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EXHIBIT 2.1
PURCHASE AND OPTION AGREEMENT
PURCHASE AND OPTION AGREEMENT made as of the 8th day of August, 2000 by and
among Coaxial Communications of Central Ohio, Inc. ("Coaxial"), Insight
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Communications of Central Ohio, LLC ("Insight Ohio"), Insight Holdings of Ohio,
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LLC ("Insight Holdings"), Insight Communications Company, L.P. ("Insight LP"),
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Insight Communications Company, Inc. ("ICCI"), Coaxial LLC, Coaxial DJM LLC
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("Coaxial DJM"), Coaxial DSM LLC ("Coaxial DSM," and, collectively with Coaxial
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LLC and Coaxial DJM, the "Coaxial Shareholders"), Barry Silverstein
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("Silverstein"), Dennis J. McGillicuddy ("McGillicuddy") and D. Stevens McVoy
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("McVoy," and, collectively with Silverstein and McGillicuddy, the "Coaxial
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Principals").
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WHEREAS, Coaxial owns a "Common Interest" in Insight Ohio (the "Insight
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Ohio Common Interest") to which has been assigned 25% of the "Units" assigned to
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all the outstanding "Common Interests" in Insight Ohio (as such terms are
defined in the Insight Ohio Operating Agreement);
WHEREAS, Coaxial desires to sell to Insight Ohio the Insight Ohio Common
Interest and Insight Ohio desires to purchase such Insight Ohio Common Interest
from Coaxial on the terms described in this Agreement;
WHEREAS, the Coaxial Principals collectively own all of the outstanding
membership interests in the Coaxial Shareholders and all the outstanding capital
stock in Coaxial Financing Corp.; and
WHEREAS, the Coaxial Principals desire to acquire an option to sell to
Insight LP all, but not less than all, of the outstanding membership interests
in the Coaxial Shareholders and all the outstanding capital stock in Coaxial
Financing Corp. (collectively, the "Coaxial Interests"), on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used herein the following terms have the following
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respective meanings:
"Affiliate" shall mean, with respect to any Person, any other Person that
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directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with such Person. For purposes of this
definition, the term "controls" shall mean the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract, or
otherwise. The terms "controlled by" and "under common control with" have
meanings corresponding to the meaning of "controls."
"Asset Disposition" means any sale or other disposition by Insight Ohio or
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any subsidiary of Insight Ohio of any assets that were contributed to Insight
Ohio by Coaxial or any assets the
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initial adjusted tax basis of which is or was determined, in whole in part, with
reference to the adjusted tax basis of the assets contributed by Coaxial, other
than (i) any sale or disposition of assets that does not involve the disposition
of any cable television subscribers or (ii) any sale or disposition of assets
that does not, together with all prior sales and dispositions previously made by
Insight Ohio or any subsidiary of Insight Ohio, represent a portion of the
business of Insight Ohio and its subsidiaries serving more than 1,000 cable
television subscribers in the aggregate.
"Closing Price" shall mean, with respect to any shares of capital stock of
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any Person, (i) the last reported sales price, regular way, as reported on the
principal national securities exchange on which such shares are listed or
admitted for trading or (ii) if such shares are not listed or admitted for
trading on any national securities exchange, the last reported sales price,
regular way, as reported on the Nasdaq National Market or, (iii) if such shares
are not listed on the Nasdaq National Market, the average of the highest bid and
lowest asked prices as reported on the Nasdaq Stock Market.
For purposes of determining the "Closing Price" of any shares,
(i) the applicable sales price or bid and asked prices of such
shares on any day prior to any "ex-dividend" date for any dividend or
distribution (other than a dividend or distribution contemplated by clause (B)
of paragraph (ii) below) paid or to be paid with respect to such securities
shall be reduced by the fair value of the per share amount of such dividend or
distribution, and
(ii) the applicable sales price or bid and asked prices of such
shares on any day prior to (A) the effective date of any subdivision (by stock
split or otherwise) or combination (by reverse stock split or otherwise) of such
securities or (B) any "ex-dividend" date or any similar date for any dividend or
distribution with respect to such securities to be made in such securities or
securities that are convertible, exchangeable, or exercisable for such
securities shall be appropriately adjusted to reflect such subdivision,
combination, dividend, or distribution.
"Coaxial Parties" shall mean Coaxial, the Coaxial Shareholders and the
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Coaxial Principals.
"Discount Note Indenture" shall mean the Indenture among Coaxial LLC,
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Coaxial Financing Corp., Insight Ohio, as Guarantor, and Bank of Montreal Trust
Company, as Trustee, dated August 21, 1998.
"Existing Agreements" shall mean the Insight Ohio Operating Agreement; the
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Contribution Agreement dated as of June 30, 1998, as amended, between Coaxial
and Insight Communications Company, L.P.; the Close Corporation Agreement, dated
as of August 21, 1998 among Coaxial and the Coaxial Shareholders; the Management
Agreement, dated as of August 21, 1998, between Coaxial LLC and Insight
Holdings; the Management Agreement, dated as of August 21, 1998, between Coaxial
DJM and Insight Holdings; and the Management Agreement, dated as of August 21,
1998, between Coaxial DSM and Insight Holdings.
"ICCI's SEC Filings" shall mean, at any date, (i) the most recent annual
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report on Form 10-K filed by ICCI with the SEC, (ii) all reports filed by ICCI
with the SEC pursuant to Section 13(a), Section 14, or Section 15 of the
Securities Exchange Act of 1934, as amended, and the
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rules and regulations of the SEC promulgated thereunder, since the filing of the
most recent annual report on Form 10-K filed by ICCI with the SEC, and (iii) the
most recent form of prospectus included in a registration statement on Form S-1
(or other form of prospectus that includes, or incorporates by reference,
substantially the same information as that required to be included in a
prospectus included in a registration statement on Form S-1) filed by ICCI with
the SEC on or before that date pursuant to Rule 424(b) under the Securities Act.
"ICCI Stock" shall mean the common stock, par value $.01 per share, of
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ICCI.
"Insight Ohio Operating Agreement" shall mean the Operating Agreement of
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Insight Ohio entered into effective as of August 21, 1998, by and among Coaxial,
Insight Holdings and the Coaxial Principals, as amended.
"Insight Parties" shall mean Insight Ohio, Insight Holdings, Insight LP,
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and ICCI.
"Liens" shall mean claims, liabilities, security interests, mortgages,
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liens, pledges, conditions, charges, rights of third parties and encumbrances of
any kind and nature whatsoever.
"Losses" shall mean any and all losses, liabilities, claims, demands,
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actions, or causes of action, judgments, orders, deficiencies, fines, penalties,
costs, damages, or expenses whatsoever, including, without limitation, taxes,
whether foreseeable or unforeseeable, and further including, without limitation
legal, accounting and other professional fees, disbursements and expenses
incurred in the investigation, collection, prosecution and defense of claims and
amounts paid in settlement thereof.
"Person" shall mean an individual, corporation, limited liability company,
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association, general partnership, limited partnership, limited liability
partnership, joint venture, trust, estate, or other entity or organization.
"Put Closing" means the closing of the purchase and sale of the Coaxial
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Interests upon exercise of the Put Option.
"SEC" shall mean the Securities and Exchange Commission or any successor
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agency of the United States performing substantially the same functions.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Senior Debt" shall mean all obligations arising under the 10% Senior Notes
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due 2006 issued by Coaxial and Phoenix Associates, and every subsequent
amendment, modification, restructuring, extension, renewal, or consolidation of
any such obligations, and any obligation incurred in refinancing or replacement
of or substitution for any such obligations.
"Senior Note Indenture" shall mean the Indenture among Coaxial, Phoenix
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Associates, Insight Ohio, as Guarantor, and Bank of Montreal Trust Company, as
Trustee, dated August 21, 1998.
"Subordinated Debt" shall mean all obligations arising under the 12 7/8%
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Senior Discount Notes due 2008 issued by Coaxial LLC and Coaxial Financing
Corp., and the LLC
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Mirror Notes (as defined in the offering memorandum for such Senior Discount
Notes) issued by Coaxial DJM and Coaxial DSM, and every subsequent amendment,
modification, restructuring, extension, renewal, or consolidation of any such
obligations, and any obligation incurred in refinancing or replacement of or
substitution for any such obligations.
