Exhibit 1.1
INSIGHT COMMUNICATIONS COMPANY, INC.
CLASS A COMMON
STOCK
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Underwriting Agreement
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June __, 2001
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Credit Suisse First Boston Corporation
Banc of America Securities LLC
Dresdner Kleinwort Wassertstein Securities LLC
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
A certain shareholder named in Schedule II hereto (the "Selling
Stockholder") of Insight Communications Company, Inc., a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 4,350,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 650,000 additional shares (the "Optional Shares") of Class A
common stock, par value $.01 per share ("Stock"), of the Company (the Firm
Shares and the Optional Shares which the Underwriters elect to purchase pursuant
to Section 2 hereof are herein collectively called the "Shares").
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-3 (File No. 33-58296) (the
"Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto but including all documents incorporated by reference
in the prospectus contained therein, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated
by reference therein has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under
the Act is hereinafter called a "Preliminary Prospectus"; the various
parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including (i) the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the Initial Registration Statement at the
time it was declared effective and (ii) the documents incorporated by
reference in the prospectus contained in the Initial Registration
Statement at the time such part of the Initial Registration Statement
became effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "Registration Statement"; such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus"; and any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement;
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act , as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will 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
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therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly
for use therein;
(iv) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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 not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole, (a "Material Adverse Effect") otherwise than as set forth or
contemplated in the Prospectus;
(vi) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each of its Significant
Subsidiaries (as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act), each of which is listed on Schedule
III
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hereto, is duly incorporated or formed, as the case may be, validly
existing as a corporation, limited partnership or limited liability
company, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or organization, as the case may be, and
has the corporate, limited partnership or limited liability company
power and authority to carry on its business as described in the
Prospectus;
(viii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description of the Stock
contained in the Prospectus; and the entities listed on Schedule III
hereto are the only Significant Subsidiaries, direct or indirect, of
the Company, and all of the outstanding corporate, limited partnership
or limited liability company interests of each of the Company's
Significant Subsidiaries have been duly authorized and validly issued,
are owned by the Company, directly or indirectly, through one or more
of its subsidiaries (except that (i) TCI of Indiana Holdings, LLC owns
50% of the limited liability partnership interests of Insight Midwest,
L.P. ("Insight Midwest") and (ii) Insight Kentucky Capital, LLC
("Kentucky Capital") owns .001% of the limited partnership interests of
Insight Communications of Kentucky, L.P. ("Insight Kentucky"), Insight
Kentucky Partners I, L..P. ("Kentucky Partners I") and Insight Kentucky
Partners II, L.P. ("Kentucky Partners II") and (iii) Coaxial
Communications of Central Ohio, Inc. owns the preferred equity
interests of Insight Communications of Central Ohio, LLC ("Insight
Ohio")), free and clear of all liens, encumbrances, equities or claims
("Liens") (other than (i) those in favor of the lenders under the
credit agreement, dated as of January 5, 2001, by and among Insight
Midwest Holdings, LLC ("Midwest Holdings"), as borrower, The Bank of
New York, as administrative agent, and the other lenders party thereto
(the "Insight Midwest Holdings Credit Facility") and (ii) those in
favor of the lenders under the credit agreement dated as of October 7,
1998 among Insight Ohio, as borrower, Canadian Imperial Bank of
Commerce, as administrative agent, and the other lenders party thereto,
as amended (the "Insight Ohio Credit Facility")), and (except to the
extent that the provisions of the applicable partnership agreement or
the applicable limited partnership act requiring partners to return
distributions or make-up capital account deficits upon liquidation may
be deemed as requiring capital contributions, and except to the extent
that a general partner of a partnership may be liable for partnership
obligations) no additional capital contributions are required to be
made to any such subsidiaries;
(ix) The sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares and such
consents, approvals, authorizations,
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registrations or qualifications as have been obtained, as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters, or the
failure of which to be obtained would not have a Material Adverse
Effect;
(x) None of the Company or any of its subsidiaries is (i) in
violation of its respective charter, by-laws, limited partnership
agreement or operating agreement, as the case may be, or (ii) 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 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 properties are bound, except, in the
case of clause (ii), for such violations that would not have a Material
