Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of February 6, 2001
by and among
Insight Communications Company, Inc.
Insight Communications Company, L.P.
and
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston Corporation
BNY Capital Markets, Inc.
Chase Securities Inc.
Fleet Securities, Inc.
TD Securities (USA) Inc.
This Registration Rights Agreement (this "Agreement") is made and entered
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into as of February 6, 2001 by and among Insight Communications Company, Inc., a
Delaware corporation (the "Company" or the "Issuer") and Insight Communications
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Company, L.P., a Delaware limited partnership ("Insight L.P."), and Xxxxxxx,
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Sachs & Co., Credit Suisse First Boston Corporation, BNY Capital Markets, Inc.,
Chase Securities Inc., Fleet Securities, Inc. and TD Securities (USA) Inc. (each
an "Initial Purchaser" and, collectively, the "Initial Purchasers") each of whom
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has agreed to purchase the Issuer's 12 1/4% Senior Discount Notes due 2011 (the
"Notes") pursuant to the Purchase Agreement (as defined below).
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This Agreement is made pursuant to the Purchase Agreement, dated February
1, 2001 (the "Purchase Agreement"), by and among the Issuer, Insight L.P. and
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the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Notes, the Issuer has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Indenture, dated February 6, 2001, between the Issuer
and The Bank of New York, as Trustee, relating to the Notes and the Exchange
Notes (the "Indenture").
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The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
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Affiliate: As defined in Rule 144 of the Act.
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Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Certificated Securities: Definitive Notes, as defined in the Indenture.
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Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
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of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Exchange
Notes to be issued in the Exchange Offer, (b) the maintenance of such Exchange
Offer Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the period required pursuant to
Section 3(b) hereof and (c) the delivery by the Issuer to the Registrar under
the Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Notes tendered by Holders thereof pursuant to the
Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
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Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Notes: The Issuer's 12 1/4% Senior Discount Notes due 2011 to be
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issued pursuant to the Indenture (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
Exchange Offer: The exchange and issuance by the Issuer of a principal
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amount of Exchange Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of Notes
that are tendered by such Holders in connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating
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to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
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to sell the Notes to certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
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Holders: As defined in Section 2 hereof.
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Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
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Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Issuer relating
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to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, in each case, (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Rule 144: Rule 144 promulgated under the Act.
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Shelf Registration Statement: As defined in Section 4 hereof.
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Suspension Notice: As defined in Section 6(d) hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
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in effect on the date of the Indenture.
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Transfer Restricted Securities: Each (A) Note, until the earliest to occur
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of (i) the date on which such Note is exchanged in the Exchange Offer for a
Exchange Note which is entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Act, (ii) the
date on which such Note has been disposed of in accordance with a Shelf
Registration Statement (and the purchasers thereof have been issued Exchange
Notes), or (iii) the date on which such Note is distributed to the public
pursuant to Rule 144 under the Act and each (B) Exchange Note held by a Broker-
Dealer until the date on which such Exchange Note is disposed of by a Broker-
Dealer pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including the delivery of the Prospectus contained
therein).
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person owns Transfer Restricted Securities.
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3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Issuer shall (i) cause the Exchange Offer Registration
Statement to be filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 150 days after the Closing Date (such
150th day being the "Filing Deadline"), (ii) use its reasonable best efforts to
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cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 330 days after the Closing
Date (such 330th day being the "Effectiveness Deadline"), (iii) in connection
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with the foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting (i) registration of the Exchange Notes to be offered
in exchange for the Notes that are Transfer Restricted Securities and (ii)
resales of Exchange Notes by Broker-Dealers that tendered into the Exchange
Offer Notes that such Broker-Dealer acquired for its own account as a result of
market making activities or other trading activities (other than Notes acquired
directly from the Issuer or any of its Affiliates) as contemplated by Section
3(c) below.
(b) The Issuer shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 Business Days. The Issuer shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities other than the
Exchange Notes shall be included in the Exchange Offer Registration Statement.
The Issuer shall use its reasonable best efforts to cause the Exchange Offer to
be Consummated on the earliest practicable date after the
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Exchange Offer Registration Statement has become effective, but in no event
later than 30 business days thereafter or such later date that may be
required by federal securities laws (such 30th or later day being the
"Consummation Deadline").