"Target Amount" shall mean $32,600,000 decreased following any Asset
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Disposition by an amount equal to the quotient of (a) the product of (1) the
amount of the income or gain recognized by the Coaxial Principals upon such
Asset Disposition, multiplied by (2) the long-term capital gain rate, divided by
(b) 1 minus the long-term capital gain rate. For purposes of this definition,
"long-term capital gain rate" shall mean, with respect to any Asset Disposition,
the marginal federal income tax rate that would apply to all income or gain
recognized by the Coaxial Principals upon such Asset Disposition if all such
income or gain were treated as long-term capital gain.
"Triggering Event" shall mean:
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(i) the repayment of the Senior Debt or the Subordinated Debt,
(ii) any other action or failure to act by any Insight Party or any of
their respective Affiliates that would modify the terms or the structure of the
Senior Debt or the Subordinated Debt in a manner that is adverse to the
Principals (as determined in accordance with Section 3.5 of the Insight Ohio
Operating Agreement as in effect prior to the amendment to the Insight Ohio
Operating Agreement to be entered into in accordance with this Agreement), or
(iii) any Capital Default specified in Section 4.4(a)(i) or Section
4.4(a)(ii) of the Insight Ohio Operating Agreement as in effect prior to the
amendment to the Insight Ohio Operating Agreement to be entered into in
accordance with this Agreement and determined without regard to any other
amendments to the Insight Ohio Operating Agreement contained in such amendment.
ARTICLE II
PURCHASE OF THE INSIGHT OHIO COMMON INTEREST
2.1 Purchase and Sale. Concurrently with the execution and delivery of
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this Agreement, Coaxial shall sell, assign and deliver to Insight Ohio, and
Insight Ohio shall purchase from Coaxial, all of Coaxial's right, title and
interest in and to the Insight Ohio Common Interest, free of all Liens, other
than restrictions arising under the Senior Note Indenture, the Discount Note
Indenture or the Insight Ohio Operating Agreement.
2.2 Purchase Price.
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(a) As consideration for the purchase and sale of the Insight Ohio
Common Interest:
(i) Concurrently with the execution and delivery of this
Agreement, Insight Ohio shall assign, transfer and deliver to Coaxial 800,000
shares of ICCI Stock; and
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(ii) On or before September 1, 2000, ICCI shall:
(A) Pay to the Coaxial Principals up to an amount equal to the sum of
(1) 200,000 times the Closing Price of a share of ICCI Stock on the date of this
Agreement plus (2) the Tax Amount (as defined in the Insight Ohio Operating
Agreement) that would be distributable to Coaxial on the date of the next
scheduled April Distribution (as defined in the Insight Ohio Operating
Agreement), calculated as if Insight Ohio's fiscal year ended on the date of
this Agreement, by Federal wire transfer to an account designated by the Coaxial
Principals (or by other means agreed to between ICCI and the Coaxial
Principals); and
(B) Issue to the Coaxial Principals a number of shares of ICCI Stock
that, upon their sale by the Coaxial Principals in accordance with Section
2.2(b)(i), the manner of sale provisions of the registration statement referred
to in Section 2.2(b)(i), and the underwriting agreement described therein, would
generate net proceeds (after deducting underwriting discounts, commissions, and
other similar investment banking charges, but without deducting other expenses
of sale) at least equal to the amount by which any payment made by ICCI pursuant
to Section 2.2(a)(ii)(A) is less than the maximum amount specified in Section
2.2(a)(ii)(A).
(b) If ICCI elects to issue shares of ICCI Stock to the Coaxial Principals
pursuant to Section 2.2(a)(ii)(B), then:
(i) All such shares of ICCI Stock (1) shall be duly authorized
and shall be validly issued and outstanding, fully paid, and non-assessable,
with no personal liability attaching to the ownership thereof and (2) shall be
capable of being lawfully sold to the public by the Coaxial Principals within
ten days after their delivery to the Coaxial Principals in a single transaction
pursuant to a then effective registration statement under the Securities Act
(and the registration of such shares shall be effected in accordance with the
Registration Rights Agreement).
(ii) The Coaxial Principals will repay to ICCI the amount, if
any, by which the sum of (1) the net proceeds (after deducting underwriting
discounts, commissions, and other similar investment banking charges, but
without deducting other expenses of sale) realized by the Coaxial Principals
from the sale of such shares of ICCI Stock plus (2) the amount of any payment
made by ICCI pursuant to Section 2.2(a)(ii)(A) exceeds the maximum amount
specified in Section 2.2(a)(ii)(A).
(c) The parties agree that they will not take a position, including
any position taken on any income tax return, before any governmental agency
charged with the collection of income tax, in any judicial proceeding, or in any
financial statements, that is in any way inconsistent with the treatment of the
payments described in Section 2.2(a)(ii) as payments in exchange for the Insight
Ohio Common Interest.
2.3 Deliveries. To effectuate the purchase and sale of the Insight Ohio
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Common Interest concurrently with the execution and delivery of this Agreement:
(a) Insight Ohio shall deliver to Coaxial certificates representing
800,000 shares of ICCI Stock, duly endorsed or accompanied by appropriate stock
powers.
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(b) ICCI shall execute and deliver to the Coaxial Principals a
Registration Rights Agreement in the form attached hereto as Exhibit A (the
"Registration Rights Agreement").
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(c) ICCI shall deliver to the Coaxial Principals an opinion of counsel
to ICCI, dated as of the date hereof, in the form attached hereto as Exhibit B.
(d) Coaxial shall execute and deliver to Insight Ohio an assignment of
the Insight Ohio Common Interest.
(e) Coaxial, the Coaxial Principals, and Insight Holdings shall
execute and deliver an Amendment to the Insight Ohio Operating Agreement in the
form attached hereto as Exhibit C.
(f) The Coaxial Principals shall deliver to ICCI an opinion of counsel
to the Coaxial Principals, dated as of the date hereof, in the form attached
hereto as Exhibit D.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Coaxial. Coaxial hereby represents
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and warrants to each Insight Party as follows:
(a) Coaxial has full corporate power and authority to execute, deliver
and perform this Agreement and the execution, delivery and performance by it of
this Agreement have been duly authorized by all necessary corporate action.
(b) This Agreement has been duly and validly executed and delivered by
Coaxial and constitutes a legal and binding obligation of Coaxial, enforceable
against Coaxial in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by
Coaxial do not violate or conflict with any law applicable to Coaxial, any
provision of its constitutional documents, any order or judgment of any court or
other agency or government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets, other
than the Senior Note Indenture, the Discount Note Indenture, any other
agreements related thereto and the Existing Agreements.
(d) Coaxial is the sole owner of the Insight Ohio Common Interest and
has good and valid title to the Insight Ohio Common Interest, free and clear of
all Liens, other than restrictions arising under the Senior Note Indenture, the
Discount Note Indenture, any other agreements related thereto and the Existing
Agreements.
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3.2 Representations and Warranties of the Coaxial Principals. Each
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Coaxial Principal hereby represents and warrants to each Insight Party as to
himself only, as follows:
(a) This Agreement has been duly and validly executed and delivered by
such Coaxial Principal and constitutes a legal and binding obligation of such
Coaxial Principal, enforceable against such Coaxial Principal in accordance with
its terms.
(b) The execution, delivery and performance of this Agreement by such
Coaxial Principal do not violate or conflict with any law applicable to such
Coaxial Principal, any order or judgment of any court or other agency or
government applicable to it or any of its assets or any contractual restriction
binding on or affecting him or any of his assets, other than the Senior Note
Indenture, the Discount Note Indenture, any other agreements related thereto,
and the Existing Agreements.
(c) Such Coaxial Principal is the sole owner of his Coaxial Interests
and has good and valid title to such Coaxial Interests, free and clear of all
Liens, other than restrictions arising under the Senior Note Indenture, the
Discount Note Indenture, any other agreements related thereto, and the Existing
Agreements.
3.3 Representations and Warranties of Insight Ohio. Insight Ohio hereby
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represents and warrants to the Coaxial Parties as follows:
(a) Insight Ohio has full limited liability company power and
authority to execute, deliver and perform this Agreement and the execution,
delivery and performance by it of this Agreement have been duly authorized by
all necessary limited liability company action.