Adverse Effect;
(xi) The statements set forth in the Prospectus under the caption
["Description of Capital Stock"], insofar as they purport to constitute
a summary of the terms of the Stock; and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(xii) 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 Significant Subsidiaries is a party or of which any property
of the Company or any of its Significant Subsidiaries is the subject
which, if determined adversely to the Company or any of its Significant
Subsidiaries, might result, 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 threatened by others;
(xiii) Except with respect to general rulemakings and similar
matters relating generally to the cable television industry, (i) during
the time the Systems (as defined below) have been owned or managed by
the Company or an affiliate of the Company, 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
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; (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, which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and (iii) to the Company's knowledge, after due
inquiry, there is no reasonable basis for any such action, suit,
proceeding or investigation, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect;
(xiv) Except for matters covered by paragraph (xiii) 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 and other federal, state and local regulatory or governmental
bodies and authorities or any subdivision thereof, including, without
limitation, cable television franchises and cable antenna relay
service, broadcast auxiliary,
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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 that are now owned or managed by them
(the "Systems") or otherwise for the operation of their businesses and
are not in violation of any 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) neither the Company nor
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) neither 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 modify, revoke, cancel,
suspend or refuse to renew any FCC Authorization; (vi) other than as
described in the Offering Circular, there is not now issued or
outstanding or, to the knowledge of the Company, 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 any of its
subsidiaries has any knowledge that any person intends to contest
renewal of any material FCC Authorization;
(xv) (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 Offering Circular; and (B) all such material
agreements are in full force and effect and none of the Company, any of
its subsidiaries or any of their affiliates has received any written
notice of revocation or material modifications of such material
agreements; and (ii) (A) either the Company or its subsidiaries have
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 the Company or
such subsidiary have ceased carrying such stations; (B) all such
agreements grant the Company or one of its subsidiaries retransmission
consent; 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;
(xvi) 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
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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;
(xvii) (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 Significant 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, which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and (iii) no claim of copyright infringement
has been made or threatened in writing against the Company, any of its
subsidiaries or any System, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect;
(xviii)The sale of the Shares and the compliance by the Company
with all the provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with the
Communications Act or the rules, regulations or policies of the FCC
thereunder, and will not cause any suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any material license, permit,
franchise, certificate, consent, authorization, designation,
declaration, filing, registration or qualification;
(xix) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
(xx) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, KPMG LLP, who have
certified certain financial statements of the AT&T Midwest Systems, and
PricewaterhouseCoopers, LLP, who have certified certain financial
statements of InterMedia Capital Partners VI, L.P., are each
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(b) The Selling Stockholder represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary
for the execution and delivery by the Selling Stockholder of this
Agreement and the Power of Attorney and the Custody Agreement
hereinafter referred to, and for the sale and delivery of the Shares to
be sold by the Selling Stockholder hereunder, have been obtained; and
the Selling Stockholder has full right, power and authority to enter
into this Agreement, the Power-of-Attorney and the
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Custody Agreement and to sell, assign, transfer and deliver the Shares
to be sold by the Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by the Selling Stockholder
hereunder and the compliance by the Selling Stockholder with all of the
provisions of this Agreement, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of
the property or assets of the Selling Stockholder is subject, nor will
the action result in any violation of the provisions the Partnership
Agreement of the Selling Stockholder or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property of the
Selling Stockholder;
(iii) The Selling Stockholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) the Selling
Stockholder will have, good and valid title to the Shares to be sold by
the Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of the Shares and
payment therefor pursuant hereto, good and valid title to the Shares,
free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters;
(iv) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing
on, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without your
prior written consent;
(v) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by the
