EXHIBIT 1.1
20,000,000 Shares
MEDIACOM COMMUNICATIONS CORPORATION
Class A Common Stock
UNDERWRITING AGREEMENT
----------------------
February [ ], 2000
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Chase Securities Inc.
CIBC World Markets Corp.
First Union Securities, Inc.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Mediacom Communications Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell to the Underwriters
named in Schedule A hereto (the "Underwriters") 20,000,000 shares ("Firm
Securities") of its Class A Common Stock, par value $.01 per share
("Securities"), and also proposes to issue and sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 3,000,000 additional
shares ("Optional Securities") of its Securities as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the
"Offered Securities". As part of the offering contemplated by this Agreement,
Xxxxxxx Xxxxx Xxxxxx Inc. (the "Designated Underwriter") has agreed to reserve
out of the Firm Securities purchased by it under this Agreement, up to 1,000,000
shares, for sale to the Company's directors, officers, employees and other
parties associated with the Company (collectively, "Participants"), as set forth
in the Prospectus (as defined herein) under the heading "Underwriting" (the
"Directed Share Program"). The Firm Securities to be sold by the Designated
Underwriter pursuant to the Directed Share Program (the "Directed Shares") will
be sold by the Designated Underwriter pursuant to this Agreement at the public
offering price. Any Directed Shares not orally confirmed for purchase by a
Participant by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus.
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The Company is a recently organized Delaware corporation. Immediately prior
to the First Closing Date (as defined below), the holders of all of the
outstanding membership interests (the "Membership Interests") in Mediacom LLC, a
limited liability company organized under the laws of the State of New York
("Mediacom"), will exchange all such Membership Interests in Mediacom for all of
the outstanding capital stock of the Company (the "Exchange Transaction"). As a
result of this transaction, Mediacom will become a wholly owned subsidiary of
the Company. The Company and Mediacom are collectively referred to herein as the
"Mediacom Companies".
The Mediacom Companies hereby agree with the several Underwriters as
follows:
2. Representations and Warranties of the Mediacom Companies. The Mediacom
Companies jointly and severally represent and warrant to, and agree with, the
several Underwriters that:
(a) A registration statement (No. 333-90879) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i) has
been declared effective under the Securities Act of 1933 (the "Act") and is
not proposed to be amended or (ii) is proposed to be amended by amendment
or post-effective amendment. If such registration statement ("initial
registration statement") has been declared effective, either (i) an
additional registration statement ("additional registration statement")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (ii) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and delivery of
this Agreement, the additional registration statement means (i) if the
Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (ii) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may
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be, is declared effective by the Commission. If an additional registration
statement has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it proposes
to file one, "Effective Time" with respect to such additional registration
statement means the date and time as of which such registration statement
is filed and becomes effective pursuant to Rule 462(b). "Effective Date"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective
Time, including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)
("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as
the "Additional Registration Statement". The Initial Registration Statement
and the Additional Registration Statement are herein referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement, is hereinafter
referred to as the "Prospectus". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (i) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission under the Act (the "Rules
and Regulations") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material respects
to the requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact and
did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
and (iii) on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of the Initial
Registration
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Statement is subsequent to the execution and delivery of this Agreement: on
the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, and
after giving effect to the Exchange Transaction, the Company will have the
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is, and after
giving effect to the Exchange Transaction the Company will be, duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have, individually or in the
aggregate, a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company, Mediacom and
Mediacom's subsidiaries taken as a whole ("Material Adverse Effect").
(d) Mediacom has been duly organized and is an existing limited
liability company in good standing under the laws of the State of New York,
with limited liability company power and authority to own its properties
and conduct its business as described in the Prospectus; and Mediacom is
duly qualified to do business as a foreign limited liability company in
good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have, individually or in the
aggregate, a Material Adverse Efect.
(e) Each of Mediacom's subsidiaries has been duly incorporated or
organized, as the case may be, and is an existing corporation or limited
liability company, as the case may be, in good standing under the laws of
the jurisdiction of its incorporation or organization, as the case may be,
with corporate or limited liability company power and authority, as the
case may be, to own its properties and conduct its business as described in
the Prospectus; and each of Mediacom's subsidiaries is duly qualified to do
business as a foreign corporation or limited liability company, as the case
may be, in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have,
individually or in the aggregate, a Material Adverse Effect; all of the
issued and outstanding capital stock or membership interests, as the case
may be, of each of Mediacom's subsidiaries has been duly authorized and
validly issued and is fully paid and nonassessable; before giving effect to
the Exchange Transaction, all of the issued and outstanding capital stock
or membership interests, as the case may be, of each subsidiary of Mediacom
is owned by Mediacom, directly or through subsidiaries, except that 1% of
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Mediacom California LLC is owned by Mediacom Management Corporation, in
each case free of all liens, encumbrances and defects, except as disclosed
in the Prospectus; after giving effect to the Exchange Transaction, all of
the issued and outstanding capital stock or membership interests, as the
case may be, of each subsidiary of the Company will be owned by the
Company, directly or through subsidiaries, except that 1% of Mediacom
California LLC is owned by Mediacom Management Corporation, in each case
free from liens, encumbrances and defects, except as disclosed in the
Prospectus; and before giving effect to the Exchange Transaction, the
Company does not have any subsidiaries.
(f) After giving effect to the Exchange Transaction, all of the issued
and outstanding capital stock of the Company will have been, and on each
Closing Date (as defined below), all of the issued and outstanding capital
stock of the Company will be, duly authorized and validly issued and will
be fully paid and nonassessable and will conform in all material respects
to the description thereof in the Prospectus.