(b) This Agreement has been duly and validly executed and delivered by
Insight Ohio and constitutes a legal and binding obligation of Insight Ohio,
enforceable against Insight Ohio in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by
Insight Ohio and the other parties to this Agreement do not violate or conflict
with any law applicable to Insight Ohio, any provision of the constitutional
documents of Insight Ohio, any order or judgment of any court or other agency or
government applicable to Insight Ohio or any of Insight Ohio's assets, any
contractual restriction binding on or affecting Insight Ohio or any of its
assets, the Senior Note Indenture, or the Discount Note Indenture.
(d) Insight Ohio is the sole owner of the shares of ICCI Stock to be
delivered pursuant to Section 2.2(a)(i), and has good and valid title to such
shares, free and clear of all Liens, other than restrictions arising under the
Senior Note Indenture and the Discount Note Indenture.
3.4 Representations and Warranties of ICCI and Insight LP. ICCI and
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Insight LP hereby jointly and severally represent and warrant to the Coaxial
Parties as follows:
(a) ICCI and Insight LP each has full power and authority to execute,
deliver and perform this Agreement and the execution, delivery and performance
by each of them of this Agreement have been duly authorized by all necessary
action.
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(b) This Agreement has been duly and validly executed and delivered by
ICCI and Insight LP and constitutes a legal and binding obligation of ICCI and
Insight LP, enforceable against each of ICCI and Insight LP in accordance with
its terms.
(c) The execution, delivery and performance of this Agreement by ICCI
and Insight LP do not violate or conflict with any law applicable to ICCI or
Insight LP or any provisions of their respective constitutional documents, any
order or judgment of any court or other agency or government applicable to them
or any of their assets or any contractual restriction binding on or affecting
them or any of their assets.
(d) As of their respective filing dates, none of ICCI's SEC Filings
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated or necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. As of their respective filing dates, each of ICCI's SEC Filings
complied in all material respects with the requirements of the Securities Act
and the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder, to the extent applicable. Except
as disclosed in ICCI's SEC Filings, no event has occurred that has resulted in a
material adverse effect on, or material adverse change in, the business,
financial condition, net worth, assets, liabilities, personnel, operations, or
results of operations of ICCI, other than changes generally affecting the
industry in which ICCI conducts its business. ICCI has delivered to the Coaxial
Principals true and complete copies of ICCI's SEC Filings.
(e) The shares of ICCI Stock to be delivered pursuant to Section
2.2(a)(i) have been duly authorized and are validly issued and outstanding,
fully paid, and non-assessable, with no personal liability attaching to the
ownership thereof.
ARTICLE IV
PUT OPTION
4.1 Grant and Acquisition of Option. Insight LP hereby grants to the
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Coaxial Principals, and the Coaxial Principals hereby acquire from Insight LP,
an option (the "Put Option") for the Coaxial Principals to sell all, but not
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less than all, of the Coaxial Interests to Insight LP on the terms and
conditions hereinafter set forth.
4.2 Purchase Price.
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(a) As consideration for the purchase of the Coaxial Interests upon
exercise of the Put Option, Insight LP will:
(i) Pay to the Coaxial Principals up to the full amount of the
Put Price specified in Section 4.8 by Federal wire transfer to an account
designated by the Coaxial Principals (or by other means agreed to between
Insight LP and the Coaxial Principals); and
(ii) Subject to Section 4.2(b), issue to the Coaxial Principals a
number of shares of ICCI Stock that, upon their sale by the Coaxial Principals
in accordance with Section 4.2(a)(ii)(A), the manner of sale provisions of the
registration statement referred to in Section 4.2(a)(ii)(A), and the
underwriting agreement described therein, would generate net proceeds
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(after deducting underwriting discounts, commissions, and other similar
investment banking charges, but without deducting other expenses of sale) at
least equal to the amount by which any payment made by Insight LP pursuant to
Section 4.2(a)(i) is less than the full amount of the Put Price specified in
Section 4.8. If Insight LP elects to issue shares of ICCI Stock to the Coaxial
Principals pursuant to this Section 4.2(a)(ii), then:
(A) All such shares of ICCI Stock (A) shall be duly authorized
and shall be validly issued and outstanding, fully paid, and non-assessable,
with no personal liability attaching to the ownership thereof and (B) shall be
capable of being lawfully sold to the public by the Coaxial Principals within
ten days after their delivery to the Coaxial Principals in a single transaction
pursuant to a then effective registration statement under the Securities Act
(and the registration of such shares shall be effected in accordance with the
Registration Rights Agreement).
(B) The Coaxial Principals will repay to Insight LP the amount,
if any, by which the sum of (A) the net proceeds (after deducting underwriting
discounts, commissions, and other similar investment banking charges, but
without deducting other expenses of sale) realized by the Coaxial Principals
from the sale of such shares of ICCI Stock plus (B) the amount of any payment
made by Insight LP pursuant to Section 4.2(a)(i) exceeds the full amount of the
Put Price specified in Section 4.8.
(b) If the Coaxial Principals notify Insight LP in writing at least
five days prior to the Put Closing that they do not desire to sell the shares of
ICCI Stock issued to them pursuant to Section 4.2(a)(ii) immediately following
the Put Closing, then (1) the number of shares of ICCI Stock issued to the
Coaxial Principals shall be such that the aggregate value of such shares
(calculated at the average Closing Price per share of ICCI Stock for the ten
consecutive trading days immediately preceding the Put Closing) equals the
amount by which any payment made by Insight LP pursuant to Section 4.2(a)(i) is
less than the full amount of the Put Price specified in Section 4.8; and (2) the
Coaxial Principals will have no obligation under Section 4.2(a)(ii)(B) with
respect to such shares of ICCI Stock.
4.3 Notice of Triggering Event; Exercise of Put Option.
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(a) Insight LP will give the Coaxial Principals written notice at
least thirty days prior to the time that any Insight Party takes any action that
would cause a Triggering Event (the "Debt Repayment Notice"). A Debt Repayment
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Notice shall specify the nature of the anticipated Triggering Event and the date
on which Insight LP expects that the Triggering Event will occur. A Debt
Repayment Notice shall identify itself as such and specify that it is being
given pursuant to this Section 4.3. Upon receipt of a Debt Repayment Notice, the
Coaxial Principals will take any action reasonably requested by Insight Ohio and
Insight LP to permit Insight Ohio, Coaxial, and the Coaxial Shareholders to
consummate the repayment or modification of the Senior Debt or the Subordinated
Debt that constitutes the Triggering Event (including executing and delivering
any consent, approval, or authority); provided that the Coaxial Principals will
have no obligation to incur any expense or liability in connection with the
repayment or modification of the Senior Debt or the Subordinated Debt, and
Insight Ohio shall pay all costs and expenses incurred by any of the Coaxial
Principals in connection with the consummation of such repayment or
modification.
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(b) The Put Option shall be exercisable:
(i) during the period beginning upon the delivery to the Coaxial
Principals in the manner provided in Section 9.1 of any Debt Repayment Notice
and ending twenty days later, unless the period expires earlier due to the
revocation of such Debt Repayment Notice; and
(ii) during the period beginning on the date on which the Coaxial
Principals and Insight LP receive an opinion of counsel for the Coaxial
Principals that a Triggering Event has occurred (other than a Triggering Event
described in a Debt Repayment Notice that occurs within five business days of
the expected closing date specified in the Debt Repayment Notice) and ending ten
(10) days later; and
(iii) during the period beginning upon the delivery to the Coaxial
Principals in the manner provided in Section 9.1 of a notice from Insight LP
pursuant to Section 6.3(a), if Insight LP makes the election described in
Section 6.2, and ending twenty days later; and
(iv) at any time after August 15, 2008.
(c) Insight LP may revoke a Debt Repayment Notice at any time prior to the
Triggering Event by giving notice of such revocation to the Coaxial Principals,
whereupon any exercise of the Put Option in response to such Debt Repayment
Notice shall become null and void. After revoking a Debt Repayment Notice,
Insight LP may deliver a subsequent Debt Repayment Notice in accordance with
this Section 4.3.
(d) Insight LP may revoke a notice pursuant to Section 6.3(a) at any time
prior to the Asset Disposition described in the notice by giving notice of such
revocation to the Coaxial Principals, whereupon any exercise of the Put Option
pursuant to Section 4.3(b)(iii) in response to such notice shall become null and
void.
