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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM 8-K
___________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
November 20, 1995
CABLEVISION OF BOSTON LIMITED PARTNERSHIP
(Exact Name of Registrant as specified in its charter)
Massachusetts
(State of Organization)
0-11165 04-2756091
(Commission File Number) (IRS Employer
Identification Number)
28 Travis Street, Boston, Massachusetts 02134
(Address of principal executive offices)
Registrant's telephone number, including area code:
(617) 787-6600
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Item 5. Other Events
On November 20, 1995, a Stipulation of Settlement (the
"Stipulation") was entered into with respect to the lawsuit filed on October 5,
1994 by Joel G. Lippe against Cablevision Systems Corp., Charles F. Dolan,
Cablevision of Boston Limited Partnership (the "Company"), Cablevision
Systems Boston Corp., Cablevision of Brookline Limited Partnership,
Cablevision Systems Brookline Corp., Cablevision Systems Services Corp.,
Cablevision Finance Limited Partnership, COB, Inc. and Cablevision of Boston,
Inc. The filing of the lawsuit was the subject of the Company's Current
Report on Form 8-K dated October 19, 1994. A copy of the Stipulation is
attached hereto as Exhibit 99.1 to this Current Report on Form 8-K.
Item 7. Financial Statements, PRO FORMA Financial
Information and Exhibits.
(c) The following exhibits are filed as a part of this report on
Form 8-K:
99.1 Stipulation of Settlement, dated November 20,
1995, in the action captioned Joel G. Lippe v.
Cablevision Systems Corp., Charles F. Dolan,
Cablevision of Boston Limited Partnership,
Cablevision Systems Boston Corp., Cablevision of
Brookline Limited Partnership, Cablevision Systems
Brookline Corp., Cablevision Systems Services
Corp., Cablevision Finance Limited Partnership,
COB, Inc. and Cablevision of Boston, Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
CABLEVISION OF BOSTON LIMITED PARTNERSHIP
By: /s/ Barry J. O'Leary
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Barry J. O'Leary
Senior Vice President, Finance
and Treasurer
Dated: November 21, 1995
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Index to Exhibits
-----------------
Exhibit No. Description Page No.
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99.1 Stipulation of Settlement,
dated November 20, 1995, in
the action captioned
Joel G. Lippe v. Cablevision
Systems Corp., Charles F. Dolan,
Cablevision of Boston Limited
Partnership, Cablevision Systems
Boston Corp., Cablevision of
Brookline Limited Partnership,
Cablevision Systems Brookline
Corp., Cablevision Systems
Services Corp., Cablevision
Finance Limited Partnership, COB,
Inc. and Cablevision of Boston, Inc.
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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
C.A. NO. 94-5428
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JOEL G. LIPPE, :
PLAINTIFF,
v. :
CABLEVISION SYSTEMS CORP., CHARLES F. :
DOLAN, CABLEVISION OF BOSTON LIMITED
PARTNERSHIP, CABLEVISION SYSTEMS :
BOSTON CORP., CABLEVISION OF
BROOKLINE LIMITED PARTNERSHIP, :
CABLEVISION SYSTEMS BROOKLINE CORP.,
CABLEVISION SYSTEMS SERVICES CORP., :
CABLEVISION FINANCE LIMITED PARTNER-
SHIP, COB, INC., and CABLEVISION OF :
BOSTON, INC.,
:
DEFENDANTS.
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STIPULATION OF SETTLEMENT
The parties in the above-captioned action, by and through their
undersigned attorneys, hereby enter into this Stipulation of Settlement
("Stipulation") on the following terms and subject to the conditions set
forth below:
DEFINED TERMS
The terms set forth below shall have the indicated meaning in this
Stipulation and any capitalized terms not specifically set forth in this
section or otherwise defined in this Stipulation shall have the meaning set
forth in the Glossary at pages 162-165 of the October 18, 1995 Consent
Solicitation, a copy of which is attached hereto as Exhibit D:
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ACTION. The putative class action filed on or about October 5, 1994
by Plaintiff Joel G. Lippe in the Suffolk Superior Court, Commonwealth of
Massachusetts, captioned LIPPE V. CABLEVISION SYSTEMS CORP., ET AL., C.A. No.
94-5428.
APPROVAL. The entry of an Order and Final Judgment in the Action
substantially in the form of Exhibit C attached hereto or otherwise approved
by Class Counsel, Cablevision Counsel and Partnership Counsel, finally
approving this Stipulation and dismissing with prejudice the Settled Claims.
BALANCE. Balance has the meaning ascribed to it in paragraph 6(b)
of this Stipulation.
CABLEVISION. Cablevision Systems Corporation, a Delaware corporation.
CABLEVISION OF BOSTON, INC. The corporation established as the
Incorporation vehicle and a wholly-owned subsidiary of the Partnership, which
is referred to as "Boston Sub" in the October 18, 1995 Consent Solicitation.
CABLEVISION CLASS A COMMON STOCK. Class A Common Stock, par value
$0.01 per share, of Cablevision.
CABLEVISION COUNSEL. Yvonne S. Quinn and John P. Mead, Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004.
CABLEVISION FINANCE. Cablevision Finance Limited Partnership, a
wholly-owned subsidiary of Cablevision.
CABLEVISION FINANCE FULL CONTRACTUAL RIGHTS. The rights conferred
on Cablevision Finance pursuant to the terms of the instruments relating to
the Preferred Equity held by it, including (i) the right to payment of the
full amounts contributed to the Partnership in respect of its Preferred
Equity; (ii) any unpaid cumulative distributions at the rate of 15% per
annum, compounded semi-annually; (iii) the right to a payment of (i) and (ii)
out of funds legally available for distribution to Partners, prior to any
distribution to Partners; and (iv) the right to receive 20% of all amounts
available for post-Payout distributions.
CLASS. A conditional class for settlement purposes only that
consists of all persons who are Limited Partners, beneficially or of record,
on the date of this Stipulation and who are also Unaffiliated Limited
Partners.
CLASS COUNSEL. (1) Ronald Litowitz and Richard Speirs, Bernstein
Litowitz Berger & Grossmann LLP, 1285 Avenue of the Americas, New York, New
York 10019; (2) Thomas Weinstock and James Keegan, Bendit Weinstock &
Sharbaugh, 80 Main Street, West Orange, New Jersey 07052; and (3) Thomas
Shapiro, Shapiro Grace Haber & Urmy, 75 State Street, Boston, Massachusetts
02109.
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CLASS COUNSEL EXPENSES. Out-of-pocket disbursements awarded Class
Counsel by the Court pursuant to paragraph 10 of this Stipulation.
CLASS COUNSEL FEES. Fees awarded Class Counsel by the Court
pursuant to paragraph 10 of this Stipulation.
CLASS ESCROW. An escrow account into which the Settlement Amount is
to be paid by Cablevision as provided for in paragraph 5 of this Stipulation.
CLASS NOTICE. Notice substantially in the form attached hereto as
Exhibit A or in such other form as is approved by Class Counsel, Cablevision
Counsel and Partnership Counsel.
CLASS REPRESENTATIVE. Plaintiff Joel G. Lippe.
COMMISSION. The Securities and Exchange Commission.
COMPLAINT. The complaint in the Action.
CONSENT PROCESS. The solicitation of consents to the Incorporation
and Merger including the filing of preliminary and final consent solicitation
materials (including the October 18, 1995 Consent Solicitation) and the
registration, offer and issuance of the Cablevision Class A Common Stock to
be issued in the Merger.
COURT. Suffolk Superior Court, Commonwealth of Massachusetts,
before which the Action is pending.
CSBC. Cablevision Systems Boston Corporation, a Massachusetts
corporation wholly-owned by Dolan, and a General Partner of the Partnership.
CSSC. Cablevision Systems Services Corporation, a New York
corporation wholly-owned by Dolan.
CSSC FULL CONTRACTUAL RIGHTS. The rights conferred on CSSC pursuant
to the terms of the instruments relating to the Preferred Equity held by it,
including (i) the right to payment of the full amounts contributed to the
Partnership in respect of its Preferred Equity; (ii) any unpaid cumulative
distributions thereon at the rate of 15% per annum, compounded semi-annually;
and (iii) the right to payment of (i) and (ii) out of funds legally available
for distribution to Partners, prior to any distribution to Partners. The
right to payment of (i) is subordinate to the payment of the full amounts
contributed to the Partnership in respect of Cablevision Finance's Preferred
Equity.
DEFENDANTS. All defendants named in the Action including
Cablevision Systems Corporation, Charles F. Dolan, Cablevision of Boston
Limited Partnership, Cablevision
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Systems Boston Corporation, Cablevision of Brookline Limited Partnership,
Cablevision Systems Brookline Corporation, Cablevision Systems Services
Corporation, Cablevision Finance Limited Partnership, COB, Inc. and
Cablevision of Boston, Inc.
DOLAN. Charles F. Dolan, the managing general partner of the
Partnership, the Chairman of Cablevision and the managing general partner of
Cablevision of Brookline Limited Partnership, a Massachusetts limited
partnership of which 99% is held by the Partnership as its limited partner.
FINAL APPROVAL. Final Approval occurs when an Order and Final
Judgment entered in the Action substantially in the form of Exhibit C
attached hereto or otherwise approved by Class Counsel, Cablevision Counsel
and Partnership Counsel finally approving this Stipulation of Settlement
becomes final and nonappealable by virtue of expiration of all appropriate
appeal periods without an appeal being filed, or, if an appeal is filed, by
final affirmance thereof upon appeal, or final dismissal of all appeals
therefrom.
FULL CONTRACTUAL RIGHTS. Cablevision Finance Full Contractual
Rights and CSSC Full Contractual Rights.
GENERAL PARTNERS. The two general partners of the Partnership,
Dolan and CSBC.
INCORPORATION. The transfer of substantially all of the assets and
all of the liabilities of the Partnership to Cablevision of Boston, Inc.
LIMITED PARTNERS. The investors holding one or more Units in the
Partnership.
LIQUIDATION. The dissolution and liquidation of the Partnership
immediately after the consummation of the Merger.
MERGER. The merger of a wholly-owned subsidiary of Cablevision,
COB, Inc., with and into Cablevision of Boston, Inc. pursuant to which the
Partnership will receive shares of Cablevision Class A Common Stock in
exchange for shares of capital stock of Cablevision of Boston, Inc.
MERGER AGREEMENT. The Acquisition Agreement and Plan of Merger and
Reorganization Relating to Cablevision of Boston Limited Partnership, dated
as of June 14, 1994, among Cablevision, the Partnership and certain other
parties, as amended from time to time.
OCTOBER 18, 1995 CONSENT SOLICITATION. The Consent Solicitation
Statement/Prospectus, dated October 18, 1995, filed with the Commission and
mailed to Limited Partners on or about October 20, 1995, a copy of which is
attached hereto as Exhibit D.
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PARTNERS. The General Partners and the Limited Partners.
PARTNERSHIP. Cablevision of Boston Limited Partnership, a
Massachusetts limited partnership.
PARTNERSHIP AGREEMENT. The Partnership's Articles of Limited
Partnership, as amended from time to time.
PARTNERSHIP COUNSEL. Robert L. King and Daniel Murphy, Debevoise &
Plimpton, 601 South Figueroa Street, Suite 3700, Los Angeles, California
90017.
PER UNIT BALANCE. Per Unit Balance has the meaning ascribed to it
in paragraph 6(b) of this Stipulation.
PREFERRED EQUITY. Preferred equity in the Partnership.
PREFERRED EQUITY INTERESTS. The face amount of the Preferred Equity
and the cumulative distributions thereon.
PRELIMINARY APPROVAL. The entry of an Order in the Action
substantially in the form of Exhibit B attached hereto or otherwise approved
by Class Counsel, Cablevision Counsel and Partnership Counsel.
PRELIMINARY CONSENT SOLICITATION. The Preliminary Consent
Solicitation Statement/Prospectus filed with the Commission on June 15, 1994,
as amended from time to time thereafter.
SETTLED CLAIMS. Settled Claims has the meaning ascribed thereto in
paragraph 1 of this Stipulation.
SETTLEMENT. The settlement and resolution of the Action as among
the Class, on the one hand, and Defendants, on the other hand, and as set
forth in this Stipulation.
SETTLEMENT AMOUNT. The amount of $1,250,000.00 to be paid by
Cablevision as set forth in paragraph 5 of this Stipulation.
SETTLEMENT HEARING. The hearing before the Court on the application
for Approval of the proposed Settlement, and any adjournment thereof.
STIPULATION. This Stipulation of Settlement.
TRANSACTIONS. Collectively, the Incorporation and the Merger.
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UNAFFILIATED LIMITED PARTNERS. Limited Partners other than
Cablevision and officers and directors of Cablevision.