(g) The Offered Securities have been duly authorized and, when the
Offered Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date, such Offered Securities will have been
validly issued and will be fully paid and nonassessable and will conform to
the description thereof in the Prospectus; and after giving effect to the
Exchange Transaction, the stockholders of the Company will have no
preemptive rights with respect to the Securities.
(h) There are no contracts, agreements or understandings between
either of the Mediacom Companies and any person that would give rise to a
valid claim against either of the Mediacom Companies or any Underwriter for
a brokerage commission, finder's fee or other like payment in connection
with the offering contemplated by this Agreement.
(i) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(j) The Offered Securities have been approved for listing on the
Nasdaq Stock Market's National Market subject to notice of issuance.
(k) No consent, approval, authorization, or order of, or filing or
registration with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company or the consummation of the Exchange Transaction, except such as
have been obtained and made under the Act, such as have been obtained under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), such as may be required under state securities laws and such as
have been obtained and made under the Communications
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Act of 1934, as amended (the "Communications Act"), the Cable
Communications Policy Act of 1984, as amended (the "1984 Cable Act"), the
Cable Television Consumer Protection and Competition Act of 1992, as
amended (the "1992 Cable Act"), the Telecommunications Act of 1996 (the
"1996 Telecom Act" and, together with the Communications Act, the 1984
Cable Act and the 1992 Cable Act, the "Cable Acts") and any order, rule or
regulation of the Federal Communications Commission ("FCC").
(l) The execution, delivery and performance of this Agreement, the
issuance and sale of the Offered Securities and the consummation of the
Exchange Transaction, will not (i) result in a breach or violation of any
of the terms and provisions of, or constitute a default under, (a) any
agreement or instrument to which the Company, Mediacom or any of Mediacom's
subsidiaries is a party or by which the Company, Mediacom or any of
Mediacom's subsidiaries is bound or to which any of the properties of the
Company, Mediacom or any of Mediacom's subsidiaries is subject, including,
without limitation, any franchise or license, or (b) the charter, by-laws,
certificate of formation, operating agreement or similar organizational
documents of the Company, Mediacom or any of Mediacom's subsidiaries, or
(ii) result in a violation of any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company, Mediacom or any of Mediacom's subsidiaries
or any of their respective properties, including, without limitation, the
Cable Acts, except, in the case of each of clauses (i) and (ii), where such
breach, violation or default would not individually or in the aggregate
have a Material Adverse Effect; and the Company has the corporate power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(m) This Agreement has been duly authorized, executed and delivered by
each of the Mediacom Companies.
(n) Except as disclosed in the Prospectus, the Company, Mediacom and
Mediacom's subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the Company,
Mediacom and Mediacom's subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
(o) Except as disclosed in the Prospectus, the Company, Mediacom and
Mediacom's subsidiaries possess adequate franchises, licenses,
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the revocation
or modification of any such franchise, license, certificate, authority or
permit that, if determined adversely to the Company, Mediacom or any of
Mediacom's subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
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(p) No labor dispute with the employees of the Company, Mediacom or
any of Mediacom's subsidiaries exists or, to the knowledge of either of the
Mediacom Companies, is imminent that might have a Material Adverse Effect;
or to the knowledge of either of the Mediacom Companies, no labor dispute
exists or is imminent by the employees of any of the principal suppliers,
contractors or customers of the Mediacom Companies that might have a
Material Adverse Effect.
(q) Except as disclosed in the Prospectus, the Company, Mediacom and
Mediacom's subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other intellectual
property (collectively, "intellectual property rights") necessary to
conduct the business now operated by them, or presently employed by them,
and have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property rights
that, if determined adversely to the Company, Mediacom or any of Mediacom's
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(r) None of the Company, Mediacom or any of Mediacom's subsidiaries is
in violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is subject
to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material
Adverse Effect; and neither of the Mediacom Companies is aware of any
pending investigation which might lead to such a claim.
(s) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings (including, without limitation, by the FCC or
any franchising authority) against or affecting the Company, Mediacom or
any of Mediacom's subsidiaries or any of their respective properties that,
if determined adversely to the Company, Mediacom or any of Mediacom's
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of the
Mediacom Companies to perform their obligations under this Agreement, or
which are otherwise material in the context of the sale of the Offered
Securities; and except as disclosed in the Prospectus no such actions,
suits or proceedings are threatened or, to the knowledge of either of the
Mediacom Companies, contemplated.
(t) The financial statements included in each Registration Statement
and the Prospectus present fairly the financial position of (i) Mediacom
and its consolidated subsidiaries, (ii) U.S. Cable Television Group, L.P.
and its consolidated subsidiaries and (iii) Triax Midwest Associates, L.P.,
in each case as of the dates shown and their respective results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
the schedules included in each Registration Statement present fairly the
information
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required to be stated therein; the summary and selected financial and
operating data included in each Registration Statement and the Prospectus
present fairly the information shown therein and have been prepared and
compiled on a basis consistent with the audited financial statements
included therein; the pro forma financial statements included in each
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable requirements of Regulation S-X under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
assumptions used in preparing the pro forma financial statements included
in each Registration Statement and the Prospectus provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma adjustments
give appropriate effect to those assumptions and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(u) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company, Mediacom and
Mediacom's subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by either of the Mediacom Companies on
any class of its capital stock.
(v) The statistical and market-related data included in the Prospectus
are based on or derived from sources that the Mediacom Companies believe to
be accurate and reliable.
