RESTATED CERTIFICATE OF INCORPORATION
OF
INSIGHT COMMUNICATIONS COMPANY, INC.
Insight Communications Company, Inc., a corporation organized and
existing under the Delaware General Corporation Law (the "Corporation"), does
hereby certify:
1. The Corporation has not received any payment for any of its stock.
2. The Corporation's original certificate of incorporation was filed on
March 9, 1999 with the Secretary of State of the State of Delaware under the
name Insight Communications Companies, Inc.
3. The following amendment and restatement of the Corporation's
Certificate of Incorporation was approved and duly adopted by a majority of the
Corporation's Board of Directors in accordance with the provisions of Sections
241 and 245 of the Delaware General Corporation Law:
"ARTICLE ONE
NAME
The name of the corporation (hereinafter the "Corporation") is
INSIGHT COMMUNICATIONS COMPANY, INC.
ARTICLE TWO
REGISTERED OFFICE
The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is 30 Old Rudnick
Lane, Suite 100, Dover, Delaware 19901 County of Kent; and the name of the
registered agent of the Corporation in the State of Delaware at such address is
LEXIS Document Services Inc.
ARTICLE THREE
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
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ARTICLE FOUR
CAPITAL STRUCTURE
The total number of shares of capital stock which the Corporation shall
have the authority to issue is 500,000,000 shares, consisting of three classes
of capital stock:
(a) 300,000,000 shares of Class A Common Stock, par value $0.01 per
share (the "Class A Common Stock");
(b) 100,000,000 shares of Class B Common Stock, par value $0.01 per
share (the "Class B Common Stock," and together with the Class A Common Stock,
the "Common Stock"); and
(c) 100,000,000 shares of Preferred Stock, par value $0.01 per share
(the "Preferred Stock").
ARTICLE FIVE
COMMON STOCK
5.1 Identical Rights. Except as otherwise set forth in this ARTICLE
FIVE, each share of Common Stock shall be identical, including, without
limitation, the right to participate ratably in dividends and other
distributions (including distributions upon liquidation, dissolution or other
winding up of the Corporation), payable in cash, stock or property, except that
in the case of dividends or distributions payable in shares of a class of Common
Stock, only shares of Class A Common Stock may be distributed with respect to
Class A Common Stock and only shares of Class B Common Stock may be distributed
with respect to Class B Common Stock, and the number of shares of Common Stock
payable per share will be equal for each class. In addition, neither the shares
of Class A Common Stock nor the shares of Class B Common Stock may be
subdivided, consolidated, reclassified or otherwise changed unless concurrently
the shares of the other class of Common Stock are subdivided, consolidated,
reclassified or otherwise changed in the same proportion and the same manner.
The Corporation may not make any dividend or distribution with respect to any
class of Common Stock unless at the same time the Corporation makes a ratable
dividend or distribution with respect to each outstanding share of Common Stock
regardless of class. The rights of holders of Class A Common Stock and Class B
Common Stock are subject to the rights of holders of shares of any series of
Preferred Stock that the Corporation may designate and issue from time to time.
5.2 Voting Rights. The holders of the Common Stock shall vote as a
single class on all matters submitted to a vote of the stockholders to which the
holders of Common Stock are entitled to vote, except as may be required by the
Delaware General Corporation Law or as otherwise expressly specified in this
Restated Certificate of Incorporation. Each share of Class A Common Stock shall
be entitled to one vote and each share of Class B Common Stock shall be entitled
to ten votes. The Corporation, by action of its Board of Directors and the
affirmative vote
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of the holders of a majority of the voting power of the capital stock of the
Corporation entitled to vote, may increase or decrease the number of authorized
shares of Common Stock or Preferred Stock of the Corporation (but not below the
number of shares of Common Stock or Preferred Stock, respectively, then
outstanding or reserved for issuance upon the conversion of shares of Class B
Common Stock) irrespective of the provisions of Section 242(b)(2) of the
Delaware General Corporation Law; provided, however, that any increase or
decrease to the number of authorized shares of Class B Common Stock shall in
addition to the foregoing, require the affirmative vote of the holders of a
majority of the voting power of the Class B Common Stock, voting as a separate
class.
