As filed with the Securities and Exchange Commission on April 6, 2000
Registration No. 333-33540
333-33540-1
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
INSIGHT MIDWEST, L.P.
INSIGHT CAPITAL, INC.
(Exact name of registrants as specified in their charters)
Delaware 4841 13-4079232
Delaware 4841 13-4079679
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Numbers) Identification Numbers)
incorporation or
organization)
126 East 56th Street
New York, New York 10022
(212) 371-2266
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive offices)
Michael S. Willner
President and Chief Executive Officer
Insight Communications Company, Inc.
126 East 56th Street
New York, New York 10022
(212) 371-2266
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Robert L. Winikoff, Esq.
Cooperman Levitt Winikoff Lester & Newman, P.C.
800 Third Avenue
New York, New York 10022
(212) 688-7000
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Insight Midwest, L.P.
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act
(the "Partnership Act") provides that a limited partnership may indemnify and
hold harmless any partners or other persons from and against any and all claims
and demands whatsoever, subject to such standards and restrictions set forth in
the partnership agreement. Accordingly, Section 12.1 of the Limited Partnership
Agreement of Insight Midwest, L.P., dated as of October 1, 1999, provides that
each partner of the Partnership and their respective members, partners,
officers, directors, shareholders, employees and agents, the employees, officers
and agents of the Partnership, and the members of the Advisory Committee
(collectively, the "Indemnified Persons") will be indemnified, defended and held
harmless by the Partnership from any liability, loss or damage incurred by the
Indemnified Person by reason of any act performed or omitted to be performed by
the Indemnified Person in connection with the business of the Partnership and
its subsidiaries, including costs and attorney's fees and any amounts expended
in the settlement of any claims of liability, loss or damage; provided that if
the liability, loss, damage or claim arises out of any action or inaction of an
Indemnified Person, indemnification under Section 12.1 shall not be available if
the action or inaction is finally adjudicated to have constituted fraud, gross
negligence, breach of fiduciary duty (which shall not be construed to encompass
mistakes in judgement or any breach of any Indemnified Person's duty of care
that did not constitute gross negligence), or willful misconduct by the
Indemnified Person; and provided further that indemnification under Section 12.1
shall be recoverable only from the assets of the Partnership and not from any
assets of the partners of the Partnership. Article 12 further provides that the
Partnership may pay for insurance covering liability of the Indemnified Person
for negligence in operations of the Partnership's affairs.
Insight Capital, Inc.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee of or agent to the Registrants. The
statute provides that it is not exclusive of other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise. Insight Capital's by-laws
provide for indemnification by Insight Capital of any director or officer (as
such term is defined in the by-laws) of Insight Capital who is or was a director
of any of its subsidiaries, or, at the request of Insight Capital, is or was
serving as a director or officer of, or in any other capacity for, any other
enterprise, to the fullest extent permitted by law. The by-laws also provide
that Insight Capital shall advance expenses to a director or officer and, if
reimbursement of such expenses is demanded in advance of the final disposition
of the matter with respect to which such demand is being made, upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount
if it is ultimately determined that the director or officer is not entitled to
be indemnified by Insight Capital. To the extent authorized from time to time by
the board of directors of Insight Capital, Insight Capital may provide to any
one or more employees of Insight
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Capital, one or more officers, employees and other agents of any subsidiary or
one or more directors, officers, employees and other agents of any other
enterprise, rights of indemnification and to receive payment or reimbursement of
expenses, including attorneys' fees, that are similar to the rights conferred in
the by-laws of Insight Capital on directors and officers of Insight Capital or
any subsidiary or other enterprise. The by-laws do not limit the power of
Insight Capital or its board of directors to provide other indemnification and
expense reimbursement rights to directors, officers, employees, agents and other
persons otherwise than pursuant to the by-laws.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. Insight Capital's certificate of incorporation provides for such
limitation of liability.
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits
The following exhibits are filed as part of this Registration Statement:
Exhibit Number Exhibit Description
- -------------- -------------------
2.1 Asset Contribution Agreement by and among Insight Communications of
Indiana, LLC ("Insight Indiana"), Insight Communications Company, L.P.
("Insight LP"), UACC Midwest, Inc., TCI of Kokomo, Inc., TCI of Indiana,
Inc., Heritage Cablevision Associates, A Limited Partnership and TCI of
Indiana Holdings, LLC dated as of May 14, 1998 (filed as Exhibit 2.1 to
Insight Communications Company, Inc.'s Registration Statement on Form S-1
(Registration No. 333-78293) and incorporated herein by reference)
2.2 Asset Exchange Agreement by and among Insight LP, TCI of Indiana, Inc.
and UACC Midwest, Inc., dated May 14, 1998 (filed as Exhibit 2.5 to
Insight Communications Company, Inc.'s Registration Statement on Form S-1
(Registration No. 333-78293) and incorporated herein by reference)
2.3 Purchase Agreement, dated as of April 18, 1999, among InterMedia Capital
Management VI, LLC, InterMedia Management Inc., Robert J. Lewis, TCI ICM
VI, Inc., InterMedia Capital Management VI, L.P., Blackstone KC Capital
Partners, L.P., Blackstone KC Offshore Capital Partners, L.P., Blackstone
Family Investment Partnership III L.P., Leo J. Hindery, Jr., TCI IP-VI,
LLC and Insight L.P. (filed as Exhibit 2.8 to Insight Communications
Company, Inc.'s Registration Statement on Form S-1 (Registration No.