(e) During such time as the Put Option is exercisable, the Coaxial
Principals may exercise the Put Option by the giving of notice of such exercise
to Insight LP. Any exercise of the Put Option following the delivery of a Debt
Repayment Notice in accordance with Section 4.3(b)(i) shall be contingent on the
consummation of the transaction described in such Debt Repayment Notice that
constitutes a Triggering Event. Any exercise of the Put Option following the
delivery of a notice pursuant to Section 6.3(a) in accordance with Section
4.3(b)(iii) shall be contingent on the consummation of the Asset Disposition
described in such notice.
4.4 Closing of Purchase of Coaxial Interests Upon Exercise of the Put
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Option.
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(a) Closing. Subject to the conditions in Section 4.6, the Put Closing
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shall take place (i) if the Put Option is exercised following the delivery of a
Debt Repayment Notice in accordance with Section 4.3(b)(i), immediately prior to
the consummation of the transaction constituting the Triggering Event described
in the Debt Repayment Notice; (ii) if the Put Option is exercised following the
occurrence of a Triggering Event in accordance with Section 4.3(b)(ii), on the
first business day that is at least ten (10) days after the exercise of the Put
Option; (iii) if the Put Option is exercised pursuant to Section 4.3(b)(iii),
immediately prior to
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the consummation of the Asset Disposition that gave rise to Insight LP's
election pursuant to Section 6.2; and (iv) if the Put Option is exercised in
accordance with Section 4.3(b)(iv), on the first business day that is at least
ten (10) days after the exercise of the Put Option. The Put Closing shall take
place at the offices of Sonnenschein Nath & Rosenthal, New York, New York, or at
such other location as may be agreed to between Insight LP and the Coaxial
Principals.
(b) Deliveries. At the Put Closing:
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(i) The Coaxial Principals shall deliver to Insight LP or its designee
certificates representing the Coaxial Interests, duly endorsed or accompanied by
appropriate stock powers, or, if any of the Coaxial Interests are not
certificated, a written assignment of such interests to Insight LP or its
designee.
(ii) Insight LP shall pay the Put Price to the Coaxial Principals. To
the extent that Insight LP pays any portion of the Put Price in shares of ICCI
Stock, Insight LP will deliver to the Coaxial Principals certificates
representing such shares, duly endorsed or accompanied by appropriate stock
powers.
(iii) If Insight LP pays any portion of the Put Price in shares of
ICCI Stock pursuant to Section 4.2(a)(ii), ICCI shall deliver to the Coaxial
Principals a certificate, dated as of the date of the Put Closing, to the effect
that:
(A) As of their respective filing dates, none of ICCI's SEC
Filings contained any untrue statement of a material fact or omitted to state
any material fact required to be stated or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
(B) As of their respective filing dates, each of ICCI's SEC
Filings complied in all material respects with the requirements of the
Securities Act and the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder, to the extent
applicable.
(C) Except as disclosed in ICCI's SEC Filings, no event has
occurred that has resulted in a material adverse effect on, or material adverse
change in, the business, financial condition, net worth, assets, liabilities,
personnel, operations, or results of operations of ICCI, other than changes
generally affecting the industry in which ICCI conducts its business.
(iv) Each Coaxial Principal shall deliver to Insight LP or its
designee a certificate, dated as of the date of the Put Closing, to the effect
that such Coaxial Principal is conveying good and valid title to his Coaxial
Interests, free and clear of all Liens, other than restrictions arising under
the Senior Note Indenture, the Discount Note Indenture, any other agreements
related thereto, and the Existing Agreements, and Liens securing liabilities
permitted by Section 4.6(a) and Section 4.6(b).
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4.5 Distribution of Assets.
----------------------
(a) Except as provided in Section 4.5(b), Section 4.5(c), and Section
4.5(d), at any time after the first anniversary of the date of this Agreement,
immediately prior to the assignment of the Coaxial Interests upon exercise of
the Put Option, Coaxial shall distribute to the Coaxial Shareholders and the
Coaxial Shareholders shall distribute to the Coaxial Principals, free and clear
of all liens, security interests or other adverse claims (other those created by
or consented to by the Coaxial Principals), all assets held by either Coaxial or
the Coaxial Shareholders immediately prior to the Put Closing other than (1)
membership interests in Insight Ohio, (2) shares of capital stock in Coaxial,
(3) contractual rights arising under or in connection with the Senior Debt or
Subordinated Debt, the Insight Ohio Operating Agreement and any other agreement
between Coaxial or any of the Coaxial Shareholders and any Insight Party or any
of their Affiliates, (4) assets acquired at the direction of Insight Holdings,
directly or indirectly, through its control over the business and affairs of the
Coaxial Shareholders, and (5) internal corporate records and other similar
assets.
(b) Except as otherwise agreed to by the Coaxial Principals, Coaxial
and the Coaxial Shareholders shall not make the distributions pursuant to
Section 4.5(a) if the assets to be distributed are subject to any adverse claim
made by or on behalf of the holders of the Senior Debt or the Subordinated Debt
as a result of any actual or alleged violation of the Senior Note Indenture, the
Discount Note Indenture, or any other agreements relating to the Senior Debt or
the Subordinated Debt (other than any actual or alleged violation to be cured in
full upon the repayment of the Senior Debt and the Subordinated Debt in
connection with the Triggering Event that gave rise to the exercise by the
Coaxial Principals of the Put Option).
(c) Coaxial and the Coaxial Shareholders shall not make the
distributions pursuant to Section 4.5(a) if the Coaxial Principals exercise the
Put Option pursuant to Section 4.3(b)(iii).
(d) Coaxial and the Coaxial Shareholders shall not make any
distributions of Stock Consideration pursuant to Section 4.5(a) without the
consent of Insight LP.
4.6 Conditions to Purchase of Coaxial Interests. Insight LP, or its
-------------------------------------------
designee, shall not be required to purchase the Coaxial Interests upon the
exercise of the Put Option, or to pay the Put Price specified in Section 4.2,
unless, on the date on which the Coaxial Interests are to be conveyed to Insight
LP:
(a) The Coaxial Shareholders and Coaxial Financing Corp. shall have no
liabilities other than (i) the Subordinated Debt, liabilities arising under or
in connection with the Discount Note Indenture, or under any agreement between
any of the Coaxial Shareholders and any Insight Party or any of their
Affiliates, and liabilities incurred at the direction of Insight Holdings,
directly or indirectly, through its control over the business and affairs of the
Coaxial, Shareholders and (ii) other liabilities (such as accrued administrative
expenses) that are not significant in amount and for which the Coaxial
Principals agree to indemnify Insight LP.
(b) Coaxial shall have no liabilities other than (i) the Senior Debt,
liabilities arising under the Insight Ohio Operating Agreement or under any
other agreement between
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Coaxial and any Insight Party or any of their Affiliates, and liabilities
incurred at the direction of Insight Holdings, directly or indirectly, through
its control over the business and affairs of Coaxial, and (ii) other liabilities
(such as accrued administrative expenses) that are not significant in amount and
for which the Coaxial Principals agree to indemnify Insight LP.
(c) The Coaxial Principals shall have satisfied or made adequate
provision for the satisfaction of all liabilities described in clause (ii) of
Section 4.6(a) and clause (ii) of Section 4.6(b) to the extent that the amount
of such liabilities can be determined as of the Put Closing.
4.7 Certain Covenants. Prior to the earlier of the Put Closing or the
-----------------
termination of the Put Option:
(a) No party hereto shall make an election under Sections 338 or
338(h)(10) of the Internal Revenue Code of 1986, as amended (the "Code"), with
----
respect to Coaxial, without the consent of each of the other parties.
(b) No party hereto shall take any action that would change Coaxial's
classification as an "S" corporation as defined in Section 1361(a)(i) of the
Code.
4.8 Put Price.
---------
(a) Subject to Section 4.8(b), the purchase price to be paid for the
Coaxial Interests upon exercise of the Put Option (the "Put Price") shall be the
---------
Target Amount reduced, but not below one dollar, by the sum of the following
amounts:
(i) If Coaxial or the Coaxial Principals have consummated a
Qualifying Sale of any part of the Stock Consideration, the Put Price shall be
reduced by the net proceeds (after deducting underwriting discounts,
commissions, and other similar investment banking charges, but without deducting
other expenses of sale) realized by Coaxial or the Coaxial Principals from such
Qualifying Sale.