TERMS AND CONDITIONS OF STIPULATION OF SETTLEMENT
WHEREAS:
A. On June 14, 1994, the Partnership and Cablevision, Cablevision
of Boston, Inc., Charles F. Dolan, Cablevision Systems Boston Corporation,
Cablevision Systems Services Corporation and Cablevision Finance Limited
Partnership, each of whom was subsequently named a Defendant in the
above-captioned action, entered into the Merger Agreement, which contemplated
two separate transactions, the ultimate result of which is the acquisition by
Cablevision of substantially all of the assets of and all of the liabilities
of the Partnership. The first of these two transactions, the Incorporation,
involves the transfer of substantially all of the Partnership's assets and
all of the Partnership's liabilities to Cablevision of Boston, Inc., a
corporation, that is a wholly owned subsidiary of the Partnership. The second
of these two transactions, the Merger, involves the merger of a wholly-
owned subsidiary of Cablevision with and into Cablevision of Boston, Inc., in
which the Partnership will receive shares of Cablevision Class A Common Stock
for all of the issued and outstanding stock of Cablevision of Boston, Inc.
After consummation of the Merger, the Partnership will then Liquidate and the
Cablevision Class A Common Stock received by the Partnership in the Merger
will be distributed to the Partnership's Partners and the holder of the
Partnership's Preferred Equity. Upon completion of the Incorporation and
Merger (collectively, the "Transactions") and the Liquidation, Cablevision of
Boston, Inc. will become a wholly-
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owned subsidiary of Cablevision and the Partnership's Limited Partners will
hold stock of Cablevision.
B. On June 15, 1994 and from time to time thereafter as it was
amended in the course of Commission review, the Partnership filed with the
Commission the Preliminary Consent Solicitation, which, when finalized and
delivered to the Limited Partners, would seek consent from such Limited
Partners to the Transactions and which described, among other things, the
Transactions and the Liquidation. The Preliminary Consent Solicitation was
publicly available pursuant to applicable rules and procedures of the
Commission.
C. The Preliminary Consent Solicitation stated that consummation
of both the Incorporation and the Merger would result in the Limited Partners
receiving in the Liquidation Cablevision Class A Common Stock with an
expected market value of approximately $10,000 per Unit of limited
partnership interest, which totals approximately $40 million and is 100% of
the total of the per Unit amounts invested by the Limited Partners that are
Unaffiliated Limited Partners.
D. The Preliminary Consent Solicitation also explained that
Cablevision Finance, a subsidiary of Cablevision and a holder of Preferred
Equity, had agreed solely in connection with the Merger, to a substantial
reduction in its Preferred Equity Interests in order to increase the amounts
distributable to the Limited Partners in the Liquidation. To exemplify the
degree of reduction, based upon financial information as of June 30, 1994,
the Preferred Equity Interests totalled $145.4 million and those Interests
would receive only $50.3 million as a result of the agreed upon reduction.
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E. The Preliminary Consent Solicitation also disclosed that, in
considering the Transactions, the General Partners, together with their
counsel, Debevoise & Plimpton, had reviewed the issuance of the Preferred
Equity and that, although the General Partners continue to believe that the
Preferred Equity was validly issued, they concluded, based on such review and
the advice of their counsel, that one or more Limited Partners could bring
litigation challenging the issuance of the Preferred Equity on the grounds
that it did not fully comply with the Partnership Agreement and claiming that
the holders of the Preferred Equity are not entitled to the Full Contractual
Rights of the Preferred Equity. The Preliminary Consent Solicitation further
disclosed (i) that, after analyzing the issues that might be raised in
litigation brought by a Limited Partner and the applicability of various
available defenses, counsel to the General Partners identified litigation
outcomes that they believe represent the range of possible outcomes of such a
litigation and assessed the probability of such outcomes; (ii) that, based on
their assessment of the likelihoods of such outcomes, such counsel advised
the General Partners that the holders of the Preferred Equity would more
likely than not be entitled to at least $80 million if, hypothetically, the
validity of the Preferred Equity were fully adjudicated and the Partnership
and Cablevision consummated the Merger and Liquidation substituting the
adjudicated rights of the Preferred Equity for the amount that Cablevision
Finance has agreed to receive in respect of the Preferred Equity Interests in
the Liquidation; and (iii) that, using June 30, 1994 financial information to
illustrate this comparison, the $80 million amount exceeded by approximately
$29.7 million the amount actually allocated to the holders of Preferred
Equity in the Liquidation.
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F. The Preliminary Consent Solicitation also disclosed that
Cablevision Finance had advised the General Partners that, other than in
connection with the Transactions, it would not agree to any reductions in or
modifications of the Full Contractual Rights of its Preferred Equity and, if
necessary, would pursue all legal remedies to enforce those rights.
G. On or about October 5, 1994, following the filing and
availability to the public of the original and an amended Preliminary Consent
Solicitation, containing the disclosures set forth above (with financial
disclosures as of June 30, 1994), plaintiff Joel G. Lippe commenced the
Action, alleging, among other things, breaches of fiduciary duty or aiding
and abetting breaches of fiduciary duty against the Defendants arising out of
the Partnership's issuance of Preferred Equity allegedly in violation of the
Partnership Agreement, the management and operation of the Partnership in
other respects, and the Defendants' negotiation of timing and terms for the
Merger and Liquidation that are allegedly not fair to the Limited Partners.
The Action seeks, among other things (i) a declaration that the Defendants
have breached their fiduciary duties to the Limited Partners or aided and
abetted such breaches of fiduciary duties, (ii) a declaration that it would
be a breach of fiduciary duty for any Defendant to cause the Partnership to
pay any of the Defendants any distributions on the Preferred Equity because
the Preferred Equity was unlawfully issued to certain of the Defendants,
(iii) an order that the Defendants provide an accounting to the Partnership
and Limited Partners for the Partnership's operations prior to any
Liquidation, (iv) a preliminary and permanent injunction against consummation
of the Merger and Liquidation, (v) rescission of the Merger and Liquidation
if they are consummated or rescissory damages if they cannot be rescinded,
and (vi) compensatory damages.
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H. Prior to entering into the Merger Agreement and filing the
original Preliminary Consent Solicitation, the General Partners reviewed and
considered the terms and conditions of the Transactions, approved each of the
Transactions and determined to recommend that the Limited Partners approve
each of the Transactions because the General Partners believed that the
Transactions are fair to and in the best interests of the Unaffiliated
Limited Partners. On June 13, 1994, prior to the General Partners' approval
of the Transactions, PaineWebber Incorporated, New York, New York, the
independent financial advisor to the General Partners, delivered its written
opinion to the General Partners that the consideration to be received in the
Liquidation by the Unaffiliated Limited Partners is fair, from a financial
point of view, to such Unaffiliated Limited Partners. This opinion was
subsequently and recently confirmed by PaineWebber Incorporated in a written
opinion, dated October 17, 1995.
I. On December 15, 1994, Defendants served answers to the
Complaint, denying all of its material allegations.
J. On October 18, 1995, the Partnership filed with the Commission
the October 18, 1995 Consent Solicitation, amending both the Preliminary
Consent Solicitation previously filed by the Partnership and the registration
statement on Form S-4 with respect to the Cablevision Class A Common Stock to
be issued in the Merger, which had originally been filed with the Commission
on September 18, 1995. The October 18, 1995 Consent Solicitation also set
forth, among others, the disclosures and explanations described in paragraphs
B-F above that had also been set forth in the Preliminary Consent
Solicitation. In addition, the October 18, 1995 Consent Solicitation
disclosed that the Action had been filed subsequent to the filing of the
original and first amended Preliminary Consent Solicitation
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and summarized the claims asserted and the remedies sought in the Action.
That disclosure read as follows:
CERTAIN LITIGATION
On October 5, 1994, following the Partnership's filing of
preliminary consent solicitation materials with the Securities and
Exchange Commission that discussed the uncertainty with respect to the
Preferred Equity, a Limited Partner brought the Lawsuit in Superior
Court of the Commonwealth of Massachusetts captioned JOEL G. LIPPE V.
CABLEVISION SYSTEMS CORP., CHARLES F. DOLAN, CABLEVISION OF BOSTON
LIMITED PARTNERSHIP, CABLEVISION SYSTEMS BOSTON CORP., CABLEVISION OF
BROOKLINE LIMITED PARTNERSHIP, CABLEVISION SYSTEMS BROOKLINE CORP.,
CABLEVISION SYSTEMS SERVICES CORP., CABLEVISION FINANCE LIMITED
PARTNERSHIP, COB, INC., AND CABLEVISION OF BOSTON, INC., C.A. No.
94-5428. The action is a purported class action on behalf of holders of
Units other than the defendants, members of the immediate family of
Dolan, officers and directors of the corporate defendants, affiliates of
Cablevision and their representatives, heirs, successors and assigns.
The action asserts, among other things, claims of beaches of
fiduciary duty or aiding and abetting breaches of fiduciary duty against
the defendants arising out of the Partnership's issuance of Preferred
Equity allegedly in violation of the Partnership Agreement and the
defendants' negotiation of timing and terms for the Merger and
Liquidation that are allegedly not fair to Limited Partners. The action
seeks, among other things (i) a declaration that the defendants have
breached their fiduciary duties to the Limited Partners or aided and
abetted such breaches of fiduciary duties, (ii) a declaration that it
would be a breach of fiduciary duty for the defendants to cause the
Partnership to pay themselves any distributions on the Preferred Equity
because the Preferred Equity was unlawfully issued to defendants, (iii)
an order that the defendants provide an accounting to the Partnership
and Limited Partners for the Partnership's operations prior to any
Liquidation, (iv) a preliminary and permanent injunction against
consummation of the Merger and Liquidation, (v) rescission of the Merger
and Liquidation if they are consummated or rescissory damages if they
cannot be rescinded, and (vi) compensatory damages. All defendants have
answered the complaint, and discovery has commenced. The defendants
intend to defend the action vigorously. If such action is not dismissed
or settled, the conditions to the Incorporation and Merger will not be
satisfied.
K. The October 18, 1995 Consent Solicitation also disclosed (i)
that, based on advice of counsel, the General Partners believed that Limited
Partners who consent to the Incorporation or Merger could be, but would not
necessarily be, precluded from challenging
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the issuance of the Preferred Equity solely because of that consent; (ii)
that Cablevision Finance, the General Partners and the other Defendants in
the Action had indicated that they would raise the consent as part of the
defense to any challenge; and (iii) that the General Partners believe that
the consent of the Limited Partners to the Transactions is a factor that
would be considered by the Court in deciding whether the Limited Partners
would be barred from challenging the issuance of the Preferred Equity.
L. On or about October 20, 1995, the Partnership, through its
agent, Bank of Boston, Boston, Massachusetts mailed to each Limited Partner
of record a copy of the October 18, 1995 Consent Solicitation, seeking the
Limited Partners' consent to each of the Transactions. The consent
solicitation periods for the Incorporation and for the Merger are set to
expire on November 21, 1995 and November 28, 1995, respectively.
M. As of November 20, 1995, the Unaffiliated Limited Partners
owned beneficially or of record 3725 units in the Partnership. There are 636
Unaffiliated Limited Partners.
N. Article VII of the Merger Agreement contains certain
conditions to the Incorporation and the Merger. Paragraphs 6.1.8 and 7.1.6 of
the Merger Agreement require, among other things, that no action or
proceeding be pending on the date of the Incorporation or of the Merger that
seeks to restrain, enjoin or otherwise prevent the consummation of the
Transactions or to recover any damages or obtain other relief as a result of
such Transactions. As a result, unless the Action is dismissed or settled, or
the condition is waived by all necessary parties, the conditions to the
Incorporation and the Merger will not be satisfied.
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O. The Merger Agreement may be terminated by its terms after
December 31, 1995, if the Merger has not been consummated by that date. In
addition, as stated in the October 18, 1995 Consent Solicitation, if the
Transactions are not consummated prior to December 31, 1995, the Partnership
will be unable at December 31, 1995 to meet the repayment terms on its bank
debt under its Loan Agreement, which require a substantial loan repayment on
December 31, 1995, and thereafter, and, therefore, will likely be required to
attempt to renegotiate the terms thereof. In order to consummate the Merger
on or before December 31, 1995, when this December 31, 1995 repayment is due,
the Incorporation must be consummated on or prior to December 21, 1995, in
order to insure that the Limited Partners consider the Incorporation
separately from their consideration of the Merger, as is required for the
desired tax treatment of the Transactions.
P. Throughout the period following the commencement of the
Action, counsel for plaintiff Lippe and for Defendants have been engaged in
formal and informal discovery and discussions regarding the merits of the
Action, which have provided counsel for plaintiff Lippe, the proposed Class
Counsel, with substantial information regarding the merits of plaintiff's and
the proposed Class's claims. In addition to their factual investigation,
plaintiff Lippe's counsel have also researched the applicable law, including
the likely remedies that could be achieved, even assuming that the Preferred
Equity were found not to have been properly issued. After taking into
consideration the sharp dispute as to whether the Preferred Equity fully
complies with the Partnership Agreement, the likelihood that, even if the
Preferred Equity were found to have been issued in violation of the
Partnership Agreement, the holders of the Preferred Equity would be entitled
to receive an amount exceeding the
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amount that such holders have agreed to accept in connection with the
Transactions, the likely valuation of the Partnership, the issue of whether
consent to the Transactions would preclude one or more Unaffiliated Limited
Partners from challenging the issuance of the Preferred Equity, the risks
attendant to further litigation, the substantial benefits obtained through
settlement and the interests in insuring that the Unaffiliated Limited
Partners receive the substantial benefits of the Transactions and that they
receive such benefits in a timely fashion, plaintiff and his counsel have
concluded that the terms of the Settlement as set forth herein are fair,
reasonable, adequate and in the best interests of the Class and that the
rights of the members of the Class have been fully protected.