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(c) The Issuer shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer as a
result of market-making activities or other trading activities (other than
Notes acquired directly from the Issuer or any Affiliate of the Issuer),
may exchange such Transfer Restricted Securities pursuant to the Exchange
Offer. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or
disclose the amount of Transfer Restricted Securities held by any such
Broker-Dealer, except to the extent required by the Commission as a result
of a change in policy, rules or regulations after the date of this
Agreement. See the Shearman & Sterling no-action letter (available July 2,
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1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting
the requirements of the Act in connection with its initial sale of any
Exchange Notes received by such Broker-Dealer in the Exchange Offer, the
Issuer shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such
prospectus delivery requirement. To the extent necessary to ensure that the
prospectus contained in the Exchange Offer Registration Statement is
available for sales of Exchange Notes by Broker-Dealers, the Issuer agrees
to use its reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as
required by and subject to the provisions of Section 6(a) and (c) hereof
and in conformity with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the Consummation Deadline or such
shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold pursuant thereto. The
Issuer shall provide sufficient copies of the latest version of such
Prospectus to such Broker-Dealers, promptly upon request, and in no event
later than one day after such request, at any time during such period.
4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
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applicable law (after the Issuer has complied with the procedures set forth
in Section 6(a)(i) below) or (ii) if any Holder of Transfer Restricted
Securities shall notify the Issuer within 20 Business Days following the
Consummation Deadline that (A) such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate
or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Notes acquired directly from the Issuer or any of
its Affiliates, then the Issuer shall:
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(x) use its reasonable best efforts to cause to be filed, on or prior to 30
days after the earlier of (i) the date on which the Issuer determines that the
Exchange Offer Registration Statement cannot be filed as a result of clause
(a)(i) above and (ii) the date on which the Issuer receives the notice specified
in clause (a)(ii) above, (such earlier date, the "Filing Deadline"), a shelf
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registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the "Shelf Registration
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Statement")), relating to all Transfer Restricted Securities, and
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(y) use its reasonable best efforts to cause such Shelf Registration Statement
to become effective on or prior to 90 days after the Filing Deadline for the
Shelf Registration Statement (such 90th day the "Effectiveness Deadline");
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provided that in no event shall the Filing Deadline and Effectiveness
Deadline under Section 4(a) be earlier than the Filing Deadline and
Effectiveness Deadline under Section 3(a).
If, after the Issuer has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Issuer is required to
file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., clause
(a)(i) above), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Issuer shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Issuer shall
use its reasonable best efforts to keep any Shelf Registration Statement
required by this Section 4(a) continuously effective, supplemented, amended and
current as required by and subject to the provisions of Sections 6(b) and (c)
hereof and in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of at least two years (as extended pursuant to Section
6(c)(i)) following the Closing Date, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Issuer in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Issuer by such Holder not materially misleading.
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5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer has not
been Consummated on or prior to the Consummation Deadline or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself declared effective immediately (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then the Issuer hereby agrees to
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pay to each Holder of Transfer Restricted Securities affected thereby liquidated
damages in an amount equal to $.05 per week per $1,000 in principal amount at
maturity of Transfer Restricted Securities held by such Holder for each week or
portion thereof that the Registration Default continues for the first 90-day
period immediately following the occurrence of such Registration Default. The
amount of the liquidated damages shall increase by an additional $.05 per week
per $1,000 in principal amount at maturity of Transfer Restricted Securities
with respect to each subsequent 90-day period until all Registration Defaults
have been cured, up to a maximum amount of liquidated damages of $.50 per week
per $1,000 in principal amount at maturity of Transfer Restricted Securities;
provided that the Issuer shall in no event be required to pay liquidated damages
for more than one Registration Default at any given time. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Issuer to pay liquidated damages with respect to securities shall survive until
such time as such obligations with respect to such securities shall have been
satisfied in full.
