-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QXD8WGobyKJT1SrbNNA0/xk6JoFFXzzRdb4FDopg1YGJTvGL13H4et0sInXW5/Qs Ie6BH2+M6VZsLLtEbgvpLA== 0001047469-05-028305.txt : 20051215 0001047469-05-028305.hdr.sgml : 20051215 20051215144628 ACCESSION NUMBER: 0001047469-05-028305 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20051215 DATE AS OF CHANGE: 20051215 GROUP MEMBERS: ADELINE KEMPNER GROUP MEMBERS: ALAN H. KEMPNER III GROUP MEMBERS: ANDREW G. KNAFEL GROUP MEMBERS: ANN BERNHARD GROUP MEMBERS: ARTHUR SHULMAN GROUP MEMBERS: BRUCE LEVY GROUP MEMBERS: CHARLES E. DIETZ GROUP MEMBERS: DAN MCCOMAS GROUP MEMBERS: DANIEL MANNINO GROUP MEMBERS: DORIS KEMPNER GROUP MEMBERS: ELIZABETH GRIER GROUP MEMBERS: ELLIOT BRECHER GROUP MEMBERS: GEROLD BEZZENBERGER GROUP MEMBERS: GREGORY B. GRAFF GROUP MEMBERS: HEATHER WRIGHT GROUP MEMBERS: HELEN-MAE ASKIN GROUP MEMBERS: JAMES D. MORGAN GROUP MEMBERS: JAMES S. MARCUS GROUP MEMBERS: JEFFREY A. KAUFMAN GROUP MEMBERS: JOHN ABBOT GROUP MEMBERS: JOHN S. SCHERLIS GROUP MEMBERS: JOHN W. HUTTON GROUP MEMBERS: JONATHAN A. KAUFMAN GROUP MEMBERS: JOSHUA RUBENSTEIN GROUP MEMBERS: JUDITH M. BISHOP GROUP MEMBERS: K. DAVID ISAACS GROUP MEMBERS: KAUFMAN FAMILY INTERESTS GROUP MEMBERS: LEONARD AND BARBARA SCHERLIS GROUP MEMBERS: LILLIAN C. SCHERLIS GROUP MEMBERS: MARA R. BANNARD GROUP MEMBERS: MARC NATHANSON GROUP MEMBERS: MARY E. RHODES GROUP MEMBERS: MARY L. UMLAUF GROUP MEMBERS: MERCEDES KAUFMAN GROUP MEMBERS: MICHAEL COLEMAN KEMPNER GROUP MEMBERS: MICHAEL S. WILNER GROUP MEMBERS: MICHAEL WARD GROUP MEMBERS: NANCY ASKIN GROUP MEMBERS: PAMELA EULER HALLING GROUP MEMBERS: SEYMOUR R. ASKIN, JR. GROUP MEMBERS: SOPHIA G. SCHERLIS GROUP MEMBERS: THOMAS G. SCHERLIS GROUP MEMBERS: THOMAS L. KEMPNER GROUP MEMBERS: VICTORIA HAMILTON GROUP MEMBERS: WALTER KELLEY GROUP MEMBERS: WILLIAM L. SCHERLIS FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KNAFEL SIDNEY R CENTRAL INDEX KEY: 0000924039 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: BUSINESS PHONE: 2123712266 MAIL ADDRESS: STREET 1: 126 EAST 56 STREET CITY: NEW YORK STATE: NY ZIP: 10022 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INSIGHT COMMUNICATIONS CO INC CENTRAL INDEX KEY: 0001084421 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 134053502 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58331 FILM NUMBER: 051266288 BUSINESS ADDRESS: STREET 1: 126 EAST 56TH STREET CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2123712266 MAIL ADDRESS: STREET 1: INSIGHT COMMUNICATIONS CO INC STREET 2: 126 EAST 56TH STREET CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 a2166017zsc13da.htm 13D

 

 

UNITED STATES

 

 

SECURITIES AND EXCHANGE
COMMISSION

 

 

Washington, D.C. 20549

 

 

SCHEDULE 13D/A

 

Information to be included in statements filed pursuant to Rule 13d-1(a) and amendments thereto
filed pursuant to Rule 13d-2(a)

Under the Securities Exchange Act of 1934
(Amendment No. 3)*

INSIGHT COMMUNICATIONS COMPANY, INC.

(Name of Issuer)

 

Class A Common Stock, $0.01 par value

(Title of Class of Securities)

 

45768V108

(CUSIP Number)

 

J. Kevin Mills

Thomas D. Twedt

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, N.W.

Washington, D.C.  20036  (202) 776-2000

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

December 14, 2005

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ý

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 


 

CUSIP No.   45768V108

 

 

1.

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Adeline Kempner

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States of America

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
14,421

 

8.

Shared Voting Power
0

 

9.

Sole Dispositive Power
14,421

 

10.

Shared Dispositive Power 
0

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person 
14,421

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o
Not Applicable

 

 

13.

Percent of Class Represented by Amount in Row (11) 
0.0%*

 

 

14.

Type of Reporting Person (See Instructions)
IN

 

*  The denominator is based on 51,841,390 shares of Class A Common Stock outstanding as of October 31, 2005, as stated on the facing page of Insight’s Form 10-Q for the quarter ended September 30, 2005.  The Reporting Persons (as defined under Item 2 of this Amendment No. 3 to Schedule 13D) may be deemed to be a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and therefore each Reporting Person may be deemed to beneficially own the shares held by all other Reporting Persons.  The aggregate number of shares beneficially owned by all of the Reporting Persons is 11,303,409, which includes 8,489,454 shares of Class B Common Stock and 558,456 shares of Class A Common Stock issuable upon the exercise of options that are exercisable within 60 days.

 

The shares deemed to be beneficially owned by Adeline Kempner represent less than one-tenth of one percent of the total outstanding votes of the Common Stock as a single class.  The aggregate shares of Common Stock beneficially owned by all of the Reporting Persons represent approximately 5.4% of the outstanding shares of Class A Common Stock, 100% of the outstanding shares of Class B Common Stock and approximately 64.1% of the total outstanding votes of the Common Stock as a single class.

 

2


 

Item 1.  Security and Issuer

 

The class of equity securities to which this Amendment No. 3 to Schedule 13D (this “Amendment”) relates is the Class A Common Stock, par value $0.01 per share (the “Class A Common Stock”), of Insight Communications Company, Inc., a Delaware corporation (“Insight”).  The principal executive offices of Insight are located at 810 7th Avenue, New York, New York 10019.

 

Item 2.  Identity and Background

 

This Amendment is being filed by:

 

•                  Sidney R. Knafel; Andrew G. Knafel, Joshua Rubenstein and William L. Scherlis, as trustees (the “Trustees”) under Trusts F/B/O Knafel children (the “Trusts”); Michael S. Willner; James S. Marcus; Thomas L. Kempner; and Andrew G. Knafel (collectively, the “Original Reporting Persons”);

 

•                  Nancy Askin; Helen–Mae Askin; Seymour R. Askin, Jr.; Gerold Bezzenberger; Victoria Hamilton; K. David Isaacs; Kaufman Family Interests L.P.; Mercedes Kaufman, as trustee under the Betty K. Weisberger Trust; Jeffrey A. Kaufman; Jonathan A. Kaufman; John S. Scherlis; Leonard Scherlis; Barbara Scherlis; Thomas G. Scherlis; William L. Scherlis; Lillian C. Scherlis; Sophia G. Scherlis; Ann Bernhard; Alan H. Kempner, III; Michael Coleman Kempner; Michael Ward, as trustee under the Michael Coleman Kempner Trust U/A 5/19/64; Judith M. Bishop, as trustee under the Carl Loeb Kempner, Jr. Trust U/A 5/19/64; Doris Kempner; Mary L. Umlauf, as trustee under the Kathryn Kempner Poteat Trust U/A 5/19/64; Arthur Shulman; Marc Nathanson; Bruce Levy; and Adeline Kempner (collectively, the “Holdco Reporting Persons”); and

 

•                  John Abbot, Elliot Brecher, Pamela Euler Halling, Mary Rhodes, Elizabeth Grier, Charles E. Dietz, Daniel Mannino, Heather Wright, Gregory B. Graff, John W. Hutton, James D. Morgan, Walter Kelley, Dan McComas and Mara Bannard (collectively, the “Rollover Investors” and together with the Original Reporting Persons and the Holdco Reporting Persons, the “Reporting Persons”).

 

The Reporting Persons are filing this Amendment because they may be deemed to be a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to the transaction described in Item 4 of the Schedule 13D (as defined below).  Except as expressly set forth in this Amendment, each Reporting Person disclaims beneficial ownership of the shares of Class A Common Stock or Class B Common Stock of Insight, par value

 

3


 

$0.01 per share (the “Class B Common Stock,” and together with the Class A Common Stock, the “Common Stock”), beneficially owned by any other Reporting Person.

 

This Amendment amends the Schedule 13D (the “Original 13D”) filed with the Securities and Exchange Commission (the “Commission”) on March 7, 2005 as amended by Amendment No. 1 to Schedule 13D filed with the Commission on July 29, 2005 (“Amendment No. 1 to Schedule 13D”) and Amendment No. 2 to Schedule 13D filed with the Commission on November 14, 2004 (“Amendment No. 2 to Schedule 13D” and collectively with the Original 13D, Amendment No. 1 to Schedule 13D and this Amendment, the “Schedule 13D”).  Except as modified herein, the Original 13D, as amended by Amendment No. 1 to Schedule 13D and Amendment No. 2 to Schedule 13D, is unmodified.  Capitalized terms used but not defined in this Amendment shall have the meaning given in Amendment No. 1 to Schedule 13D or Amendment No. 2 to Schedule 13D, as the case may be.

 

To the best knowledge of the persons filing this Amendment, the name, business address and present principal occupation or employment of each Reporting Person is set forth on Appendix A hereto, which Appendix A is incorporated by reference herein.

 

To the best knowledge of the persons filing this Amendment, during the last five years, none of the Reporting Persons has been convicted in any criminal proceedings (excluding traffic violations or similar misdemeanors).

 

To the best knowledge of the persons filing this Amendment, during the last five years, none of the Reporting Persons has been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as the result of which he or it was or is subject to any judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

To the best knowledge of the persons filing this Amendment, each Reporting Person is a citizen of the United States of America, except Gerold Bezzenberger, who is a citizen of Germany.

 

Item 3.  Source and Amount of Funds or Other Consideration

 

Item 3 is hereby amended and restated in its entirety to read as follows:

 

4


 

The shares of Class A Common Stock reported as beneficially owned by the Reporting Persons were acquired in the initial public offering of Insight, through open market purchases using personal funds, by means of gift, inheritance or other gratuitous transfer, or through their service as an officer, director or employee of Insight.

 

The Reporting Persons estimate that the amount of funds that would be required to purchase all of the shares of outstanding Class A Common Stock and Class B Common Stock to be converted in the Merger into the right to receive the Merger Consideration, to settle outstanding, in-the-money options and to pay estimated fees and expenses is approximately $657 million.  The majority of these funds will be provided by affiliates of The Carlyle Group (the “Sponsor”) and PH Investments, LLC, an entity affiliated with Amos B. Hostetter, Jr. (“PH Investments”), through a cash investment in Insight Acquisition Corp. (“Parent”).  The Sponsor will invest an amount equal to the Sponsor’s reasonable estimate (after good faith consultation with Sidney Knafel and Michael Willner) of the aggregate amount of cash that Parent will need to pay the Merger Consideration of $11.75 per share to be paid to the stockholders whose shares of Class A Common Stock will be converted into the right to receive cash in the Merger, less the amount of the cash investments by PH Investments, provided that the amount provided by the Sponsor shall not exceed $606,305,000.  The Reporting Persons and the Sponsor currently expect that all other costs, expenses and liabilities of Parent and Insight arising out of or relating to the transaction shall be paid by Insight from cash available to Insight immediately prior to the consummation of the Merger.