Q. Defendants, and each of them, have at all times denied, and
continue to deny, that they have committed any wrongful or unlawful acts or
violations of law of any nature whatsoever in connection with the matters,
transactions and occurrences set forth in Complaint, in the pleadings and
proceedings in the Action, or any other matter relating to management and
operation of the Partnership, the Transactions and/or the issuance of the
Preferred Equity. Defendants are entering into this Stipulation solely
because the proposed Settlement will eliminate the burden, expense and
distraction of further litigation and will finally put to rest the claims of
plaintiff Lippe and the putative Class that were or could have been asserted
in the Action, and will facilitate the prompt consummation of the
Transactions.
NOW, THEREFORE, in consideration of the premises and the
agreements, covenants, representations and warranties and subject to the
terms and conditions set forth herein:
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1. SETTLEMENT AND RELEASE OF CLAIMS. All claims, rights, causes of
action, suits, matters and issues, known or unknown, that have been or could
have been asserted in the Complaint, in the pleadings and proceedings in the
Action, or any other action that could have been brought in this or any other
forum, by the Class Representative, any Limited Partner, or any putative
member of the Class, and any of their successors or assigns, whether
directly, representatively, derivatively, individually or in any other
capacity, against any of the Defendants, or any party to the Merger Agreement
or party to or participant in the Transactions or Liquidation, their
respective present or former officers, directors, employees, agents,
attorneys, stockholders, advisors, investment bankers, representatives,
parents, affiliates, subsidiaries, general and limited partners, heirs,
executors, administrators, trustees, predecessors, successors and assigns, or
against anyone else, in connection with, arising out of, or in any way
related to (i) any of the acts, facts, transactions, occurrences, breaches,
representations or omissions set forth, alleged, embraced or otherwise
referred to in the pleadings and proceedings in the Action, including, but
not limited to, the Preferred Equity, the Transactions, the Liquidation, the
Consent Process and the management and operations of the Partnership or
Cablevision of Brookline Limited Partnership, (ii) the Partnership or
Cablevision of Brookline Limited Partnership or the management and operations
of either, and (iii) any other claim arising out of or in connection with the
Partnership for violation of federal, state or other law, or of the common
law, which said Class members, or any of them, had, now have, or may
hereafter have as a member of the Class or as an individual (the "Settled
Claims"), shall be and hereby are fully settled, released, discharged and
dismissed with prejudice, without the award of costs to any party except as
provided in this
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Stipulation. Excluded from Settled Claims are (a) any claims relating to any
party's alleged failure to comply with the terms and conditions of this
Stipulation and (b) any appraisal rights that a Class member properly
perfects pursuant to Paragraph 1.8 and Annex VI of the Merger Agreement.
2. CLASS FOR SETTLEMENT PURPOSES ONLY. For
purposes of the Settlement and this Stipulation only, the Action shall be
maintained and proceed as a class action pursuant to Mass. R. Civ. P. 23 as
follows:
(a) the proposed class shall consist of persons
who are Limited Partners of the Partnership, beneficially or of record, on
the date of this Stipulation and are Unaffiliated Limited Partners (the
"Class"); and
(b) the Class shall be represented by the
Class Representative and Class Counsel.
3. PERFORMANCE OF PROVISIONS OF STIPULATION. The parties
will jointly take all reasonable steps necessary to obtain prompt Final
Approval of this Stipulation and the Settlement embodied herein, including
the following:
(a) On November 21, 1995, or as soon as reasonably
practicable thereafter, request that the Court enter an Order, substantially
in the form attached hereto as Exhibit B,
(i) certifying the Action as a conditional class
action pursuant to Mass. R. Civ. P. 23 solely for purposes of this
Settlement;
(ii) ordering that Class Notice substantially in
the form attached as Exhibit A, or as otherwise approved by Class
Counsel, Cablevision Counsel, Partnership
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<PAGE>
Counsel and the Court, be directed to the members of the Class as provided in
paragraph 9 of this Stipulation; and
(iii) setting a Settlement Hearing for the
Approval of the proposed Settlement on December 7, 1995 or as soon as
reasonably practicable thereafter.
(b) Cooperate so that the hearing on the motion for Approval of
the proposed Settlement is held as promptly and expeditiously as possible.
(c) Request that the Court in the Action, after Preliminary
Approval and after the Settlement Hearing, enter an Order and Final Judgment,
substantially in the form attached hereto as Exhibit C,
(i) approving the Settlement provided for herein
as fair, reasonable and adequate and directing consummation of the
Settlement in accordance with its terms and conditions;
(ii) dismissing the Action on the merits, with
prejudice as to all of the Settled Claims and without costs except as
provided herein, such dismissal to be subject only to compliance by the
parties with the terms and conditions of this Stipulation and any other
order of the Court with reference to the Stipulation;
(iii) permanently barring and enjoining plaintiff,
all members of the Class, and all persons, firms, corporations and other
entities who participated in this Settlement or who will benefit or will have
benefitted in any way from the terms of the Settlement, whether or not such
persons, firms, corporations or other entities have appeared in the Action,
from instituting, commencing, prosecuting or continuing any other actions in
any court or tribunal of this or any other jurisdiction, either directly,
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<PAGE>
representatively, derivatively or in any other capacity, asserting any of the
Settled Claims;
(iv) subject to and in accordance with paragraph 10
below, awarding Class Counsel the fees and expenses determined
reasonable and appropriate by the Court; and
(v) reserving jurisdiction over all matters relating
to the administration and consummation of the Settlement provided for
herein.
4. TERMINATION OF STIPULATION. (a) If (i) for any reason
any one or both of the Transactions is not approved by the Unaffiliated
Limited Partners as required by the Merger Agreement or, if approved by the
Unaffiliated Limited Partners, is not consummated as required by the Merger
Agreement; (ii) the Merger Agreement is terminated in accordance with its
terms; (iii) if conditional certification of the Class for settlement
purposes only and approval by the Court of the Class Notice and the method
and manner of distributing the Class Notice do not occur on or before
November 28, 1995; (iv) Approval does not occur on or before December 21,
1995; or (v) Final Approval does not occur on or before March 31, 1996, then,
in any of such events, at the sole election of and in the sole discretion of
any one of the Defendants, this Stipulation may be terminated by giving
written notice to all parties and to the Court and, if terminated, the
Stipulation shall be void and of no further force or effect (except for the
provisions of paragraphs 11-12).
(b) If the Merger Agreement is terminated, Class
Counsel may elect to terminate this Stipulation by giving written notice to
all parties and to the Court and, if
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<PAGE>
terminated, the Stipulation shall be void and of no further force of effect
(except for the provisions of paragraphs 11-12).
5. PAYMENT OF SETTLEMENT AMOUNT INTO ESCROW. If this
Stipulation has not theretofore terminated pursuant to paragraph 4, then, on
or before the earlier of (i) the date on which the Merger is completed; or
(ii) two business days after the date that Approval occurs, Cablevision shall
deposit the Settlement Amount into the Class Escrow to be established with
The Bank of New York, New York, New York, or such other bank as is approved
by Cablevision Counsel and Class Counsel (the "Escrow Agent"), pursuant to an
Escrow Agreement in form reasonably acceptable to Cablevision Counsel, Class
Counsel and the Escrow Agent. The Escrow Agreement shall provide that the
Settlement Amount, and all interest earned on funds on deposit in the Class
Escrow, shall be invested only in United States Treasury Bills or government
money market portfolios restricted to Treasury Securities scheduled to mature
no longer than one year from the acquisition thereof. All Escrow Agent fees
and other fees, charges, and expenses associated with the Class Escrow
(collectively "Escrow Fees") shall be paid out of the Class Escrow. Signatory
authority on the Escrow Account shall be exercised jointly by (i) such one or
more of Cablevision Counsel as shall be designated from time to time by
Cablevision Counsel; and (ii) such one or more of Class Counsel as shall be
designated from time to time by Class Counsel. Regardless of which person or
persons have signatory authority, disbursement of the funds on deposit in the
Escrow Account may be made only as provided by this Stipulation and by the
relevant Escrow Agreement. All signatories to such Escrow Account shall be
subject to the supervision of the Court in the Action and shall not authorize
disbursement of any funds
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<PAGE>
from the Class Escrow except as provided by this Stipulation. All funds in
the Class Escrow shall be deemed to be in the custody of the Court in the
Action until disbursed or distributed as provided for herein.
6. DISPOSITION OF FUNDS FROM CLASS ESCROW. All
funds deposited in the Class Escrow, including the Settlement Amount and all
interest earned on the account, shall be disbursed or distributed as follows:
(a) If funds are deposited in the Class Escrow pursuant
to paragraph 5, and if this Stipulation is thereafter terminated pursuant to
paragraph 4, the costs of Escrow Fees shall be paid out of the Escrow Account
as provided in paragraph 5 of this Stipulation and the entire balance of the
funds in the Escrow Account shall be refunded to Cablevision.
(b) When the conditions to payment to Class members, which
are set forth in paragraph 6(c), are satisfied, the dollar amount to be
distributed to each Class member shall be calculated as set forth in this
paragraph 6(b). Payment of Escrow Fees as provided in paragraph 5 of this
Stipulation and of Class Counsel Fees and Class Counsel Expenses as provided
in paragraph 10 of this Stipulation shall be made out of the Class Escrow.
The remaining balance of the funds in the Class Escrow following such
payments, including all interest earned on funds in the Class Escrow (the
"Balance"), shall be the total dollar amount distributed to the Class. The
amount distributed to each member of the Class shall be the amount determined
by (i) dividing the Balance by 3725, which is the number of Units held by
Unaffiliated Limited Partners ("Per Unit Balance"), and (ii) multiplying the
Per Unit Balance by the number of units of limited partnership interests held
by each Class member. If the conditions of paragraph 6(c) have been
satisfied, the amounts calculated pursuant to
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<PAGE>
this paragraph 6(b) shall be distributed to members of the Class, without any
further action required of members of the Class, by The Bank of New York, New
York, New York, or such other agent as may be agreed upon by Class Counsel
and Cablevision Counsel. The costs of such distribution shall be paid by
Cablevision and, if, in the sole discretion of Cablevision, it is practicable
and consistent with the occurrence of the Final Approval, distribution of the
Balance shall be made at the same time and together with the distribution to
the Limited Partners of Cablevision Class A Common Stock pursuant to the
Merger Agreement.
(c) The dollar amounts calculated pursuant to paragraph
6(b) shall be distributed to the Class members only upon the occurrence of
one of the following: (i) consummation of the Merger, if but only if Final
Approval has occurred prior to consummation of the Merger and this
Stipulation has not been terminated pursuant to paragraph 4, or (ii) Final
Approval, if but only if Final Approval occurs after the consummation of the
Merger and if this Stipulation has not been terminated pursuant to paragraph
4.
7. COVENANT NOT TO SUE. The Class Representative, on his own
behalf and on behalf of the Class, hereby agrees, promises, and covenants
with each Defendant not to file, or to continue to prosecute, any action,
claim, or cause of action against any Defendant or any Defendants' present
and former officers, directors, employees, agents, attorneys, stockholders,
advisors, investment bankers, representatives, parents, affiliates,
subsidiaries, general and limited partners, heirs, executors, administrators,
trustees, predecessors, successors, or assigns which such Class
Representative or the Class (or any member of the
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<PAGE>
Class) has or may have or may in the future obtain by assignment or operation
of law or otherwise from any person, firm, corporation, partnership, or other
entity based upon or arising out of the Settled Claims.
8. PRELIMINARY APPROVAL. On November 21, 1995, or as soon as
reasonably practicable thereafter, the parties hereto shall seek Preliminary
Approval by the Court as provided in paragraph 3(a) above. The parties shall
act expeditiously to prepare and present to the Court for its approval a
Class Notice substantially in the form of Exhibit B hereto or in such other
form as shall be approved by Cablevision Counsel, Partnership Counsel and
Class Counsel and prepare and present to the Court any additional papers
necessary to obtain Final Approval.
9. NOTICE TO THE CLASS. In the event the Court in the Action
conditionally certifies the Class solely for purposes of Settlement, grants
Preliminary Approval and approves the form of the Class Notice, the
Partnership shall promptly mail, by overnight express mail or overnight
courier service (such as Airborne or Federal Express), the Class Notice to
all members of the Class; the Partnership shall do so by causing the Bank of
Boston, Boston, Massachusetts, or any replacement therefor agreed upon by
Class Counsel and Cablevision Counsel, on November 21, 1995, or as soon
thereafter as practicable, and, in any event, at least fourteen (14) days
prior to the date set for the Settlement Hearing. In the sole discretion of
Cablevision, if practicable and consistent with this Stipulation and any
order of the Court, the Class Notice may be distributed in the same mailing
whereby Bank of Boston, Boston, Massachusetts, or any replacement therefor,
provides the Limited Partners with a supplement to the October 18, 1995
Consent Solicitation, which will describe, among other
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<PAGE>
things, the Settlement and steps being taken to obtain Final Approval of the
Settlement. Cablevision shall bear the expense of distribution of the Class
Notice.