(w) The Company, Mediacom and Mediacom's subsidiaries (i) make and
keep accurate books and records and (ii) maintain internal accounting
controls that provide reasonable assurances that (A) transactions are
executed in accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's authorization and (D) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(x) There are no contracts, agreements or other documents required to
be described in the Prospectus or to be filed as exhibits to any
Registration Statement by the Act or the Rules and Regulations which have
not been described or filed as required; the contracts so described in the
Prospectus are in full force and effect on the date hereof; and none of the
Company, Mediacom or Mediacom's subsidiaries and, to the best knowledge of
the Mediacom Companies, any other party is in breach of or default under
any such contracts, agreements or other documents, except for those
breaches or defaults that would not individually or in the aggregate have a
Material Adverse Effect.
(y) Except as disclosed in the Prospectus, there are no outstanding
options, warrants or other rights calling for the issuance of, and no
commitments, plans or arrangements to
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issue, any securities of either of the Mediacom Companies or any securities
convertible into or exchangeable for securities of either of the Mediacom
Companies.
(z) Each of the franchises held by the Company, Mediacom and
Mediacom's subsidiaries that are material to the Company, Mediacom and
Mediacom's subsidiaries taken as a whole, is in full force and effect, with
no material restrictions or qualifications; to the best knowledge of the
Mediacom Companies, no event has occurred which permits, or with notice or
lapse of time or both would permit, the revocation or non-renewal of any
franchise, assuming the filing of timely renewal applications and the
timely payment of all applicable filing and regulatory fees to the
applicable franchising authority, or which might result, individually or in
the aggregate, in any other material impairment of the rights of the
Company, Mediacom or Mediacom's subsidiaries in the franchises; and neither
of the Mediacom Companies has any reason to believe that any franchise that
is required for the operation of the Company, Mediacom or Mediacom's
subsidiaries will not be renewed in the ordinary course.
(aa) The Company, Mediacom and Mediacom's subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
required to be filed as of the date hereof, except where the failure to so
file would not individually or in the aggregate have a Material Adverse
Effect, and have paid all taxes shown as due thereon; and there is no tax
deficiency that has been asserted against the Company, Mediacom or any of
Mediacom's subsidiaries that could reasonably be expected to result
individually or in the aggregate in a Material Adverse Effect.
(bb) Each of the Company, Mediacom and Mediacom's subsidiaries carries
insurance (including self-insurance) in such amounts and covering such
risks as in the reasonable determination of the Mediacom Companies is
adequate for the conduct of its business and the value of its properties;
each of the Company, Mediacom and Mediacom's subsidiaries are in compliance
with the terms of such policies and instruments in all material respects;
and there are no claims by the Mediacom Companies under any such policies
and instruments as to which the insurer thereunder is denying liability or
defending under a reservation of rights clause; the Mediacom Companies have
not been refused any insurance coverage sought or applied for; and neither
of the Mediacom Companies has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary at a cost that would not result individually or in the aggregate
in a Material Adverse Effect.
(cc) The statements set forth in the Prospectus under the captions
"Risk Factors -- Our Industry", "Business -- Products and Services -- High
Speed Internet Access", "--Programming Supply", "-- Customer Rates", "--
Franchises", "-- Competition", "Legislation and Regulation", "Management",
"Certain Relationships and Related Transactions", "Description of Certain
Indebtedness", "Description of Capital Stock" and "Shares Eligible for
Future Sale", insofar as they purport to describe the provisions of the
laws, documents and arrangements referred to therein, are accurate in all
material respects.
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(dd) Each of the following firms are independent public accountants
within the meaning of the Act and the Rules and Regulations: (i) Xxxxxx
Xxxxxxxx LLP who have certified certain financial statements of Mediacom
and Triax Midwest Associates, L.P. included in the Registration Statements
and (ii) KPMG LLP who have certified certain financial statements of U.S.
Cable Television Group, L.P. included in the Registration Statements.
(ee) Neither of the Mediacom Companies is, and after giving effect to
the Exchange Transaction and the offering and sale of the Offered
Securities and the application of the proceeds thereof as described in the
Prospectus, neither of the Mediacom Companies, will be, an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended.
(ff) Neither of the Mediacom Companies has offered, or caused the
Underwriters to offer, any Offered Securities to any person pursuant to the
Directed Share Program with the specific intent to unlawfully influence (i)
a customer or supplier of the Company, Mediacom or any of Mediacom's
subsidiaries to alter the customer's or supplier's level or type of
business with the Company, Mediacom or any such subsidiary or (ii) a trade
journalist or publication to write or publish favorable information about
either of the Mediacom Companies or their products or services.
Furthermore, each of the Mediacom Companies represents and warrants to the
Underwriters that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or supplements thereto
will comply, in all material respects with any applicable laws or regulations of
foreign jurisdictions in which the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection with the
Directed Share Program, and (ii) no authorization, approval, consent, license,
order, registration or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is necessary
under the securities law and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $[ ] per share, the respective numbers
of shares of Firm Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives ,
through the facilities of The Depository Trust Company ("DTC"), for the accounts
of the Underwriters, against payment to the Company of the purchase price in
Federal (same day) funds by wire transfer to an account at a bank acceptable to
Credit Suisse First Boston Corporation ("CSFBC"), at 9:00 A.M., New York time,
on February [ ], 2000, or at such other time not later than seven full business
days thereafter as CSFBC and the Company determine, such time being herein
referred to as the "First Closing Date". For purposes of Rule 15c6-1 under the
Exchange Act, the First Closing Date (if later than the otherwise
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applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
offering. The certificates representing the Firm Securities will be made
available for checking and packaging at the above office of Xxxxxx Xxxxxx &
Xxxxxxx at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from time
to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives through the facilities of the DTC, for the accounts of the
several Underwriters, against payment of the purchase price therefor in Federal
(same day) funds by wire transfer to an account at a bank acceptable to CSFBC.