 

Item 4.  Purpose of Transaction

 

Item 4 is hereby amended to add the following at the end thereof:

 

Concurrently with the execution of the Merger Agreement, Insight, Parent, the Sponsor and the Original Reporting Persons entered into an Exchange Agreement.  As of November 10, 2005, the Reporting Persons, Insight, Parent, the Sponsor and Continuing Investor Holding Company, LLC (“Holdco”) entered into an Amended and Restated Exchange Agreement (the “Amended and Restated Exchange Agreement”) in connection with the Holdco Reporting Persons and the Rollover Investors becoming parties to the Exchange Agreement.  As of December 14, 2005, Insight, Parent, Sidney Knafel, Michael Willner and the Sponsor entered into the First Amendment to Amended and Restated Exchange Agreement (the “First Amendment”).  The Amended and Restated Exchange Agreement governs the exchange of Insight common stock by the Reporting Persons for a continuing investment in Insight and certain other matters related to the Merger.  The material provisions of the Amended and Restated Exchange Agreement are described in Amendment No. 2 to Schedule 13D, and the complete Amended and Restated Exchange Agreement is incorporated herein by reference as Exhibit 7.04 hereto.  The First Amendment amends the Amended and Restated Exchange Agreement to add Adeline

 

5


 

Kempner as a party to the Amended and Restated Exchange Agreement and to update Exhibit A thereto. The complete First Amendment is filed herewith as Exhibit 7.05 hereto and incorporated herein by reference.

 

Item 5.  Interest in Securities of the Issuer

 

Item 5 is hereby amended and restated in its entirety to read as follows:

 

(a)  See Items 7 and 9 of the cover pages to Amendment No. 2 to Schedule 13D and to this Amendment, which Items are incorporated herein by reference, for the aggregate number of shares and percentage of Class A Common Stock owned by each of the Reporting Persons.

 

(b)  See Items 8 and 10 of the cover pages to Amendment No. 2 to Schedule 13D and to this Amendment, which Items are incorporated herein by reference, for the aggregate number of shares of Class A Common Stock beneficially owned by each of the Reporting Persons as to which there is shared power to vote or direct the vote or shared power to dispose or to direct the disposition of such shares of Class A Common Stock.

 

The percentage of the Class A Common Stock set forth for each Reporting Person in this Item 5 was calculated based upon (i) 51,841,390 shares of Class A Common Stock outstanding as of October 31, 2005, as stated on the facing page of Insight’s Form 10-Q for the quarter ended September 30, 2005; (ii) the number of shares of Class A Common Stock issuable upon the conversion of the Class B Common Stock, if any, beneficially owned by such Reporting Person; and (iii) the number of shares of Class A Common Stock issuable upon the exercise of options to purchase Class A Common Stock held by such Reporting Person that are exercisable within 60 days, if any.  The percentage of the total outstanding votes of the Common Stock as a single class set forth for each Reporting Person in this Item 5 was calculated based on the outstanding shares of Class A Common Stock set forth in clause (i) above and 8,489,454 shares of Class B Common Stock outstanding as of October 31, 2005, as stated on the facing page of Insight’s Form 10-Q for the quarter ended September 30, 2005.  Holders of Class A Common Stock are entitled to one vote per share, and holders of Class B Common Stock are entitled to ten votes per share.

 

Except as otherwise provided in this Item 5, each of the Reporting Persons has the sole power to vote or to direct the vote, and the sole power to dispose or to direct the disposition of, the shares of Class A Common Stock deemed to be beneficially owned by such Reporting Person.

 

(c)  The following Reporting Persons have effected transactions in the Class A Common Stock during the past sixty days:

 

6


 

Reporting Person

 

Transaction
Type

 

Date

 

Number of
Shares

 

Price per
Share

 

Market

 

Victoria Hamilton

 

Gift

 

October 30, 2005

 

1,000

 

$

11.60

 

None

 

 

 

Gift

 

October 31, 2005

 

1,498

 

$

11.60

 

None

 

Pamela Euler Halling(1)

 

Sale

 

November 17, 2005

 

18,582

 

$

11.43

 

Open Market

 

Mary Rhodes(1)

 

Sale

 

November 16, 2005

 

4,211

 

$

11.43

 

Open Market

 

Daniel Mannino(1)

 

Sale

 

November 16, 2005

 

9,288

 

$

11.44

 

Open Market

 

Elizabeth Grier(1)

 

Sale

 

November 16, 2005

 

2,333

 

$

11.44

 

Open Market

 

Heather Wright(1)

 

Sale

 

November 17, 2005

 

3,151

 

$

11.45

 

Open Market

 

 

(1)                                  Represents sales to satisfy withholding obligations with respect to the vesting of 20% of outstanding Loan Program Exchange Shares on November 15, 2005.

 

(d)  No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Class A Common Stock referred to in paragraphs (a) and (b) above.

 

(e)  Not applicable.

 

Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

Item 6 is hereby amended to add the following at the end thereof:

 

The description of the material terms of the Amended and Restated Exchange Agreement are incorporated herein by this reference.

 

Adeline Kempner has entered into an Exchange Agreement Joinder, a copy of which is filed as Exhibit 7.06 to this Amendment.

 

Adeline Kempner has entered into a Joinder to Joint Filing Agreement, a copy of which is filed as Exhibit 7.02 to this Amendment.

 

Item 7.  Material to be Filed as Exhibits

 

Exhibit 7.01

 

Joint Filing Agreement, dated as of November 10, 2005 (incorporated by reference to Exhibit 7.01 to Amendment No. 2 to Schedule 13D).

 

 

 

Exhibit 7.02

 

Joinder to Joint Filing Agreement, dated as of December 14, 2005.

 

7


 

Exhibit 7.03

 

Agreement and Plan of Merger, dated as of July 28, 2005, by and between Parent and Insight (incorporated by reference to Exhibit 7.02 to Amendment No. 1 to Schedule 13D).

 

 

 

Exhibit 7.04

 

Amended and Restated Exchange Agreement, dated as of November 10, 2005, by and among Parent, Insight, Sidney R. Knafel, Michael S. Willner, Carlyle Partners III Telecommunications, L.P., Carlyle Partners IV Telecommunications, L.P., CP III Coinvestment, L.P., CP IV Coinvestment, L.P. and the Reporting Persons (incorporated by reference to Exhibit (d)(2) to Amendment No. 3 to Schedule 13E-3 filed by Parent, Insight and certain others with the Commission on November 10, 2005).

 

 

 

Exhibit 7.05

 

First Amendment to Amended and Restated Exchange Agreement, dated as of December 14, 2005, by and among Parent, Insight, Sidney R. Knafel, Michael S. Willner, Carlyle Partners III Telecommunications, L.P., Carlyle Partners IV Telecommunications, L.P., CP III Coinvestment, L.P. and CP IV Coinvestment, L.P.

 

 

 

Exhibit 7.06

 

Joinder to Amended and Restated Exchange Agreement for Adeline Kempner.

 

 

 

Exhibit 7.07

 

Form of Amended and Restated Certificate of Incorporation of Insight.

 

 

 

Exhibit 7.08

 

Principals’ Agreement, dated as of July 28, 2005, by and among Sidney R. Knafel, Michael S. Willner, Carlyle Partners III Telecommunications, L.P., Carlyle Partners IV Telecommunications, L.P., CP III Coinvestment, L.P. and CP IV Coinvestment, L.P. (incorporated by reference to Exhibit 7.05 to Amendment No. 1 to Schedule 13D).

 

 

 

Exhibit 7.09

 

First Amendment to Principals’ Agreement, dated as of November 14, 2005, by and among Sidney R. Knafel, Michael S. Willner, Carlyle Partners III Telecommunications, L.P., Carlyle Partners IV Telecommunications, L.P., CP III Coinvestment, L.P. and CP IV Coinvestment, L.P. (incorporated by reference to Exhibit 7.06 to Amendment No. 2 to Schedule 13D).

 

 

 

Exhibit 7.10

 

Voting Agreement, dated as of July 28, 2005, by and between Parent and the Insight stockholders named therein (incorporated by reference to Exhibit 7.06 to Amendment No. 1 to Schedule 13D).

 

 

 

Exhibit 7.11

 

Subscription Agreement, dated as of November 14, 2005, by and among PH Investments, LLC, Insight, Parent, Sidney R. Knafel, Michael S. Willner, Carlyle

 

8


 

 

 

Partners III Telecommunications, L.P., Carlyle Partners IV Telecommunications, L.P., CP III Coinvestment, L.P. and CP IV Coinvestment, L.P. (incorporated by reference to Exhibit 7.08 to Amendment No. 2 to Schedule 13D).

 

 

 

Exhibit 7.12

 

Power of Attorney for Continuing Investors.

 

 

 

Exhibit 7.13

 

Power of Attorney for Holdco Continuing Investors.

 

9


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

/s/ Sidney R. Knafel

 

Date

 

Sidney R. Knafel

 

10


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

 

 

Date

By:

*

 

 

 

Andrew G. Knafel, as Trustee under

 

 

Trust F/B/O Andrew G. Knafel dated September 13, 1978,

 

 

Trust F/B/O Douglas R. Knafel dated September 13, 1978,

 

 

Trust F/B/O Andrew G. & Douglas R. Knafel dated July 16, 1976,

 

 

Trust F/B/O Douglas R. Knafel dated November 6, 1983

 

 

December 14, 2005

 

By:

*

 

Date

 

Andrew G. Knafel

 

11


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

/s/ Michael S. Willner

 

Date

 

Michael S. Willner

 

12


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

James S. Marcus

 

13


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

Thomas L. Kempner

 

14


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

John Abbot

 

15


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

Elliot Brecher

 

16


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

Pamela Euler Halling

 

17


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

Mary Rhodes

 

18


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Elizabeth Grier

 

 

19


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Charles E. Dietz

 

 

20


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Daniel Mannino

 

 

21


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Heather Wright

 

 

22


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Gregory B. Graff

 

 

23


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

John W. Hutton

 

 

24


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

James D. Morgan

 

 

25


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Walter Kelley

 

 

26


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Dan McComas

 

 

27


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Nancy Askin

 

 

28


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Helen-Mae Askin

 

 

29


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Seymour R. Askin, Jr.

 

 

30


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Mara R. Bannard

 

 

31


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Ann Bernhard

 

 

32


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Gerold Bezzenberger

 

 

33


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Victoria Hamilton

 

 

34


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

K. David Isaacs

 

 

35


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

 

Kaufman Family Interests L.P.

 

 

 

December 14, 2005

 

By:

*

 

Date

 

Name:

Robert E. Kaufman

 

 

 

Title:

President

 

 

36


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Mercedes Kaufman, as trustee

 

 

 

 

under Betty K. Weisberger Trust

 

 

37


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Jeffrey A. Kaufman

 

 

38


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Jonathan A. Kaufman

 

 

39


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Michael Coleman Kempner

 

 

40


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Doris Kempner

 

 

41


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Alan H. Kempner III

 

 

42


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Mary L. Umlauf, as trustee under the

 

 

 

Kathryn Kempner Poteat Trust U/A 5/19/64

 

43


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Judith M. Bishop, as trustee under the

 

 

 

Carl Loeb Kempner, Jr. Trust U/A 5/19/64

 

44


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Michael Ward, as trustee under the

 

 

 

Michael Coleman Kempner Trust U/A 5/19/64

 

45


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

John S. Scherlis

 

 

46


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Leonard Scherlis

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

*

 

 

 

 

Barbara Scherlis

 

 

47


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Lillian C. Scherlis

 

 

48


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Sophia G. Scherlis

 

 

49


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Thomas G. Scherlis

 

 

50


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

William L. Scherlis

 

 

51


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Marc Nathanson

 

 

52


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Bruce Levy

 

 

53


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

December 14, 2005

 

By:

*

 

Date

 

 

Adeline Kempner

 

 

54


 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

December 14, 2005

 

By:

*

 

Date

 

 

Arthur Shulman

 

 

55


 

*                 Michael S. Willner, by signing his name hereto, does sign this document on behalf of each of the persons indicated above for whom he is attorney-in-fact pursuant to a power of attorney duly executed by such person and filed with the Securities and Exchange Commission.