5.3 Holders of Class B Common Stock. Shares of Class B Common Stock
from time to time outstanding shall be held of record by members of the
Management Group (as defined below), and by no other person or persons. For
purposes of this Section 5.3, the term "Management Group" shall mean (a) such
persons who may be permitted to hold shares of Class B Common Stock pursuant to
the provisions of that certain Securityholders Agreement (the "Securityholders
Agreement") dated May 11, 1999 among the Corporation, Vestar Capital Partners
III, L.P. and the several other parties thereto, or (b) at all times subsequent
to the termination of the Securityholders Agreement in accordance with its
terms, any and all persons designated by the Board of Directors of the
Corporation from time-to-time as members of the Management Group, which members
shall be limited to directors and officers of the Corporation or a subsidiary of
the Corporation, other persons serving the Corporation or a subsidiary of the
Corporation in a management capacity and such affiliates, family members and
other associates of the foregoing persons as may be designated from time to time
by the Board of Directors of the Corporation.
5.4 Conversion Rights.
(a) Voluntary Conversion of Class B Common Stock. Each share of Class B
Common Stock is convertible into one fully paid and non-assessable share of
Class A Common Stock at any time at the option of the holder. In order to
exercise the conversion privilege, the holder of any shares of Class B Common
Stock to be converted shall present and surrender the certificate or
certificates representing such shares during usual business hours at the
principal executive offices of the Corporation, or if any agent for the
registration of transfer of shares of Class B Common Stock is then duly
appointed and acting (said agent being hereinafter called the "Transfer Agent"),
then at the office of the Transfer Agent, accompanied by written notice that the
holder elects to convert the shares of Class B Common Stock represented by such
certificate or certificates, to the extent specified in such notice. Such notice
shall also state the name or names (with addresses) in which the certificate or
certificates for shares of Class A Common Stock which shall be issuable on such
conversion shall be issued. If required by the Corporation, any certificate for
shares of Class B Common Stock surrendered for conversion shall be accompanied
by instruments of transfer, in form satisfactory to the Corporation and the
Transfer Agent, duly executed by the holder of such shares or his or her duly
authorized representative. As promptly as practicable after the receipt of such
notice and the surrender of the certificate or certificates representing such
shares of Class B Common Stock as aforesaid, the Corporation shall issue and
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deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full shares of Class A Common
Stock issuable upon the conversion of such shares. Each conversion of shares of
Class B Common Stock shall be deemed to have been effected on the date on which
such notice shall have been received by the Corporation or the Transfer Agent,
as applicable, and the certificate or certificates representing such shares
shall have been surrendered (subject to receipt by the Corporation or the
Transfer Agent, as applicable, within thirty (30) days thereafter of any
required instruments of transfer as aforesaid), and the person or persons in
whose name or names any certificate or certificates for shares of Class A Common
Stock shall be issuable upon such conversion shall be deemed to have become on
said date the holder or holders of record of the shares represented thereby.
(b) Automatic Conversion of Class B Common Stock. Upon any transfer of
shares of Class B Common Stock to any person other than a member of the
Management Group, said shares shall be deemed automatically to convert,
effective as of the date of transfer thereof, into the same number of shares of
Class A Common Stock.
(c) Unconverted Shares. If less than all of the shares of Class B
Common Stock evidenced by a certificate or certificates surrendered to the
Corporation (in accordance with such procedures as the Board of Directors of the
Corporation may determine) are converted, the Corporation shall execute and
deliver to or upon the written order of the holder of such certificate or
certificates a new certificate or certificates evidencing the number of shares
of Class B Common Stock which are not converted without charge to the holder.
(d) No Conversion Rights of Class A Common Stock. The Class A Common
Stock has no conversion rights.
5.5 Reservation. The Corporation hereby reserves, and shall at all
times reserve and keep available, out of its authorized and unissued shares of
Class A Common Stock, for the purposes of effecting conversions, such number of
duly authorized shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Class B Common
Stock. The Corporation covenants that all the shares of Class A Common Stock so
issuable shall, when so issued, be duly and validly issued, fully paid and
non-assessable. The Corporation shall take all such action as may be necessary
to assure that all such shares of Class A Common Stock may be so issued without
violation of any applicable law or regulation.
5.6 Merger. Upon the merger or consolidation of the Corporation,
holders of each class of Common Stock will be entitled to receive equal per
share payments or distributions, except that in any transaction in which shares
of capital stock are distributed, such shares may differ to the extent that the
Class A Common Stock and the Class B Common Stock differ as provided in this
Restated Certificate of Incorporation.