The certificates for the Optional Securities being purchased on each Optional
Closing Date will be made available for checking and packaging at the above
office of Xxxxxx Xxxxxx & Xxxxxxx at a reasonable time in advance of such
Optional Closing Date.
The Company hereby confirms its engagement of Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation ("DLJ") as, and DLJ hereby confirms its agreement with
the Company to render services as, a "qualified independent underwriter", within
the meaning of Section (b)(15) of Rule 2720 of the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD") with respect to the
offering and sale of the Offered Securities. DLJ, solely in its capacity as
qualified independent underwriter and not otherwise, is referred to herein as
the "QIU". As compensation for the services of the QIU hereunder, the Mediacom
Companies agree to pay the QIU $5,000 on the First Closing Date. The price at
which the Offered Securities will be sold to the public shall not be higher than
the maximum price recommended by DLJ acting as QIU.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
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5. Certain Agreements of the Mediacom Companies. The Mediacom Companies
jointly and severally agree with the several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as
of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later date
as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend or
supplement the initial or any additional registration statement as filed or
the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent; and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
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(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act
and Rule 158. For the purpose of the preceding sentence, "Availability
Date" means the 45th day after the end of the fourth fiscal quarter
following the fiscal quarter that includes such Effective Date, except
that, if such fourth fiscal quarter is the last quarter of the Company's
fiscal year, "Availability Date" means the 90th day after the end of such
fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (nine of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC reasonably requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other
documents shall be so furnished as soon as available. The Company will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five (5) years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other publicly available information concerning the
Company as CSFBC may reasonably request.
(h) The Mediacom Companies will pay all expenses incident to the
performance of their obligations under this Agreement, for any filing fees
and other expenses (including fees and disbursements of counsel) incurred
in connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto, for the filing fee incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the NASD of the Offered Securities, for any
travel expenses of the Mediacom Companies officers and employees and any
other expenses of the Mediacom Companies in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities, for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements
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thereto) to the Underwriters and for the fees and expenses of the QIU
(including the fees and disbursements of counsel to the QIU).
(i) For a period of 180 days after the date of the initial public
offering of the Offered Securities (i) the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional Securities, any shares of the Company's Class B Common
Stock, par value $.01 per share (the "Class B Common Stock"), or any
securities convertible into or exchangeable or exercisable for any
Securities or shares of its Class B Common Stock, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing, and
(ii) Mediacom will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any Membership Interests
or any securities of Mediacom that are substantially similar to its
Membership Interests, including, but not limited to, securities convertible
into or exchangeable or exercisable for Membership Interests or
substantially similar securities, or publicly disclose the intention to
make such an offer, sale, pledge, disposition or filing, in each case,
without the prior written consent of CSFBC, except, in the case of the
Company, for (w) grants of employee stock options pursuant to the terms of
the Company's 1999 Stock Option Plan, (x) issuances of Securities and
shares of Class B Common Stock pursuant to the exercise of options granted
under the 1999 Stock Option Plan, (y) the filing of a registration
statement or registration statements on Form S-8 covering Securities and
shares of Class B Common Stock that may be issued pursuant to the exercise
of options under the Company's 1999 Stock Option Plan and Securities that
may be issued pursuant to the Company's 1999 Employee Stock Purchase Plan
and (z) issuances of Securities, shares of Class B Common Stock and options
to purchase Securities and shares of Class B Common Stock pursuant to the
Exchange Transaction.
(j) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required
by the NASD, or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Designated Underwriter
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time.
(k) The Mediacom Companies will pay all fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if any,
incurred by the Underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that the Company
will comply with all applicable securities and other applicable laws, rules and
regulations in each foreign jurisdiction in which the Directed Shares are
offered in connection with the Directed Share Program.
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6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of each of the Mediacom Companies herein, to the accuracy
of the statements of Company officers made pursuant to the provisions of Section
6(j), to the performance by each of the Mediacom Companies of its obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Xxxxxx Xxxxxxxx LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations and stating
to the effect that:
(i) in their opinion the financial statements and financial
statement schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of Mediacom, inquiries of officials of Mediacom who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available balance sheet read by
such accountants, there was any change in the members' capital or
any increase in long-term debt of Mediacom and its consolidated
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
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(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants, there
were any decreases, as compared with the corresponding period of
the preceding year and with the period of corresponding length
ended the date of the latest income statement included in the
Prospectus, in consolidated net sales or net income,
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of Mediacom and its
subsidiaries subject to the internal controls of Mediacom's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter; and
(v) on the basis of a reading of the unaudited pro forma
consolidated financial statements included in the Registration
Statement and the Prospectus, inquiries of certain officials of
Mediacom and its consolidated subsidiaries who have responsibility for
financial and accounting matters and proving the arithmetic accuracy
of the application of the pro forma adjustments to the historical
amounts in the unaudited pro forma consolidated financial statements,
nothing came to their attention that caused them to believe that the
unaudited pro forma consolidated financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of rule 11-02 of Regulation S-X under the Exchange Act or
that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
For purposes of this subsection and subsections (b) and (c) below, (i) if
the Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement, "Registration Statements"
shall mean the initial registration statement as proposed to be amended by
the amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but the
Effective Time of the Additional Registration is subsequent to such
execution and delivery, "Registration Statements" shall mean the Initial
Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"Prospectus" shall mean the prospectus included in the Registration
Statements.