 

 

December 14, 2005

 

By:

/s/ Michael S. Willner

 

Date

 

 

Michael S. Willner

 

 

56


 

Appendix A

Reporting Persons

 

Name

 

Business Address

 

Principal Occupation

 

Employed

 

 

 

 

 

 

 

 

 

Sidney R. Knafel*

 

SRK Management Co.
810 7th Avenue
New York, New York 10019

 

Managing Partner
SRK Management Co.

 

SRK Management Co.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Andrew G. Knafel,
Joshua Rubenstein and
William L. Scherlis, as trustees under Trusts F/B/O Knafel children

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

N/A

 

N/A

 

 

 

 

 

 

 

 

 

Michael S. Willner*

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Vice Chairman, President and Chief Executive Officer, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

James S. Marcus*

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Retired

 

N/A

 

 

 

 

 

 

 

 

 

Thomas L. Kempner*

 

Loeb Partners Corporation
61 Broadway
New York, New York 10006

 

Chairman and Chief Executive Officer,
Loeb Partners Corporation

 

Loeb Partners Corporation
61 Broadway
New York, New York 10006

 

 

 

 

 

 

 

 

 

Andrew G. Knafel

 

Clear Brook Farm
123 Dexter Road
Shaftsbury, Vermont 05262

 

Farmer

 

Clear Brook Farm
123 Dexter Road
Shaftsbury, Vermont 05262

 

 

 

 

 

 

 

 

 

John Abbot

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President, and Chief Financial Officer, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Elliot Brecher

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President, General Counsel and Secretary, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 


 

Pamela Euler Halling

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President, Marketing and Programming, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Mary Rhodes

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President, Training, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Elizabeth Grier

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Vice President, Administration, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Charles E. Dietz

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President and Chief Technology Officer, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Daniel Mannino

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President and Controller, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Heather Wright

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Vice President, Consumer Marketing and Brand Strategy, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Gregory B. Graff

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President, Video Services, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

John W. Hutton

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President, Operations, East Region, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

James D. Morgan

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Senior Vice President, Human Resources, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 


 

Walter Kelley

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Vice President, Billing Services, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Dan McComas

 

c/o Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

Vice President, Engineering, East Region, Insight Communications Company, Inc.

 

Insight Communications Company, Inc.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Nancy Askin

 

40 Harvard Road #2
Shirley, MA 01464

 

Landscape Design and Maintenance

 

Self-Employed

 

 

 

 

 

 

 

 

 

Helen-Mae Askin

 

26 Mayfair Lane
Greenwich, CT 06830

 

Not Employed

 

N/A

 

 

 

 

 

 

 

 

 

Seymour R. Askin, Jr.

 

26 Mayfair Lane
Greenwich, CT 06830

 

Retired

 

N/A

 

 

 

 

 

 

 

 

 

Mara R. Bannard

 

SRK Management Co.
810 7th Avenue
New York, New York 10019

 

Office Manager of Insight Communications Company, Inc.
Officer Manager of SRK Management Co.

 

SRK Management Co.
(See Address)
Insight Communications Company, Inc.

 

 

 

 

 

 

 

 

 

Ann Bernhard

 

Loeb Partners Corporation
61 Broadway, 24th Fl.
New York, New York 10006

 

Assistant to the Chairman and CEO and Vice President of Research at Loeb Partners Corporation

 

Loeb Partners Corporation
61 Broadway, 24th Fl.
New York, New York 10006

 

 

 

 

 

 

 

 

 

Gerold Bezzenberger

 

Ludwigkirchstrasse 1
10719 Berlin
Gremany

 

Attorney

 

Self-Employed

 

 

 

 

 

 

 

 

 

Victoria Hamilton

 

136 East 64th Street
New York, NY 10021

 

Director

 

The Washington Advisory Group, an LECG Company
1275 K Street, NW
Suite 1025
Washington, DC 20005

 

 

 

 

 

 

 

 

 

K. David Isaacs

 

SRK Management Co.
810 7th Avenue
New York, New York 10019

 

Certified Public Accountant

 

SRK Management Co.
810 7th Avenue
New York, New York 10019

 

 

 

 

 

 

 

 

 

Kaufman Family Interests

 

c/o Robert E. Kaufman
450 S.E. 5th Avenue
#701
Boca Raton, FL 33432

 

N/A

 

N/A

 

 

 

 

 

 

 

 

 

Mercedes Kaufman, as trustee under Betty K. Weisberger Trust

 

c/o Robert E. Kaufman
450 S.E. 5th Avenue
#701 Boca Raton, FL 33432

 

N/A

 

N/A

 

 

 

 

 

 

 

 

 

Robert E. Kaufman

 

450 S.E. 5th Avenue
#701 Boca Raton, FL 33432

 

President

 

Kaufman Family Interests, L.P.
450 S.E. 5th Avenue
#701 Boca Raton, FL 33432

 

 

 

 

 

 

 

 

 

Jeffrey A. Kaufman

 

60 Savoy Road

 

Managing Director,

 

Putnam Investments

 

 


 

 

 

Needham, MA 02492

 

Senior Portfolio Manager

 

One Post Office Square
Boston, MA 02109

 

 

 

 

 

 

 

 

 

Jonathan A. Kaufman

 

1725 Osprey Bend
Weston, FL 33327

 

President

 

Nature Expeditions International, Inc.
7860 Peters Road, Suite
F-103
Plantation FL, 33324

 

 

 

 

 

 

 

 

 

Michael Kempner

 

116 East 68th Street
Apt. 7A
New York, NY 10021

 

General Partner of KS Capital Partners, L.P.

 

KS Capital Partners, L.P.
11 West 42nd Street
(Apt. 7/8A)
New York, NY 10021

 

 

 

 

 

 

 

 

 

Doris Kempner

 

20 The Crossing
Purchase, NY 10577

 

Social Worker

 

Westchester Jewish Community Services
845 North Broadway
Suite 2
White Plains, NY 10603

 

 

 

 

 

 

 

 

 

Alan H. Kempner III

 

7415 East Lincoln Drive
Scottsdale, AZ 85250

 

Realtor

 

Self-Employed

 

 

 

 

 

 

 

 

 

John S. Scherlis

 

2853 Ontario Rd, NW
#305
Washington, D.C.  20009

 

Consulting Conservation Biologist

 

Self-Employed

 

 

 

 

 

 

 

 

 

Leonard and Barbara Scherlis

 

3908 North Charles Street
Apt. 900
Baltimore, MD 21218

 

Consultant

 

Self-Employed

 

 

 

 

 

 

 

 

 

Lillian C. Scherlis

 

c/o Dr. William L. Scherlis
5854 Aylesboro Avenue
Pittsburgh, PA 15217

 

Minor Child

 

N/A

 

 

 

 

 

 

 

 

 

Sophia G. Scherlis

 

c/o Dr. William L. Scherlis
5854 Aylesboro Avenue
Pittsburgh, PA 15217

 

Minor Child

 

N/A

 

 

 

 

 

 

 

 

 

Thomas G. Scherlis

 

c/o Dr. William L. Scherlis
5854 Aylesboro Avenue
Pittsburgh, PA 15217

 

Minor Child

 

N/A

 

 

 

 

 

 

 

 

 

William L. Scherlis

 

5854 Aylesboro Avenue
Pittsburgh, PA 15217

 

Professor and Department Head

 

Carnegie Mellon University
5000 Forbes Avenue
Pittsburgh, PA 15213

 

 

 

 

 

 

 

 

 

Marc Nathanson

 

Mapleton Investments
10900 Wilshire Blvd., Suite 1500
Los Angeles, CA 90024

 

Trustee for the Falcon Cable Trust

 

Falcon Cable Trust
c/o Mapleton Investments
10900 Wilshire Blvd.,
Suite 1500
Los Angeles, CA 90024

 

 

 

 

 

 

 

 

 

Bruce Levy

 

M. Block & Sons, Inc.
520 W. 73rd St.
Bedford Park, IL 60638

 

Chief Executive Officer

 

M. Block & Sons, Inc.
520 W. 73rd St.
Bedford Park, IL 60638

 

 

 

 

 

 

 

 

 

Arthur Shulman

 

11 Lakewood Circle North
Greenwich, CT 06830

 

Investor

 

Self-Employed

 

 


 

Adeline Kempner

 

520 East 12th Street
Apt 6A
New York, NY 10009

 

Artist

 

Self-Employed

 

 

*  Director of Insight Communications Company, Inc.

 


 EX-7.02 2 a2166017zex-7_02.htm EXHIBIT 7.02

Exhibit 7.02

 

Joinder to Joint Filing Agreement

 

The undersigned acknowledges and agrees (i) to be bound by that certain Joint Filing Agreement, dated as of November 10, 2005, executed in connection with the filing of Amendment No. 2 to Statement of Schedule 13D filed with the Securities and Exchange Commission on November 14, 2005 and (ii) that the foregoing Amendment No. 3 to Statement on Schedule 13D is filed on behalf of the undersigned and that all subsequent amendments to this Amendment No. 3 to Statement on Schedule 13D shall be filed on behalf of the undersigned without the necessity of filing additional joint filing agreements.  The undersigned acknowledges that she shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning her contained therein, but shall not be responsible for the completeness and accuracy of the information concerning any other, except to the extent that she knows or has reason to believe that such information is inaccurate.

 

IN WITNESS WHEREOF, the undersigned hereby executes this Joinder to Joint Filing Agreement as of this 14th day of December, 2005.

 

 

 

/s/ Adeline Kempner

 

 

Adeline Kempner

 


 EX-7.05 3 a2166017zex-7_05.htm EXHIBIT 7.05

Exhibit 7.05

 

FIRST AMENDMENT TO AMENDED AND RESTATED

EXCHANGE AGREEMENT

 

This FIRST AMENDMENT TO AMENDED AND RESTATED EXCHANGE AGREEMENT (this “Amendment”) is made and entered into as of December 14, 2005, by and among INSIGHT COMMUNICATIONS COMPANY, INC., a Delaware corporation (the “Company”), INSIGHT ACQUISITION CORP., a Delaware corporation (“Parent”), SIDNEY R. KNAFEL (“Knafel”), MICHAEL S. WILLNER (“Willner”) and CARLYLE PARTNERS III TELECOMMUNICATIONS, L.P., CARLYLE PARTNERS IV TELECOMMUNICATIONS, L.P., CP III COINVESTMENT, L.P. and CP IV COINVESTMENT, L.P., each a Delaware limited partnership (each, individually, and collectively, “Carlyle”) (the Company, Parent, Knafel, Willner and Carlyle are each sometimes referred to herein individually as a “Party” and, collectively, as the “Parties”).  Capitalized terms used but not defined in this Amendment shall have the meanings set forth for them in the Amended and Restated Exchange Agreement, dated as of November 10, 2005 (the “Exchange Agreement”), by and among the Parties and the other parties thereto.

 

WHEREAS, pursuant to an Exchange Agreement Joinder, dated as of the date hereof (the “Joinder”), Adeline Kempner (“Kempner”) has agreed to become a party to, and to be subject to the rights and obligations under, the Exchange Agreement as a Holdco Continuing Investor thereunder and has agreed to contribute to Holdco 14,421 shares of Class A Common Stock in exchange for a corresponding number of Series C Non-Voting Units, pursuant to Section 1.4 of the Exchange Agreement; and

 

WHEREAS, the Parties desire to amend the Exchange Agreement to reflect the addition of Adeline Kempner as a party to the Exchange Agreement as a Holdco Continuing Investor pursuant to the Joinder and to make certain other changes to the Exchange Agreement;

 

                NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein and in the Exchange Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

1.             Joinder of Adeline Kempner.  The Exchange Agreement is hereby amended to add Kempner as a party thereto, to be subject to the rights and obligations of a Holdco Continuing Investor under the Exchange Agreement, with the same force and effect as if originally named therein as a Holdco Continuing Investor.