6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
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Exchange Offer, the Issuer shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use its reasonable best efforts to effect such exchange
and to permit the resale of Exchange Notes by Broker-Dealers that tendered in
the Exchange Offer Notes that such Broker-Dealer acquired for its own account as
a result of its market making activities or other trading activities (other than
Notes acquired directly from the Issuer or any of its Affiliates) being sold in
accordance with the
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intended method or methods of distribution thereof, and (z) comply with all of
the following provisions:
(i) If, following the date hereof there has been announced a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Issuer raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Issuer hereby agrees to seek a no-action letter
or other favorable decision from the Commission allowing the Issuer to
Consummate an Exchange Offer for such Transfer Restricted Securities. The
Issuer hereby agrees to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the Issuer hereby
agrees to take all such other actions as may be requested by the Commission
or otherwise required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic conferences
with the Commission, (B) delivering to the Commission staff an analysis
prepared by counsel to the Issuer setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker-Dealer) shall furnish, upon the request of the
Issuer, prior to the Consummation of the Exchange Offer, a written
representation to the Issuer (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Issuer, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring
the Exchange Notes in its ordinary course of business. As a condition to
its participation in the Exchange Offer, each Holder using the Exchange
Offer to participate in a distribution of the Exchange Notes shall
acknowledge and agree that, if the resales are of Exchange Notes obtained
by such Holder in exchange for Notes acquired directly from the Issuer or
an Affiliate thereof, it (1) could not, under Commission policy as in
effect on the date of this Agreement, rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5,
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1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as
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interpreted in the Commission's letter to Shearman & Sterling dated July 2,
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1993, and similar no-action letters (including, if applicable, any no-
action letter obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a secondary
resale transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuer shall provide a supplemental letter to the Commission
(A)
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stating that the Issuer is registering the Exchange Offer in reliance on
the position of the Commission enunciated in Exxon Capital Holdings
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Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
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(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action
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letter obtained pursuant to clause (i) above, (B) including a
representation that neither Issuer has entered into any arrangement or
understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of the Issuer's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf Registration Statement. In connection with the Shelf
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Registration Statement, the Issuer shall:
(i) comply with all the provisions of Section 6(c) below and use its
reasonable best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Issuer pursuant to Section 4(b) hereof), and
pursuant thereto the Issuer will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance
with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Notes
covered by any Shelf Registration Statement contemplated by this Agreement,
Exchange Notes having an aggregate principal amount equal to the aggregate
principal amount of Notes sold pursuant to the Shelf Registration Statement
and surrendered to the Issuer for cancellation; the Issuer shall register
Exchange Notes on the Shelf Registration Statement for this purpose and
issue the Exchange Notes to the purchaser(s) of securities subject to the
Shelf Registration Statement in the names as such purchaser(s) shall
designate.
(c) General Provisions. In connection with any Registration Statement and
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any related Prospectus required by this Agreement, the Issuer shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading or
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(B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Issuer shall
file promptly an appropriate amendment to such Registration Statement
curing such defect, and, if Commission review is required, use its
reasonable best efforts to cause such amendment to be declared effective as
soon as practicable;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act in
a timely manner; and comply with those provisions of the Act that are
applicable to the Issuer with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to
the Prospectus;
(iii) advise each Holder promptly and, if requested by such Holder,
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, and (D) of the existence
of any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Issuer shall use its reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or
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any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(v) if requested by a Holder, furnish to such Holder in connection
with such exchange or sale, if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holder in connection with such
sale, if any, for a period of at least two Business Days, and the Issuer
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such
Holder shall reasonably object within two Business Days after the receipt
thereof. A Holder shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading or fails to comply with the applicable
requirements of the Act;
(vi) if requested by a Holder, promptly prior to the filing of any
document that is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to such Holder in
connection with such exchange or sale, if any, make the Issuer's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holder may reasonably request;
(vii) make available, at reasonable times, for inspection by each
underwriter and any attorney or accountant retained by such underwriters,
all financial and other records, pertinent corporate documents of the
Issuer and cause the Issuer's officers, directors and employees to supply
all information reasonably requested by any such underwriters, attorney or
accountant in connection with such Registration Statement or any post-
effective amendment thereto subsequent to the filing thereof and prior to
its effectiveness;
(viii) if requested by any Holder in connection with such exchange or
sale, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the
"Underwriting" of the Transfer Restricted Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Issuer are notified of the
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matters to be included in such Prospectus supplement or post-effective
amendment;
(ix) furnish to each Holder in connection with such exchange or
sale, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
all documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Issuer
hereby consents to the use (in accordance with law) of the Prospectus and
any amendment or supplement thereto by each selling Holder in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(xi) upon the request of any Holder, enter into such agreements
(including underwriting agreements) and make such representations and
warranties and take all such other actions in connection therewith in order
to expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any applicable Registration Statement contemplated
by this Agreement as may be reasonably requested by any Holder in
connection with any sale or resale pursuant to any applicable Registration
Statement. In such connection the Issuer shall:
(A) upon request of any underwriter, furnish (or in the case of
paragraphs (2) and (3), use its reasonable best efforts to cause to be
furnished) to such underwriter, upon Consummation of the Exchange Offer or
upon the effectiveness of the Shelf Registration Statement, as the case may
be:
(1) a certificate, dated such date, signed by the President and
the Chief Financial Officer of each of the Issuer, confirming, as of the
date thereof, the matters set forth in Sections 1(ee), 7(a) and 7(b) of the
Purchase Agreement and such other similar matters as such underwriter may
reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Issuer covering matters similar to
those set forth in paragraph (e) of Section 7 of the Purchase Agreement and
such other matters as such underwriter may reasonably request, and in any
event including a statement to the effect that such counsel has
participated in conferences with officers and other representatives of each
of the Issuer, representatives of the independent public accountants for
the Issuer and has considered the matters required to be stated therein and
the statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of such
statements; and that such
11
counsel advises that, on the basis of the foregoing, no facts came to such
counsel's attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective and, in the case of the
Exchange Offer Registration Statement, as of the date of Consummation of
the Exchange Offer, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date and, in the case of
the opinion dated the date of Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel may state further
that such counsel assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the financial
statements, schedules and other financial data included in any Registration
Statement contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of Consummation of
the Exchange Offer, or as of the date of effectiveness of the Shelf
Registration Statement, as the case may be, from the Issuer's independent
accountants, in the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 7(h) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably
requested by the underwriter to evidence compliance with the matters
covered in clause (A) above and with any customary conditions contained in
any agreement entered into by the Issuer pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in connection
with the registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions as the selling
Holders may reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that the Issuer shall not be required to register or qualify
as a foreign corporation, where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities,
12
cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such names as
the selling Holders may request at least two Business Days prior to such
sale of Transfer Restricted Securities;
(xiv) use its reasonable best efforts to cause the disposition of
the Transfer Restricted Securities covered by the Registration Statement
to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the Depository
Trust Company;
(xvi) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined in paragraph
(c) of Rule 158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its best efforts to cause the
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely
manner; and
(xviii) provide promptly to each Holder, upon request, each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Transfer Restricted Security that, upon receipt of the notice referred to
in Section 6(c)(iii)(C) or any notice from the Issuer of the existence of
any fact of the kind described in Section 6(c)(iii)(D) hereof (in each
case, a "Suspension Notice"), such Holder will forthwith discontinue
-----------------
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until (i) such Holder has received copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(iv) hereof,
or (ii) such Holder is advised in writing by the Issuer that the use of the
Prospectus may be
13
resumed, and has received copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus (in each case, the
"Recommencement Date"). Each Holder receiving a Suspension Notice hereby
-------------------
agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Holder's possession which have been
replaced by the Issuer with more recently dated Prospectuses or (ii)
deliver to the Issuer (at the Issuer's expense) all copies, other than
permanent file copies, then in such Holder's possession of the Prospectus
covering such Transfer Restricted Securities that was current at the time
of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuer's performance of or compliance
with this Agreement will be borne by the Issuer, regardless of whether a
Registration Statement becomes effective, including without limitation: (i)
all registration and filing fees and expenses; (ii) all fees and expenses
of compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates for
the Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Issuer; (v) all application and filing
fees in connection with listing the Exchange Notes on a national securities
exchange or automated quotation system; and (vi) all fees and disbursements
of independent certified public accountants of the Issuer (including the
expenses of any special audit and comfort letters required by or incident
to such performance).
The Issuer will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit
and the fees and expenses of any Person, including special experts,
retained by the Issuer.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuer will reimburse
the Initial Purchasers and the Holders of Transfer Restricted Securities
who are tendering Notes into in the Exchange Offer and/or selling or
reselling Notes or Exchange Notes pursuant to the "Underwriting" contained
in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not
more than one counsel, who shall be Xxxxxx & Xxxxxxx, unless another firm
shall be chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
8. INDEMNIFICATION
(a) Indemnification by the Company. The Company and Insight L.P. will,
jointly and severally, indemnify and hold harmless each Holder of Transfer
Restricted Securities and each person who participates as a placement or
sales agent or as an underwriter in any offering or sale of such Transfer
Restricted Securities against any losses, claims, damages or liabilities,
joint or
14
several, to which such Holder, agent or underwriter may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, under which such Transfer
Restricted Securities were registered under the Act, or any preliminary,
final or summary prospectus contained therein or furnished by the Company
to any such Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse such
Holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that neither the Company nor Insight L.P. shall be liable to any such