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(b) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of KPMG LLP confirming that
they are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations and stating to the effect
that in their opinion the consolidated financial statements examined by
them and included in the Registration Statements comply as to form in all
material respects with the applicable accounting requirements of the Act
and the related Rules and Regulations adopted by the Commission.
(c) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Xxxxxxxx & Company
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations and stating
to the effect that:
(i) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of Xxxxxxx
Communications Corporation ("Xxxxxxx") subject to the internal
controls of Xxxxxxx'x accounting system or are derived directly from
such records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter; and
(ii) on the basis of a reading of the unaudited pro forma
consolidated financial statements included in the Registration
Statement and the Prospectus, inquiries of certain officials of
Xxxxxxx and Mediacom who have responsibility for financial and
accounting matters and proving the arithmetic accuracy of the
application of the pro forma adjustments relating to Xxxxxxx to the
historical amounts in the unaudited pro forma consolidated financial
statements, nothing came to their attention that caused them to
believe that the unaudited pro forma consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of rule 11-02 of Regulation S-X under the
Exchange Act or that the pro forma adjustments
-18-
have not been properly applied to the historical amounts in the
compilation of such statements.
(d) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by
CSFBC. If the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Prospectus
is printed and distributed to any Underwriter, or shall have occurred at
such later date as shall have been consented to by CSFBC. If the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of
this Agreement. Prior to the Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of either of the Mediacom Companies or the Representatives, shall
be contemplated by the Commission.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company, Mediacom and
Mediacom's subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of Mediacom by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of Mediacom (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities generally on the
New York Stock Exchange or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of Mediacom
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C., counsel
for the Mediacom Companies, to the effect that:
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(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; the Company is duly
qualified to do business as a foreign corporation in good standing in
the State of New York; and based solely upon a certificate of an
officer of the Company as to where the Company presently owns or
leases property or conducts business, we know of no other jurisdiction
where the failure to be so qualified or to be in good standing would
have a Material Adverse Effect;
(ii) Each subsidiary of the Company listed in Exhibit A to such
counsel's opinion (the "Subsidiaries") has been duly incorporated or
organized, as the case may be, and is an existing corporation or
limited liability company, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation or organization, as
the case may be, with corporate or limited liability company power and
authority, as the case may be, to own its properties and conduct its
business as described in the Prospectus; each Subsidiary is duly
qualified to do business as a foreign corporation or limited liability
company, as the case may be, in good standing in the jurisdictions set
forth in Exhibit A to such counsel's opinion; based solely upon a
certificate of an officer of the Company as to where the Subsidiaries
presently own or lease property or conduct business, we know of no
other jurisdiction where the failure to be so qualified or to be in
good standing would have a Material Adverse Effect; all of the issued
and outstanding capital stock or membership interests, as the case may
be, of each Subsidiary has been duly authorized and validly issued and
is fully paid and nonassessable; to such counsel's knowledge, the
capital stock or membership interests, as the case may be, of each
Subsidiary owned by the Company, directly or through Subsidiaries, is
owned free from liens, encumbrances and defects other than as set
forth in the Prospectus; and such counsel knows of no subsidiaries of
the Company other the Subsidiaries;
(iii) The Offered Securities delivered on such Closing Date have
been duly authorized and, when issued and delivered to the
Underwriters against payment therefore as provided by this Agreement,
will be validly issued, fully paid and nonassessable; all other
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable;
the Offered Securities and all other outstanding shares of capital
stock of the Company conform, in all material respects, to the
description thereof contained in the Prospectus; and, to such
counsel's knowledge, the stockholders of the Company have no
preemptive rights with respect to the Securities;
(iv) To the knowledge of such counsel, except as disclosed in the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities
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registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act;
(v) Neither of the Mediacom Companies is, and after giving effect
to the offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the Prospectus, neither of the
Mediacom Companies will be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended;
(vi) No consent, approval, authorization, or order of, or filing
or registration with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by this
Agreement in connection with the issuance and sale of the Offered
Securities by the Company or the consummation of the Exchange
Transaction, except such as have been obtained and made under the Act,
such as have been obtained under the HSR Act, such as may be required
under state securities laws, such as may be required by the FCC or the
U.S. Copyright Office under any of the Cable Acts or Section 111 of
the Copyright Act of 1976, as amended (the "Copyright Act"), or the
published orders, rules and regulations of the FCC or the U.S.
Copyright Office, and such as may be required under any statute, rule
or regulation of any state or local governmental agency or body
relating to cable television franchising matters;
(vii) The execution, delivery and performance of this Agreement,
the issuance and sale of the Offered Securities and the consummation
of the Exchange Transaction, will not (i) result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (a) any agreement or instrument known to such counsel
to which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or (b)
the charter, by-laws, certificate of formation, operating agreement or
similar organizational documents of the Company or any such
subsidiary, or (ii) result in the violation of any statute, any rule,
regulation or, to such counsel's knowledge, order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their
properties, excluding the Cable Acts, Section 111 of the Copyright
Act, any order, rule or regulation of the FCC or the U.S. Copyright
office and any statute, rule or regulation of any state or local
governmental agency or body relating to cable television franchising
matters, except, in the case of each of clauses (i) and (ii), where
such breach, violation or default would not individually or in the
aggregate have a Material Adverse Effect; and the Company has the
corporate power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(viii) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission
-21-
pursuant to the subparagraph of Rule 424(b) specified in such opinion
on the date specified therein or was included in the Initial
Registration Statement or the Additional Registration Statement (as
the case may be), and, to the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and each
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the requirements of
the Act and the Rules and Regulations; such counsel have no reason to
believe that any part of a Registration Statement or any amendment
thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; the statements in the Registration
Statements and Prospectus under the captions "Risk Factors -- Our
Industry", "Business -- Products and Services -- High Speed Internet
Access", "-- Programming Supply", "-- Franchises", "-- Legal
Proceedings", "Management", "Certain Relationships and Related
Transactions", "Description of Certain Indebtedness", "Description of
Capital Stock" and "Shares Eligible for Future Sale", insofar as such
statements summarize statutes, legal and governmental proceedings and
contracts and other documents, excluding any summaries of the
provisions of the Cable Acts, orders, rules and regulations of the FCC
and statutes, rules and regulations of state and local governmental
agencies and bodies relating to cable television franchising matters,
are accurate and fairly present, in all material respects, the
information required to be shown under such captions; and such counsel
do not know of any legal or governmental proceedings required to be
described in a Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a character
required to be described in a Registration Statement or the Prospectus
or to be filed as exhibits to a Registration Statement which are not
described and filed as required; it being understood that in each case
as described above, such counsel need express no opinion as to the
financial statements, schedules or other financial data and
statistical data contained in the Registration Statements or the
Prospectus; and
(ix) This Agreement has been duly authorized, executed and
delivered by each of the Mediacom Companies.