 

2.             Amendment to Exhibit A.  Exhibit A of the Exchange Agreement is hereby amended in its entirety to read as set forth on Exhibit A attached hereto.

 

3.             Uncertificated Shares and Units.  Notwithstanding any provision of the Exchange Agreement to the contrary, at the Exchange Closing, (a) the Company shall not be required to deliver stock certificates representing shares of Company Preferred Stock or Class A Common Stock under Section 2.2(a) and (c)—(f) of the Exchange Agreement; (b) Parent shall not be required to deliver stock certificates representing shares of  Class C Preferred Stock or Class D Preferred Stock under Section 2.2(b), (e) and (f) of the Exchange Agreement; and (c) Holdco shall not be required to deliver certificates representing Holdco Series C Units under Section 2.2(d) of the Exchange Agreement; provided, however, that in lieu of delivering such stock certificates, each of the Company, Parent and Holdco shall make appropriate book-entry notations in its books and records to reflect the issuances and/or transfers of its shares of stock or units, as applicable, described in the foregoing sections of the Exchange Agreement.

 

4.             Effective Date; Effectiveness of Other Terms.  This Amendment is effective as of the date first set forth above.  Except as expressly amended by this Amendment, the Exchange Agreement remains in full force and effect without modification.

 

5.             Miscellaneous.  Sections 5.5, 5.7-5.8, 5.12 and 5.14-5.15 of the Exchange Agreement are incorporated herein by reference and shall apply to this Amendment, mutatis mutandis.

 

 

 

[Signature Page Follows.]

 

3


 

IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above.

 

 

INSIGHT COMMUNICATIONS COMPANY,
INC.

 

 

 

 

 

By:

/s/ Michael S. Willner

 

 

Name:    Michael S. Willner

 

Title: President & Chief Executive Officer

 

 

 

INSIGHT ACQUISITION CORP.

 

 

 

 

 

By:

/s/ William E. Kennard

 

 

Name:

 William E. Kennard

 

Title:

President

 

 

 

 

 

/s/ Sidney R. Knafel

 

 

SIDNEY R. KNAFEL

 

 

 

 

 

/s/ Michael S. Willner

 

 

MICHAEL S. WILLNER

 

 

 

 

 

CARLYLE PARTNERS III
TELECOMMUNICATIONS, L.P.

 

By:

TC Group III, L.P., its General Partner

 

By:

TC Group III, L.L.C., its General Partner

 

By:

TC Group, L.L.C., its Managing Member

 

 

 

 

 

By:

/s/ William E. Kennard

 

 

 

Name:

William E. Kennard

 

 

Title:

Managing Director

 


 

 

CP III COINVESTMENT, L.P.

 

By:

TC Group III, L.P., its General Partner

 

By:

TC Group III, L.L.C., its General Partner

 

By:

TC Group, L.L.C., its Managing Member

 

By:

TCG Holdings, L.L.C., its Managing Member

 

 

 

By:

/s/ William E. Kennard

 

 

 

Name:

William E. Kennard

 

 

Title:

Managing Director

 

 

 

CARLYLE PARTNERS IV
TELECOMMUNICATIONS, L.P.

 

By:

TC Group IV, L.P., its General Partner

 

By:

TC Group IV, L.L.C., its General Partner

 

By:

TC Group, L.L.C., its Managing Member

 

 

 

 

 

By:

/s/ William E. Kennard

 

 

 

Name:

William E. Kennard

 

 

Title:

Managing Director

 

 

 

CP IV COINVESTMENT, L.P.

 

By:

TC Group IV, L.P., its General Partner

 

By:

TC Group IV, L.L.C., its General Partner

 

By:

TC Group, L.L.C., its Managing Member

 

By:

TCG Holdings, L.L.C., its Managing Member

 

 

 

 

 

By:

/s/ William E. Kennard

 

 

 

Name:

William E. Kennard

 

 

Title:

Managing Director

 


 

EXHIBIT A

 

CONTINUING INVESTORS

 

Name of Continuing
Investors

 

Number of
Shares of
Class B
Common
Stock Owned

 

Number of
Shares of
Class A
Common
Stock
Owned*

 

Number of
Shares of
Class A
Common
Stock to be
Exchanged
Per Sections
1.4 or 1.5

 

Number of
Shares of
Company
Preferred
Stock to be
Received Per
Section 1.1

 

 

 

 

 

 

 

 

 

 

 

Management Shareholders

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sidney R. Knafel

 

 

 

 

 

 

 

398,591

 

 

 

 

 

 

 

 

 

 

 

Knafel Family Foundation

 

 

 

50,000

 

50,000

 

 

 

 

 

 

 

 

 

 

 

 

 

ICI Communications, Inc.

 

3,427,177

 

3,427,177

 

3,427,177

 

 

 

 

 

 

 

 

 

 

 

 

 

E/O Susan Knafel, Sidney R. Knafel, Executor

 

425,955

 

425,955

 

425,955

 

 

 

 

 

 

 

 

 

 

 

 

 

Andrew G. Knafel, Joshua Rubenstein and William L. Scherlis, Trustees, under Trust F/B/O Andrew G. Knafel 9/13/78

 

1,044,188

 

1,044,188

 

1,044,188

 

117,821

 

 

 

 

 

 

 

 

 

 

 

Andrew G. Knafel et al, Trustees, under Trust F/B/O Douglas R. Knafel 9/13/78

 

1,044,188

 

1,044,188

 

1,044,188

 

117,821

 

 

 

 

 

 

 

 

 

 

 

Andrew G. Knafel et al, Trustees, under Trust F/B/O Andrew G. & Douglas R. Knafel 7/16/76

 

535,825

 

535,825

 

535,825

 

60,460

 

 

 

 

 

 

 

 

 

 

 

Andrew G. Knafel et al, Trustees, under Trust F/B/O Douglas R. Knafel 11/6/83

 

386,413

 

386,413

 

386,413

 

43,600

 

 

 

 

 

 

 

 

 

 

 

Michael S. Willner

 

1,100,068

 

1,100,068

 

731,552

 

110,652

 

 

 

 

 

 

 

 

 

 

 

Robert L. Winikoff, Trustee, Danielle A. Willner Trust U/A DTD 11/2/98

 

3,224

 

3,224

 

3,224

 

 

 

 

 

 

 

 

 

 

 

 

 

Robert L. Winikoff, Trustee, Matthew S. Willner Trust U/A DTD 11/2/98

 

3,224

 

3,224

 

3,224

 

 

 

 

 

 

 

 

 

 

 

 

 

James S. Marcus

 

132,779

 

132,779

 

132,779

 

 

 

 

 

 

 

 

 

 

 

 

 

Thomas L. Kempner

 

 

 

60,668

 

60,668

 

 

 

 

 

 

 

 

 

 

 

 

 

Loeb Holding Corporation

 

 

 

160

 

0

 

 

 

 

 

 

 

 

 

 

 

 

 

E/O Nan Kempner, Thomas L. Kempner, Executor

 

 

 

31,051

 

31,051

 

 

 

 


 

Thomas L. Kempner & William A. Perlmuth, Trustees, U/I/D 5/19/64 Thomas Kempner Children

 

 

 

21,051

 

21,051

 

 

 

 

 

 

 

 

 

 

 

 

 

Alan H. Kempner, Jr., Thomas L. Kempner, & Jerome A. Manning, Trustees, U/I 11/7/69 F/B/O Alan H. Kempner III

 

 

 

12,700

 

12,700

 

 

 

 

 

 

 

 

 

 

 

 

 

Carl L. Kempner & Thomas L. Kempner, Trustees, U/A DTD 9/4/85 Alan H. Kempner Jr. Grantor Tr.

 

 

 

72,103

 

72,103

 

 

 

 

 

 

 

 

 

 

 

 

 

Thomas L. Kempner & Jerome A. Manning, Trustees, F/B/O Kempner Grandchildren’s Trust DTD 5/19/64

 

 

 

36,051

 

36,051

 

 

 

 

 

 

 

 

 

 

 

 

 

Thomas L. Kempner & William A. Perlmuth, Trustees, U/W Carl M. Loeb 1/3/55 Trust F/B/O Thomas L. Kempner

 

 

 

264,377

 

264,377

 

 

 

 

 

 

 

 

 

 

 

 

 

Andrew G. Knafel

 

386,413

 

386,413

 

386,413

 

 

 

 

 

 

 

 

 

 

 

 

 

John Abbot

 

 

 

9,000

 

6,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Elliot Brecher

 

 

 

1,000

 

1,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Pamela Euler Halling

 

 

 

200,280

 

72,954

 

 

 

 

 

 

 

 

 

 

 

 

 

Mary E. Rhodes

 

 

 

42,948

 

17,920

 

 

 

 

 

 

 

 

 

 

 

 

 

Elizabeth M. Grier

 

 

 

93,246

 

33,453

 

 

 

 

 

 

 

 

 

 

 

 

 

Charles E. Dietz

 

 

 

117,187

 

77,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Daniel Mannino

 

 

 

110,928

 

41,200

 

 

 

 

 

 

 

 

 

 

 

 

 

Heather Wright

 

 

 

29,525

 

10,620

 

 

 

 

 

 

 

 

 

 

 

 

 

Mara R. Bannard

 

 

 

10,170

 

10,170

 

 

 

 

 

 

 

 

 

 

 

 

 

Gregory B. Graff

 

 

 

2,987

 

1,698

 

 

 

 

 

 

 

 

 

 

 

 

 

John W. Hutton

 

 

 

2,000

 

2,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Walter Kelley

 

 

 

528

 

528

 

 

 

 

 

 

 

 

 

 

 

 

 

Dan McComas

 

 

 

1,500

 

1,500

 

 

 

 

 

 

 

 

 

 

 

 

 

James D. Morgan

 

 

 

1,075

 

1,075

 

 

 

 

 

 

 

 

 

 

 

 

 

Subtotal – Management Shareholders

 

8,489,454

 

9,659,989

 

8,946,057

 

848,945

 

 

 

 

 

 

 

 

 

 

 

Holdco Continuing Investors

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Helen-Mae Askin

 

 

 

20,178

 

20,178

 

 

 

 

 

 

 

 

 

 

 

 

 

Nancy Askin

 

 

 

24,081

 

24,081

 

 

 

 

 

 

 

 

 

 

 

 

 

Seymour R. Askin, Jr.

 

 

 

206,625

 

206,625

 

 

 

 

 

 

 

 

 

 

 

 

 

Gerold Bezzenberger

 

 

 

50,000

 

40,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Victoria Hamilton

 

 

 

22,100

 

22,100

 

 

 

 

 

 

 

 

 

 

 

 

 

K. David Issacs

 

 

 

1,500

 

1,500

 

 

 

 


 

Kaufman Family Interests, L.P.