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the Registration Statement and
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to you prior to or
at the
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First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(viii) Certificates in negotiable form representing all of the
Shares to be sold by the Selling Stockholder hereunder have been placed
in custody under a Custody Agreement, in the form heretofore furnished
to you (the "Custody Agreement"), duly executed and delivered by the
Selling Stockholder to The Bank of New York as custodian (the
"Custodian"), and the Selling Stockholder has duly executed and
delivered a Power of Attorney, in the form heretofore furnished to you
(the "Power of Attorney"), appointing the persons indicated in Schedule
II hereto, and each of them, as the Selling Stockholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute
and deliver this Agreement on behalf of the Selling Stockholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Stockholder as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by the Selling Stockholder hereunder
and otherwise to act on behalf of the Selling Stockholder in connection
with the transactions contemplated by this Agreement and the Custody
Agreement; and
(ix) The Shares represented by the certificates held in custody
for the Selling Stockholder under the Custody Agreement are subject to
the interests of the Underwriters hereunder; the arrangements made by
the Selling Stockholder for such custody, and the appointment by the
Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney,
are to that extent irrevocable; the obligations of the Selling
Stockholder hereunder shall not be terminated by operation of law,
whether by the dissolution of the partnership, or by the occurrence of
any other event; if the partnership should be dissolved, or if any
other such event should occur, before the delivery of the Shares
hereunder, certificates representing the Shares shall be delivered by
or on behalf of the Selling Stockholder in accordance with the terms
and conditions of this Agreement and of the Custody Agreement; and
actions taken by the Attorneys-in-Fact pursuant to the Power of
Attorney shall be as valid as if such dissolution or other event had
not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Selling Stockholder agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Selling
Stockholder, at a purchase price per share of $..........., the number of Firm
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the aggregate number of Firm Shares to be sold by the Selling
Stockholder as set forth opposite their respective names in Schedule II hereto
by a fraction, the numerator of which is the aggregate number of Firm Shares to
be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the aggregate
number of Firm Shares to be purchased by all of the Underwriters from the
Selling Stockholder hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Selling Stockholder agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Selling Stockholder, at the purchase price per share set forth in clause (a) of
this Section 2, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by a
fraction
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the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Selling Stockholder, as and to the extent indicated in Schedule II
hereto, hereby grants to the Underwriters the right to purchase at their
election up to 650,000 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering sales in excess
of the number of Firm Shares. Any such election to purchase Optional Shares may
be exercised only by written notice from you to the Attorneys-in-Fact, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours' prior
notice to the Selling Stockholder shall be delivered by or on behalf of the
Selling Stockholder to ▇▇▇▇▇▇▇, Sachs & Co., through the facilities of The
Depository Trust Company ("DTC"), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Selling Stockholder to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at least forty-eight hours in
advance. The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York time, on June ___, 2001 or such other time and date as ▇▇▇▇▇▇▇, Sachs &
Co. and the Selling Stockholder may agree upon in writing, and, with respect to
the Optional Shares, 9:30 a.m., New York time, on the date specified by ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. in the written notice given by ▇▇▇▇▇▇▇, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Selling Stockholder may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7[(k)] hereof, will be delivered at the offices
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
(the "Closing Location"), and the Shares will be delivered at the Designated
Office, all at such Time of Delivery. A meeting will be held at the Closing
Location at 12:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the
10
parties hereto. For the purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of Delivery
which shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic copies
of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the Shares
and if at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act or
11
the Exchange Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many written and electronic copies
as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing
on, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without your
prior written consent;
(f) To furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), to make available to its stockholders consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
12
(i) To use its best efforts to list for quotation the Shares on
the National Association of Securities Dealers Automated Quotations
National Market System ("NASDAQ");
(j) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act; and
(k) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the Shares (the "License"); provided, however, that
the License shall be used solely for the purpose described above, is
granted without any fee and may not be assigned or transferred.