(g) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxxxx & Xxxxx L.L.P., regulatory counsel for the
Mediacom Companies, to the effect that:
(i) The communities listed in Attachment 1 to such counsel's
opinion have been registered with the FCC in connection with the
operation of the cable television
-22-
systems (the "Systems") operated by the Company and its subsidiaries.
The filing of a registration statement constitutes initial FCC
authorization for the commencement of cable television operations in
the community registered;
(ii) The Company's subsidiaries hold certain FCC licenses (as
defined below). All FCC Licenses and receive-only earth station
registrations held by such subsidiaries in connection with the
operation of the Systems are listed on such Attachment 1. To
knowledge of such counsel, all such FCC Licenses have been validly
issued or assigned to the present licensee and are currently in full
force and effect according to the terms of such FCC Licenses and the
FCC regulations and policies. Such counsel has no knowledge of any
event which would allow, or after notice or lapse of time which would
allow, revocation or termination of any FCC License held by such
subsidiaries or would result in any other material impairment of the
rights of the holder of such license. To the knowledge of such
counsel, no other FCC Licenses are required in connection with the
operation of the Systems by such subsidiaries in the manner such
counsel has been advised they are presently being operated. For the
purposes of such counsel's opinion, an "FCC License" is defined as an
authorization, or renewal thereof, issued by the FCC authorizing the
transmission of radio energy through the airwaves;
(iii) Other than proceedings affecting the cable television
industry generally, there is no action, suit or proceeding pending
before or, to the knowledge of such counsel, threatened by the FCC
which is reasonably likely to have a Material Adverse Effect;
(iv) All material Statements of Account required by Section 111
of the Copyright Act, have been filed, together with royalty payments
accompanying said Statements of Account (collectively, the "Copyright
Filings"), with the U.S. Copyright Office for the Systems covering
each of the accounting beginning with the January 1 through June 30,
1996 accounting period and ending with the January 1 through June 30,
1999 accounting period during which such Systems have been operated by
the Company's subsidiaries. Such counsel has not reviewed the
information or calculations contained in the Copyright Filings, and
expresses no opinion with respect to the accuracy thereof. To the
best of such counsel's knowledge, based solely on counsel's review of
its files and on the information and representations provided by the
Company, there is no Copyright Office inquiry, nor any pending or
threatened claim by a third party against the Company or any of its
subsidiaries, relating to the Copyright Filings or for copyright
infingement or for non-payment of royalty fees which is reasonable
likely to have a Material Adverse Effect;
(v) No consent, approval, authorization or order of, or filing or
registration with the FCC or the U.S. Copyright Office under any of
the Cable Acts or Section 111 of the Copyright Act, or the published
orders, rules and regulations of the FCC or the U.S. Copyright Office
is required for the consummation of the transactions contemplated by
this Agreement in connection with the issuance or sale of the Offered
Securities
-23-
by the Company or the consummation of the Exchange Transaction, except
such as have been obtained under the Cable Acts or any order, rule or
regulation of the FCC;
(vi) The execution, delivery and performance of this Agreement,
the issuance and sale of the Offered Securities and the consummation
of the Exchange Transaction will not result in a breach or violation
of any of the terms and provisions of or conflict with any of the
Cable Acts or Section 111 of the Copyright Act or any order, rule or
regulation of the FCC or the U.S. Copyright Office;
(vii) The statements in the Registration Statements and the
Prospectus under the captions "Risk Factors -- Our Industry",
"Business -- Franchises", "-- Competition" and "Legislation and
Regulation", insofar as such statements summarize applicable
provisions of the Cable Acts and the orders, rules and regulations of
the FCC, are accurate summaries in all material respects of the
provisions purported to be summarized under such captions in the
Registration Statements and the Prospectus; and the FCC statutes and
regulations summarized under such captions are the FCC statutes and
regulations that are material to the business of the Company and its
subsidiaries as described in Registration Statements and the
Prospectus; and
(viii) In the course of such counsel's representation of the
Mediacom Companies and their subsidiaries, no matters have come to
such counsel's attention, other than matters affecting the cable
television industry generally, which would reasonably be expected to
have a Material Adverse Effect.