10. PAYMENT OF ATTORNEYS' FEES AND EXPENSES. Class Counsel
intend to apply to the Court for such fees for their legal services as the
Court may order ("Class Counsel Fees") and for such out-of-pocket
disbursements, including, but not limited to, fees for experts and
consultants, as the Court may order ("Class Counsel Expenses"); provided,
however, that any award of Class Counsel Fees shall not exceed 25% of the
Settlement Amount and any award of Class Counsel Expenses shall not exceed
$50,000.00. Payment of Class Counsel Fees and Class Counsel Expenses shall be
made solely from the Class Escrow, contingent upon and only after timely
satisfaction of the conditions to payment to Class members set forth in
paragraph 6(c). Payment from the Class Escrow of Class Counsel Fees and
Class Counsel Expenses in accordance with this paragraph will satisfy any and
all claims against Defendants in the Action for attorneys' fees and expenses.
11. EFFECT OF NONCONSUMMATION. The obligations of Defendants
under this Stipulation are conditioned upon the occurrence of Final Approval
of the Settlement and all transactions preparatory or incident thereto. The
obligations of the Class Representative and the Class pursuant to paragraphs
1 and 7 are conditioned upon paragraphs 6(b) and 6(c). In the event that for
any reason, the conditions to payment to Class members set forth in paragraph
6(c) are not satisfied within six months of the occurrence of Final Approval
(or within such period as it may be extended by the Court on consent of all
the parties), or this Stipulation is terminated pursuant to paragraph 4, this
Stipulation and the Settlement proposed herein (including any amendments
hereof), any class certification herein, any
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<PAGE>
actions taken or to be taken with respect to the Settlement proposed herein,
and the Order and Final Judgment to be entered shall be of no further force
or effect and shall be null and void, and without prejudice to the rights of
any of the parties hereto, who shall be restored in all respects to their
respective positions existing prior to the execution of this Stipulation,
except that the provisions of paragraph 12 shall remain in full force and
effect.
12. NO ADMISSION OF LIABILITY. Neither this Stipulation nor
any documents prepared or proceedings taken in accordance with the terms set
forth herein shall be construed as or deemed to be evidence, or any admission
or concession, either (a) on the part of the Class Representative, of the
lack of merit of these actions, or (b) on the part of Defendants, or any of
them, of any liability or wrongdoing whatsoever, which is hereby expressly
denied and disclaimed by the Defendants. Neither this Stipulation, nor the
fact of its execution, nor any of its provisions, shall be offered or
received in evidence in any action or proceeding of any nature or otherwise
referred to or used in any manner in any court or other tribunal, except in a
proceeding to enforce the terms hereof. Nothing in this Stipulation shall be
deemed to effect a waiver or relinquishment of any right or defense to or in
the Action, including, but not limited to, the right of any Defendant to
challenge the propriety of the maintenance of the Action as a class action or
the plaintiff's ability to represent any or all of the Limited Partners as a
class.
13. CONTINUING JURISDICTION. The administration of the
Settlement and the resolution of any disputes that may arise with respect to
the effectuation of any of the provisions of this Stipulation shall be under
the authority of the Court. The Court shall retain
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<PAGE>
jurisdiction with respect to the enforcement of the terms of this Stipulation
and the Settlement embodied herein and the distribution of the Balance.
14. EXTENSIONS OF TIME. The parties may in their sole
discretion agree to reasonable extensions of time to carry out any of the
provisions of this Stipulation, subject to approval where necessary by the
Court.
15. AMENDMENT; WAIVER. This Stipulation may be amended, or
any of its provisions waived, only by a writing executed by all the parties
hereto.
16. ENTIRE AGREEMENT. This Stipulation and the exhibits
attached hereto or referenced herein set forth the entire agreement and
understanding of the parties in respect of the Settlement and supersede all
prior agreements, arrangements, and understandings relating to the subject
matter hereof.
17. COUNTERPARTS. This Stipulation may be executed in
one or more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
18. HEADINGS. The paragraph headings herein are for
convenience only and shall not affect the interpretation or construction of
this Stipulation.
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<PAGE>
19. GOVERNING LAW. The Stipulation (and the attached exhibits)
shall be governed by and construed and enforced in accordance with the laws
of the State of Massachusetts without reference to principles of choice or
conflict of laws.
Dated: November 20, 1995
SULLIVAN & CROMWELL
By: /s/ Yvonne S. Quinn
--------------------------
Yvonne S. Quinn
125 Broad Street
New York, New York 10004
(212) 558-4000
-and-
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY & POPEO, P.C.
Thomas R. Murtagh BBO #365220
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
Attorneys for Defendants
Cablevision Systems Corporation, Cablevision
Finance Limited Partnership and COB, Inc.
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<PAGE>
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
By: /s/ Ronald Litowitz
---------------------------
Ronald Litowitz
1285 Avenue of the Americas
New York, New York 10019
(212) 554-1400
-and-
SHAPIRO GRACE HABER & URMY
By: /s/ Thomas G. Shapiro
-------------------------------
Thomas G. Shapiro BBO #454680
75 State Street
Boston, Massachusetts 02109
(617) 439-3939
-and-
BENDIT WEINSTOCK & SHARBAUGH
Thomas Weinstock
80 Main Street
West Orange, New Jersey 07052
Attorneys for Plaintiff
Joel G. Lippe
DEBEVOISE & PLIMPTON
By: /s/ Robert L. King
---------------------------
Robert L. King
601 South Figueroa Street
Suite 7300
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<PAGE>
Los Angeles, CA 90017
(213) 680-8000
-and-
ROPES & GRAY
Howard J. Castelman BBO #551259
One International Place
Boston, Massachusetts 02110
(617) 951-7000
Attorneys for Defendants
Charles F. Dolan, Cablevision
of Boston Limited Partnership,
Cablevision Systems Boston
Corp., Cablevision of
Brookline Limited Partnership,
Cablevision Systems Brookline
Corp., Cablevision Systems
Services Corp. and Cablevision
of Boston, Inc.
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<PAGE>
EXHIBIT A
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
C.A. NO. 94-5428
- --------------------------------------------x
:
JOEL G. LIPPE,
PLAINTIFF, :
v.
:
CABLEVISION SYSTEMS CORP., CHARLES F.
DOLAN, CABLEVISION OF BOSTON LIMITED :
PARTNERSHIP, CABLEVISION SYSTEMS
BOSTON CORP., CABLEVISION OF :
BROOKLINE LIMITED PARTNERSHIP,
CABLEVISION SYSTEMS BROOKLINE CORP., :
CABLEVISION SYSTEMS SERVICES CORP.,
CABLEVISION FINANCE LIMITED PARTNER- :
SHIP, COB, INC., and CABLEVISION OF
BOSTON, INC., :
DEFENDANTS.
:
- --------------------------------------------x
NOTICE OF PENDENCY OF ACTION, CLASS ACTION
DETERMINATION, PROPOSED SETTLEMENT, SETTLEMENT
HEARING AND RIGHT TO APPEAR
TO: ALL PERSONS WHO OWNED LIMITED PARTNERSHIP UNITS OF
CABLEVISION OF BOSTON LIMITED PARTNERSHIP, BENEFICIALLY OR
OF RECORD, ON NOVEMBER 20, 1995 AND WHO ARE NOT AFFILIATED
WITH CABLEVISION SYSTEMS CORPORATION.
PLEASE READ THIS NOTICE CAREFULLY. THIS NOTICE RELATES
TO A PROPOSED SETTLEMENT OF THE CLASS ACTION
LITIGATION REFERRED TO IN THE CAPTION AND CONTAINS
IMPORTANT INFORMATION REGARDING YOUR RIGHTS. IF THE
COURT APPROVES THE PROPOSED SETTLEMENT, YOU WILL BE
FOREVER BARRED FROM CONTESTING THE FAIRNESS,
REASONABLENESS OR ADEQUACY OF THE PROPOSED
SETTLEMENT, AND FROM PURSUING THE SETTLED CLAIMS.
This Notice is given pursuant to an Order of the Suffolk Superior
Court, Commonwealth of Massachusetts, dated November 21, 1995, in the above-
captioned Action
<PAGE>
and in accordance with Rule 23(d) of the Massachusetts Rules of Civil Procedure.
If you were not the owner of limited partnership units of Cablevision of Boston
Limited Partnership ("the Partnership") held of record by you on November 20,
1995, you are directed to forward this Notice to the beneficial owner of such
limited partnership units. Additional copies of this Notice will be made
available to you for this purpose upon request directed to the Partnership.
THIS NOTICE SHOULD NOT BE UNDERSTOOD AS AN
EXPRESSION OF ANY OPINION OF THE COURT AS TO THE
MERITS OF ANY CLAIM OR DEFENSE BY ANY OF THE
PARTIES. IT IS SENT FOR THE SOLE PURPOSE OF
INFORMING YOU OF THE EXISTENCE OF THIS CLASS
ACTION AND OF THE HEARING ON A PROPOSED SETTLE-
MENT SO THAT YOU MAY MAKE APPROPRIATE DECISIONS
AS TO STEPS YOU MAY WISH TO TAKE IN RELATION TO
THIS LITIGATION AS SET FORTH IN SECTION VIII.
All capitalized terms used in this Notice are defined in Section XI
of this Notice. Any capitalized terms not specifically defined in Section XI
shall have the meaning set forth in the Glossary at pages 162-165 of the
Consent Solicitation Statement/Prospectus, dated October 18, 1995, which was
sent to each Limited Partner by the Partnership on or about October 20, 1995.
I.
THE PARTIES AND DESCRIPTION OF THE LITIGATION
Plaintiff Joel G. Lippe is a Limited Partner of the Partnership. He
instituted a putative class action in Suffolk Superior Court, Commonwealth of
Massachusetts, captioned LIPPE V. CABLEVISION SYSTEMS CORP., ET AL., C.A. No.
94-5428 (the "Action").
The Defendants in the Action are Cablevision Systems Corporation
("Cablevision"), Charles F. Dolan ("Dolan"), the Partnership, Cablevision
Systems Boston Corporation ("CSBC"), Cablevision of Brookline Limited
Partnership (Brookline), Cablevision Systems Brookline Corporation ("CSBrC"),
Cablevision Systems Services Corporation ("CSSC"), Cablevision Finance Limited
Partnership (Cablevision Finance), COB, Inc. ("COB") and Cablevision of Boston,
Inc. ("Boston Sub").
The Action asserts claims of breaches of fiduciary duty or aiding
and abetting breaches of fiduciary duty against the Defendants arising out of
the Partnership's issuance of Preferred Equity in the Partnership to
Cablevision Finance and CSSC allegedly in violation of the Partnership
Agreement, the management and operation of the Partnership in other respects,
and the Defendants' negotiation of timing and terms for the Incorporation,
Merger and Liquidation that are allegedly not fair to the Limited Partners.
(The Incorporation,
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<PAGE>
Merger and Liquidation are described in the October 18, 1995 Consent
Solicitation that the Partnership sent to the Limited Partners on or about
October 20, 1995.)
The Action seeks, among other things (i) a declaration that the
Defendants have breached their fiduciary duty to the Limited Partners or
aided and abetted such breaches of fiduciary duty; (ii) a declaration that it
would be a breach of fiduciary duty for any Defendant to cause the
Partnership to pay certain Defendants any distributions on the Preferred
Equity because the Preferred Equity was unlawfully issued to certain
Defendants; (iii) an order that the Defendants provide an accounting to the
Partnership and Limited Partners for the Partnership's operations prior to
any Liquidation; (iv) a preliminary and permanent injunction against
consummation of the Merger and Liquidation; (v) rescission of the Merger and
Liquidation if they are consummated or rescissory damages if they cannot be
rescinded; and (vi) compensatory damages.
II.
THE SETTLEMENT HEARING
The purpose of this Notice is to inform the members of the
Class (as more fully described below in Section IV) of: (i) a proposed
Settlement of the Action that will result in settling, releasing, discharging
and dismissing with prejudice, as to each Class member, certain claims and
causes of action (as more fully described below in Section VI); and (ii) a
hearing to be held before the Honorable Maria Lopez, Superior Court Judge of
the Suffolk Superior Court of the Commonwealth of Massachusetts in Room 225
in Old Courthouse, Pemberton Square, Boston, Massachusetts 02108, on December 6,
1995, at 3:00 p.m., or any date and time to which it may be adjourned (the
"Settlement Hearing"), in order to determine:
(a) whether the Stipulation of Settlement (the "Stipulation") and
the terms and conditions of Settlement proposed in the Stipulation (as
more fully described below in Section V), taken as a whole, should be
approved as fair, reasonable and adequate;
(b) whether final judgment should be entered dismissing the Action
on the merits and with prejudice as to all Settled Claims as against the
named plaintiff, Joel G. Lippe, and each member of the Class;
(c) if the Court approves the Settlement and enters such final
judgment, whether an order should be entered awarding to counsel for the
plaintiff in connection with the Action attorneys' fees and disbursements,
which are to be paid out of the funds being paid for settlement and that
otherwise would be available for distribution to the Class (as more fully
described below in Sections V, VII); and
(d) such other matters as the Court may deem appropriate.