6. The Company and the Selling Stockholder covenant and agree with one
another and with the several Underwriters that (a) the Company will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the NASDAQ; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section; and
(b) the Selling Stockholder will pay or cause to be paid all costs and expenses
incident to the performance of the Selling Stockholder's obligations hereunder
which are not otherwise specifically provided for in this Section, including (i)
any fees and expenses of counsel for the Selling Stockholder, (ii) the fees and
expenses of the Attorneys-in-Fact and the Custodian, and (iii) all expenses and
taxes incident to the sale and delivery of the Shares to be sold by such Selling
Stockholder to the Underwriters hereunder. In connection with clause (b) (iii)
of the preceding sentence, ▇▇▇▇▇▇▇, Sachs & Co. agrees to pay New York State
stock transfer tax, and the Selling Stockholder agrees to reimburse ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. for associated carrying costs if such tax payment is not rebated on
the day of payment and for any portion of such tax payment not rebated. It is
understood, however, that the Company shall bear, and the Selling Stockholder
shall not be required to pay or to reimburse the Company for, the cost of any
other matters not directly relating to the sale and purchase of the Shares
pursuant to this Agreement, and that, except as provided in this Section, and
Sections 8 and 11 hereof, the Underwriters will pay all
13
of their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholder herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Stockholder shall have performed all of their obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii),
(iii), (xiii), (xvii), (xix), and (xx) of subsection (c) below as well
as such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) each of the Company and its subsidiaries listed on Schedule
III hereto (the "Significant Subsidiaries") is validly existing as a
corporation, limited partnership or a limited liability company, as
appropriate, in good standing under the laws of its respective
jurisdiction of incorporation or organization, as appropriate, and has
the corporate, limited partnership or limited liability company power
and authority, as appropriate, 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 Significant Subsidiaries is in
good standing as a foreign corporation, limited partnership or limited
liability company, as appropriate, authorized to do business in the
jurisdictions set forth on Schedule IV hereto. Based solely on
certificates of an officer of the Company, as to where the Company and
its Significant 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 certificate of incorporation of the Company, any agreement
known to such counsel or the Delaware General Corporation law;
14
(iv) all the outstanding partnership interests of Insight L.P.
have been duly authorized and validly issued and are fully paid and
(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 not subject to
any preemptive or similar rights under the limited partnership
agreement of Insight L.P., any agreement known to such counsel, or the
Delaware Revised Uniform Limited Partnership Act. To the best of such
counsel's knowledge, all of the outstanding partnership interests of
Insight L..P. are owned by the Company free and clear of any Lien other
than as set forth in the Prospectus;
(v) all the outstanding limited partnership interests of Insight
Midwest have been duly authorized and validly issued and are fully paid
and (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 not subject to
any preemptive or similar rights under the limited partnership
agreement of Insight Midwest, any agreement known to such counsel, or
the Delaware Revised Uniform Limited Partnership Act. To the best of
such counsel's knowledge, 50% of the outstanding partnership interests
of Insight Midwest are owned by its general partner, Insight L.P., free
and clear of any Lien other than as set forth in the Prospectus;
(vi) all of the outstanding limited liability company interests
of Insight Holdings of Ohio, LLC ("Insight Holdings") have been duly
authorized and validly issued and are fully paid and non-assessable
under the Delaware Limited Liability Company Act, and, to the best of
such counsel's knowledge, are owned by Insight Midwest, free and clear
of any Lien other than as set forth in the Prospectus;
(vii) all of the outstanding limited liability company interests
of Insight Ohio have been duly authorized and validly issued and are
fully paid and non-assessable under the Delaware Limited Liability
Company Act, and, to such counsel's knowledge, are owned by Insight
Holdings (other than the preferred equity interests, which are owned by
Coaxial Communications of Central Ohio, Inc.), free and clear of any
Lien, except Liens created pursuant to the Insight Ohio Credit Facility
and other than as set forth in the Prospectus;
(viii) all of the outstanding limited liability company
interests of Insight Midwest Holdings, LLC ("Midwest Holdings") have
been duly authorized and validly issued and are fully paid and
non-assessable under the Delaware Limited Liability Company Act, and,
to such counsel's knowledge, are owned by Insight Midwest, free and
clear of any Lien, except Liens created pursuant to the Insight Midwest
Holdings Credit Facility and other than as set forth in the Prospectus;
(ix) all of the outstanding limited liability company interests
of Insight Communications Midwest, LLC have been duly authorized and
validly issued and are fully paid and non-assessable under the Delaware
Limited Liability Company Act, and, to such counsel's knowledge, are
owned by Midwest Holdings, free and clear of any Lien, except Liens
created pursuant to the Insight Midwest Holdings Credit Facility and
other than as set forth in the Prospectus;
15
(x) all of the outstanding limited partnership interests of
Insight Communications of Kentucky, L.P. ("Insight Kentucky") have been
duly authorized and validly issued and are fully paid and (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 not subject to any
preemptive or similar rights under the limited partnership agreement of
Insight Kentucky, any agreement known to such counsel, or the Delaware
Revised Uniform Limited Partnership Act, and, to such counsel's
knowledge, are owned by the Insight Midwest Holdings, LLC (other than a
.001% limited partnership interest which is owned by Insight Kentucky
Capital, LLC ("Kentucky Capital")), free and clear of any Lien, except