(h) The Representatives shall have received an opinion dated such
Closing Date, of Xxxxx Xxxxxxxx, Esq., counsel for the Mediacom Companies,
to the effect that:
(i) No consent, approval, authorization, or order of, or filing
or registration with any state or local franchising authority is
required for the consummation of the transactions contemplated by this
Agreement in connection with the issuance or sale of the Offered
Securities by the Company or the consummation of the Exchange
Transaction, except such as have been obtained under any statutes,
rules or regulations of state or local governmental agencies or bodies
relating to cable television franchising matters and except where the
failure to receive any such approval, authorization or order would not
individually or in the aggregate have a Material Adverse Effect;
(ii) The execution, delivery and performance of this Agreement,
the issuance and sale of the Offered Securities and the consummation
of the Exchange Transaction will not result in a breach or violation
of any of the terms and provisions of, or conflict with any statute,
rule or regulation of state or local governmental agency or body
relating to cable television franchising matters, except where such
breach, violation or default would not individually or in the
aggregate have a Material Adverse Effect; and
(iii) The statements in the Registration Statements and the
Prospectus under the captions "Business -- Franchises", "--
Competition" and "Legislation and Regulation --
-24-
Franchise Matters", insofar as such statements summarize applicable
provisions of statutes, rules and regulations of state and local
governmental agencies and bodies relating to cable television
franchising matters, are accurate summaries in all material respects
of the provisions purported to be summarized under such captions in
the Registration Statements and the Prospectus; and such statutes,
rules and regulations summarized under such captions are the statutes,
rules and regulations of state and local governmental agencies and
bodies relating to cable television franchising matters that are
material to the business of the Company and its subsidiaries as
described in Registration Statements and the Prospectus.
(i) The Representatives shall have received from Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Mediacom Companies shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(j) The Representatives shall have received a certificate, dated such
Closing Date, of the Chief Executive Officer and the Chief Financial
Officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Mediacom Companies in this Agreement
are true and correct; the Mediacom Companies have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any
Underwriter; and, subsequent to the dates of the most recent financial
statements in the Prospectus, there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as described in
such certificate.
(k) The Representatives shall have received a letter, dated such
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(l) The Exchange Transaction shall have occurred.
(m) The "lock-up" agreements, each substantially in the Form of
Exhibit A hereto, between the Representatives and the directors, officers
and all of the stockholders of the Company
-25-
(following the Exchange Transaction) relating to sales and certain other
dispositions of Securities and certain other securities, delivered to the
Representatives on or before the date hereof, shall be in full force and
effect.
The Mediacom Companies will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request. CSFBC may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) Each of the Mediacom
Companies will jointly and severally indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Mediacom
Companies will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (b) below.
Each of the Mediacom Companies agrees jointly and severally to
indemnify and hold harmless the Designated Underwriter, its partners,
directors and officers and each person, if any, who controls the Designated
Underwriter within the meaning of Section 15 of the Act (the "Designated
Entities"), against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) (i) caused by any untrue statement or alleged untrue statement of a
material fact contained in any material prepared by or with the consent of
the Company for distribution to Participants in connection with the
Directed Share Program or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; (ii) caused by the failure of
any Participant to pay for and accept delivery of Directed Shares that the
Participant agreed to purchase; or (iii) related to, arising out of, or in
connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross
negligence of the Designated Entities.
-26-
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless each of the Mediacom Companies against any losses, claims, damages
or liabilities to which the Mediacom Companies may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out
of or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will
reimburse each of the Mediacom Companies for any legal or other expenses
reasonably incurred by the Mediacom Companies in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each
Underwriter: (i) the concession and reallowance figures appearing in the
fifth paragraph; (ii) the information regarding discretionary sales in the
seventh paragraph; (iii) the information contained in the ninth sentence of
the fifteenth paragraph, and (iv) the overallotment and stabilization
information in the sixteenth paragraph, in each case under the caption
"Underwriting".
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section, for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything contained
herein to the contrary, if indemnity may be sought pursuant to the last
paragraph in Section 7(a) hereof in respect of such action or proceeding,
then in addition to such separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for the
Designated Entities for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share Program. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened action in respect of
which any indemnified party is
-27-
or could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure to
act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Mediacom Companies on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Mediacom
Companies on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Mediacom Companies on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Mediacom Companies or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Mediacom Companies under this Section shall
be in addition to any liability which the Mediacom Companies may otherwise
have and shall extend, upon the same terms and conditions, to each partner,
officer and director of each underwriter and to each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act; and
the obligations of the Underwriters under this Section shall be in addition
to any liability which the respective Underwriters may otherwise have and
shall extend, upon the same
-28-
terms and conditions, to each director of the Mediacom Companies, to each
officer of the Mediacom Companies who has signed a Registration Statement
and to each person, if any, who controls the Mediacom Companies within the
meaning of Section 15 of the Act.
8. Indemnification of QIU. (a) Each of the Mediacom Companies jointly
and severally agrees to indemnify and hold harmless the QIU, its directors,
its officers and each person, if any, who controls the QIU within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with defending or investigating any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) related to, based upon or arising out of (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, the Prospectus (or any amendment or supplement
thereto) or any preliminary prospectus, or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading or (ii) the QIU's activities
as QIU under its engagement pursuant to Section 3 hereof, except in the
case of this clause (ii) insofar as any such losses, claims, damages,
liabilities or judgments are found in a final judgment by a court of
competent jurisdiction, not subject to further appeal, to have resulted
solely from the willful misconduct or gross negligence of the QIU.