(ii) If Coaxial or the Coaxial Principals have sold any part of
the Stock Consideration and Section 4.8(a)(i) does not apply to such part of the
Stock Consideration, the Put Price shall be reduced by the aggregate Market
Value of such part of the Stock Consideration as of the Put Closing; provided,
however, that if Coaxial or the Coaxial Principals sold such part of the Stock
Consideration and, at any time after the closing of such sale and prior to the
Put Closing, the Market Value of such part of the Stock Consideration exceeds
the product of the Target Amount times a fraction, the numerator of which is the
number of shares or units represented by the Stock Consideration sold by Coaxial
and the Coaxial Principals and the denominator of which is the number of shares
or units represented by all the Stock Consideration, then the Put Price shall be
reduced by the product of the Target Amount times a fraction, the numerator of
which is the number of shares or units represented by the Stock Consideration
sold by Coaxial or the Coaxial Principals and the denominator of which is the
number of shares or units represented by all the Stock Consideration.
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<PAGE>
(iii) If Section 4.8(a)(i) and Section 4.8(a)(ii) do not apply to any
part of the Stock Consideration, then the Put Price shall be reduced by:
(A) if the Coaxial Principals did not elect pursuant to Section
4.8(d) to sell such part of the Stock Consideration, the aggregate Market Value
of such part of the Stock Consideration as of the Put Closing; or
(B) if the Coaxial Principals elected pursuant to Section 4.8(d)
to sell such part of the Stock Consideration, the net proceeds (after deducting
underwriting discounts, commissions, and other similar investment banking
charges, but without deducting other expenses of sale) realized by the Coaxial
Principals from the sale of such part of the Stock Consideration.
(b) No reduction in the Put Price shall be made pursuant to Section 4.8(a)
with respect to any part of the Stock Consideration unless such part of the
Stock Consideration or the net proceeds of the sale of such part of the Stock
Consideration (in whatever form such proceeds may be invested or reinvested
prior to the Put Closing) has been distributed to the Coaxial Principals at any
time at or prior to the Put Closing, pursuant to Section 4.5(a) or otherwise.
(c) For purposes of this Section 4.8:
(i) "Stock Consideration" shall mean the shares of ICCI Stock issued
to Coaxial pursuant to Section 2.2(a)(i), subject to the following adjustments
with respect to each event described in this Section 4.8(c)(i) that occurs after
the date of this Agreement and prior to the Put Closing:
(A) If such shares of ICCI Stock (or other securities
constituting Stock Consideration) are increased, decreased, changed into, or
exchanged for a different number or kind of shares or securities of ICCI (or any
successor) through reorganization, recapitalization, reclassification, stock
dividend, stock split or reverse stock split, or other similar transaction, an
appropriate adjustment shall be made with respect to number and kind of shares
or securities constituting the Stock Consideration.
(B) Upon a reorganization, merger or consolidation of ICCI (or
any successor) with one or more other corporations or entities (any of the
foregoing, a "Business Combination") pursuant to which ICCI Stock (or other
--------------------
securities constituting Stock Consideration) are converted into or exchanged for
any other security ("Replacement Securities"), the Stock Consideration shall
----------------------
become the number of shares or units of Replacement Securities issued in
exchange for the Stock Consideration pursuant to such Business Combination.
(ii) The "Market Value" of a share of ICCI Stock or any other
securities constituting the Stock Consideration as of any date shall be the
average Closing Price thereof for the ten consecutive trading days immediately
preceding such date.
(iii) The "Market Value" of any asset that is not listed or admitted
for trading on a national securities exchange, the Nasdaq National Market or the
Nasdaq Stock
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<PAGE>
Market shall be the fair market value of such asset as agreed to among ICCI and
the Coaxial Principals.
(iv) A "Qualifying Sale" means a sale of all or part of the Stock
Consideration then owned by Coaxial or the Coaxial Principals in which the net
proceeds realized by Coaxial or the Coaxial Principals (after deducting
underwriting discounts, commissions, and other similar investment banking
charges, but without deducting other expenses of sale) exceed the product of the
Target Amount times a fraction, the numerator of which is the number of shares
or units represented by the Stock Consideration sold by Coaxial or the Coaxial
Principals and the denominator of which is the number of shares or units
represented by the Stock Consideration.
(d) With respect to any part of the Stock Consideration to be distributed
to the Coaxial Principals immediately prior to the Put Closing pursuant to
Section 4.5(a), the Coaxial Principals may elect to sell such part of the Stock
Consideration as soon as practicable after the Put Closing. The Coaxial
Principals may make an election pursuant to this Section 4.8(d) by giving
written notice of their election to Insight LP within five business days after
Insight LP consents pursuant to 4.5(d) to the distribution of such Stock
Consideration to the Coaxial Principals. If the Coaxial Principals elect
pursuant to this Section 4.8(d) to sell any part of the Stock Consideration,
then:
(i) Insight LP and ICCI will cooperate with the Coaxial Principals to
allow the orderly and lawful disposition of such part of the Stock Consideration
to be consummated as quickly as practicable, consistent with legal requirements
and market conditions. To the extent required for the orderly and lawful
disposition of such part of the Stock Consideration, ICCI shall undertake to
cause such part of the Stock Consideration to be registered in accordance with
the Registration Rights Agreement. The Coaxial Principals will undertake to sell
such part of the Stock Consideration in accordance with any reasonable plan of
distribution developed by Insight LP. that complies with this Section 4.8(d)(i).
(ii) At the Put Closing, Insight LP will pay to the Coaxial
Principals, in the manner specified in Section 4.2(a), the Put Price,
calculated, solely for purposes of determining the amount payable at the Put
Closing, as if the net proceeds from the sale of such part of the Stock
Consideration were equal to the aggregate Market Value of such part of the Stock
Consideration as of the Put Closing.
(A) If the amount paid to the Coaxial Principals pursuant to
Section 4.8(d)(ii) exceeds the Put Price, as finally determined under Section
4.8(a)(iii)(B) based on the actual net proceeds realized from the sale of such
part of the Stock Consideration, the Coaxial Principals will promptly repay to
Insight LP the amount of such excess.
(B) If the amount paid to the Coaxial Principals pursuant to
Section 4.8(d)(ii) is less than the Put Price, as finally determined under
Section 4.8(a)(iii)(B) based on the actual net proceeds realized from the sale
of such part of the Stock Consideration, Insight LP will promptly pay to the
Coaxial Principals the amount of such deficiency.
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<PAGE>
4.9 Termination of Put Option.
-------------------------
(a) The Put Option shall terminate, and the Coaxial Principals shall
no longer have the right to sell the Coaxial Interests to Insight LP, if, at any
time after the date of this Agreement, all of the following conditions are
satisfied simultaneously:
(i) Coaxial or the Coaxial Principals shall continue to own any
of the Stock Consideration;
(ii) all of the Stock Consideration then owned by Coaxial and the
Coaxial Principals shall be listed or admitted for trading on a national
securities exchange, the Nasdaq National Market or the Nasdaq Stock Market;
(iii) Insight LP shall have delivered to the Coaxial Principals
an undertaking from an independent investment banking firm to underwrite a sale
by Coaxial and the Coaxial Principals of all Stock Consideration then owned by
any of them, on customary terms and subject only to customary conditions,
together with an opinion of such independent investment banking firm that the
net proceeds of a sale of such Stock Consideration to the public in an
underwritten public offering (after deducting underwriting discounts,
commissions, and other similar investment banking charges, but without deducting
other expenses of sale) are likely to be greater than the product of the Target
Amount times a fraction, the numerator of which is the number of shares or units
represented by the Stock Consideration then owned by Coaxial and the Coaxial
Principals, collectively, and the denominator of which is the number of shares
or units represented by the Stock Consideration;
(iv) all of the Stock Consideration then owned by Coaxial may be
sold in an underwritten public offering as described in Section 4.9(a)(iii)
without violating or conflicting with the Senior Note Indenture, the Discount
Note Indenture, or any other agreements relating to the Senior Debt or the
Subordinated Debt;
(v) either (i) all net proceeds from Coaxial's sales of the Stock
Consideration may be distributed by Coaxial to the Coaxial Shareholders and by
the Coaxial Shareholders to the Coaxial Principals without violating any
contractual restriction binding on or affecting Coaxial or any of the Coaxial
Shareholders or any of their respective assets, including the Senior Note
Indenture, the Discount Note Indenture, and any other agreements related thereto
or (ii) ICCI or an Affiliate of ICCI shall have agreed to lend to each Coaxial
Principal the amount of any tax liabilities incurred by him on a sale of the
Stock Consideration by Coaxial on the following terms: (A) the loan shall be
non-recourse to the borrower, (B) the loan shall be secured only by the
borrower's interest in the Coaxial Shareholders and any distributions thereon,
(C) payments of principal or interest on the loan shall only be required at such
time as Coaxial and the Coaxial Shareholders are able to distribute proceeds
from the sale of the Stock Consideration to the Coaxial Principals, and then
only to the extent of such distributions to the Coaxial Principals, and (D) the
loan shall bear interest at the weighted average cost of funds of ICCI and its
subsidiaries for their secured debt or, if ICCI and its subsidiaries have no
secured debt, for their senior debt; and
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<PAGE>
(vi) either (i) the Coaxial Principals shall have failed to notify
Insight LP in writing within thirty days after their receipt of the undertaking
and opinion described in Section 4.9(a)(iii) of their intent to sell and to
cause Coaxial to sell all of the Stock Consideration then owned by Coaxial and
the Coaxial Principals in such an underwritten public offering or (ii) the
Coaxial Principals shall have notified Insight LP in writing within thirty days
after their receipt of the undertaking and opinion described in Section
4.9(a)(iii) of their intent to sell and to cause Coaxial to sell all of the
Stock Consideration then owned by Coaxial and the Coaxial Principals in such an
underwritten public offering, but shall have failed to use their good faith
efforts for at least ninety days thereafter to cause such a sale that would
constitute a Qualifying Sale to be consummated.