5.7 Liquidation. Upon any dissolution or liquidation of the
Corporation, the holders of the Class A Common Stock and Class B Common Stock
will be entitled to receive ratably all assets of the Corporation available for
distribution to stockholders, subject to any preferential rights of any then
outstanding shares of Preferred Stock.
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ARTICLE SIX
PREFERRED STOCK
Shares of Preferred Stock may be issued from time to time in one or
more series, each of such series to have such terms as stated in the resolution
or resolutions providing for the establishment of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Except as
otherwise expressly stated in the resolution or resolutions providing for the
establishment of a series of Preferred Stock, any shares of Preferred Stock
which may be redeemed, purchased or acquired by the Corporation may be reissued
except as otherwise expressly provided by law.
Authority is hereby expressly granted to the Board of Directors of the
Corporation to issue, from time to time, shares of Preferred Stock in one or
more series, and, in connection with the establishment of any such series by
resolution or resolutions, to determine and fix such voting powers, full or
limited, or no voting powers, and such other powers, designations, preferences
and relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof, if any including, without
limitation, dividend rights, conversion rights, redemption and sinking fund
privileges, and liquidation preferences, as shall be stated in such resolution
or resolutions, all to the fullest extent permitted by the Delaware General
Corporation Law. Without limiting the generality of the foregoing, the
resolution or resolutions providing for the establishment of any series of
Preferred Stock may, to the extent permitted by law, provide that such series
shall be superior to, rank equally with or be junior to the Preferred Stock of
any other series. Except as otherwise expressly provided in the resolution or
resolutions providing for the establishment of any series of Preferred Stock, no
vote of the holders of shares of Preferred Stock or Common Stock shall be a
prerequisite to the issuance of any shares of any series of the Preferred Stock
authorized by and complying with the conditions of this Restated Certificate of
Incorporation.
ARTICLE SEVEN
BOARD OF DIRECTORS
(a) The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the Delaware General Corporation Law, as the same may be
amended and supplemented.
(b) The Corporation shall, to the fullest extent permitted by Section
145 of the Delaware General Corporation Law, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-Law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to
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be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(c) If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
(d) No amendment to or repeal of this ARTICLE SEVEN shall apply to or
have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
ARTICLE EIGHT
CORPORATE GOVERNANCE
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation and for the further
definition of the powers of the Corporation and its directors and stockholders:
(a) The Board of Directors shall have the power to adopt, amend or
repeal the by-laws of the Corporation.
(b) The stockholders may adopt, amend or repeal the by-laws of the
Corporation only with, in addition to any other vote required by-law, the
affirmative vote of the holders of not less than 66 2/3% of the total voting
power of all outstanding securities of the Corporation then entitled to vote
generally in the election of directors, voting together as a single class.
(c) Elections of directors need not be by written ballot unless the
by-laws of the Corporation so provide.
(d) Special meetings of stockholders may be called by the Board of
Directors, the Chairman of the Board of Directors or the President of the
Corporation and may not be called by any other person. Notwithstanding the
foregoing, whenever holders of one or more series of Preferred Stock shall have
the right, voting separately as a series, to elect directors, such holders may
call special meetings of such holders pursuant to the certificate of designation
for such series.
ARTICLE NINE
AMENDMENT
The Corporation reserves the right at any time, and from time to time,
to amend, alter, change or repeal any provision contained in this Restated
Certificate of Incorporation, and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or
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inserted, in the manner now or hereafter prescribed by law; and all rights,
preferences and privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this Restated
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the rights reserved in this ARTICLE NINE; provided that at
all times as the Securityholders Agreement shall be in effect and shall not have
been terminated in accordance with its terms, no amendment may be made to the
provisions of this Article Nine or to the provisions of Sections 5.2 or 5.3
hereof except as otherwise permitted pursuant to the provisions of the
Securityholders Agreement."
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and amends the provisions of the Certificate of Incorporation of the
Corporation, and which has been duly adopted in accordance with Sections 241 and
245 of the General Corporation Law, has been executed by its duly authorized
officer this ____ day of July, 1999.
INSIGHT COMMUNICATIONS COMPANY, INC.
By:
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Name:
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Title:
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