FIRST AMENDMENT TO AMENDED AND RESTATED EXCHANGE AGREEMENT
Exhibit 7.05
FIRST AMENDMENT TO AMENDED AND RESTATED
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”), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (“▇▇▇▇▇▇”), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”) and CARLYLE PARTNERS III TELECOMMUNICATIONS, L.P., CARLYLE PARTNERS IV TELECOMMUNICATIONS, L.P., CP III COINVESTMENT, L.P. and ▇▇ ▇▇ 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”), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”) 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. 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.
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INSIGHT COMMUNICATIONS
COMPANY, |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: President & Chief Executive Officer |
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INSIGHT ACQUISITION CORP. |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
President |
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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▇▇▇▇▇▇▇ PARTNERS III |
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By: |
TC Group III, L.P., its General Partner |
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By: |
TC Group III, L.L.C., its General Partner |
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By: |
TC Group, L.L.C., its Managing Member |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
Managing Director |
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CP III COINVESTMENT, L.P. |
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By: |
TC Group III, L.P., its General Partner |
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By: |
TC Group III, L.L.C., its General Partner |
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By: |
TC Group, L.L.C., its Managing Member |
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By: |
TCG Holdings, L.L.C., its Managing Member |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
Managing Director |
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CARLYLE PARTNERS IV |
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By: |
TC Group IV, L.P., its General Partner |
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By: |
TC Group IV, L.L.C., its General Partner |
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By: |
TC Group, L.L.C., its Managing Member |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
Managing Director |
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▇▇ ▇▇ COINVESTMENT, L.P. |
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By: |
TC Group IV, L.P., its General Partner |
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By: |
TC Group IV, L.L.C., its General Partner |
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By: |
TC Group, L.L.C., its Managing Member |
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By: |
TCG Holdings, L.L.C., its Managing Member |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
Managing Director |
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EXHIBIT A
CONTINUING INVESTORS
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Name
of Continuing |
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Number of |
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Number of |
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Number of |
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Number of |
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Management Shareholders |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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398,591 |
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▇▇▇▇▇▇ Family Foundation |
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50,000 |
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50,000 |
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ICI Communications, Inc. |
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3,427,177 |
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3,427,177 |
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3,427,177 |
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E/O ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executor |
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425,955 |
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425,955 |
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425,955 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustees, under Trust F/B/O ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 9/13/78 |
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1,044,188 |
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1,044,188 |
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1,044,188 |
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117,821 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ et al, Trustees, under Trust F/B/O ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 9/13/78 |
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1,044,188 |
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1,044,188 |
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1,044,188 |
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117,821 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ et al, Trustees, under Trust F/B/O ▇▇▇▇▇▇ ▇. & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 7/16/76 |
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535,825 |
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535,825 |
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535,825 |
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60,460 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ et al, Trustees, under Trust F/B/O ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 11/6/83 |
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386,413 |
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386,413 |
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386,413 |
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43,600 |
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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1,100,068 |
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1,100,068 |
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731,552 |
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110,652 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust U/A DTD 11/2/98 |
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3,224 |
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3,224 |
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3,224 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust U/A DTD 11/2/98 |
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3,224 |
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3,224 |
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3,224 |
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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132,779 |
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132,779 |
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132,779 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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60,668 |
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60,668 |
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Loeb Holding Corporation |
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160 |
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0 |
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E/O ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executor |
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31,051 |
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31,051 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustees, U/I/D 5/19/64 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Children |
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21,051 |
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21,051 |
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustees, U/I 11/7/69 F/B/O ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III |
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12,700 |
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12,700 |
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustees, U/A DTD 9/4/85 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. Grantor Tr. |
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72,103 |
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72,103 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustees, F/B/O Kempner Grandchildren’s Trust DTD 5/19/64 |
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36,051 |
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36,051 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustees, U/W ▇▇▇▇ ▇. ▇▇▇▇ 1/3/55 Trust F/B/O ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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264,377 |
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264,377 |
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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386,413 |
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386,413 |
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386,413 |
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▇▇▇▇ ▇▇▇▇▇ |
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9,000 |
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6,000 |
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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1,000 |
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1,000 |
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▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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200,280 |
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72,954 |
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▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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42,948 |
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17,920 |
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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93,246 |
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33,453 |
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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117,187 |
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77,000 |
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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110,928 |
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41,200 |
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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29,525 |
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10,620 |
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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10,170 |
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10,170 |
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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2,987 |
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1,698 |
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▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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2,000 |
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2,000 |
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▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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528 |
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528 |
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▇▇▇ ▇▇▇▇▇▇▇ |
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1,500 |
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1,500 |
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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1,075 |
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1,075 |
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Subtotal – Management Shareholders |
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8,489,454 |
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9,659,989 |
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8,946,057 |
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848,945 |
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Holdco Continuing Investors |
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▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ |
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20,178 |
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20,178 |
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▇▇▇▇▇ ▇▇▇▇▇ |
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24,081 |
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24,081 |
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. |
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206,625 |
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206,625 |
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▇▇▇▇▇▇ Bezzenberger |
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50,000 |
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40,000 |
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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22,100 |
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22,100 |
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K. ▇▇▇▇▇ ▇▇▇▇▇▇ |
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1,500 |
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1,500 |
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▇▇▇▇▇▇▇ Family Interests, L.P. |
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171,140 |
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171,140 |
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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34,775 |
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34,775 |
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|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
|
|
|
28,521 |
|
28,521 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee, The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Trust |
|
|
|
66,046 |
|
66,046 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
|
|
|
5,000 |
|
1,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
|
|
16,974 |
|
16,974 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
|
|
|
1,836 |
|
1,836 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
|
|
|
1,836 |
|
1,836 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
|
|
|
1,836 |
|
1,836 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
|
|
|
2,404 |
|
2,404 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇ ▇▇▇▇ |
|
|
|
13,278 |
|
13,278 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
|
|
|
20,000 |
|
20,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
|
16,800 |
|
16,800 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇ ▇▇▇▇▇▇▇▇ |
|
|
|
1,000 |
|
1,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
|
14,421 |
|
14,421 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III |
|
|
|
264,377 |
|
264,377 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. Trust U/A 5/19/1964 |
|
|
|
12,252 |
|
6,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
|
30,306 |
|
15,153 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust U/A 5/19/1964 |
|
|
|
11,526 |
|
10,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
|
15,068 |
|
7,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
▇▇▇▇▇▇▇ ▇▇▇▇, Trustee, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.