(b) The Put Option shall terminate, and the Coaxial Principals shall no
longer have the right to sell the Coaxial Interests to Insight LP, upon the
happening of any of the following events:
(i) upon the consummation of a transaction described in a Debt
Repayment Notice that constitutes a Triggering Event, if such transaction is
consummated within five business days of the expected closing date specified in
the Debt Repayment Notice and the Coaxial Principals did not exercise the Put
Option pursuant to Section 4.3(b)(i) following their receipt of such Debt
Repayment Notice;
(ii) upon the consummation of the Asset Disposition described in a
notice pursuant to Section 6.3(a), if the Coaxial Principals did not exercise
the Put Option pursuant to Section 4.3(b)(iii) following their receipt of such
notice; and
(iii) if a Triggering Event described in Section 4.3(b)(ii) has
occurred, upon the expiration of the period during which the Coaxial Principals
may exercise the Put Option pursuant to Section 4.3(b)(ii), if the Coaxial
Principals failed to exercise the Put Option pursuant to Section 4.3(b)(ii)
during such period.
ARTICLE V
RIGHT OF FIRST OFFER WITH RESPECT TO STOCK CONSIDERATION
5.1 First Offer. If Coaxial or any Coaxial Principal (each, a "Seller")
----------- ------
desires to sell any of the Stock Consideration, it shall first offer to sell to
Insight LP all of the Stock Consideration that such Seller desires to sell, for
a purchase price equal to the aggregate Market Value of such Stock Consideration
(determined in accordance with Section 4.8(a)(i)) as of the date on which the
offer is made. If Insight LP desires to purchase some or all of the Stock
Consideration that such Seller desires to sell, Insight LP shall deliver a
written acceptance of such Seller's offer to such Seller within five business
days after its receipt of the offer, specifying the amount of the Stock
Consideration that Insight LP desires to purchase. After compliance with the
foregoing provisions of this Section 5.1, a Seller may sell any or all of the
Stock Consideration that such Seller offered to Insight LP (other than that
portion that Insight LP elected to purchase) to any Person on any terms, so long
as (a) the sale is consummated within thirty days after the later of (i) the
deadline for Insight LP's acceptance of the Seller's offer or (ii) the date on
which any registration statement relating to the sale of such Stock
Consideration becomes effective and (b) if the sale is not a Market Sale, the
purchase price per share paid to the
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Seller in such sale is not less than the purchase price per share at which such
Stock Consideration was offered to Insight LP. Any sale by a Seller of Stock
Consideration after the expiration of such thirty-day period, and any sale by
Coaxial or any Coaxial Principal of Stock Consideration that was not offered to
Insight LP, shall continue to be subject to the rights of Insight LP under this
Section 5.1. For purposes of this Section 5.1, a "Market Sale" shall mean a sale
in accordance with Rule 144 or Rule 145 under the Securities Act (or any
successor to either of such rules), a sale that satisfies the manner of sale
requirements of Rule 144 or Rule 145 under the Securities Act (or any successor
to either of such rules), whether or not either of such rules is applicable to
such sale, or a sale in public offering pursuant to a registration statement
filed under the Securities Act.
5.2 Closing. The closing of the purchase and sale of the Stock
-------
Consideration upon exercise of the right of first offer described in Section 5.1
shall take place (a) on the first business day that is at least ten (10) days
after Insight LP's acceptance of the Seller's offer and (b) at the offices of
Sonnenschein Nath & Rosenthal, New York, New York, or at such other location as
may be agreed to between Insight LP and the Seller.
5.3 Termination. The provisions of this Article V shall terminate
-----------
automatically upon the earlier of the Put Closing or the termination of the Put
Option pursuant to Section 4.9.
ARTICLE VI
CERTAIN ASSET DISPOSITIONS
6.1 Asset Dispositions. If Insight Ohio or any subsidiary of Insight Ohio
------------------
consummates any Asset Disposition, then, except as provided in Section 6.2,
Insight LP will pay to the Coaxial Principals an amount equal to the aggregate
tax liabilities incurred by the Coaxial Principals (a) as a result of such Asset
Disposition and (b) as a result of any payment to the Coaxial Principals under
this Section 6.1 (the "Disposition Taxes").
-----------------
6.2 Exception. In lieu of making a payment pursuant to Section 6.1 in
---------
connection with any Asset Disposition, Insight LP may elect, in its notice to
the Coaxial Principals pursuant to Section 6.3(a), to grant the Coaxial
Principals the right to exercise the Put Option in accordance with Section
4.3(b)(iii).
6.3 Procedures.
----------
(a) Insight LP will give the Coaxial Principals written notice at
least thirty days prior to effecting any Asset Disposition. The notice pursuant
to Section 6.3(a) shall (i) specify whether Insight LP has elected pursuant to
Section 6.2 to grant the Coaxial Principals the right to exercise the Put Option
in accordance with Section 4.3(b)(iii); (ii) describe the Asset Disposition in
reasonable detail; and (iii) include an estimate of the amount and character of
the income to be recognized by the Coaxial Principals as a result of such Asset
Disposition.
(b) If Insight LP does not elect to grant the Coaxial Principals the
right to exercise the Put Option in accordance with Section 4.3(b)(iii), then,
as soon as practicable and in any event within thirty days after the
consummation of such Asset Disposition, Insight LP will furnish the Coaxial
Principals with all information concerning such Asset Disposition that is
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<PAGE>
necessary to enable the Coaxial Principals to calculate the aggregate tax
liabilities to be incurred by the Coaxial Principals as a result of such Asset
Disposition.
(c) As soon as practicable and in any event within thirty days after
their receipt from Insight LP of all the information described in Section
6.3(b), the Coaxial Principals will calculate the Disposition Taxes relating to
such Asset Disposition and will deliver written notice to Insight LP specifying
the amount of such Disposition Taxes. The Coaxial Principals will furnish
Insight LP will all information necessary to enable Insight LP to verify the
calculation of such Disposition Taxes (other than information concerning the
Asset Disposition that was furnished to the Coaxial Principals by Insight LP).
(d) Insight LP shall pay to the Coaxial Principals the amount
specified in the notice from the Coaxial Principals specified in Section 6.3(c)
by Federal wire transfer to an account designated by the Coaxial Principals (or
by other means agreed to between Insight LP and the Coaxial Principals) on the
later of (a) the first business day that is at least ten days after Insight LP
receives the notice from the Coaxial Principals specified in Section 6.3(c) or
(b) the date on which such Asset Disposition is consummated.