 

 

 

171,140

 

171,140

 

 

 

 

 

 

 

 

 

 

 

 

 

Jeffrey A. Kaufman

 

 

 

34,775

 

34,775

 

 

 

 

 

 

 

 

 

 

 

 

 

Jonathan A. Kaufman

 

 

 

28,521

 

28,521

 

 

 

 

 

 

 

 

 

 

 

 

 

Mercedes Kaufman, Trustee, The Betty K. Weisberger Trust

 

 

 

66,046

 

66,046

 

 

 

 

 

 

 

 

 

 

 

 

 

John S. Scherlis

 

 

 

5,000

 

1,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Leonard & Barbara Scherlis

 

 

 

16,974

 

16,974

 

 

 

 

 

 

 

 

 

 

 

 

 

Thomas G. Scherlis

 

 

 

1,836

 

1,836

 

 

 

 

 

 

 

 

 

 

 

 

 

Sophia G. Scherlis

 

 

 

1,836

 

1,836

 

 

 

 

 

 

 

 

 

 

 

 

 

Lillian C. Scherlis

 

 

 

1,836

 

1,836

 

 

 

 

 

 

 

 

 

 

 

 

 

William L. Scherlis

 

 

 

2,404

 

2,404

 

 

 

 

 

 

 

 

 

 

 

 

 

Bruce Levy

 

 

 

13,278

 

13,278

 

 

 

 

 

 

 

 

 

 

 

 

 

Marc Nathanson

 

 

 

20,000

 

20,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Arthur Shulman

 

 

 

16,800

 

16,800

 

 

 

 

 

 

 

 

 

 

 

 

 

Ann Bernhard

 

 

 

1,000

 

1,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Adeline Kempner

 

 

 

14,421

 

14,421

 

 

 

 

 

 

 

 

 

 

 

 

 

Alan H. Kempner, III

 

 

 

264,377

 

264,377

 

 

 

 

 

 

 

 

 

 

 

 

 

Judith M. Bishop, Trustee, Carl Loeb Kempner, Jr. Trust U/A 5/19/1964

 

 

 

12,252

 

6,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Doris Kempner

 

 

 

30,306

 

15,153

 

 

 

 

 

 

 

 

 

 

 

 

 

Mary L. Umlauf, Trustee, Kathryn Kempner Poteat Trust U/A 5/19/1964

 

 

 

11,526

 

10,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Michael Kempner

 

 

 

15,068

 

7,500

 

 

 

 

 

 

 

 

 

 

 

 

 

Michael Ward, Trustee, Michael Coleman Kempner Trust U/A 5/19/1964

 

 

 

10,026

 

5,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Subtotal - Holdco Continuing Investors

 

0

 

1,063,906

 

1,014,381

 

0

 

 

 

 

 

 

 

 

 

 

 

Total

 

8,489,454

 

10,723,895

 

9,960,438

 

848,945

 

 

*Includes shares of Class A Common Stock received upon conversion of the shares of Class B Common Stock pursuant to Section 1.3 and all of the Loan Program Exchange Shares issued in May 2005, but does not include Company Deferred Shares, Company Options or shares held in such Management Shareholder’s 401(k) account.

 


 EX-7.06 4 a2166017zex-7_06.htm EXHIBIT 7.06

Exhibit 7.06

 

Exchange Agreement Joinder

 

Reference is made to the Amended and Restated Exchange Agreement, dated as of November 10, 2005 (the “Exchange Agreement”), among Insight Communications Company, Inc., Insight Acquisition Corp., Sidney Knafel, Michael Willner, Continuing Investor Holding Company, LLC, the Holdco Continuing Investors (as defined therein), the Management Shareholders (as defined therein) and Carlyle (as defined therein).

 

The undersigned agrees, by execution hereof, to become a party to, and to be subject to the rights and obligations under, the Exchange Agreement as a Holdco Continuing Investor thereunder and agrees that the number of shares of Class A Common Stock that the undersigned will exchange pursuant to Section 1.4 of the Exchange Agreement is 14,421.

 

This joinder will become effective concurrently with the effectiveness of the amendment to the Exchange Agreement that is contemplated to be entered into prior to the Exchange Closing (as defined therein).

 

 

/s/ Adeline Kempner

 

ADELINE KEMPNER

 


 EX-7.07 5 a2166017zex-7_07.htm EXHIBIT 7.07

Exhibit 7.07

 

FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

 

OF

 

INSIGHT COMMUNICATIONS COMPANY, INC.

 

Insight Communications Company, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

 

1.  The name of the Corporation is Insight Communications Company, Inc.

 

2.  The Corporation’s original certificate of incorporation was filed on March 9, 1999 with the Secretary of State of the State of Delaware under the name of Insight Communications Companies, Inc.

 

3.  This Amended and Restated Certificate of Incorporation (this “Certificate of Incorporation”) has been duly adopted by unanimous written consent of the board of directors of the Corporation (the “Board”), dated as of December       , 2005, and by written consent in lieu of a meeting of the stockholders of the Corporation entitled to vote thereon, dated as of December       , 2005, in accordance with Sections 242, 245 and 251 of the DGCL.

 

4.  The Restated Certificate of Incorporation of the Corporation is hereby amended and restated so as to read in its entirety as follows:

 

NAME

 

The name of the Corporation is INSIGHT COMMUNICATIONS COMPANY, INC.

 

REGISTERED OFFICE

 

The address, including street, number, city and county, of the registered office of the Corporation in the State of Delaware is 30 Old Rudnick Lane, Suite 100, Dover, Delaware 19901, County of Kent; and the name of the registered agent of the Corporation in the State of Delaware at such address is LEXIS Document Services Inc.

 


 

PURPOSE

 

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be incorporated under the DGCL.

 

CAPITAL STRUCTURE

 

Authorized Shares.  The total number of shares of capital stock which the Corporation shall have the authority to issue is 82,100,000 shares, of which 67,000,000 shares shall be preferred stock having a par value of $0.01 per share and 15,100,000 shares shall be common stock having a par value of $0.01 per share.  Initially, the capital stock shall consist of the following seven series:

 

1,000,000 shares of Series A Voting Preferred Stock, par value $0.01 per share (“Series A Voting Preferred Stock”);

 

1,000,000 shares of Series B Voting Preferred Stock, par value $0.01 per share (“Series B Voting Preferred Stock”, and together with Series A Voting Preferred Stock, “Voting Preferred Stock”);

 

15,000,000 shares of Series C Non-Voting Preferred Stock, par value $0.01 per share (“Series C Non-Voting Preferred Stock”);

 

50,000,000 shares of Series D Non-Voting Preferred Stock, par value $0.01 per share (“Series D Non-Voting Preferred Stock”, and together with Series A Voting Preferred Stock, Series B Voting Preferred Stock and Series C Non-Voting Preferred Stock, “Preferred Stock”);

 

5,000,000 shares of Series E Non-Voting Common Stock, par value $0.01 per share (“Series E Non-Voting Common Stock”), which shares of Series E Non-Voting Common Stock shall be issued pursuant to subscription or like documentation specifying, for each share or group of such shares issued, the amount of cash and other assets that must previously have been distributed in respect of each share of Series C Non-Voting Preferred Stock and of Series D Non-Voting Preferred Stock before such share or group of shares is entitled to participate in distributions (each such level a “Participation Level”);

 

100,000 shares of Series F Non-Voting Common Stock, par value $0.01 per share (“Series F Non-Voting Common Stock”, and together with Series E Non-Voting Common Stock, “Non-Voting Common Stock”); and

 


 

10,000,000 shares of Series G Voting Common Stock, par value $0.01 per share (“Final Reclassification Common Stock”, and together with Non-Voting Common Stock, “Common Stock”).

 

Issuance of Additional Equity Securities.  The Board is hereby authorized to cause the Corporation from time to time to issue to Holders of Equity Securities or other Persons additional Equity Securities in the Corporation in one or more series, with such designations, preferences and relative, participating, optional or other special rights, including voting rights, and such powers and duties, all as shall be determined by the Board in the resolution or resolutions providing for the establishment of such additional Equity Securities, and no Holder of any Equity Securities shall have consent rights whatsoever with respect to the terms or issuance of any such additional Equity Securities; provided that the affirmative vote of at least seven directors of the Board (or eight directors if the number of directors constituting the Board has been increased to ten pursuant to Section 8.1(a)) shall be required to change or modify the Equity Securities of the Corporation, including, without limitation, to designate or issue any new series of preferred stock or common stock of the Corporation pursuant to this Section 4.2.

 

PREFERRED STOCK

 

Rights and Restrictions.

 

Voting Rights.  Holders of shares of Preferred Stock shall have no voting rights, except as set forth below or as expressly required by applicable law.

 

Except as otherwise expressly specified in this Certificate of Incorporation, Holders of Series A Voting Preferred Stock and Holders of Series B Voting Preferred Stock shall vote as a single class on all matters submitted to a vote of the stockholders of the Corporation.

 

Holders of Series A Voting Preferred Stock, voting as a separate class, shall have the exclusive right to nominate and elect five directors (the “Series A Directors”), to be elected at any meeting of the stockholders of the Corporation at which Series A Directors are permitted to be elected, or as otherwise permitted under the by-laws of the Corporation.  At least two of the Series A Directors must be Independent Directors.  Notwithstanding the foregoing, in the event that the number of directors constituting the Board is increased to ten pursuant to Section 8.1(a), Holders of Series A Voting Preferred Stock shall be entitled to elect seven directors, one of whom must be the replacement CEO and three of whom must be Independent Directors.  In the event of any vacancy created by the departure of a Series A Director for any reason, any replacement for such departing Series A Director shall be designated and elected by Holders of Series A Voting Preferred Stock.  In the event of any vacancy created by the departure of a Series A

 


 

Director who is also an Independent Director, any replacement for such departing Series A Director shall be an Independent Director.

 

Holders of Series B Voting Preferred Stock, voting as a separate class, shall have the exclusive right to nominate and elect four directors (the “Series B Directors”), to be elected at any meeting of the stockholders of the Corporation at which Series B Directors are permitted to be elected, or as otherwise permitted under the by-laws of the Corporation.  At least one of the Series B Directors must be an Independent Director.  Notwithstanding the foregoing, in the event that the number of directors constituting the Board is increased to ten pursuant to Section 8.1(a), Holders of Series B Voting Preferred Stock shall be entitled to elect three directors, none of whom shall be required to be an Independent Director.  In the event of any vacancy created by the departure of a Series B Director for any reason, any replacement for such departing Series B Director shall be designated and elected by Holders of Series B Voting Preferred Stock.  In the event of any vacancy created by the departure of a Series B Director who is also an Independent Director, any replacement for such departing Series B Director shall be an Independent Director.

 

In exercising any vote permitted by the foregoing, each outstanding share of Series A Voting Preferred Stock and Series B Voting Preferred Stock permitted to vote shall be entitled to one vote.

 

Holders of Series C Non-Voting Preferred Stock shall be entitled to vote as a class on, and the affirmative vote of a majority in interest of such Holders voting as a class shall be required for, the adoption of any amendment to this Certificate of Incorporation that would materially and adversely affect the rights, privileges or preferences of the Series C Non-Voting Preferred Stock set forth in this Certificate of Incorporation.  For the avoidance of doubt, the voting rights of Holders of the Series C Non-Voting Preferred Stock are limited to the sole right to vote on any such amendment to the Certificate of Incorporation, and such Holders shall have no other voting or consent rights of any nature whatsoever other than as may be required under the DGCL.

 

Holders of Series D Non-Voting Preferred Stock shall be entitled to vote as a class on, and the affirmative vote of a majority in interest of such Holders voting as a class shall be required for, the adoption of any amendment to this Certificate of Incorporation that would materially and adversely affect the rights, privileges or preferences of the Series D Non-Voting Preferred Stock set forth in this Certificate of Incorporation.  For the avoidance of doubt, the voting rights of Holders of the Series D Non-Voting Preferred Stock are limited to the sole right to vote on any such amendment to the Certificate of Incorporation, and such Holders shall have no other voting or consent rights of any nature whatsoever other than as may be required under the DGCL.

 


 

Legend.  Each certificate representing a share of Preferred Stock shall be endorsed with the legend set forth in Section 12(e) of the Securityholders Agreement and any other legends required by applicable securities laws.  At such time, if ever, as the restrictions on transfer of the shares of Preferred Stock represented by such certificate set forth in the legend on such certificate shall become inapplicable, upon surrender by the Holder of such legended certificate representing shares of Preferred Stock, the Corporation shall cause to be delivered to such Holder a certificate for its shares of Preferred Stock that does not bear the restrictive legend.

 

COMMON STOCK

 

Rights and Restrictions.