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<PAGE>
III.
BACKGROUND OF THE LITIGATION
To assist you in evaluating and exercising your rights in connection
with the Settlement, this Section of the Notice provides background information
on the litigation. Additional and more detailed information is set forth in the
October 18, 1995 Consent Solicitation that was mailed to each Limited Partner on
or about October 20, 1995. If you have not retained your copy of that document,
you may review a copy filed with the Court in accordance with the instructions
set forth in Section X.
On June 14, 1994, the Partnership and Cablevision, Cablevision of
Boston, Inc., Charles F. Dolan, Cablevision Systems Boston Corporation,
Cablevision Systems Services Corporation, and Cablevision Finance Limited
Partnership, each of whom was subsequently named a Defendant in the Action,
entered into the Merger Agreement, which contemplated two separate transactions,
the ultimate result of which is the acquisition by Cablevision of substantially
all of the assets and all of the liabilities of the Partnership. The first of
these two transactions, the Incorporation, involves the transfer of
substantially all of the Partnership's assets and all of the Partnership's
liabilities to Cablevision of Boston, Inc., a new corporation, that is a wholly
owned subsidiary of the Partnership. The second of these two transactions, the
Merger, involves the merger of a wholly-owned subsidiary of Cablevision with and
into Cablevision of Boston, Inc., in which the Partnership will receive shares
of Cablevision Class A Common Stock for all of the issued and outstanding stock
of Cablevision of Boston, Inc. After the consummation of the Merger, the
Partnership will then Liquidate and the Cablevision Class A Common Stock
received by the Partnership in the Merger will be distributed to the
Partnership's Partners and the holder of the Partnership's Preferred Equity.
Upon completion of the Incorporation and Merger (collectively, the
"Transactions") and the Liquidation, Cablevision of Boston, Inc. will become a
wholly-owned subsidiary of Cablevision and the Partnership's Limited Partners
will hold stock of Cablevision.
On June 15, 1994 and from time to time thereafter as it was amended in
the course of review by the Securities and Exchange Commission ("Commission"),
the Partnership filed with the Commission the Preliminary Consent Solicitation,
which, when finalized and delivered to the Limited Partners, would seek consent
from such Limited Partners to the Transactions and which described, among other
things, the Transactions and the Liquidation. The Preliminary Consent
Solicitation was publicly available pursuant to applicable rules and procedures
of the Commission.
The Preliminary Consent Solicitation stated that consummation of both
the Incorporation and the Merger would result in the Limited Partners receiving
in the Liquidation Cablevision Class A Common Stock with an expected market
value of approximately $10,000 per Unit of limited partnership interest, which
totals approximately
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<PAGE>
$40 million and is 100% of the total of the per Unit amounts invested by the
Limited Partners that are Unaffiliated Limited Partners.
The Preliminary Consent Solicitation also explained that Cablevision
Finance, a subsidiary of Cablevision and holder of Preferred Equity in the
Partnership, had agreed solely in connection with the Merger, to a substantial
reduction in its Preferred Equity Interests in order to increase the amounts
distributable to the Limited Partners in the Liquidation. To exemplify the
degree of reduction, based upon financial information as of June 30, 1994, the
Preferred Equity Interests totalled $145.4 million and those Interests would
receive only $50.3 million as a result of the Transactions and the Liquidation.
The Preliminary Consent Solicitation also disclosed that, in
considering the Transactions, the General Partners, together with their counsel,
Debevoise & Plimpton, had reviewed the issuance of the Preferred Equity and
that, although the General Partners continue to believe that the Preferred
Equity was validly issued, they concluded, based on such review and the advice
of their counsel, that one or more Limited Partners could bring litigation
challenging the issuance of the Preferred Equity on the grounds that it did not
fully comply with the Partnership Agreement and claiming that the holders of
the Preferred Equity are not entitled to the Full Contractual Rights of the
Preferred Equity. The Preliminary Consent Solicitation further disclosed (i)
that, after analyzing the issues that might be raised in litigation brought
by a Limited Partner and the applicability of various available defenses,
counsel to the General Partners identified litigation outcomes that they
believe represent the range of possible outcomes of such a litigation and
assessed the probability of such outcomes; (ii) that, based on their
assessment of the likelihoods of such outcomes, such counsel advised the
General Partners that the holders of the Preferred Equity would more likely
than not be entitled to at least $80 million if, hypothetically, the validity
of the Preferred Equity were fully adjudicated and the Partnership and
Cablevision consummated the Merger and Liquidation substituting the
adjudicated rights of the Preferred Equity for the amount that Cablevision
Finance has agreed to receive in respect of the Preferred Equity Interests in
the Liquidation; and (iii) that, using June 30, 1994 financial information to
illustrate this comparison, the $80 million amount exceeded by approximately
$29.7 million the amount actually allocated to the holders of Preferred
Equity in the Liquidation.
The Preliminary Consent Solicitation also disclosed that
Cablevision Finance had advised the General Partners that, other than in
connection with the Transactions, it would not agree to any reductions in or
modifications of the Full Contractual Rights of its Preferred Equity and, if
necessary, would pursue all legal remedies to enforce those rights.
On or about October 5, 1994, following the filing and
availability to the public of the original and an amended Preliminary Consent
Solicitation containing the disclosures set forth above (with financial
disclosures as of June 30, 1994), plaintiff Joel G. Lippe commenced the
Action.
-5-
<PAGE>
Prior to entering into the Merger Agreement and filing the
original Preliminary Consent Solicitation, the General Partners reviewed and
considered the terms and conditions of the Transactions, approved each of the
Transactions and determined to recommend that the Limited Partners approve
each of the Transactions because the General Partners believed that the
Transactions are fair to and in the best interests of the Limited Partners,
excluding those Limited Partners that are Cablevision and officers or
directors of Cablevision ("Unaffiliated Limited Partners"). On June 13, 1994,
prior to the General Partners' approval of the Transactions, PaineWebber
Incorporated, New York, New York, the independent financial advisor to the
General Partners, delivered its written opinion to the General Partners that
the consideration to be received in the Liquidation by the Unaffiliated
Limited Partners is fair, from a financial point of view, to such
Unaffiliated Limited Partners. This opinion was subsequently and recently
confirmed by PaineWebber Incorporated in a written opinion, dated October 17,
1995.
On December 15, 1994, Defendants served answers to the Complaint,
denying all of its material allegations.
On October 18, 1995, the Partnership filed with the Commission
the October 18, 1995 Consent Solicitation, amending the Preliminary Consent
Solicitation previously filed by the Partnership and also amending the
registration statement on Form S-4 with respect to the Cablevision Class A
Common Stock to be issued in the Merger, which had originally been filed with
the Commission on September 18, 1995. The October 18, 1995 Consent
Solicitation also set forth, among others, the disclosures and explanations
described in paragraphs 3 - 7 above which had also been set forth in the
Preliminary Consent Solicitation. In addition, the October 18, 1995 Consent
Solicitation disclosed that the Action had been filed.
The October 18, 1995 Consent Solicitation also disclosed (i)
that, based on advice of counsel, the General Partners believed that Limited
Partners who consent to the Incorporation or Merger could be, but would not
necessarily be, precluded from challenging the issuance of the Preferred
Equity solely because of that consent; (ii) that Cablevision Finance, the
General Partners and the other Defendants in the Action had indicated that
they would raise the consent as part of the defense to any challenge; and
(iii) that the General Partners believe that the Limited Partners' consent to
the Transactions is a factor that would be considered by the Court in
deciding whether the Limited Partners would be barred from challenging the
issuance of the Preferred Equity.
On or about October 20, 1995, the October 18, 1995 Consent
Solicitation was mailed to each Limited Partner of record.
Article VII of the Merger Agreement contains certain conditions
to the Incorporation and the Merger. Paragraphs 6.1.8 and 7.1.6 of the Merger
Agreement require, among other things, that no action or proceeding be
pending on the date of the Incorporation or of the Merger that seeks to
restrain, enjoin or otherwise prevent the consummation of the
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Transactions or to recover any damages or obtain other relief as a result of
such Transactions. Consequently, unless the Action is dismissed or settled, or
the condition is waived by all necessary parties, the conditions to the
Incorporation and the Merger will not be satisfied.
The Merger Agreement may be terminated by its terms after
December 31, 1995, if the Merger has not been consummated by that date. In
addition, as stated in the October 18, 1995 Consent Solicitation, if the
Transactions are not consummated prior to December 31, 1995, the Partnership
will be unable at December 31, 1995 to meet the repayment terms on its bank
debt under its Loan Agreement, which require a substantial loan repayment on
December 31, 1995, and thereafter, and, therefore, will likely be required to
attempt to renegotiate the terms of the Loan Agreement. In order to
consummate the Merger on or before December 31, 1995, when this December 31,
1995 repayment is due, the Incorporation must be consummated on or prior to
December 21, 1995, in order to insure that the Limited Partners consider the
Incorporation separately from their consideration of the Merger, as is
required for the desired tax treatment of the Transactions.
Throughout the period following the commencement of the Action,
counsel for plaintiff Lippe and for Defendants have been engaged in formal
and informal discovery and discussions regarding the merits of the Action,
which have provided counsel for plaintiff Lippe, the proposed Class Counsel,
with substantial information regarding the merits of plaintiff's and the
Class's claims. In addition to their factual investigation, plaintiff Lippe's
counsel have also researched the applicable law, including the likely
remedies that could be achieved, even assuming that the Preferred Equity were
found not to have been properly issued. After taking into consideration the
sharp dispute as to whether the Preferred Equity fully complies with the
Partnership Agreement, the likelihood that, even if the Preferred Equity were
found to have been issued in violation of the Partnership Agreement, the
holders of the Preferred Equity would be entitled to receive an amount
exceeding the amount that such holders have agreed to accept in connection
with the Transactions, the likely valuation of the Partnership, the issue of
whether consent to the Transactions would preclude one or more Unaffiliated
Limited Partners from challenging the issuance of the Preferred Equity, the
risks attendant to further litigation, the substantial benefits obtained
through settlement and the interests in insuring that the Unaffiliated
Limited Partners receive the substantial benefits of the Transactions and
that they receive such benefits in a timely fashion, plaintiff and his
counsel have concluded that the terms of the Settlement as set forth herein
are fair, reasonable, adequate and in the best interests of the Class and
that the rights of the members of the Class have been fully protected.
Defendants, and each of them, have at all times denied, and
continue to deny, that they have committed any wrongful or unlawful acts or
violations of law of any nature whatsoever in connection with the matters,
transactions and occurrences set forth in the Complaint, in the pleadings and
proceedings in the Action, or any other matter relating to management and
operation of the Partnership, the Transactions and/or the issuance of the
Preferred Equity. Defendants have entered into the Stipulation of Settlement
solely because
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the proposed Settlement will eliminate the burden, expense and distraction of
further litigation and will finally put to rest the claims of plaintiff Lippe
and the putative Class that were or could have been asserted in the Action, and
will facilitate the prompt consummation of the Transactions.
IV.
CLASS ACTION DETERMINATION
Solely for purposes of this Settlement, the Court has conditionally
certified this Action as a Class Action, pursuant to Rule 23 of the
Massachusetts Rules of Civil Procedure. The proposed Class consists of all
persons who were Limited Partners of the Partnership, beneficially or of record,
on November 20, 1995, the date that the Stipulation of Settlement
("Stipulation") was executed, and who are Unaffiliated Limited Partners (the
"Class"). Plaintiff Joel G. Lippe shall act as representative of the Class
("Class Representative"). Counsel for the Class are Joel G. Lippe's lawyers,
(1) Ronald Litowitz and Richard Speirs, Bernstein Litowitz Berger & Grossmann
LLP, 1285 Avenue of the Americas, New York, New York 10019; (2) Thomas
Weinstock and James Keegan, Bendit Weinstock & Sharbaugh, 80 Main Street,
West Orange, New Jersey 07052; and (3) Thomas G. Shapiro, Shapiro Grace
Haber & Urmy, 75 State Street, Boston, Massachusetts 02109 ("Class Counsel").
V.
THE SETTLEMENT TERMS
Subject to the approval of the Court, the following summarizes the
terms of the Settlement:
1. On or before the earlier of (i) the date on which the Merger is
completed; or (ii) two business days after the date that Approval occurs,
Cablevision shall deposit $1,250,000.00 (the "Settlement Amount") into an
account ("Class Escrow") to be established with The Bank of New York, New
York, New York or such other bank as is approved by Cablevision Counsel and
Class Counsel (the "Escrow Agent").
2. All Escrow Agent fees and other fees, charges, and expenses
associated with the Class Escrow (collectively "Escrow Fees") shall be paid
out of the Class Escrow.