Liens created pursuant to the Insight Midwest Holdings Credit Facility
and other than as set forth in the Prospectus;
(xi) all of the outstanding limited partnership interests of
Insight Kentucky Partners I, L.P. ("Kentucky Partners I") have been
duly authorized and validly issued and are fully paid and (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 not subject to any
preemptive or similar rights under the limited partnership agreement of
Kentucky Partners I, any agreement known to such counsel, or the
Delaware Revised Uniform Limited Partnership Act, and, to such
counsel's knowledge, are owned by Insight Kentucky (other than a .001%
limited partnership interest which is owned by Kentucky Capital), free
and clear of any Lien, except Liens created pursuant to the Insight
Midwest Holdings Credit Facility and other than as set forth in the
Prospectus;
(xii) all of the outstanding limited partnership interests of
Insight Kentucky Partners II, L.P. ("Kentucky Partners II") have been
duly authorized and validly issued and are fully paid and (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 not subject to any
preemptive or similar rights under the limited partnership agreement of
Kentucky Partners II, any agreement known to such counsel, or the
Delaware Revised Uniform Limited Partnership Act, and, to such
counsel's knowledge, are owned by Kentucky Partners I (other than a
.001% limited partnership interest which is owned by Kentucky Capital),
free and clear of any Lien, except Liens created pursuant to the
Insight Midwest Holdings Credit Facility and other than as set forth in
the Prospectus;
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xiv) such counsel has no knowledge that the Company or any of
its Significant Subsidiaries is in violation of its respective charter,
by-laws, limited partnership agreement, operating agreement or other
organizational documents, and such counsel has no knowledge that the
Company or any of its Significant 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, and that is known to such counsel, 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;
16
(xv) the sale of the Shares and the compliance by the Company
with all provisions of this Agreement and the consummation of the
transactions herein contemplated will not (i) require any consent,
approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except the registration under the
Act of the Shares, except as may have been obtained or may be required
under the securities or Blue Sky laws of the various states, and except
such as would not, individually or in the aggregate, have a Material
Adverse Effect), (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 operating agreement of the Company or
any of its Significant 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, and that is known
to such counsel, to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries or their respective property is bound, or
(iii) violate or conflict with any applicable law or any 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 their subsidiaries or their respective
property, except, as to clause (iii), such violations or conflicts that
would not, individually or in the aggregate, have a Material Adverse
Effect;
(xvi) after oral inquiry of an executive officer of the Company,
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
which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect;
(xvii)The statements set forth in the Prospectus under the
caption ["Description of Capital Stock"], insofar as they purport to
constitute a summary of the terms of the Stock, and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, fairly present, in all
material respects, the information called for with respect to such
terms, provisions and laws;
(xviii) The Company is not an "investment company", as such
term is defined in the Investment Company Act;
(xix) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material respects with
the requirements of the Act or the Exchange Act, as applicable and the
rules and regulations of the Commission thereunder; and they have no
reason to believe that any of such documents, when such documents
became effective or were so filed, as the case may be, contained in the
case of a registration statement which became effective under the Act,
an untrue statement of a material fact, or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light
17
of the circumstances under which they were made when such documents
were so filed, not misleading; and
(xx) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder; although they do not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in subsection
(xi) of this Section 7(c), they have no reason to believe that, as of
its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of
such Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required;
(d) ▇▇. ▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for the Selling
Stockholder, shall have furnished to you his written opinion dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by the Selling Stockholder and constitute valid
and binding agreements of the Selling Stockholder in accordance with
their terms;
(ii) This Agreement has been duly executed and delivered by or
on behalf of the Selling Stockholder; and the sale of the Shares to be
sold by the Selling Stockholder hereunder and the compliance by the
Selling Stockholder with all of the provisions of this Agreement, the
Power-of-Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
18
counsel to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property or assets
of the Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Partnership Agreement of the
Selling Stockholder or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Selling Stockholder or the property of the Selling
Stockholder;
(iii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the
Shares to be sold by the Selling Stockholder hereunder, except those
which have been duly obtained and are in full force and effect, such as
have been obtained under the Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters;
(iv) Immediately prior to Time of Delivery, the Selling
Stockholder had good and valid title to the Shares to be sold at Time
of Delivery by the Selling Stockholder under this Agreement, free and
clear of all liens, encumbrances, equities or claims, and full right,
power and authority to sell, assign, transfer and deliver the Shares to
be sold by the Selling Stockholder hereunder; and
(v) Good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to each
of the several Underwriters.