 

Voting Rights.  Holders of shares of Common Stock shall have no voting rights, except as set forth below or as expressly required by applicable law.

 

Holders of Series E Non-Voting Common Stock shall be entitled to vote as a class on, and the affirmative vote of a majority in interest of such Holders voting as a class shall be required for, the adoption of any amendment to this Certificate of Incorporation that would materially and adversely affect the rights, privileges or preferences of the Series E Non-Voting Common Stock set forth in this Certificate of Incorporation.  For the avoidance of doubt, the voting rights of Holders of the Series E Non-Voting Common Stock are limited to the sole right to vote on any such amendment to the Certificate of Incorporation and such Holders shall have no other voting or consent rights of any nature whatsoever other than as may be required under the DGCL.

 

Holders of Series F Non-Voting Common Stock shall be entitled to vote as a class on, and the affirmative vote of a majority in interest of such Holders voting as a class shall be required for, the adoption of any amendment to this Certificate of Incorporation that would materially and adversely affect the rights, privileges or preferences of the Series F Non-Voting Common Stock set forth in this Certificate of Incorporation.  For the avoidance of doubt, the voting rights of Holders of the Series F Non-Voting Common Stock are limited to the sole right to vote on any such amendment to the Certificate of Incorporation and such Holders shall have no other voting or consent rights of any nature whatsoever other than as may be required under the DGCL.

 

Holders of Final Reclassification Common Stock shall vote as a single class on all matters submitted to a vote of the stockholders of the Corporation, and in any such vote each share of Final Reclassification Common Stock shall be entitled to one vote.  Holders of Final Reclassification Common Stock shall be entitled to vote as a class on, and the affirmative vote of a majority in interest of such Holders voting as a class shall be required for, the adoption of any amendment to this Certificate of Incorporation that

 


 

would materially and adversely affect the rights, privileges or preferences of the Final Reclassification Common Stock set forth in this Certificate of Incorporation.

 

Legend.  Each certificate representing a share of Common Stock shall be endorsed with the legend set forth in Section 12(e) of the Securityholders Agreement and any other legends required by applicable securities laws.  At such time, if ever, as the restrictions on transfer of the shares of Common Stock represented by such certificate set forth in the legend on such certificate shall become inapplicable, upon surrender by the Holder of such legended certificate representing shares of Common Stock, the Corporation shall cause to be delivered to such Holder a certificate for its shares of Preferred Stock that does not bear the restrictive legend.

 

DISTRIBUTIONS IN LIQUIDATION; OTHER DISTRIBUTIONS

 

Distributions in Liquidation.  Cash and other assets available for distribution to the stockholders of the Corporation upon a liquidation of the Corporation shall be distributed as follows and in the following order of priority:

 

First, such cash and other assets shall be distributed 100% to Holders of Series A Voting Preferred Stock and Series B Voting Preferred Stock, pro rata in proportion to the number of such shares held, until there shall have been distributed under this Section 7.1 and under Section 7.2 an aggregate amount in respect of each share of Series A Voting Preferred Stock and Series B Voting Preferred Stock equal to $0.01;

 

Second, such cash and other assets shall be distributed 100% to Holders of Series C Non-Voting Preferred Stock and Series D Non-Voting Preferred Stock, pro rata in proportion to the number of such shares held, until there shall have been distributed under this Section 7.1 and under Section 7.2 an aggregate amount in respect of each share of Series D Non-Voting Preferred Stock equal to $11.75;

 

Third, such cash and other assets shall be distributed 100% to Holders of Series C Non-Voting Preferred Stock and Series D Non-Voting Preferred Stock and, as of and following such time as such distributions reach levels that cause Participation Levels for particular shares of Series E Non-Voting Common Stock to be achieved, to the Holders of such shares of Series E Non-Voting Common Stock for which Participation Levels have been achieved, pro rata in proportion to the number of such shares held by each Holder, until there shall have been distributed under this Section 7.1 and under Section 7.2 an aggregate amount in respect of each share of Series D Non-Voting Preferred Stock sufficient to generate an internal rate of return on the capital invested in Series D Non-Voting Preferred Stock (which amount of capital is $11.75 per share) equal to 10% per annum, compounded annually (computed from the dates that the capital was initially invested in the Corporation until the dates distributions are made pursuant to this Section 7.1 and Section 7.2);

 


 

Fourth, such cash and other assets shall be distributed (x) 95% to Holders of Series C Non-Voting Preferred Stock and Series D Non-Voting Preferred Stock and, as of and following such time as such distributions reach levels that cause Participation Levels for particular shares of Series E Non-Voting Common Stock to be achieved, to the Holders of such shares of Series E Non-Voting Common Stock for which Participation Levels have been achieved, pro rata in proportion to the number of such shares held by each Holder, and (y) 5% to Holders of Series F Non-Voting Common Stock pro rata in proportion to the number of such shares held by each Holder, until there shall have been distributed under this Section 7.1 and under Section 7.2 an aggregate amount in respect of each share of Series D Non-Voting Preferred Stock sufficient to generate an internal rate of return on the capital invested in Series D Non-Voting Preferred Stock (which amount of capital is $11.75 per share) equal to 15% per annum, compounded annually (computed from the dates that the capital was initially invested in the Corporation until the dates distributions are made pursuant to this Section 7.1 and Section 7.2);

 

Fifth, such cash and other assets shall be distributed (x) 90% to Holders of Series C Non-Voting Preferred Stock and Series D Non-Voting Preferred Stock and, as of and following such time as such distributions reach levels that cause Participation Levels for particular shares of Series E Non-Voting Common Stock to be achieved, to the Holders of such shares of Series E Non-Voting Common Stock for which Participation Levels have been achieved, pro rata in proportion to the number of such shares held by each Holder, and (y) 10% to Holders of Series F Non-Voting Common Stock pro rata in proportion to the number of such shares held by each Holder, until there shall have been distributed under this Section 7.1 and under Section 7.2 an aggregate amount in respect of each share of Series D Non-Voting Preferred Stock sufficient to generate an internal rate of return on the capital invested in Series D Non-Voting Preferred Stock (which amount of capital is $11.75 per share) equal to 20% per annum, compounded annually (computed from the dates that the capital was initially invested in the Corporation until the dates distributions are made pursuant to this Section 7.1 and Section 7.2);

 

 Sixth, such cash and other assets shall be distributed (x) 85% to Holders of Series C Non-Voting Preferred Stock and Series D Non-Voting Preferred Stock and, as of and following such time as such distributions reach levels that cause Participation Levels for particular shares of Series E Non-Voting Common Stock to be achieved, to the Holders of such shares of Series E Non-Voting Common Stock for which Participation Levels have been achieved, pro rata in proportion to the number of such shares held by each Holder, and (y) 15% to Holders of Series F Non-Voting Common Stock pro rata in proportion to the number of such shares held by each Holder, until there shall have been distributed under this Section 7.1 and under Section 7.2 an aggregate amount in respect of each share of Series D Non-Voting Preferred Stock sufficient to generate an internal rate of return on the capital invested in Series D Non-Voting Preferred Stock (which amount of capital is $11.75 per share) equal to 25% per annum, compounded annually (computed from the dates that the capital was initially invested in the Corporation until the dates distributions are made pursuant to this Section 7.1 and Section 7.2); and

 


 

Thereafter, such cash and other assets shall be distributed (x) 75% to Holders of Series C Non-Voting Preferred Stock and Series D Non-Voting Preferred Stock and, as of and following such time as such distributions reach levels that cause Participation Levels for particular shares of Series E Non-Voting Common Stock to be achieved, to the Holders of such shares of Series E Non-Voting Common Stock for which Participation Levels have been achieved, pro rata in proportion to the number of such shares held by each Holder, and (y) 25% to Holders of Series F Non-Voting Common Stock pro rata in proportion to the number of such shares held by each Holder.

 

Other Distributions.  Cash and other assets available for distribution to the stockholders of the Corporation other than in liquidation of the Corporation shall be distributed in the order of priority specified in Section 7.1(i), (ii) and (iii), except that no such cash or other assets shall be distributed in excess of the amount that would complete the distributions contemplated by Sections 7.1(i), (ii) and (iii) without the consent of a majority in interest of the Holders of the Series F Non-Voting Common Stock.  If such consent is granted, any such distributions shall continue to be made as specified in Section 7.1(iii) notwithstanding the fact that such distributions would increase the internal rate of return beyond 10%.  In the event that any such excess distributions under Section 7.1(iii) are made under this Section, distributions made thereafter in liquidation of the Corporation shall be adjusted to cause the aggregate distributions made by the Corporation (taking into account all distributions previously made) to conform to the order of priority set forth in Section 7.1.

 

Certain Matters Relating to Distributions.

 

Notwithstanding any provision to the contrary contained in this Certificate of Incorporation, the Corporation shall not make any distribution that would violate any provision of the DGCL or other applicable law.

 

In the event of a distribution of property, the amount distributed shall be deemed to be the fair market value of such property for all purposes of the calculations under Sections 7.1 and 7.2.

 

Notwithstanding anything herein to the contrary, following the conversion of all capital stock of the Corporation into Final Reclassification Common Stock, all distributions shall be made among the Holders of Final Reclassification Common Stock in proportion to the number of such shares held by each Holder.

 

BOARD OF DIRECTORS

 

Generally.  The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such

 


 

lawful acts and things as are not by law or by this Certificate of Incorporation directed or required to be exercised or done by the stockholders.

 

Number of Directors.  The number of directors constituting the Board shall initially equal nine, comprised of five Series A Directors and four Series B Directors; provided that if the Chief Executive Officer of the Corporation (the “CEO”) serving in such capacity on the date this Certificate of Incorporation is filed with the Secretary of State of the State of Delaware ceases to serve in such capacity and is replaced by a replacement CEO, at the option of a majority in interest of the Holders of the Series A Voting Preferred Stock, either (i) the replacement CEO will become a Series A Director, replacing one of the Series A Directors who is not an Independent Director, or (ii) the number of directors constituting the Board shall be increased to ten, the replacement CEO will be elected as a fourth Series A Director who is not an Independent Director and will be assigned to Class I, and upon the resignation or expiration of the term of the Series B Director who is an Independent Director such director will be replaced by an Independent Director elected by the Holders of the Series A Voting Preferred Stock in accordance with Section 5.1(a)(ii)-(iii), and thereafter all of the Class III directors will be elected by the holders of the Series A Voting Preferred Stock.

 

Classification.  The directors of the Corporation shall be divided into three classes: Class I, Class II and Class III.  Membership in such classes shall be as nearly equal in number as possible and, subject to Section 8.1(a), each class shall have at least one Series A Director and one Series B director.  Class I shall initially be comprised of Michael S. Willner, Dinni Jain and James A. Attwood, Jr., Class II shall be initially comprised of Sidney R. Knafel, William E. Kennard and Michael J. Connelly, and Class III shall be initially comprised of the remaining directors.  The term of office of the initial Class I directors shall expire at the annual election of directors by Holders of Voting Preferred Stock in 2006; the term of office of the initial Class II directors shall expire at the annual election of directors by Holders of Voting Preferred Stock in 2007; the term of office of the initial Class III directors shall expire at the annual election of directors by Holders of Voting Preferred Stock in 2008, or, in each case, thereafter when their respective successors are elected and qualified, subject, however, to prior death, resignation, retirement, disqualification or removal from office. At each succeeding annual election of directors by Holders of Voting Preferred Stock beginning in 2006, the directors chosen to succeed those whose terms then expire shall be identified as being of the same class as the directors they succeed and shall be elected for a term expiring at the third succeeding annual election of directors by Holders of Voting Preferred Stock, or thereafter when their respective successors in each case are elected and qualified.  If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent director.