3. If certain conditions, described below, are satisfied, all
funds deposited in the Class Escrow, including the Settlement Amount and all
interest earned on the account, shall be disbursed or distributed as follows:
- Payment shall be made out of the Class Escrow of Escrow
Fees as provided in paragraph 5 of the Stipulation and Class
Counsel Fees and Class Counsel Expenses as provided in paragraph 10
of the Stipulation and as
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described more fully below in Section VII and the remaining balance of
the funds in the Class Escrow, including all interest earned on funds
in the Class Escrow (the "Balance"), will be distributed to members of
the Class.
- The amount distributed to each member of the Class will be
determined by dividing the Balance by 3725, which is the number of
units held by Unaffiliated Limited Partners, to determine a Per
Unit Balance and then multiplying this Per Unit Balance by the
number of units of limited partnership interests held by each Class
member.
- Assuming that Class Counsel are awarded the maximum amount
permitted for Class Counsel Fees and Class Counsel Expenses and
assuming there are no Escrow Fees (which in any event are expected
to be minimal), the Per Unit Balance will be approximately $238.00.
For example, if a Limited Partner acquired one Unit and has not
disposed of any of his interests, due to the subsequent six-for-one
split, he would today own six units and would receive approximately
$1428.00 in the Settlement.
- The costs of distributing the Balance to the Class members
will be paid by Cablevision.
4. Distribution of the Class Escrow to the Class members will be
made only upon the occurrence of one of the following:
- consummation of the Merger, if but only if Final Approval
has occurred prior to consummation of the Merger; or
- Final Approval, if but only if Final Approval occurs after
the consummation of the Merger.
5. The Stipulation may be terminated in certain circumstances. Any
one of the Defendants in its sole discretion may terminate the Stipulation
under the following circumstances:
- if for any reason any one or both of the Transactions is
not approved by the Unaffiliated Limited Partners as required by
the Merger Agreement or, if approved by the Unaffiliated Limited
Partners, is not consummated as required by the Merger Agreement;
- if the Merger Agreement is terminated in accordance with its
terms;
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- if conditional certification of the Class for settlement
purposes only and approval by the Court of the Class Notice and the
method and manner of distributing the Class Notice do not occur on
or before November 28, 1995;
- if Approval does not occur on or before December 21, 1995; or
- if Final Approval does not occur on or before March 31,
1996.
The Stipulation may also be terminated by the Class Representative, on behalf
of the Class, if the Merger Agreement is terminated. The Stipulation, if
terminated, is void and of no further force or effect (except for the
provisions of paragraphs 11-12 of the Stipulation relating to the rights of
the parties in the event of termination or failure of Final Approval to
occur, and to the absence of any admission of liability, as more fully set
forth in the Stipulation).
VI.
DISMISSAL AND RELEASE OF CLAIMS
If satisfaction of the conditions to payment to Class members,
described more fully in Section V, occurs, the Order and Final Judgment will
provide for the release, discharge and dismissal with prejudice, without the
award of costs to any party except as provided in the Stipulation, of the
following claims that each Class member has or may have:
All claims, rights, causes of action, suits, matters and issues,
known or unknown, that have been or could have been asserted in the
Complaint, in the pleadings and proceedings in the Action, or any other
action that could have been brought in this or any other forum, by the Class
Representative, any Limited Partner, or any putative member of the Class, and
any of their successors or assigns, whether directly, representatively,
derivatively, individually or in any other capacity, against any of the
Defendants, or any party to the Merger Agreement or party to or participant
in the Transactions or Liquidation, their respective present or former
officers, directors, employees, agents, attorneys, stockholders, advisors,
investment bankers, representatives, parents, affiliates, subsidiaries,
general and limited partners, heirs, executors, administrators, trustees,
predecessors, successors and assigns, or against anyone else, in connection
with, arising out of, or in any way related to (i) any of the acts, facts,
transactions, occurrences, breaches, representations or omissions set forth,
alleged, embraced or otherwise referred to in the pleadings and proceedings
in the Action, including, but not limited to, the Preferred Equity, the
Transactions, the Liquidation, the Consent Process and the management and
operations of the Partnership or Cablevision of Brookline Limited
Partnership, (ii) the Partnership or Cablevision of Brookline Limited
Partnership or the management or operations of either, and (iii) any other
claim arising out of or in connection with the Partnership for violation of
federal, state or other law, or of the common law, which said Class members,
or any of
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them, had, now have, or may hereafter have as a member of the Class
or as an individual (the "Settled Claims"). Excluded from the Settled Claims
are (a) any claims relating to any party's alleged failure to comply with the
terms and conditions of this Stipulation and (b) any appraisal rights that a
Class member properly perfects pursuant to Paragraph 1.8 and Annex VI of the
Merger Agreement.
If satisfaction of the conditions to payment to Class members,
described more fully in Section V, occurs, the Order and Final Judgment will
also enjoin each member of the Class and the Class as a whole from
instituting, commencing, prosecuting or continuing any action or other
proceeding in any court or tribunal of this or any other jurisdiction,
whether directly, representatively, derivatively, individually or in any
other capacity, against any person or entity released by the Order and Final
Judgment (the "Released Parties"), or against anyone else, based upon or for
the purpose of enforcing any of the Settled Claims.
VII.
ATTORNEYS' FEES AND DISBURSEMENTS
Class Counsel intend to apply to the Court for an award of fees for
their legal services and out-of-pocket disbursements, including, but not
limited to, fees for experts and consultants, in connection with the Action.
The Stipulation limits the award of such fees ("Class Counsel Fees") and such
disbursements ("Class Counsel Expenses"). Class Counsel Fees may not exceed
25% of the Settlement Amount, and Class Counsel Expenses may not exceed
$50,000.00. Payment of Class Counsel Fees and Class Counsel Expenses will be
made solely from the Class Escrow and will be contingent upon and made only
after satisfaction of the conditions to payment to Class members, described
more fully in Section V. Payment from the Class Escrow of Class Counsel Fees
and Class Counsel Expenses in accordance with the Stipulation will satisfy
any and all claims against Defendants in the Action for attorneys' fees and
expenses.
VIII.
RIGHT TO APPEAR
At the Settlement Hearing, any member of the Class who desires to
do so may appear personally or by counsel, provided an appearance is filed
and served as hereinafter set forth, and may show cause, if such member has
any, why the Settlement of the Action should not be approved as fair,
reasonable and adequate, why final judgment should not be entered dismissing
the Settled Claims on the merits and with prejudice to their reassertion by
the plaintiff and all members of the Class as determined by the Court, or why
the Court should not grant an allowance of Class Counsel Fees and/or Class
Counsel Expenses for Class Counsel's services herein and expenses incurred by
them; PROVIDED, HOWEVER, THAT NO MEMBER OF THE CLASS OR ANY OTHER PERSON
SHALL BE HEARD OR ENTITLED TO CONTEST THE APPROVAL OF THE TERMS AND
CONDITIONS OF THE SETTLEMENT AND, IF APPROVED, THE JUDGMENT TO
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BE ENTERED THEREON AND THE ALLOWANCE OF CLASS COUNSEL FEES AND CLASS COUNSEL
EXPENSES, AND NO PAPERS OR BRIEFS SUBMITTED BY ANY MEMBER OF THE CLASS OR ANY
OTHER PERSON SHALL BE RECEIVED AND CONSIDERED, EXCEPT BY ORDER OF THE COURT FOR
GOOD CAUSE SHOWN, UNLESS, NO LATER THAN TWO (2) DAYS PRIOR TO THE SETTLEMENT
HEARING, COPIES OF (A) A NOTICE OF INTENTION TO APPEAR, (B) A DETAILED
STATEMENT OF SUCH PERSON'S SPECIFIC OBJECTIONS TO ANY MATTER BEFORE THE
COURT, AND (C) THE GROUNDS FOR SUCH OBJECTIONS AND ANY REASONS FOR SUCH
PERSON'S DESIRING TO APPEAR AND TO BE HEARD, AS WELL AS ALL DOCUMENTS AND
WRITINGS SUCH PERSON DESIRES THIS COURT TO CONSIDER, SHALL BE RECEIVED BY THE
FOLLOWING COUNSEL:
Yvonne S. Quinn
SULLIVAN & CROMWELL
125 Broad Street
New York, New York 10004
Ronald Litowitz
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1285 Avenue of the Americas
New York, New York 10019
Robert L. King
DEBEVOISE & PLIMPTON
601 South Figueroa Street
Suite 3700
Los Angeles, California 90017
AND FILED WITH THE SUFFOLK SUPERIOR COURT, COMMONWEALTH OF MASSACHUSETTS, OLD
COURTHOUSE, PEMBERTON SQUARE, BOSTON, MASSACHUSETTS 02108. Unless the Court
otherwise directs, no member of the Class shall be entitled to object to the
Settlement, the judgment to be entered herein, or the certification of the
Class or the award of Class Counsel Fees or Class Counsel Expenses, or
otherwise to be heard, except by serving and filing written objections as
described above. Any person who fails to object in the manner provided above
shall be deemed to have waived such objection and shall forever be barred
from making any such objection in the Action or in any other action or
proceeding.
Pending the final determination of whether the Settlement should be
approved, no member of the Class may commence or continue, if commenced, in
any capacity, any action or other proceeding asserting any claim that is a
Settled Claim.
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The Settlement Hearing may be adjourned by the Court to a date and
time other than December 6, 1995 at 3:00 p.m. without further notice to the
Class other than by announcement at the Settlement Hearing or any adjournment
thereof.
IX.
RELATIONSHIP BETWEEN THE SETTLEMENT
AND THE CONSUMMATION OF THE TRANSACTIONS
As stated in Section III above, the Merger Agreement, pursuant to
which the Transactions are to be consummated, contains a condition to each of
the Transactions that requires on the date either of the Incorporation or of
the Merger that no action or proceeding be pending that seeks to restrain,
enjoin or otherwise prevent the consummation of the Transactions or to
recover any damages or obtain other relief as a result of such Transactions.
The Action is such an action or proceeding. Therefore, unless and until the
Action is dismissed or Final Approval of the Settlement occurs, this
condition to the Incorporation and the Merger will not be satisfied, unless
such condition is waived by all necessary parties. The necessary Final
Approval of the Settlement does not occur until an Order and Final Judgment
has been entered in the form agreed upon in the Stipulation, or as otherwise
approved by Class Counsel, Cablevision Counsel and Partnership Counsel, and
becomes final and nonappealable by virtue of expiration of all appropriate
appeal periods without an appeal being filed, or, if an appeal is filed, by
final affirmance thereof upon appeal, or final dismissal of all appeals
therefrom.
X.
SCOPE OF THIS NOTICE
The foregoing description of the Settlement Hearing, the
Action, the terms of the proposed Settlement and other matters described
herein does not purport to be comprehensive. Accordingly, members of the
Class are referred to the documents filed with the Court in the Action,
including the Stipulation, and to the October 18, 1995 Consent Solicitation
(which was mailed to all Limited Partners on or about October 20, 1995). The
documents filed in this Action may be examined by you or your attorney during
regular business hours on any business day at the Office of the Clerk,
Suffolk Superior Court, Commonwealth of Massachusetts, Old Courthouse,
Pemberton Square, Boston, Massachusetts 02108.
XI.
DEFINED TERMS
The terms set forth below shall have the indicated meaning and any
capitalized terms not specifically set forth in this section or otherwise
defined in this Notice shall have
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the meaning set forth in the Glossary at pages 162-165 of the October 18, 1995
Consent Solicitation:
ACTION. The putative class action filed on or about October 5, 1994
by Plaintiff Joel G. Lippe in the Superior Court for the Commonwealth of
Massachusetts, captioned LIPPE V. CABLEVISION SYSTEMS CORPORATION, ET AL.,
C.A. No. 94-5428.
APPROVAL. The entry of an Order and Final Judgment in the Action
substantially in the form of Exhibit C attached to the Stipulation or as
otherwise approved by Class Counsel, Cablevision Counsel and Partnership
Counsel, finally approving the Stipulation.
BALANCE. Balance has the meaning ascribed to it in paragraph 6(b)
of the Stipulation, which is described in Section V above.
CABLEVISION. Cablevision Systems Corporation, a Delaware
corporation.
CABLEVISION OF BOSTON, INC. The new corporation established as the
Incorporation vehicle and a wholly-owned subsidiary of the Partnership, which
is referred to as Boston Sub in the October 18, 1995 Consent Solicitation.
CABLEVISION CLASS A COMMON STOCK. Class A Common Stock, par value
$0.01 per share, of Cablevision.
CABLEVISION COUNSEL. Yvonne S. Quinn and John P. Mead, Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004.
Cablevision Finance. Cablevision Finance Limited Partnership, a
wholly-owned subsidiary of Cablevision.
CABLEVISION FINANCE FULL CONTRACTUAL RIGHTS. The rights conferred
on Cablevision Finance pursuant to the terms of the instruments relating to
the Preferred Equity held by it, including (i) the right to payment of the
full amounts contributed to the Partnership in respect of its Preferred
Equity; (ii) any unpaid cumulative distributions at the rate of 15% per
annum, compounded semi-annually; (iii) the right to a payment of (i) and (ii)
out of funds legally available for distribution to Partners, prior to any
distribution to Partners; and (iv) the right to receive 20% of all amounts
available for post-Payout distributions.