333-78293) and incorporated herein by reference)
2.4 Contribution and Formation Agreement, dated April 18, 1999, between TCI
of Indiana Holdings, LLC and Insight LP (filed as Exhibit 2.9 to Insight
Communications Company,
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Inc.'s Registration Statement on Form S-1 (Registration No. 333-78293)
and incorporated herein by reference)
3.1 Certificate of Limited Partnership of Insight Midwest*
3.2 Limited Partnership Agreement of Insight Midwest*
3.3 Certificate of Incorporation of Insight Capital*
3.4 By-laws of Insight Capital*
4.1 Indenture, dated as of October 1, 1999, among Insight Midwest, Insight
Capital and Harris Trust Company of New York, as Trustee (filed as
Exhibit 10.21 to Insight Communications Company, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1999 (File No. 0-26677) and
incorporated herein by reference)
4.2 Registration Rights Agreement, dated as of October 1, 1999, among
Insight Midwest, Insight Capital, Donaldson, Lufkin & Jenrette
Securities Corporation, Morgan Stanley & Co., Incorporated, BNY Capital
Markets, Inc. and Wasserstein Perella Securities, Inc.*
5.1 Opinion of Cooperman Levitt Winikoff Lester & Newman, P.C.*
8.1 Opinion of Cooperman Levitt Winikoff Lester & Newman, P.C. regarding
federal income tax matters*
10.1 Credit Agreement, dated as of October 30, 1998 (the "Indiana Credit
Facility"), among Insight Indiana, the several lenders and The Bank of
New York (filed as Exhibit 10.3 to Insight Communications Company,
Inc.'s Registration Statement on Form S-1 (Registration No. 333-78293)
and incorporated herein by reference)
10.2 Amendment to the Indiana Credit Facility dated September 24, 1999*
10.3 Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of October 1, 1999, among Insight Kentucky Partners I, L.P., several
lenders and Toronto Dominion (Texas), Inc. (filed as Exhibit 10.9 to
Insight Communications Company, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1999 (File No. 0-26677) and incorporated
herein by reference)
10.4 Amended and Restated Operating Agreement of Insight Indiana dated as of
October 1, 1999*
10.5 Amended and Restated Management Agreement by and between Insight Indiana
and Insight LP, dated as of October 1, 1999*
10.6 Amended and Restated Partnership Agreement of Insight Communications of
Kentucky, L.P. dated as of October 1, 1999*
10.7 Management Agreement of Insight Kentucky by and between Insight LP and
Insight Kentucky Partners II, L.P., dated as of October 1, 1999*
21.1 Subsidiaries of Insight Midwest*
23.1(a) Consent of Ernst & Young LLP*
23.1(b) Consent of Ernst & Young LLP*
23.1(c) Consent of Ernst & Young LLP*
23.2(a) Consent of KPMG LLP*
23.2(b) Consent of KPMG LLP*
23.3 Consent of PricewaterhouseCoopers LLP*
23.4 Consent of Cooperman Levitt Winikoff Lester & Newman, P.C. (included in
Exhibits 5.1 and 8.1)
25.1 Statement of Eligibility Of Trustee
27.1 Financial Data Schedules for Insight Midwest*
27.2 Financial Data Schedules for Insight Capital*
99.1 Form of Letter of Transmittal with respect to the exchange offer*
99.2 Form of Instruction Letter to Registered Holders*
99.3 Form of Notice of Guaranteed Delivery*
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* Previously filed.
(b) Financial Statement Schedules
None.
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Item 22. Undertakings.
Insight Midwest, L.P. and Insight Capital, Inc. (the "Registrants") hereby
undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; (iii) to include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of Form S-4, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through the date
of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
The undersigned Registrants hereby undertake as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
Registrants undertake that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
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The Registrants undertake that every prospectus (i) that is filed pursuant
to the immediately preceding paragraph, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in
connection with an offering of securities subject to Rule 415, will be filed as
a part of an amendment to the Registration Statement and will not be used until
such amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrants of expenses
incurred or paid by a director, officer or controlling person of the Registrants
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 6, 2000.
INSIGHT MIDWEST, L.P.
By: Insight Communications Company, L.P.,
its general partner
By: Insight Communications Company, Inc.,
its general partner
By: /s/ Michael S. Willner
_______________________________________
Michael S. Willner,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Chairman of the Board and Member April 6, 2000
- -------------------------- of the Advisory Committee
Sidney R. Knafel
/s/ Michael S. Willner President, Chief Executive April 6, 2000
- -------------------------- Officer and Member of the
Michael S. Willner Advisory Committee
(Principal executive officer)
* By: /s/ Michael S. Willner
-----------------------------------------
Michael S. Willner, attorney-in-fact
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* Executive Vice President, April 6, 2000
- -------------------------- Chief Operating and Financial
Kim D. Kelly Officer and Member of the
Advisory Committee
(principal financial officer
and principal accounting officer)
Member of the Advisory Committee
- --------------------------
William R. Fitzgerald
Member of the Advisory Committee
- --------------------------
Derek Chang
* By: /s/ Michael S. Willner
------------------------------------
Michael S. Willner, attorney-in-fact
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 6, 2000.
INSIGHT CAPITAL, INC.
By: /s/ Michael S. Willner
__________________________________
Michael S. Willner,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Chairman of the Board April 6, 2000
- --------------------------
Sidney R. Knafel
/s/ Michael S. Willner President, Chief Executive April 6, 2000
- -------------------------- Officer and Director
Michael S. Willner (principal executive officer)
* Executive Vice President, April 6, 2000
- --------------------------- Chief Operating and Financial
Kim D. Kelly Officer and Director
(principal financial officer
and principal accounting officer)
*By: /s/ Michael S. Willner
----------------------
Michael S. Willner,
attorney-in-fact
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