(e) ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., special regulatory counsel for
the Company, shall have furnished to you their written opinion dated
the Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The communities listed in Section A of Attachment 1 to such
opinion, which are the communities served by cable systems operated by
Insight Communications Midwest, Insight Ohio, Kentucky Partners II,
Insight, L.P. (the "Insight Systems"), have been registered with the
FCC in connection with the operation of the Insight 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 its subsidiaries hold certain FCC licenses
("FCC licenses"). All FCC licenses and receive-only earth station
registrations held by the Company and its subsidiaries in connection
with the operation of the Insight Systems are listed on Attachment 1 to
such opinion. To the best of such counsel's knowledge, all such FCC
licenses have been validly issued or assigned to the present licensee
and are currently in full force and effect. Such counsel has 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 its subsidiaries or would result in any other
material impairment of the rights of the holder of such license. To the
best of such counsel's knowledge, no other FCC licenses are required in
connection with the operation of the Insight Systems by the Company or
its subsidiaries in the manner such counsel has 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;
19
(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 such
counsel's 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 such counsel's knowledge after due inquiry,
the Company and its 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 its 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 such counsel has been advised are currently being utilized
on the Insight Systems. The geographic and technical parameters with
respect to the authorized use of these frequencies are listed on
Attachment 1 to such opinion;
(vi) The employment units covered by the Insight Systems and
operated by the Company and its subsidiaries have been certified, where
required, by the FCC for compliance with EEO requirements in each of
calendar years 1994 through 1999 in which such Insight Systems have
been owned, operated and/or managed by the Company or its affiliates;
(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 Insight Systems covering each of the
accounting periods beginning with the January 1 through June 30, 1997
accounting period and ending with the July 1 through December 31, 2000
accounting period during which such Insight Systems have been operated
by the Company and its affiliates. To the best of such counsel's
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 its affiliates
with respect to the Insight Systems. Such counsel is 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 its affiliates for the Insight Systems;
(viii)The Company has obtained all consents and approvals of the
FCC and FCC authorizations, if any, required for the transactions
contemplated in this Purchase 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 its subsidiaries;
(ix) Neither the execution and delivery of 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 its subsidiaries, the conflict
with or the violation of which would reasonably be expected to have a
materially adverse impact on the Company or its subsidiaries; and
20
(x) In such counsel's opinion, the statements incorporated by
reference into the Prospectus under the headings ["Risk Factors--Our
business has been and continues to be subject to extensive governmental
legislation and regulation, and changes in this legislation and
regulation could increase our costs of compliance and reduce the
profitability of our business" "Risk Factors--The competition we face
from other cable networks and alternative service providers may cause
us to lose market share," "Business--Franchises,"
"Business--Competition" and "Legislation and Regulation"] insofar as
they purport to describe the provisions of the law referred to therein,
are accurate, complete and fair in all material respects.
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, (i) Ernst & Young LLP shall have furnished to
you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I (a) hereto and (ii) each of KPMG LLP and
PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex l (b)
hereto;
(g)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(i) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ; (ii)
a suspension or material limitation in trading in the Company's
securities on NASDAQ; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or
21
war, if the effect of any such event specified in this clause (iv)
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(j) The Shares at such Time of Delivery shall have been duly
listed for quotation on NASDAQ;
(k) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each Director and Officer of the
Company, substantially to the effect set forth in Subsection 1(b)(iv)
hereof in form and substance satisfactory to you;
(l) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(m) The Company and the Selling Stockholder shall have furnished
or caused to be furnished to you at such Time of Delivery certificates
of officers of the Company and of the Selling Stockholder,
respectively, satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling
Stockholder, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Stockholder of all
of their respective obligations hereunder to be performed at or prior
to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to
be furnished certificates as to the matters set forth in subsections
(a), (f) and (g) of this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein.
(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
22
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by the Selling Stockholder expressly for use therein;
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that such
Selling Stockholder shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇, Sachs &
Co. expressly for use therein.