CLASS. A conditional class for settlement purposes only that
consists of all persons who are Limited Partners, beneficially or of record,
on November 20, 1995 and who are also Unaffiliated Limited Partners.
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CLASS COUNSEL. (1) Ronald Litowitz and Richard Speirs, Bernstein
Litowitz Berger & Grossmann LLP, 1285 Avenue of the Americas, New York, New
York 10019; (2) Thomas Weinstock and James Keegan, Bendit Weinstock &
Sharbaugh, 80 Main Street, West Orange, New Jersey 07052; and (3) Thomas
Shapiro, Shapiro Grace Haber & Urmy, 75 State Street, Boston, Massachusetts
02109.
CLASS COUNSEL EXPENSES. Out-of-pocket disbursements awarded Class
Counsel by the Court pursuant to paragraph 10 of the Stipulation.
CLASS COUNSEL FEES. Fees awarded Class Counsel by the Court
pursuant to paragraph 10 of the Stipulation.
CLASS ESCROW. An escrow account into which the Settlement Amount is
to be paid by Cablevision as provided for in paragraph 5 of the Stipulation.
CLASS NOTICE. This Notice.
CLASS REPRESENTATIVE. Plaintiff Joel G. Lippe.
COMMISSION. The Securities and Exchange Commission.
COMPLAINT. The complaint in the Action.
CONSENT PROCESS. The solicitation of consents to the Incorporation
and Merger including the filing of preliminary and final consent solicitation
materials (including the October 18, 1995 Consent Solicitation) and the
registration, offer and issuance of the Cablevision Class A Common Stock to
be issued in the Merger.
COURT. Suffolk Superior Court, Commonwealth of Massachusetts,
before which the Action is pending.
CSBC. Cablevision Systems Boston Corporation, a Massachusetts
corporation wholly-owned by Dolan, and a General Partner of the Partnership.
CSSC. Cablevision Systems Services Corporation, a New York
corporation wholly-owned by Dolan.
CSSC FULL CONTRACTUAL RIGHTS. The rights conferred on CSSC pursuant
to the terms of the instruments relating to the Preferred Equity held by it,
including (i) the right to payment of the full amounts contributed to the
Partnership in respect of its Preferred Equity; (ii) any unpaid cumulative
distributions thereon at the rate of 15% per annum, compounded semi-annually;
and (iii) the right to payment of (i) and (ii) out of funds legally available
for distribution to Partners, prior to any distribution to Partners. The
right to payment of (i) is
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subordinate to the payment of the full amounts contributed to the Partnership in
respect of Cablevision Finance's Preferred Equity.
DEFENDANTS. All defendants named in the Action including
Cablevision Systems Corporation, Charles F. Dolan, Cablevision of Boston
Limited Partnership, Cablevision Systems Boston Corporation, Cablevision of
Brookline Limited Partnership, Cablevision Systems Brookline Corporation,
Cablevision Systems Services Corporation, Cablevision Finance Limited
Partnership, COB, Inc. and Cablevision of Boston, Inc.
DOLAN. Charles F. Dolan, the managing general partner of the
Partnership, the Chairman of Cablevision and the managing general partner of
Cablevision of Brookline Limited Partnership, a Massachusetts limited
partnership of which 99% is held by the Partnership as its limited partner.
FINAL APPROVAL. Final Approval occurs when an Order and Final
Judgment entered in the Action substantially in the form of Exhibit C
attached to the Stipulation or as otherwise approved by Class Counsel,
Cablevision Counsel and Partnership Counsel finally approving this
Stipulation of Settlement becomes final and nonappealable by virtue of
expiration of all appropriate appeal periods without an appeal being filed,
or, if an appeal is filed, by final affirmance thereof upon appeal, or final
dismissal of all appeals therefrom.
FULL CONTRACTUAL RIGHTS. Cablevision Finance Full Contractual
Rights and CSSC Full Contractual Rights.
GENERAL PARTNERS. The two general partners of the Partnership,
Dolan and CSBC.
INCORPORATION. The transfer of substantially all of the assets and
all of the liabilities of the Partnership to Cablevision of Boston, Inc.
LIMITED PARTNERS. The investors holding one or more Units in the
Partnership.
LIQUIDATION. The dissolution and liquidation of the Partnership
immediately after the consummation of the Merger.
MERGER. The merger of a wholly-owned subsidiary of Cablevision,
COB, Inc., with and into Cablevision of Boston, Inc. pursuant to which the
Partnership will receive shares of Cablevision Class A Common Stock in
exchange for shares of capital stock of Cablevision of Boston, Inc.
MERGER AGREEMENT. The Acquisition Agreement and Plan of Merger and
Reorganization Relating to Cablevision of Boston Limited Partnership, dated
as of June 14, 1994, among Cablevision, the Partnership and certain other
parties, as amended from time to time.
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OCTOBER 18, 1995 CONSENT SOLICITATION. The Consent Solicitation
Statement/Prospectus, dated October 18, 1995, filed with the Commission and
mailed to Limited Partners on or about October 20, 1995.
PARTNERS. The General Partners and the Limited Partners.
PARTNERSHIP. Cablevision of Boston Limited Partnership, a
Massachusetts limited partnership.
PARTNERSHIP AGREEMENT. The Partnership's Articles of Limited
Partnership, as amended from time to time.
PARTNERSHIP COUNSEL. Robert L. King and Daniel Murphy, Debevoise &
Plimpton, 601 South Figueroa Street, Suite 3700, Los Angeles, California
90017.
PER UNIT BALANCE. Per Unit Balance has the meaning ascribed to it
in paragraph 6(b) of the Stipulation, which is described in Section V.
PREFERRED EQUITY. Preferred equity in the Partnership.
PREFERRED EQUITY INTERESTS. The face amount of the Preferred Equity
and the cumulative distributions thereon.
PRELIMINARY APPROVAL. The entry of an Order in the Action
substantially in the form of Exhibit B attached to the Stipulation or
otherwise approved by Class Counsel, Cablevision Counsel and Partnership
Counsel.
PRELIMINARY CONSENT SOLICITATION. The Preliminary Consent
Solicitation Statement/Prospectus filed with the Commission on June 15, 1994,
as amended from time to time thereafter.
SETTLED CLAIMS. Settled Claims has the meaning ascribed thereto in
paragraph 1 of the Stipulation, which is also set forth in Section VI.
SETTLEMENT. The settlement and resolution of the Action as among
the Class, on the one hand, and Defendants, on the other hand, and as set
forth in the Stipulation.
SETTLEMENT AMOUNT. The amount of $1,250,000.00 to be paid by
Cablevision as set forth in paragraph 5 of the Stipulation.
SETTLEMENT HEARING. The hearing before the Court on the application
for Approval of the proposed Settlement, and any adjournment thereof.
STIPULATION. The Stipulation of Settlement.
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TRANSACTIONS. Collectively, the Incorporation and the Merger.
UNAFFILIATED LIMITED PARTNERS. Limited Partners other than
Cablevision and officers and directors of Cablevision.
Dated: Boston, Massachusetts
November 21, 1995
Clerk of the Court
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EXHIBIT B
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
C.A. NO. 94-5428
- -----------------------------------------------------------------------x
JOEL G. LIPPE, :
PLAINTIFF,
v. :
CABLEVISION SYSTEMS CORP., CHARLES F. :
DOLAN, CABLEVISION OF BOSTON LIMITED
PARTNERSHIP, CABLEVISION SYSTEMS :
BOSTON CORP., CABLEVISION OF
BROOKLINE LIMITED PARTNERSHIP, :
CABLEVISION SYSTEMS BROOKLINE CORP.,
CABLEVISION SYSTEMS SERVICES CORP., :
CABLEVISION FINANCE LIMITED PARTNER-
SHIP, COB, INC., and CABLEVISION OF :
BOSTON, INC.,
:
DEFENDANTS.
- -----------------------------------------------------------------------x
HEARING ORDER
The parties having made application for an Order (i) directing
conditional certification of a class solely for purposes of the settlement
(the "Settlement") of the above-captioned action (the "Action") in accordance
with a Stipulation of Settlement, dated November 20, 1995 (the "Stipulation"),
which, together with its Exhibits, sets forth the terms and conditions for
the proposed Settlement of the Action; (ii) approving the Notice of Pendency
of Action, Class Action Determination, Proposed Settlement, Settlement
Hearing and Right to Appear ("Class Notice") and proposed method of
distribution of the Class Notice; and (iii) scheduling a hearing at which the
Court will consider an application for approval of the Settlement and for
entry of a judgment dismissing the Action with prejudice; and the Court
<PAGE>
having read and considered the Stipulation and its Exhibits; and all parties
having consented to the entry of this Order;
IT IS HEREBY ORDERED this 21st day of November 1995, that:
1. All capitalized terms herein shall be defined as set forth
in the Stipulation.
2. For purposes of the Settlement only, the Action shall
conditionally be maintained and proceed as a class action pursuant to Rule 23
of the Massachusetts Rules of Civil Procedure, with the named plaintiff, Joel
G. Lippe, as representative of the class ("Class Representative"), and with
his counsel, (1) Ronald Litowitz and Richard Speirs, Bernstein Litowitz
Berger & Grossmann LLP, 1285 Avenue of the Americas, New York, New York
10019; (2) Thomas Weinstock and James Keegan, Bendit Weinstock & Sharbaugh,
80 Main Street, West Orange, New Jersey 07052; and (3) Thomas G. Shapiro,
Shapiro Grace Haber & Urmy, 75 State Street, Boston, Massachusetts 02109, as
counsel for the class ("Class Counsel"). The Class shall consist of all
persons who were Limited Partners of Cablevision of Boston Limited
Partnership (the "Partnership"), beneficially or of record, on November 20,
1995 and were Unaffiliated Limited Partners (the "Class").
3. A hearing shall be held before the Court on December 6, 1995
at 3:00 p.m., in the Suffolk Superior Court, Commonwealth of Massachusetts,
Room 225, Old Courthouse, Pemberton Square, Boston, Massachusetts (the
"Settlement Hearing"), for the purposes of (a) determining whether the
proposed Settlement of the Action on the terms and conditions provided for in
the Stipulation is fair, reasonable and adequate to the members of the Class
and should be approved by the Court, and whether the Order and Final Judgment
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<PAGE>
as provided for in paragraph 3(c) of the Stipulation and attached thereto as
Exhibit C should be entered, (b) considering the application of Class Counsel
for an award of fees and expenses to be paid from the Class Escrow as
provided for in paragraph 10 of the Stipulation, and (c) ruling on such other
matters as the Court may deem appropriate. The Court may adjourn the
Settlement Hearing, or any adjournment thereof, without further notice to
members of the Class other than by announcement at the Settlement Hearing, or
at any adjournment of the Settlement Hearing.
4. The Court approves, in form and content, the Class Notice
attached as Exhibit 1 hereto, and finds that the mailing and distribution of
the Class Notice substantially in the manner and form set forth in paragraph
9 of the Stipulation and in paragraph 5 below meet the requirements of Rule
23 of the Massachusetts Rules of Civil Procedure and due process, is the best
notice practicable under the circumstances, and shall constitute due and
sufficient notice to all persons entitled thereto.
5. (a) At least 14 days prior to the Settlement Hearing, the
Partnership shall cause a copy of the Class Notice to be mailed to all
members of the Class, by overnight express mail or overnight courier service
(such as Airborne or Federal Express) at the addresses listed on the
Partnership's records and used to solicit consents to the Transactions that
are a subject of this Action. The Partnership shall also use reasonable
efforts to give notice to beneficial owners of limited partnership units by
making available additional copies of the Class Notice to any record holder
requesting the same for the purpose of distribution to such beneficial
owners; and
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<PAGE>
(b) At or prior to the Settlement Hearing provided for in
paragraph 3 of this Order, the Partnership shall file proof, by affidavit,
of such mailings.
6. At the Settlement Hearing, any member of the Class who desires
to do so may appear personally or by counsel, provided an appearance is filed
and served as hereinafter set forth, and may show cause, if such member has
any, why the Settlement of the Action should not be approved as fair,
reasonable and adequate, why final judgment should not be entered dismissing
the Settled Claims, as that term is defined in paragraph 7, on the merits and
with prejudice to their reassertion by the plaintiff and all members of the
Class as determined by the Court, or why the Court should not grant an
allowance of Class Counsel Fees and/or Class Counsel Expenses for Class
Counsel's services herein and expenses incurred by them; provided, however,
that no member of the Class or any other person shall be heard or entitled to
contest the approval of the terms and conditions of the Settlement and, if
approved, the judgment to be entered thereon and the allowance of Class
Counsel Fees and Class Counsel Expenses, and no papers or briefs submitted by
any member of the Class or any other person shall be received and considered,
except by Order of the Court for good cause shown, unless, no later than two
(2) days prior to the Settlement Hearing, copies of (a) a notice of intention
to appear, (b) a detailed statement of such person's specific objections to
any matter before the Court, and (c) the grounds for such objections and any
reasons for such person's desiring to appear and to be heard, as well as all
documents and writings such person desires this Court to consider, shall be
received by the following counsel:
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<PAGE>
Yvonne S. Quinn
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Ronald Litowitz
Bernstein, Litowitz, Berger & Grossmann LLP
1285 Avenue of the Americas
New York, New York 10019
Robert L. King
Debevoise & Plimpton
601 South Figueroa Street
Suite 3700
Los Angeles, California 90017
and filed with the Court. Unless the Court otherwise directs, no member of
the Class shall be entitled to object to the Settlement, the judgment to be
entered herein, or the certification of the Class or the award of Class
Counsel Fees and Class Counsel Expenses, or otherwise to be heard, except by
serving and filing written objections as described above. Any person who
fails to object in the manner provided above shall be deemed to have waived
such objection and shall forever be barred from making any such objection in
the Action or in any other action or proceeding.