(b) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to paragraph (a) of this
Section (the "QIU Indemnified Party"), the QIU Indemnified Party shall
promptly notify the Company in writing and the Mediacom Companies shall
assume the defense of such action, including the employment of counsel
reasonably satisfactory to the QIU Indemnified Party and the payment of all
fees and expenses of such counsel, as incurred. Any QIU Indemnified Party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the QIU Indemnified Party unless (i) the
employment of such counsel shall have been specifically authorized in
writing by the Company, (ii) the Mediacom Companies shall have failed to
assume the defense of such action or employ counsel reasonably satisfactory
to the QIU Indemnified Party or (iii) the named parties to any such action
(including any impleaded parties) include the QIU Indemnified Party and
either of the Mediacom Companies, and the QIU Indemnified Party shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to such Mediacom Company (in which case the Mediacom Companies shall not
have the right to assume the defense of such action on behalf of the QIU
Indemnified Party). In any such case, the Mediacom Companies shall not, in
connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for
all QIU Indemnified Parties, which firm shall be designated by the QIU, and
all such fees and expenses shall be reimbursed as they are incurred. Each
of the Mediacom Companies shall jointly and severally indemnify and hold
harmless the QIU Indemnified Party from and against any and all losses,
claims, damages, liabilities and judgments by reason of any settlement of
any action (i) effected
-29-
with the Company's written consent or (ii) effected without the Company's
written consent if the settlement is entered into more than ten business
days after the Company shall have received a request from the QIU
Indemnified Party for reimbursement for the fees and expenses of counsel
(in any case where such fees and expenses are at the expense of the
Mediacom Companies) and, prior to the date of such settlement, the Mediacom
Companies shall have failed to comply with such reimbursement request. The
Mediacom Companies shall not, without the prior written consent of the QIU
Indemnified Party, effect any settlement or compromise of, or consent to
the entry of judgment with respect to, any pending or threatened action in
respect of which the QIU Indemnified Party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by
the QIU Indemnified Party, unless such settlement, compromise or judgment
(i) includes an unconditional release of the QIU Indemnified Party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of the QIU
Indemnified Party.
(c) To the extent the indemnification provided for in this Section is
unavailable to a QIU Indemnified Party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
the Mediacom Companies, in lieu of indemnifying such QIU Indemnified Party,
shall contribute to the amount paid or payable by such QIU Indemnified
Party as a result of such losses, claims, damages, liabilities and
judgments (i) in such proportion as is appropriate to reflect the relative
benefits received by the Mediacom Companies on the one hand and the QIU on
the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Mediacom Companies and the QIU in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Mediacom Companies and the QIU shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company as set forth
in the table on the cover page of the Prospectus, and the fee received by
the QIU pursuant to Section 3 hereof, bear to the sum of such total net
proceeds and such fee. The relative fault of the Mediacom Companies and the
QIU shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Mediacom Companies or the QIU and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and whether the QIU's activities as QIU under its
engagement pursuant to Section 3 hereof involved any willful misconduct or
gross negligence on the part of the QIU.
The Company and the QIU agree that it would not be just and equitable
if contribution pursuant to this Section 8(c) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by a QIU Indemnified Party as a
result of the losses, claims, damages, liabilities or judgments referred to
in the immediately preceding
-30-
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such QIU Indemnified Party
in connection with investigating or defending any matter that could have
given rise to such losses, claims, damages, liabilities or judgments. In no
event shall any QIU Indemnified Party be required to contribute in the
aggregate an amount exceeding the fee received by DLJ pursuant to Section 3
hereof. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(d) The remedies provided for in this Section are not exclusive and
shall not limit any rights or remedies which may otherwise be available to
any QIU Indemnified Party at law or in equity.
9. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 10 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Mediacom Companies or their respective officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, any QIU Indemnified Party, the Mediacom
Companies or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 9 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Mediacom Companies shall remain responsible for the expenses to
be paid or reimbursed by them pursuant to Section 5 and the respective
obligations of the Mediacom Companies and the Underwriters pursuant
-31-
to Section 7 and the obligations of the Mediacom Companies pursuant to Section 9
shall remain in effect, and if any Offered Securities have been purchased
hereunder, the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 9 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(d),
the Mediacom Companies will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed by overnight mail, delivered by hand or sent
by facsimile transmission and confirmed to the Representatives, c/o Credit
Suisse First Boston Corporation, Eleven Madison Avenue, New York, N.Y. 10010-
3629, Attention: Investment Banking Department--Transactions Advisory Group, or,
if sent to the Mediacom Companies, will be mailed, delivered or telegraphed and
confirmed to it at 000 Xxxxxxx Xxx Xxxx, Xxxxxxxxxx, X.X. 00000, Attention:
Xxxxx X. Xxxxxxxx, with a copy to Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx,
P.C., 000 Xxxxx Xxx., Xxx Xxxx, X.X. 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be so mailed, delivered or sent by facsimile transmission and confirmed to such
Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the partners,
officers and directors and controlling persons referred to in Section 7 and 8,
and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Mediacom Companies hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Mediacom Companies one of the
counterparts hereof, whereupon it will become a binding agreement among the
Mediacom Companies and the several Underwriters in accordance with its terms.
Very truly yours,
MEDIACOM COMMUNICATIONS
CORPORATION
By ...............................
[Title]
MEDIACOM LLC
By ...............................
[Title]
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Chase Securities Inc.
CIBC World Markets Corp.
First Union Securities, Inc.,
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By ...............................
[Title]
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In its capacity as qualified independent underwriter:
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
By ...............................
[Title]
SCHEDULE A
Number of
Underwriter Firm Securities
----------- ---------------
Credit Suisse First Boston Corporation.....................
Xxxxxxx Xxxxx Barney Inc...................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation........
Xxxxxxx, Sachs & Co........................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.........
Chase Securities Inc.......................................
CIBC World Markets Corp....................................
First Union Securities, Inc................................
---------------
Total....................................... 20,000,000
===============
EXHIBIT A
Form of Lock-Up Agreement