person in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use
therein.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company may require, as a condition to including any Transfer
Restricted Securities in any registration statement filed pursuant to
Section 4 hereof and to entering into any underwriting agreement with
respect thereto, that the Company shall have received an undertaking
reasonably satisfactory to it from the Holder of such Transfer Restricted
Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless
the Company, Insight L.P. and all other Holders of Transfer Restricted
Securities, against any losses, claims, damages or liabilities to which the
Company, Insight L.P. or such Holder of Transfer Restricted Securities may
become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such registration statement, or
any preliminary, final or summary prospectus contained therein or furnished
by the Company to any such Holder, agent or underwriter, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Holder or underwriter expressly for use therein, and (ii)
reimburse the Company and Insight L.P. for any legal or other expenses
reasonably incurred by the Company and Insight L.P. in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such Holder shall be required to
undertake liability to any person under this Section 8(b) for any amounts
in excess of the dollar amount of the proceeds to be received by such
Holder from the sale of such Holder's Transfer Restricted Securities
pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 8, notify
such
15
indemnifying party in writing of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
the indemnification provisions of or contemplated by Section 8(a) or 8(b)
hereof. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, such indemnifying
party shall not be liable to such indemnified party for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred
by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 8(a) or Section 8(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8(d),
no Holder shall be required to contribute any amount in excess of the
amount by which the dollar amount of the proceeds received by such Holder
from the sale of any Transfer Restricted Securities (after deducting any
fees, discounts and commissions applicable thereto) exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission,
and no
16
underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Transfer Restricted
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' and any underwriters'
obligations in this Section 8(d) to contribute shall be several in
proportion to the principal amount of Transfer Restricted Securities
registered or underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company and Insight L.P. under this
Section 8 shall be in addition to any liability which the Company and
Insight L.P. may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each Holder, agent and
underwriter and each person, if any, who controls any Holder, agent or
underwriter within the meaning of the Act; and the obligations of the
Holder and any agents or underwriters contemplated by this Section 8 shall
be in addition to any liability which the respective Holder, agent or
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or Insight L.P. and
to each person, if any, who controls the Company within the meaning of the
Act.
9. Underwritten Offerings
(a) Selection of Underwriters. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by Holders holding at least a majority in aggregate
principal amount of the Transfer Restricted Securities to be included in
such offering, provided that such designated managing underwriter or
underwriters is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each Holder of Transfer Restricted
Securities hereby agrees with each other such Holder that no such Holder
may participate in any underwritten offering hereunder unless such Holder
(i) agrees to sell such Holder's Transfer Restricted Securities on the
basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
10. RULE 144A and RULE 144
The Issuer agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Issuer (i) is not subject to Section 13 or 15(d) of the Exchange Act, to
make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof
and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A, and (ii) are subject to
17
Section 13 or 15(d) of the Exchange Act, to make all filings required
thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
11. MISCELLANEOUS
(a) Remedies. The Issuer acknowledges and agrees that any failure
--------
by the Issuer to comply with its obligations under Sections 3 and 4 hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Issuer's
obligations under Sections 3 and 4 hereof. The Issuer further agrees to
waive the defense in any action for specific performance that a remedy at
law would be adequate.
(b) No Inconsistent Agreements. The Issuer will not, on or after
--------------------------
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The
Issuer has not previously entered into any agreement granting any
registration rights with respect to its securities to any Person, other
than (i) the Securityholders' Agreement among the Company, Vestar Capital
Partners III, L.P. and the other parties thereto, dated as of May 11, 1999,
as amended, and (ii) the Registration Rights Agreement among the Company
Coaxial Communications of Central Ohio, Inc., Xxxxx Xxxxxxxxxxx, Xxxxxx X.
XxXxxxxxxxxx and X. Xxxxxxx XxXxx, dated as of August 8, 2000. The rights
granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the Holders of the Issuer's
securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
----------------------
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the
case of Section 5 hereof and this Section 11(c)(i), the Issuer has
obtained the written consent of Holders of all outstanding Transfer
Restricted Securities and (ii) in the case of all other provisions hereof,
the Issuer has obtained the written consent of Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities
(excluding Transfer Restricted Securities held by the Issuer or its
Affiliates). Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the
rights of Holders whose Transfer Restricted Securities are being tendered
pursuant to the Exchange Offer, and that does not affect directly or
indirectly the rights of other Holders whose Transfer Restricted
Securities are not being tendered pursuant to such Exchange Offer, may be
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Issuer, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
18
(e) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Issuer or Insight LP:
Insight Communications Company, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxx Xxxxx
19
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
20
(k) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[signature page follows]
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INSIGHT COMMUNICATIONS COMPANY, INC.
By: /s/Xxxxxx Xxxxxxx
-----------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President, General Counsel
INSIGHT COMMUNICATIONS COMPANY, L.P.
By its General Partner:
INSIGHT COMMUNICATIONS COMPANY, INC.
By: /s/Xxxxxx Xxxxxxx
-----------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President, General
Counsel
22
XXXXXXX, XXXXX & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
BNY CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
FLEET SECURITIES, INC.
TD SECURITIES (USA) INC.
By: Xxxxxxx, Xxxxx & Co.
By: /s/Xxxxxxx, Sachs & Co.
------------------------
Name:
Title:
23