(e) If Insight LP disagrees with the Coaxial Principals' calculation
of the Disposition Taxes relating to any Asset Disposition, it shall notify the
Coaxial Principals in writing within ten days after its receipt of the notice
and other information required to be furnished to Insight LP pursuant to Section
6.3(c). If the Coaxial Principals determine that the Disposition Taxes actually
incurred by them exceed the amount specified in their notice to Insight LP
pursuant to Section 6.3(c), the Coaxial Principals shall promptly notify Insight
LP of the amount of the Disposition Taxes actually incurred by them. In either
event, Insight LP and the Coaxial Principals shall attempt in good faith to
agree on the actual amount of the Disposition Taxes. If Insight LP and the
Coaxial Principals are unable to agree on the actual amount of the Disposition
Taxes, either Insight LP or the Coaxial Principals may elect to submit their
disagreement to a nationally recognized firm of independent public accountants
agreed to by Insight LP and the Coaxial Principals (the "Auditor") for
-------
resolution. The decision of the Auditor shall be binding on the parties;
provided, however, that any final determination pursuant to this Section 6.3(e)
of the actual Disposition Taxes shall take into account all tax returns filed by
the Coaxial Principals. In the event of a subsequent audit or examination of the
amount of the Disposition Taxes by any tax authority, the amount of the
Disposition Taxes determined upon the final resolution of such audit or
examination shall be the final determination of the actual Disposition Taxes
under this Section 6.3(e). Following the resolution of any disagreement between
Insight LP and the Coaxial Principals concerning the Disposition Taxes resulting
from any Asset Disposition:
(i) If the amount paid to the Coaxial Principals pursuant to
Section 6.3(d) exceeds the actual Disposition Taxes, as finally determined
pursuant to this Section 6.3(e), the Coaxial Principals will promptly repay to
Insight LP the amount of such excess.
(ii) If the amount paid to the Coaxial Principals pursuant to
Section 6.3(d) is less than the actual Disposition Taxes, as finally determined
pursuant to this Section 6.3(e), Insight LP will promptly pay to the Coaxial
Principals the amount of such deficiency.
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ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by Coaxial Parties. The Coaxial Principals, jointly
----------------------------------
and severally, shall indemnify, protect and hold harmless ICCI, Insight LP and
Insight Ohio from and against all Losses arising from (a) any breach of any
representation or covenant of a Coaxial Party contained in this Agreement or in
any certificate delivered by a Coaxial Party to any of the Insight Parties
pursuant to this Agreement, (b) any liability of Coaxial, Coaxial Financing
Corp., or the Coaxial Shareholders that is not described in Section 4.6(a) or
Section 4.6(b), or (c) any liability of Coaxial, Coaxial Financing Corp., or the
Coaxial Shareholders for which the Coaxial Principals have agreed to indemnify
Insight LP pursuant to clause (ii) of Section 4.6(a) or clause (ii) of Section
4.6(b). The Coaxial Principals further agree, jointly and severally, to satisfy
any liability described in clause (ii) of Section 4.6(a) or clause (ii) of
Section 4.6(b) that is not satisfied at or prior to the Put Closing as soon
thereafter as the amount of such liability can be determined.
7.2 Indemnification by Insight LP.
-----------------------------
(a) Insight LP shall indemnify, protect and hold harmless each Coaxial
Party from and against all Losses arising from any breach of any representation
or covenant of ICCI, Insight LP or Insight Ohio contained in this Agreement or
in any certificate delivered by an Insight Party to any of the Coaxial Parties
pursuant to this Agreement.
(b) If a Triggering Event occurs that was not described in a Debt
Repayment Notice or if any Asset Disposition is consummated prior to the Put
Closing, Insight LP shall indemnify the Coaxial Principals for any federal tax
liabilities incurred by them (i) as a result of such Triggering Event or Asset
Disposition, to the extent that the total federal tax liabilities incurred by
them as a result of such Triggering Event or Asset Disposition and the sale of
the Coaxial Interests at the Put Closing exceed the total federal tax
liabilities that would have been incurred by the Coaxial Principals if the
Coaxial Interests had been sold to Insight LP before the Triggering Event or
Asset Disposition had occurred and (ii) as a result of their receipt of any
indemnification payment under this Section 7.2(b); provided, however, that (A)
Insight LP's aggregate liability under clause (i) of this Section 7.2(b) shall
not exceed $7,000,000; (B) Insight LP shall have no liability under this Section
7.2(b) with respect to any Triggering Event that occurs after the termination of
the Put Option pursuant to Section 4.9; and (C) Insight LP's aggregate liability
under clause (i) of this Section 7.2(b) with respect to any Asset Disposition
shall be reduced by the difference between (x) the amount of the payment made
pursuant to Section 6.1 with respect to such Asset Disposition and (y) the
amount by which the Target Amount was decreased pursuant to the definition
thereof as a result of such payment.
(c) Insight LP shall satisfy its obligation to make any
indemnification payment to the Coaxial Principals pursuant to Section 7.2(b) by:
(i) paying to the Coaxial Principals up to the full amount of
the indemnification payment to which they are entitled by Federal wire transfer
to an account designated by the Coaxial Principals (or by other means agreed to
between Insight LP and the Coaxial Principals); and
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<PAGE>
(ii) subject to Section 7.2(e), issuing to the Coaxial Principals a
number of shares of ICCI Stock that, upon their sale by the Coaxial Principals
in accordance with Section 7.2(d)(i), the manner of sale provisions of the
registration statement referred to in Section 7.2(d)(i), and the underwriting
agreement described therein, would generate net proceeds (after deducting
underwriting discounts, commissions, and other similar investment banking
charges, but without deducting other expenses of sale) at least equal to the
amount by which any payment made by Insight LP pursuant to Section 7.2(c)(i) is
less than the full amount of the indemnification payment to which they are
entitled.
(d) If Insight LP elects to issue shares of ICCI Stock to the Coaxial
Principals pursuant to this Section 7.2(c)(ii), then:
(i) All such shares of ICCI Stock (A) shall be duly authorized and
shall be validly issued and outstanding, fully paid, and non-assessable, with no
personal liability attaching to the ownership thereof and (B) shall be capable
of being lawfully sold to the public by the Coaxial Principals within ten days
after their delivery to the Coaxial Principals in a single transaction pursuant
to a then effective registration statement under the Securities Act (and the
registration of such shares shall be effected in accordance with the
Registration Rights Agreement).
(ii) The Coaxial Principals will repay to Insight LP the amount, if
any, by which the sum of (1) the net proceeds (after deducting underwriting
discounts, commissions, and other similar investment banking charges, but
without deducting other expenses of sale) realized by the Coaxial Principals
from the sale of such shares of ICCI Stock plus (2) the amount of any payment
made by Insight LP pursuant to Section 7.2(c)(i) exceeds the full amount of the
indemnification payment to which they are entitled.
(e) If the Coaxial Principals notify Insight LP in writing at least five
days prior to the date on which the shares of ICCI Stock are delivered to them
pursuant to Section 7.2(c)(ii) that they do not desire to sell such shares
immediately following their receipt of such shares, then (A) the number of
shares of ICCI Stock issued to the Coaxial Principals shall be such that the
value of such shares (calculated at the average Closing Price per share of ICCI
Stock for the ten consecutive trading days immediately preceding the date on
which such shares of ICCI Stock are delivered to the Coaxial Principals) equals
the amount by which any payment made by ICCI pursuant to Section 7.2(c)(i) is
less than the full amount of the indemnification payment to which they are
entitled; and (B) the Coaxial Principals will have no obligation under Section
7.2(d)(ii) with respect to such shares of ICCI Stock.
(f) If Insight LP makes any indemnification payment pursuant to Section
7.2(c) in shares of ICCI Stock, ICCI shall deliver to the Coaxial Principals a
certificate, dated as of the date on which such shares of ICCI Stock are
delivered to the Coaxial Principals, to the effect that:
(i) As of their respective filing dates, none of ICCI's SEC Filings
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated or necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading.
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(ii) As of their respective filing dates, each of ICCI's SEC Filings
complied in all material respects with the requirements of the Securities Act
and the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder, to the extent applicable.
(iii) Except as disclosed in ICCI's SEC Filings, no event has occurred
that has resulted in a material adverse effect on, or material adverse change
in, the business, financial condition, net worth, assets, liabilities,
personnel, operations, or results of operations of ICCI, other than changes
generally affecting the industry in which ICCI conducts its business.
