the law referred to therein,
are accurate, complete and fair in all material respects.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, as to the
matters referred to in Sections 9(e)(iv), 9(e)(vi) (but only with respect to the
Company), 9(e)(ix) (but only with respect to the statements under the caption
"Description of Capital Stock" and "Underwriting") and 9(e)(xvii).
(h) You shall have received, on each of the date hereof and the Closing
Date, letters dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from each of (i) E&Y with respect to the
Company, the Partnership and Insight Ohio; (ii) KPMG with respect to (A) the TCI
Insight Systems and (B) the Kentucky Systems; (iii) AA with respect to the Ohio
System; and (iv) PWC with respect to the Kentucky Systems, each independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(i) The Exchange shall have been consummated on the terms described in
the Prospectus.
(j) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(k) The Shares shall have been duly listed for quotation on the Nasdaq
National Market.
(l) The Company shall not have failed on or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company on or prior to the Closing Date.
24
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default
25
occurs is more than one-tenth of the aggregate number of Firm Shares to be
purchased by all Underwriters and arrangements satisfactory to you and the
Company for purchase of such Firm Shares are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectus or any other documents or arrangements may be effected. If,
on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase such Additional Shares or (ii) purchase not less than the number of
Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase on such date in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
SECTION 11. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to Insight
Communications Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and
(ii) if to any Underwriter or to you, to you c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, any QIU Indemnified Party, the officers
or directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company or any person controlling the
Company, (ii) acceptance of the Shares and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(i) hereof. The Company also agrees to reimburse the
several Underwriters, their directors and officers, any persons controlling any
of the Underwriters and the QIU Indemnified Parties for any and all fees and
expenses (including, without limitation, the fees disbursements of counsel)
incurred by them in connection with enforcing their rights hereunder (including,
without limitation, pursuant to Section 7 hereof).
26
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the QIU Indemnified Parties, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
27
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
INSIGHT COMMUNICATIONS COMPANY, INC.
By:
-----------------------------------
Title:
INSIGHT COMMUNICATIONS COMPANY, L.P..
By:
-----------------------------------
Title:
INSIGHT HOLDINGS OF OHIO, LLC
By:
-----------------------------------
Title:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CIBC WORLD MARKETS CORP.
DEUTSCHE BANK SECURITIES INC.
DLJDIRECT INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By
-----------------------------------
28
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
CIBC World Markets Corp.
Deutsche Bank Securities Inc.
DLJdirect Inc.
Total
SCHEDULE II
Subsidiaries of the Company
Insight Communications of Central Ohio, LLC, a Delaware limited liability
company
Insight Communications of Indiana, LLC, a Delaware limited liability company
Insight Communications Company, L.P., a Delaware limited partnership
Insight Holdings of Ohio, LLC, a Delaware limited liability company
ICC Holdings, LLC, a Delaware limited liability company
Annex I
[Insert names of stockholders of the Company who will be required to sign lock
ups]