7. Upon satisfaction of the conditions to payment to Class
members in paragraph 6(c) of the Stipulation, the Class Representative and
all members of the Class shall conclusively be deemed to have compromised,
settled, released and dismissed with prejudice the Settled Claims, and shall
be permanently barred and enjoined from instituting, commencing, prosecuting
or continuing the Settled Claims. The Settled Claims are all claims, rights,
causes of action, suits, matters and issues, known or unknown, that have been
or could have been asserted in the Complaint, in the pleadings and
proceedings in the Action, or
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<PAGE>
any other action that could have been brought in this or any other forum, by
the Class Representative, any Limited Partner, or any putative member of the
Class, and any of their successors or assigns, whether directly,
representatively, derivatively, individually or in any other capacity,
against any of the Defendants, or any party to the Merger Agreement or party
to or participant in the Transactions or Liquidation, their respective
present or former officers, directors, employees, agents, attorneys,
stockholders, advisors, investment bankers, representatives, parents,
affiliates, subsidiaries, general and limited partners, heirs, executors,
administrators, trustees, predecessors, successors and assigns, or against
anyone else, in connection with, arising out of, or in any way related to
(i) any of the acts, facts, transactions, occurrences, breaches,
representations or omissions set forth, alleged, embraced or otherwise
referred to in the pleadings and proceedings in the Action, including, but
not limited to, the Preferred Equity, the Transactions, the Liquidation, the
Consent Process and the management and operations of the Partnership or
Cablevision of Brookline Limited Partnership, (ii) the Partnership or
Cablevision of Brookline Limited Partnership or the management or operations
of either, and (iii) any other claim arising out of or in connection with the
Partnership for violation of federal, state or other law, or of the common
law, which said Class members, or any of them, had, now have, or may
hereafter have as a member of the Class or as an individual. Excluded from
Settled Claims are (a) any claims relating to any party's alleged failure to
comply with the terms and conditions of the Stipulation of Settlement and (b)
any appraisal rights that a Class member properly perfects pursuant to
Paragraph 1.8 and Annex VI of the Merger Agreement.
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<PAGE>
8. All discovery and all other pretrial proceedings in the
Action, except for such proceedings ordered by the Court with respect to the
motion to approve the Settlement or as agreed to by the parties, are stayed
and suspended until further order of this Court. Pending the final
determination of whether the Settlement should be approved, no member of the
Class may institute, commence, prosecute or continue, representatively,
individually, derivatively, on behalf of the Class, or in any other capacity,
any action or other proceeding asserting any claim that is a Settled Claim as
defined above.
9. In the event that (a) the Court declines, in any respect,
to enter the Order and Final Judgment provided for above and any one of the
parties hereto fails to consent to the entry of another form of order in lieu
thereof; (b) the Court does not approve the Settlement, including any
amendments thereto agreed upon by all of the parties; (c) the Court approves
the Settlement or any amendment thereto approved by all of the parties and
enters the Order and Final Judgment or any amendment thereto approved by all
of the parties, but such approval is reversed on appeal and such reversal
becomes final by a lapse of time or otherwise; or (d) the Court approves the
Settlement or any amendment thereto approved by all of the parties, enters
the Order and Final Judgment or any amendment thereto approved by all of the
parties, the Order and Final Judgment becomes final and nonappealable by
virtue of expiration of all appropriate appeal periods without an appeal
being filed, by final affirmance thereof upon appeal, or final dismissal of
all appeals therefrom, and the conditions to payment to Class members in
paragraph 6(c) of the Stipulation of Settlement are not thereafter satisfied
within six months of the occurrence of Final Approval (or within such period
as it may be extended by the Court on consent of all
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<PAGE>
the parties); then, in any of such events, the Stipulation, the Settlement
proposed in the Stipulation (including any amendments thereof), any
conditional class certification herein and any actions taken or to be taken
with respect to the Settlement proposed in the Stipulation, and the Order and
Final Judgment to be entered, shall be of no further force or effect and
shall be null and void, and shall be without prejudice to any of the parties
hereto, who shall be restored in all respects to their respective positions
existing prior to the execution of the Stipulation.
10. The costs and expenses related to the mailing of the Class
Notice to the Class members in accordance with paragraphs 4 and 5 above shall
be paid by Cablevision in accordance with paragraph 9 of the Stipulation.
11. The Court reserves the right to approve the Stipulation and
the Settlement contained therein with modifications and without further
notice to members of the Class, and retains jurisdiction over the Action to
consider all further applications arising out of or connected with the
proposed Settlement.
Dated: November 21, 1995
/s/ Maria I. Lopez
---------------------------------------
Associate Justice of the Superior Court
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<PAGE>
EXHIBIT C
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
C.A. NO. 94-5428
- ----------------------------------------x
JOEL G. LIPPE, :
PLAINTIFF,
v. :
CABLEVISION SYSTEMS CORP., CHARLES F. :
DOLAN, CABLEVISION OF BOSTON LIMITED
PARTNERSHIP, CABLEVISION SYSTEMS :
BOSTON CORP., CABLEVISION OF
BROOKLINE LIMITED PARTNERSHIP, :
CABLEVISION SYSTEMS BROOKLINE CORP.,
CABLEVISION SYSTEMS SERVICES CORP., :
CABLEVISION FINANCE LIMITED PARTNER-
SHIP, COB, INC., and CABLEVISION OF :
BOSTON, INC.,
DEFENDANTS. :
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ORDER AND FINAL JUDGMENT
A hearing having been held before this Court on December __, 1995,
pursuant to this Court's Order dated November __, 1995 (the "Order"), upon a
Stipulation of Settlement (the "Stipulation") filed in the above-captioned
action (the "Action"); it appearing that due notice of said hearing was given
in accordance with the aforesaid Order; the respective parties having
appeared by their attorneys of record; the Court having heard and considered
evidence in support of the proposed settlement (the "Settlement") set forth
in the Stipulation and filed separately with the Court; the attorneys for the
respective parties having been heard; an opportunity to be heard having been
given to all other persons requesting to be heard in accordance with the
Order; the Court having determined that notice to members of
<PAGE>
the Class (as that term is defined in paragraph 2 of the Order) was adequate
and sufficient; and the entire matter of the proposed Settlement having been
heard and considered by the Court;
IT IS ORDERED, ADJUDGED AND DECREED THIS __________________ DAY
OF _________________, 1995, AS FOLLOWS:
1. All capitalized terms used herein shall be defined as
set forth in the Stipulation.
2. The Court finds that on November __, 1995, the Notice of
Pendency of Action, Class Action Determination, Proposed Settlement,
Settlement Hearing and Right to Appear (the "Class Notice") was mailed or
otherwise sent to members of the Class in accordance with paragraph 9 of the
Stipulation and paragraphs 4 and 5 of the Order.
3. Due and adequate notice of the proceedings having been
provided to members of the Class, and full opportunity having been offered to
the Class to participate in this hearing, it is hereby determined that all
members of the Class are bound by the Order and Final Judgment entered herein.
4. The Class that was certified conditionally pursuant to the
Order is finally certified for settlement purposes.
5. The Court hereby approves and adjudges the terms and conditions
of the Settlement as set forth in the Stipulation and as described in the
Class Notice to be fair, reasonable and adequate to all members of the Class;
the parties to the Stipulation are directed hereby to consummate the
Settlement in accordance with the terms and conditions set forth in the
Stipulation.
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<PAGE>
6. The Action and all of the Settled Claims (as hereinafter
defined) are hereby dismissed with prejudice as against the named plaintiff,
Joel G. Lippe ("Class Representative"), and all members of the Class, on the
merits, and without any award of costs except as otherwise provided herein.
7. All claims, rights, causes of action, suits, matters and
issues, known or unknown, that have been or could have been asserted in the
Complaint, in the pleadings and proceedings in the Action, or any other
action that could have been brought in this or any other forum, by the Class
Representative, any Limited Partner, or any putative member of the Class, and
any of their successors or assigns, whether directly, representatively,
derivatively, individually or in any other capacity, against any of the
Defendants, or any party to the Merger Agreement or party to or participant
in the Transactions or Liquidation, their respective present or former
officers, directors, employees, agents, attorneys, stockholders, advisors,
investment bankers, representatives, parents, affiliates, subsidiaries,
general and limited partners, heirs, executors, administrators, trustees,
predecessors, successors and assigns, or against anyone else (the "Released
Parties"), in connection with, arising out of, or in any way related to (i)
any of the acts, facts, transactions, occurrences, breaches, representations
or omissions set forth, alleged, embraced or otherwise referred to in the
pleadings and proceedings in the Action, including, but not limited to, the
Preferred Equity, the Transactions, the Liquidation, the Consent Process and
the management and operations of the Partnership or Cablevision of Brookline
Limited Partnership, (ii) the Partnership or Cablevision of Brookline Limited
Partnership or the management or operations of either, and (iii) any other
claim arising out of or in connection with the Partnership for
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<PAGE>
violation of federal, state or other law, or of the common law, which said
Class members, or any of them, had, now have, or may hereafter have as a
member of the Class or as an individual (the "Settled Claims"), shall be and
hereby are fully settled, released, discharged and dismissed with prejudice,
without the award of costs to any party except as otherwise provided herein.
Excluded from Settled Claims are (a) any claims relating to any party's
alleged failure to comply with the terms and conditions of the Stipulation of
Settlement and (b) any appraisal rights that a Class member properly perfects
pursuant to Paragraph 1.8 and Annex VI of the Merger Agreement.
8. The Class Representative, and all members of the Class, are
hereby individually and severally permanently barred and enjoined from
instituting, commencing, prosecuting or continuing any action or other
proceeding in any court or tribunal of this or any other jurisdiction,
whether directly, representatively, derivatively, individually or in any
other capacity, against any of the Released Parties, or against anyone else,
in any court or tribunal of this or any other jurisdiction based upon or for
the purpose of enforcing any of the Settled Claims, all of which Settled
Claims are hereby declared to be compromised, settled, released, dismissed
with prejudice and extinguished by virtue of the proceedings in this Action
and this Order and Final Judgment.
9. Counsel for the Class Representative and the Class ("Class
Counsel") are awarded Class Counsel Fees in the amount of $___________________
and Class Counsel Expenses in the amount of $__________________, which the
Court finds to be fair and reasonable, to be paid in the manner and according
to the procedures set forth in paragraph 10 of the Stipulation.
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<PAGE>
10. The Released Parties do not admit, either expressly or
impliedly, that any of them are subject to any liability with regard to any
claim that is a Settled Claim as defined above or any other claim. This Order
and Final Judgment shall not constitute any evidence or admission by any of
the Defendants in the Action or any other person that any breach of duty or
wrongdoing of any nature has been committed and shall not be deemed to create
any inference that there is any liability therefor.
11. Paragraphs 4 through 9 of this Order and Final Judgment are
expressly conditioned upon satisfaction of the conditions to payment to Class
members set forth in paragraph 6(c) of the Stipulation of Settlement. In the
event that such conditions to payment to Class members are not satisfied
within six months of the occurrence of Final Judgment (or within such period
as it may be extended by the Court on consent of all the parties), then, even
if this Order and Final Judgment has become final and nonappealable by virtue
of expiration of all appropriate appeal periods without an appeal being
filed, or, if an appeal is filed, by final affirmance thereof upon appeal, or
final dismissal of all appeals therefrom, paragraphs 4 through 9 of this
Order and Final Judgment shall be of no further force or effect and shall be
null and void, and shall be without prejudice to any of the parties hereto,
who shall be restored in all respects to their respective positions existing
prior to the execution of the Stipulation.
12. The Clerk of the Court is hereby directed to enter this Order
and Final Judgment forthwith in the Action.
13. Jurisdiction is hereby retained by this Court for the purposes
of protecting and implementing the Stipulation and the terms of this Order
and Final Judgment,
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<PAGE>
including the resolution of any disputes that may arise with respect to the
effectuation of any of the provisions of the Stipulation, and for the entry
of such further orders as may be necessary or appropriate in administering
and implementing the terms and provisions of the Stipulation and this Order
and Final Judgment.
Dated: December __, 1995
_______________________________________
Associate Justice of the Superior Court
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