 

Resignations.  Any director may resign at any time by submitting an electronic transmission or by delivering a written notice of resignation, signed by such director, to the CEO

 


 

or the secretary of the Corporation.  Unless otherwise specified therein, such resignation shall take effect upon delivery.  The process for designating a replacement to fill such vacancy in the Board shall be governed by the provisions set forth in Section 5.1(a)(ii)-(iii), and any replacement director of any class elected to fill a vacancy resulting from resignation of a director of such class shall hold office for a term that shall coincide with the remaining term of that class.

 

Removal of Directors.  Any non-Independent Director may be removed at any time, either for or without cause, upon the affirmative vote of a majority in interest of the Holders of the shares of Voting Preferred Stock entitled to vote for the election of such director.  Any Independent Director may be removed only for cause, upon the affirmative vote of a majority in interest of the Holders of the shares of Voting Preferred Stock entitled to vote for the election of such director; provided, that failure to continue to meet the independence requirements set forth in the definition of “Independent Director” in Article Twelve shall be deemed to establish cause for removal.  The process for designating a replacement to fill any vacancy caused by a removal shall be governed by the provisions set forth in Section 5.1(a)(ii)-(iii), and any replacement director of any class elected to fill a vacancy resulting from removal of a director of such class shall hold office for a term that shall coincide with the remaining term of that class.

 

Liability.  No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a director, provided that nothing contained in this Certificate of Incorporation shall eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.  If the DGCL is amended after the filing of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.  Any repeal or modification of this paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing in respect of any act or omission occurring prior to the time of such repeal or modification.

 

Budget Approval.  The affirmative vote of two thirds of the members of the Board shall be required to approve and adopt the Annual Operating Budget of the Corporation.

 

Indemnification

 

Indemnification of Directors and Officers.

 

The Corporation shall indemnify and hold harmless to the fullest extent authorized by the DGCL as the same exists or may hereafter be amended (but in the case of any such amendment only to the extent that such amendment permits the Corporation to provide broader

 


 

indemnification rights than said DGCL permitted the Corporation to provide prior to such amendment) any person who was or is a party or is threatened to be made a party to, or is otherwise involved in, any actual, threatened, pending or completed claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against all expenses (including attorneys’ fees), liabilities or losses, including judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred or suffered by him/her in connection with such claim, action, suit, proceeding or investigation if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any claim, action, suit, proceeding or investigation by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful.

 

The Corporation shall indemnify and hold harmless to the fullest extent authorized by the DGCL as the same exists or may hereafter be amended (but in the case of any such amendment only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said DGCL permitted the Corporation to provide prior to such amendment) any person who was or is a party or is threatened to be made a party to any actual, threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against all expenses (including attorneys’ fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation except that no such indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

To the extent that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit, proceeding or investigation referred to in subparagraphs (i) and (ii) of this Section 8.2(a), or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him/her in connection therewith.

 


 

Any indemnification under subparagraphs (i) and (ii) of this Section 8.2(a) (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in subparagraphs (i) and (ii) of this Section 8.2(a). Such determination shall be made (1) by the Board by a majority vote of a quorum consisting of directors who were not parties to such claim, action, suit, proceeding or investigation, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by Holders of Series A Voting Preferred Stock and Series B Voting Preferred Stock.

 

No amendment, modification or repeal of this Section 8.2 shall apply to or have any effect on the liability or alleged liability of any director or officer of the Corporation for or with respect to any acts or omissions of such director or officer occurring prior to such amendment, modification or repeal.  No amendment, modification or repeal shall adversely affect any right or protection existing at the time of such amendment, modification or repeal of any director or officer of the Corporation.

 

Advancement of Expenses.  Expenses (including attorney’s fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative claim, action, suit, proceeding or investigation shall be paid by the Corporation in advance of the final disposition of such claim, action, suit, proceeding or investigation upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined by final judicial decision from which there is no right to appeal that he/she is not entitled to be indemnified by the Corporation as authorized in this Section 8.2.  Such expenses (including attorney’s fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board deems appropriate.

 

Non-Exclusivity of Rights.  The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 8.2 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any statute, By-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office.

 

Insurance.  The Board may authorize, by a vote of a majority of a quorum of the Board, the Corporation to purchase and maintain insurance, at its expense, on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power to indemnify him/her against such expense, liability or loss under the provisions of the DGCL or this Section 8.2.

 


 

Merger; Consolidation.  For the purposes of this Section 8.2, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section 8.2 with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued.

 

References.  For purposes of this Section 8.2, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Section 8.2.

 

Continuation of Indemnification and Advancement of Expenses.  The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 8.2 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

Indemnification of Employees and Agents.  The Corporation may, at its option, indemnify and hold harmless to the fullest extent authorized by the DGCL as the same exists or may hereafter be amended (but in the case of any such amendment only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said DGCL permitted the Corporation to provide prior to such amendment) any person who was or is a party or is threatened to be made a party to, or is otherwise involved in, any actual, threatened, pending or completed claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, by reason of the fact that he/she is or was an employee or agent of the Corporation or, while an employee or agent of the Corporation, is or was serving at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), liabilities or losses, including judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred or suffered by him/her in connection with such claim, action, suit, proceeding or investigation, to the extent permitted by Section 145 of the DGCL.

 

Committees.  Except as may otherwise be required by applicable law:

 


 

Audit Committee.  The Board shall have an audit committee (the “Audit Committee”) consisting of three directors, including two Independent Directors and one Series B Director (who need not be an Independent Director), provided that, if applicable law requires that the Audit Committee be comprised only of independent directors, the Audit Committee shall consist of two Independent Directors.  The powers and functions of the Audit Committee shall be as set forth in the Audit Committee’s charter adopted by the Board [as of the date hereof].

 

Compensation Committee.  The Board shall have a compensation committee (the “Compensation Committee”), consisting of three directors, including two Independent Directors and one Series B Director (who need not be an Independent Director).  The powers and functions of the Compensation Committee shall be as set forth in the Compensation Committee’s charter adopted by the Board [as of the date hereof].

 

Governance Committee.  The Board shall have a governance committee (the “Governance Committee”), consisting of three directors, including two Independent Directors and one non-independent Series B Director.  Except as provided in subparagraph (d) below, the powers and functions of the Governance Committee shall be as set forth in the Governance Committee’s charter adopted by the Board as of the date hereof.

 

Change in Charter and Function of Governance Committee.  Following the occurrence of a Material Credit Default and delivery by a majority in interest of the Holders of the Series B Voting Preferred Stock to the Corporation of a notice setting forth an election to cause to be effective the provisions of this subparagraph (d), the Governance Committee’s functions and charter shall be expanded to include all the functions that may be delegated to an executive committee of a Delaware corporation and the Board shall not thereafter take any actions to narrow, limit or curtail such expanded functions.  Following the delivery of such an election notice, a representative of the Holders of the Series A Voting Preferred Stock shall be entitled to attend all meetings of the Governance Committee and shall be provided with the same notice of such meetings and the same financial and other information that is provided to members of such Committee in connection with such meetings; provided that (i) such representative shall have no rights to participate in such meetings, and (ii) such representative may be excluded from any meeting at which, in the judgment of a majority of the members of such Committee, there will be discussed matters that pose a conflict of interest with respect to such representative.

 

Additional Committees.  The Board may, by resolution approved by not fewer than seven directors (or eight directors if the number of directors constituting the Board has been increased to ten pursuant to Section 8.1(a)), designate one or more additional committees.

 

 


 

AMENDMENTS

 

The affirmative vote of at least seven directors of the Board (or eight directors if the number of directors constituting the Board has been increased to ten pursuant to Section 8.1(a)) shall be required to amend, alter, change or repeal this Certificate of Incorporation, the By-laws of the Corporation or the charter of any committee of the Board, or to adopt any provision as part of this Certificate of Incorporation, the By-laws of the Corporation or the charter of any committee of the Board.

 

CORPORATE GOVERNANCE

 

Additional Powers.  The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation and for the further definition of the powers of the Corporation and its directors and stockholders:

 

Elections of directors need not be by written ballot unless the By-laws of the Corporation so provide.

 

Special meetings of stockholders may be called by the Board, the Chairman of the Board, the CEO, Holders of Series A Voting Preferred Stock or Holders of Series B Voting Preferred Stock and may not be called by any other Person.

 

Actions Requiring Consent of Holders of Series B Voting Preferred Stock.  Except as otherwise expressly required by the DGCL, the Corporation may not and may not cause or permit any of its Subsidiaries to take any of the following actions without the consent of a majority in interest of the Holders of the Series B Voting Preferred Stock:

 

effecting any material change in its or their business;

 

amending or otherwise changing its or their governing documents, including its Certificate of Incorporation or By-laws;

 

except as provided in Section 8.1(a), changing the composition of the Board or the composition of committees of the Board, including, but not limited to, size, allocation of seats, and independence requirements, or the entity form or tax classification of the Partnership or any Corporation Subsidiary;

 

undertaking any transaction with a related party, including, but not limited to, approving management compensation plans; provided, however, that such consent will

 


 

not be required for (i) awards of Series F Non-Voting Common Stock, (ii) transactions expressly authorized by and consummated in conformity with all the provisions of Section 4 of the Securityholders Agreement, (iii) payments contemplated under the Employment Agreements or (iv) awards of the management bonus pool authorized by and made in conformity with Section 9 of the Securityholders Agreement.

 

changing its or their public accountants;

 

liquidating, dissolving, filing a petition in bankruptcy or entering into an arrangement for the benefit of creditors;

 

incurring any material indebtedness other than in the ordinary course of business and in an aggregate amount not to exceed [$10,000,000] in any calendar year, effecting any material amendment of any agreement governing material indebtedness, or issuing any equity, preferred stock, convertible debt, options or warrants or authorizing the sale of additional Partnership Interests (as defined in the Partnership Agreement) (other than awards of Series F Non-Voting Common Stock and the issuance of stock in respect of deferred stock awards previously issued as of December       , 2005), or calling for capital contributions by the Partnership;

 

effecting any acquisition, disposition or exchange of material assets or equity interests, including equity interests of any Subsidiary, sale or merger of the Corporation, initial public offering by the Corporation of common stock or other recapitalization, or other forms of reorganization or entering into any material joint ventures; provided, however, that such consent will not be required for any transactions expressly authorized by and consummated in conformity with all the provisions of Section 4 of the Securityholders Agreement;

 

declaring or paying any distribution or dividends on, or repurchasing or redeeming, equity interests, provided, that nothing in this Section 10.2(i) shall prevent the Partnership from making or paying any dividend or distribution required to be made or paid pursuant to Section 4.1(a) of the Partnership Agreement, and provided further, that no such consent shall be required to the extent that the requirement of such consent violates Section 7.10 of the Midwest Credit Agreement;

 

effecting any amendments, modifications, supplements or other changes to the Partnership Agreement;

 

commencing a Partnership Split-Up (as defined in the Securityholders Agreement); provided, however, that such consent will not be required for a

 


 

commencement of such Partnership Split-Up expressly authorized by and consummated in conformity with all the provisions of Section 4 of the Securityholders Agreement;

 

entering into contracts or Strategic Relationships outside the ordinary course of business that are material to the Corporation as a whole;

 

settling any material claim or lawsuit;

 

selecting a new general partner for any Corporation Subsidiary or admission of any new partners or members to any Corporation Subsidiary; and

 

selecting any replacement CEO, President, Chief Operating Officer or Chief Financial Officer of the Corporation.

 

SECTION 203 OPT-OUT

 

The Corporation expressly elects not to be bound or governed by, or otherwise subject to, Section 203 of the DGCL, “Business Combinations With Interested Stockholders”, as from time to time in effect or any successor provision thereto.

 

DEFINITIONS

 

As used herein, the following terms have the meanings set forth below:

 

“Annual Operating Budget” means the annual operating budget of the Corporation proposed by Management for a given year beginning in fiscal 2006.

 

“Employment Agreements” means those certain employment agreements, each dated as of December       , 2005, between the Corporation and each of Michael S. Willner, Dinni Jain and John Abbott, and any replacement agreements duly authorized and entered into by the Corporation and each of the foregoing Persons.