ARTICLE VIII
GUARANTY BY ICCI
8.1 ICCI hereby guarantees to the Coaxial Parties the full, complete, and
timely performance by Insight LP of its payment obligations hereunder, including
any payment obligations arising under Section 7.2. If any default shall be made
by Insight LP in the performance of any of such obligations, then ICCI will
itself perform or cause to be performed such obligation immediately upon notice
from any of the Coaxial Parties specifying in summary form the default. Any
Coaxial Party may proceed to enforce its rights against ICCI, from time to time
prior to, contemporaneously with, or after any enforcement against Insight LP,
or without any enforcement against Insight LP.
8.2 The obligations of ICCI under this Article VIII shall be absolute and
unconditional and shall remain in full force and effect without regard to and
shall not be released, discharged, or in any way affected by (a) any amendment
or modification of or supplement to the this Agreement, (b) any exercise or non-
exercise of or delay in exercising any right, remedy, power, or privilege under
or in respect of this Agreement, (c) any bankruptcy, insolvency, arrangement,
composition, assignment for the benefit of creditors, or similar proceeding
commenced by or against Insight LP or ICCI, (d) the dissolution (voluntarily or
involuntarily) of Insight LP, (e) the genuineness, validity, or enforceability
of this Agreement, or (f) any other circumstances that might otherwise
constitute a legal or equitable discharge of a guarantor or surety. If payment
of any sum by Insight LP pursuant to this Agreement is recovered as a preference
or fraudulent transfer under any applicable bankruptcy or insolvency law, the
liability of ICCI under this Article VIII shall continue and remain in full
force and effect notwithstanding such recovery.
8.3 ICCI waives presentment, protest, demand, or action or delinquency in
respect of any of the obligations of Insight LP under this Agreement. ICCI
waives all set-offs and counterclaims and all notices of nonperformance, notices
of protest, notices of dishonor, and notices of acceptance of this guaranty.
8.4 This guaranty shall be deemed a continuing guaranty, and the above
consents and waivers of ICCI shall remain in full force and effect until the
satisfaction in full of all obligations of Insight LP under this Agreement.
8.5 ICCI agrees that any and all claims in its favor against Insight LP,
any endorser or any other guarantor of all or any part of the obligations of
Insight LP under this Agreement, or
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against any of their respective properties, arising by reason of any payment by
ICCI to any Coaxial Party pursuant to the provisions hereof or otherwise, shall
be subordinate and subject in right of payment to the prior payment, in full, of
all obligations of Insight LP under this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. All notices or other communications required or permitted
-------
hereunder shall be in writing and shall be deemed given or delivered when
delivered personally, by overnight commercial courier, facsimile transmission or
mail (return receipt requested, first class postage prepaid) to the parties at
the addresses or facsimile numbers set forth below:
To the Coaxial Parties:
----------------------
c/o Coaxial Communications
5111 Ocean Boulevard
Suite C
Sarasota, FL 34242
Attention: Dennis McGillicuddy
Fax: (941) 346-2788
With copies to:
--------------
Fried, Frank, Harris, Shriver & Jacobson
1001 Pennsylvania Avenue, N.W., Suite 800
Washington, D.C. 20004-2505
Attention: Alan S. Kaden, Esq.
Fax: (202) 639-7008
and
Dow, Lohnes & Albertson
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Attention: David D. Wild
Fax: (202) 776-4704
To any Insight Party:
--------------------
c/o Insight Communications Company, Inc.
810 Seventh Avenue
New York, NY 10019
Attention: Elliot Brecher, Senior Vice President and General Counsel
Fax: (917) 286-2301
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With a copy to:
--------------
Sonnenschein Nath & Rosenthal
1221 Avenue of the Americas
New York, NY 10020
Attention: Robert L. Winikoff, Esq.
Fax: (212) 768-6800
or to such other address, facsimile number or attention of such other person as
any party shall advise the other parties in writing.
9.2 Survival of Representations and Warranties. All representations,
------------------------------------------
warranties and covenants made hereunder shall survive the closing of the
transactions contemplated by this Agreement.
9.3 Governing Law; Jurisdiction; Venue; Waiver of Jury Trial. This
--------------------------------------------------------
Agreement shall be governed by and enforced in accordance with the law of the
State of New York, excluding its conflict of laws provisions. The parties agree
that the state and federal courts sitting in and for New York County, New York
shall have jurisdiction in any matter arising out of this Agreement, and the
parties consent to such jurisdiction and agree that the venue of any such matter
shall also be proper in such state and federal courts sitting in the State of
New York. The parties irrevocably and unconditionally waive trial by jury in any
legal action or proceeding relating to this Agreement.
9.4 Further Assurances. The parties hereto shall execute and deliver all
------------------
documents, provide all information and take, or forbear from taking, any and all
actions that may be necessary or appropriate to achieve the purposes of this
Agreement.
9.5 Successors and Assigns. This Agreement shall be binding upon, and
----------------------
inure to the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns.
9.6 Headings. The Article and Section headings contained in this
--------
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
9.7 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be an original, but all of which shall
constitute a single agreement.
9.8 Amendment. This Agreement may be amended only in a writing executed
---------
by each of the parties hereto.
9.9 Entire Agreement. This Agreement sets forth the entire agreement and
----------------
understanding of the parties with respect to the transactions contemplated
hereby and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof, whether written or oral.
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<PAGE>
9.10 Existing Agreements. Each party to this Agreement irrevocably waives
-------------------
any provision of any of the Existing Agreements to the extent any such provision
conflicts with or is otherwise inconsistent with this Agreement.
9.11 Payments to Coaxial Principals; Actions by Coaxial Principals.
-------------------------------------------------------------
(a) Any payments required to be made to the Coaxial Principals under
this Agreement, whether in cash or other funds, shares of ICCI Stock, or other
property, shall be allocated among the Coaxial Principals as they may determine
by agreement among themselves.
(b) The provisions of Section 14.5 of the Insight Ohio Operating
Agreement shall apply to any action required or permitted to be taken by the
Coaxial Principals under this Agreement.
9.12 Consent Solicitation. If the distribution of the Stock Consideration
--------------------
or the proceeds of any sale of the Stock Consideration (in whatever form such
proceeds may be invested or reinvested) by Coaxial to the Coaxial Shareholders
or by the Coaxial Shareholders to the Coaxial Principals would violate any
contractual restriction binding on or affecting Coaxial or any of the Coaxial
Shareholders or any of their respective assets arising under the Senior Note
Indenture, the Discount Note Indenture, or any other agreements related thereto,
and any Insight Party (or any of their respective Affiliates) proposes to
solicit the consents of the holders of the Senior Debt or the Subordinated Debt
to the amendment or waiver of any provisions of the Senior Note Indenture, the
Discount Note Indenture, or any other agreement related thereto, then:
(a) The party making such solicitation (the "Solicitor") will consider
---------
in good faith including in such solicitation a request for the waiver of all
contractual restrictions on the distribution of the Stock Consideration or the
proceeds of the sale of the Stock Consideration; and
(b) unless the Solicitor determines, in good faith (but otherwise in
its sole discretion), that including such a waiver in the solicitation would be
adverse to its interests (after taking into account any reimbursement of
expenses agreed to by the Coaxial Principals), the Solicitor will include a
request for such a waiver in such solicitation request.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
COAXIAL COMMUNICATIONS OF CENTRAL OHIO, INC.
By: ______________________________
Name:
Title:
INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC
By Insight Holdings of Ohio, LLC, a Member
By Insight Communications Company, L.P. , a
Member
By Insight Communications Company, Inc., its
General Partner
By: ______________________________
Name:
Title:
INSIGHT HOLDINGS OF OHIO, LLC
By Insight Communications Company, L.P. , a
Member
By Insight Communications Company, Inc., its
General Partner
By: ______________________________
Name:
Title:
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INSIGHT COMMUNICATIONS COMPANY, L.P.
By Insight Communications Company, Inc., its
General Partner
By: ______________________________
Name:
Title:
INSIGHT COMMUNICATIONS COMPANY, INC.
By: ______________________________
Name:
Title:
COAXIAL LLC
By: ______________________________
Name:
Title:
COAXIAL DJM LLC
By: ______________________________
Name:
Title:
COAXIAL DSM LLC
By: ______________________________
Name:
Title:
---------------------------------------
BARRY SILVERSTEIN
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--------------------------------------
DENNIS J. MCGILLICUDDY
--------------------------------------
D. STEVENS MCVOY
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