(c) Each Underwriter will indemnify and hold harmless the Company and
the Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or the Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
expressly for use therein; and will reimburse the Company and the Selling
Stockholder for any legal or other expenses reasonably incurred by the Company
or the Selling Stockholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential
23
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim 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 any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholder on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Stockholder bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault 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 Selling Stockholder on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Selling
Stockholder and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) 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 above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which 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 in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder under
this Section 8 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
24
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company or the Selling Stockholder within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Stockholder shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholder
that you have so arranged for the purchase of such Shares, or the Selling
Stockholder notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholder shall have the right to postpone a Time
of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholder as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Selling Stockholder shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholder as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholder shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholder to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholder, except for the expenses to be borne by the Company
and the Selling Stockholder and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholder and the several
Underwriters, as set forth in this
25
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or the Selling Stockholder, or any officer or director or controlling person of
the Company, or any controlling person of the Selling Stockholder, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Stockholder as provided herein, [the Company] will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholder shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives; and in all dealings with the Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of the Selling Stockholder made or given by any or
all of the Attorneys-in-Fact for the Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; if to the Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for the Selling Stockholder at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(d) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the Selling Stockholder by you on request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholder and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Stockholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
26
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. The Company and the Selling Stockholder are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, without the Underwriters imposing
any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign
and return to us one counterpart hereof for the Company and each of the
Representatives plus one for each counsel and the Custodian, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and the Selling Stockholder. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is pursuant
to the authority set forth in a form of Agreement among Underwriters, the form
of which shall be submitted to the Company and the Selling Stockholder for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
27
Any person executing and delivering this Agreement as Attorney-in-Fact
for the Selling Stockholder represents by so doing that he has been duly
appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly
existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to
take such action.
Very truly yours,
INSIGHT COMMUNICATIONS COMPANY, INC.
By: ...........................................
Name:
Title:
VESTAR CAPITAL PARTNERS III, L.P.
By: ...........................................
Name:
Title:
As
Attorney-in-Fact acting on behalf of the
Selling Stockholder named in Schedule II
to this Agreement.
Accepted as of the date hereof
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Credit Suisse First Boston Corporation
Banc of America Securities LLC
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ Securities LLC
By:...........................................
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
On behalf of each of the Underwriters
28
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ------------------
▇▇▇▇▇▇▇, Sachs & Co..................................
Credit Suisse First Boston Corporation...............
Banc of America Securities LLC.......................
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ Securities LLC........
[Names of other Underwriters]........................
---------- -----------
Total......................................... 4,350,000 650,000
========== ===========
29
SCHEDULE II
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
The Selling Stockholder:...................................... 4,350,000 650,000
Vestar Capital Partners III, L.P..............................
Total..............................................................
--------------- ---------------------
4,350,000 650,000
=============== =====================
-------------
(a) This Selling Stockholder has appointed ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., and each of them, as the Attorneys-in-Fact for such
Selling Stockholder.
30
Schedule III
Significant Subsidiaries
Insight Communications Company, L.P.
Insight Midwest, L.P.
Insight Midwest Holdings, LLC
Insight Communications Midwest, LLC
Insight Communications of Kentucky, L..P.
Insight Kentucky Partners I, L.P.
Insight Kentucky Partners II, L.P.
Insight Holdings of Ohio, LLC
Insight Communications of Central Ohio, LLC
31
Schedule IV
Jurisdictions
Entity Jurisdictions
------ -------------
Insight Communications Company, Inc. New York
Illinois
Insight Communications Company, L.P. Kentucky
Indiana
Illinois
New York
Insight Midwest, L.P. Illinois
Insight Midwest Holdings, LLC Illinois
Insight Communications Midwest, LLC Georgia
Illinois
Indiana
Kentucky
Insight Communications of Kentucky, L..P. None
Insight Kentucky Partners I, L.P. None
Insight Kentucky Partners II, L.P. Kentucky
Insight Holdings of Ohio, LLC None
Insight Communications of Central Ohio, LLC Ohio
32
ANNEX l(a)
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representatives of the Underwriters
(the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of
the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form
10-Q and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus, for them to be
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
F-2
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in clause (E) there
were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by
the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference) or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
F-3
ANNEX l(b)
F-4