 

“Equity Securities” means the Common Stock and the Preferred Stock and any other common stock or preferred stock of the Corporation.

 

“Holder” means the Person in whose name any Equity Securities are registered in the books and records of the Corporation.

 


 

“Independent Director” means a director (x) who a majority of the Independent Directors determines has no material relationship with the Corporation and has no current or prior relationship with Management, the Corporation or Holders of Series A Voting Preferred Stock or Series B Voting Preferred Stock that might cause such director to act other than entirely independently with respect to all issues that come before the Board; and (y) who satisfies the independence requirements under Rule 303A.02 of the Listed Company Manual of the New York Stock Exchange; provided, however, that if, at any time, no member of the Board is an Independent Director, an “Independent Director” shall mean a director who the majority of the Board determines satisfies the independence test set forth in (x) and (y) hereof; provided further, that Geraldine B. Laybourne, Amos B. Hostetter, Jr. and Stephen G. Gray shall be deemed to be Independent Directors as of December       , 2005; and provided further, that no Independent Director shall be permitted to participate in a vote to determine whether his or her replacement director satisfies the independence test set forth in (x) and (y) hereof.

 

“Management” means the CEO, the Chief Operating Officer, the Chief Financial Officer, the General Counsel and Secretary and any other executive officers or the Corporation.

 

“Material Credit Default” means (i) any default under any of Section 7.12, 7.13 or 7.14 of the Midwest Credit Agreement as in effect on the date hereof and regardless of whether such credit agreement has been terminated, replaced or amended, or (ii) any payment default under any debt instrument at the Corporation or Subsidiary levels (subject to a cure period equal to the lesser of three days or the applicable cure period contained in such debt instrument).  The foregoing notwithstanding, if the Corporation is required to consummate a transaction pursuant to Section 4 of the Securityholders Agreement and the consummation of such transaction causes an immediate Material Credit Default, such event shall not be deemed to be a Material Credit Default.

 

“Midwest Credit Agreement” means the Amended and Restated Credit Agreement, dated as of August 26, 2003, by and among Insight Midwest Holdings, LLC, the lenders party thereto and The Bank of New York, as agent.

 

“Partnership” means Insight Midwest, L.P., a Delaware limited partnership.

 

“Partnership Agreement” means the Amended and Restated Limited Partnership Agreement of the Partnership, dated as of January 5, 2001, as amended.

 

“Person” means any natural person, firm, individual, partnership, joint venture, business trust, trust, association, corporation, company or unincorporated entity.

 

“Securityholders Agreement” means the Securityholders Agreement dated as of December       , 2005, by and among Carlyle Partners III Telecommunications, L.P., Carlyle

 


 

Partners IV Telecommunications, L.P., CP III Coinvestment, L.P., CP IV Coinvestment, L.P., each a Delaware limited partnership, the Corporation, those individuals identified as “Continuing Investor Securityholders” on the signature pages thereof, Continuing Investor Holding Company, LLC, a Delaware limited liability company, PH Investments, LLC, a Delaware limited liability company, and each other Person who subsequently becomes a party thereto.

 

“Strategic Relationships” means any material strategic relationship or alliance in which the Corporation agrees to share profits, pay royalties, or grant exclusive rights of any nature to any material assets of the Corporation to any third party.

 

“Subsidiary” means, when used with respect to any party, any corporation or other organization, whether incorporated or unincorporated, (i) of which such party or any other Subsidiary of such party is a general partner (excluding partnerships, the general partnership interests of which held by such party or any Subsidiary of such party do not have a majority of the voting interests in such partnership), or (ii) at least a majority of the securities or other interests of which having, by their terms, ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization, is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries.  Without limiting any of the foregoing, Subsidiaries of the Corporation shall be deemed to include the Partnership and its Subsidiaries.

 

IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation, which restates and amends the provisions of the Restated Certificate of Incorporation of the Corporation, and which has been duly adopted in accordance with Sections 242, 245 and 251 of the General Corporation Law, has been executed by its duly authorized officer this          day of December, 2005.

 

 

 

INSIGHT COMMUNICATIONS COMPANY, INC.

 

 

 

 

 

 

 

 

By:

 

 

 

 

  Name:

 

 

   Title:

 


 EX-7.12 6 a2166017zex-7_12.htm EXHIBIT 7.12

Exhibit 7.12

 

POWER OF ATTORNEY

 

Know all by these presents, that the undersigned hereby constitutes and appoints each of Michael Willner and Elliot Brecher, signing singly, the undersigned’s true and lawful attorney-in-fact to:

 

(1)                                  execute for and on behalf of the undersigned, in the undersigned’s capacity as a reporting person under Rule 13d-1 of the Exchange Act with respect to the equity securities of Communications Company, Inc. (“Insight”), amendments to the Schedule 13D (as originally filed on March 7, 2005 and amended on July 29, 2005) (each, a “Schedule 13D”) in accordance with Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder;

 

(2)                                  do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D (including exhibits or other documents filed in connection therewith) and timely file such Schedule 13D (including exhibits or other documents filed in connection therewith) with the United States Securities and Exchange Commission and any stock exchange or similar authority; and

 

(3)                                  take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact’s discretion.

 

The undersigned hereby grants to such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted.  The undersigned acknowledges that the foregoing attorneys-in-fact, in serving in such capacity at the request of the undersigned, are not assuming, nor is Insight assuming, any of the undersigned’s responsibilities to comply with Section 13 of the Exchange Act or the rules promulgated thereunder.

 


 

This Power of Attorney shall remain in full force and effect until the undersigned is no longer required to file a Schedule 13D, unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorneys-in-fact.

 

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 10th day of November, 2005.

 

 

/s/ Sidney R. Knafel

 

 

Sidney R. Knafel

 

 

 

/s/ Andrew G. Knafel

 

 

Andrew G. Knafel

 

 

 

/s/ Andrew G. Knafel, as Trustee

 

 

Andrew G. Knafel, as Trustee under

 

Trust F/B/O Andrew G. Knafel dated September 13, 1978

 

Trust F/B/O Douglas R. Knafel dated September 13, 1978

 

Trust F/B/O Andrew G. & Douglas R. Knafel

 

dated July 16, 1976

 

Trust F/B/O Douglas R. Knafel dated November 6, 1983

 

 

 

/s/ Michael S. Willner

 

 

Michael S. Willner

 

 

 

/s/ James S. Marcus

 

 

James S. Marcus

 

 

 

/s/ Thomas L. Kempner

 

 

Thomas L. Kempner

 

 

 

/s/ John Abbot

 

 

John Abbot

 

 

 

/s/ Elliot Brecher

 

 

Elliot Brecher

 

 

 

/s/ Pamela Euler Halling

 

 

Pamela Euler Halling

 

 

 

 

 

/s/ Mary Rhodes

 

 

Mary Rhodes

 

 

 

/s/ Elizabeth Grier

 

 

Elizabeth Grier

 


 

 

/s/ Charles E. Dietz

 

 

Charles E. Dietz

 

 

 

/s/ Daniel Mannino

 

 

Daniel Mannino

 

 

 

/s/ Heather Wright

 

 

Heather Wright

 

 

 

/s/ Gregory B. Graff

 

 

Gregory B. Graff

 

 

 

/s/ John W. Hutton

 

 

John W. Hutton

 

 

 

/s/ James D. Morgan

 

 

James D. Morgan

 

 

 

/s/ Walter Kelley

 

 

Walter Kelley

 

 

 

/s/ Dan McComas

 

 

Dan McComas

 

 

 

/s/ Mara R. Bannard

 

 

Mara R. Bannard

 


 EX-7.13 7 a2166017zex-7_13.htm EXHIBIT 7.13

Exhibit 7.13

 

POWER OF ATTORNEY

 

Know all by these presents, that the undersigned hereby constitutes and appoints each of Sidney Knafel and Michael Willner, signing singly, the undersigned’s true and lawful attorney-in-fact to:

 

(1)                                  execute for and on behalf of the undersigned, in the undersigned’s capacity as a reporting person under Rule 13d-1 of the Exchange Act with respect to the equity securities of Communications Company, Inc. (“Insight”), amendments to the Schedule 13D (as originally filed on March 7, 2005 and amended on July 29, 2005) (each, a “Schedule 13D”) in accordance with Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated thereunder;

 

(2)                                  do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Schedule 13D (including exhibits or other documents filed in connection therewith) and timely file such Schedule 13D (including exhibits or other documents filed in connection therewith) with the United States Securities and Exchange Commission and any stock exchange or similar authority; and

 

(3)                                  take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact’s discretion.

 

The undersigned hereby grants to such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted.  The undersigned acknowledges that the foregoing attorneys-in-fact, in serving in such capacity at the request of the undersigned, are not assuming, nor is Insight assuming, any of the undersigned’s responsibilities to comply with Section 13 of the Exchange Act or the rules promulgated thereunder.

 


 

This Power of Attorney shall remain in full force and effect until the undersigned is no longer required to file a Schedule 13D, unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorneys-in-fact.

 

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 10th day of November, 2005.

 

 

 

/s/ Michael Kempner

 

 

Michael Kempner

 

 

 

/s/ Doris Kempner

 

 

Doris Kempner

 

 

 

/s/ Alan H. Kempner III

 

 

Alan H. Kempner III

 

 

 

/s/ Nancy Askin

 

 

Nancy Askin

 

 

 

/s/ Helen-Mae Askin

 

 

Helen-Mae Askin

 

 

 

/s/ Seymour R. Askin, Jr.

 

 

Seymour R. Askin, Jr.

 

 

 

/s/ Ann Bernhard

 

 

Ann Bernhard

 

 

 

/s/ Gerold Bezzenberger

 

 

Gerold Bezzenberger

 

 

 

/s/ Victoria Hamilton

 

 

Victoria Hamilton

 

 

 

/s/ K. David Isaacs

 

 

K. David Isaacs

 

 

 

Kaufman Family Interests LP

 

 

 

By:

/s/ Robert E. Kaufman

 

 

Name: Robert E. Kaufman

 

Title: President

 


 

 

/s/ Mercedes Kaufman, as Trustee

 

 

Mercedes Kaufman, as Trustee under

 

Betty K. Weisberger Trust

 

 

 

/s/ Jeffrey A. Kaufman

 

 

Jeffrey A. Kaufman

 

 

 

/s/ Jonathan A. Kaufman

 

 

Jonathan A. Kaufman

 

 

 

/s/ John S. Scherlis

 

 

John S. Scherlis

 

 

 

/s/ Leonard Scherlis

 

 

Leonard Scherlis

 

 

 

/s/ Barbara Scherlis

 

 

Barbara Scherlis

 

 

 

/s/ Lillian C. Scherlis

 

 

Lillian C. Scherlis

 

 

 

/s/ Sophia G. Scherlis

 

 

Sophia G. Scherlis

 

 

 

/s/ Thomas G. Scherlis

 

 

Thomas G. Scherlis

 

 

 

/s/ William L. Scherlis

 

 

William L. Scherlis

 

 

 

/s/ Michael Ward, as Trustee

 

 

Michael Ward, as trustee under the Michael Coleman
Kempner Trust U/A 5/19/64

 

 

 

/s/ Mary L. Umlauf, as Trustee

 

 

Mary L. Umlauf, as trustee under the Kathryn Kempner
Poteat Trust U/A 5/19/64

 

 

 

/s/ Judith M. Bishop, as Trustee

 

 

Judith M. Bishop, as trustee under the Carl Loeb
Kempner, Jr. Trust U/A 5/19/64

 

 

 

/s/ Marc Nathanson

 

 

Marc Nathanson

 


 

 

/s/ Arthur Shulman

 

 

Arthur Shulman

 

 

 

/s/ Bruce Levy

 

 

Bruce Levy

 

 

 

/s/ Adeline Kempner

 

 

Adeline Kempner

 


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