Exhibit 1.2
$150,000,000
MEDIACOM COMMUNICATIONS CORPORATION
5.25% Convertible Senior Notes due 2006
UNDERWRITING AGREEMENT
-----------------------
June 22, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
CIBC WORLD MARKETS CORP.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
UBS WARBURG LLC
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") $150,000,000 aggregate principal
amount ("Firm Securities") of 5.25% Convertible Senior Notes Due 2006
("Securities"), to be issued under an indenture dated as of June 27, 2001 (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee") and also proposes to issue and sell to the Underwriters, at the
option of the Underwriters, not more than $22,500,000 principal amount
("Optional Securities") of the Company's Securities as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the
"Offered Securities". The Company hereby agrees with the several Underwriters as
follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-55138), including a
prospectus, relating to the Offered Securities and the shares of the
Company's Class A Common stock, par value $.01 per share (the "Class A
Common Stock") into which the Offered Securities are convertible
("Underlying Shares"), has been filed with the Securities and Exchange
Commission
-2-
("Commission") and has become effective. Such registration statement, as
amended as of the date of this Agreement, is hereinafter referred to as the
"Registration Statement", and the prospectus included in such Registration
Statement, as supplemented to reflect the terms of offering of the Offered
Securities, filed with the Commission on or about June 25, 2001 pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act
of 1933 ("Act"), including all material incorporated by reference therein,
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) On the effective date of the Registration Statement, such
Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("Trust Indenture
Act") and the rules and regulations of the Commission ("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, and on the date of
this Agreement, the Registration Statement and the Prospectus conform in
all material respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations, and neither of such documents includes
as of the date of this Agreement or will include as of the date of any
amendment or supplement thereto or any Closing Date (as defined below) 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, except that the foregoing does not apply
to statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, 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 with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is authorized to
do business as a foreign corporation 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 and its subsidiaries taken as a whole ("Material
Adverse Effect").
(d) Each of the Company's subsidiaries (each such subsidiary is listed
on Schedule B hereto) 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 the Company's subsidiaries is authorized to do business as a
foreign corporation or limited liability company, as the case may be, 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
-3-
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 the Company's subsidiaries has been duly authorized
and validly issued and is fully paid and nonassessable; all of the issued
and outstanding capital stock or membership interests, as the case may be,
of each subsidiary of the Company is owned by the Company, directly or
through subsidiaries, except that 1% of Mediacom California LLC is owned by
Mediacom Management Corporation and 1% of Mediacom Arizona LLC is owned by
Mediacom California LLC, in each case free of all liens, encumbrances and
defects, except as otherwise disclosed in the Prospectus.
(e) As of March 31, 2001, the Company had an authorized
capitalization as set forth in the Prospectus under the heading
"Capitalization" in the column entitled "Mediacom (historical)"; assuming
the completion of the issue and sale of the Firm Securities and the use of
the proceeds therefrom, as contemplated in the Prospectus, and the sale of
the securities offered in the concurrent offering of Class A Common Stock
by the Company and the application of the net proceeds therefrom, as
described in the Prospectus (the "Concurrent Offering"), had occurred as of
March 31, 2001, the Company had the capitalization as set forth in the
Prospectus under the heading "Capitalization" in the column entitled
"Mediacom Pro Forma"; assuming the completion of the other transactions
described in the Prospectus under the third bullet under the heading
"Capitalization" and the application of the net proceeds therefrom, as
described in the Prospectus, had occurred as of March 31, 2001, the Company
had the capitalization as set forth in the Prospectus under the heading
"Capitalization" in the column entitled "Total Pro Forma".
(f) The Indenture has been duly authorized and duly qualified under
the Trust Indenture Act; the Offered Securities have been duly authorized;
and when the Offered Securities are delivered and paid for pursuant to this
Agreement on each Closing Date (as defined below), the Indenture will have
been duly executed and delivered and will constitute a valid and legally
binding instrument enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(g) When the Offered Securities are delivered and paid for pursuant to
this Agreement on each Closing Date, such Offered Securities will be
convertible into the Underlying Shares in accordance with the terms of the
Indenture; the Underlying Shares initially issuable upon conversion of such
Offered Securities have been duly authorized and reserved for issuance upon
such conversion and, when issued upon such conversion, will be validly
issued, fully paid and nonassessable; all outstanding shares of capital
stock of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities or the Underlying
Shares.
(h) There are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the offering contemplated by this
Agreement.
-4-
(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 (the relevant provisions of which have not been waived) or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
(j) The Class A Common Stock is listed on, and the Company has taken
all necessary actions for the Underlying Shares, upon issuance to be listed
on The Nasdaq Stock Market's National Market.
(k) No consent, approval, authorization, or order of, or filing,
registration or qualification with, any governmental agency or body or any
court is required for the consummation of the transactions contemplated by
this Agreement (including in connection with the issuance and sale of the
Offered Securities by the Company), except such as have been obtained and
made under the Act, such as may be required under state securities laws or
by the National Association of Securities Dealers, Inc. (the "NASD") and
such as have been obtained and made under the Communications Act of 1934,
as amended (the "Amended 1934 Act"), including 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 Amended 1934 Act, the 1984 Cable Act and the 1992
Cable Act, the "Communications Act") and any written and published policy,
order, rule or regulation ("FCC Regulations") of the Federal Communications
Commission ("FCC").
(l) The execution, delivery and performance of the Indenture and this
Agreement, and the consummation of the transactions therein and herein
contemplated and the issuance and sale of the Offered Securities will not
(i) result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (A) any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
subsidiary of the Company 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, 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 or any such
subsidiary 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 or any such
subsidiary or any of their respective properties, including, without
limitation, the Communications Act, except, in the case of each of clauses
(i)(A) 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.
-5-
(m) This Agreement has been duly authorized, executed and delivered by
the Company.
(n) Except as disclosed in the Prospectus, the Company and its
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, except those that would not individually or in
the aggregate have a Material Adverse Effect; and except as disclosed in
the Prospectus, the Company and its 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, except as would not individually or in the aggregate have a Material
Adverse Effect.
(o) Except as disclosed in the Prospectus, the Company and its
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 or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(p) No labor dispute with the employees of the Company or any of the
Company's subsidiaries exists or, to the knowledge of the Company, is
imminent that might have a Material Adverse Effect; to the knowledge of the
Company, no labor dispute exists or is imminent by the employees of any of
the principal suppliers, contractors or customers of the Company that might
have a Material Adverse Effect; and the Company is not a party to any
collective bargaining or other labor union contract applicable to persons
employed by the Company or any of its subsidiaries, and no collective
bargaining agreement is being negotiated by the Company or any such
subsidiary.
(q) The Company and its 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 or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(r) None of the Company or any of the Company'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
-6-
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 the Company has no knowledge 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 or any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its 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,
to the knowledge of the Company, no such actions, suits or proceedings are
threatened or contemplated.
(t) The financial statements, including the notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly (i) the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown and (ii) to the knowledge
of the Company, the assets, liabilities and parent's investment of (A) the
Georgia Mediacom Systems, (B) the Southern Illinois Mediacom Systems, (C)
the Missouri Mediacom Systems and (D) the Iowa Mediacom Systems
(collectively, the "AT&T Systems"), in each case at the dates shown and
their respective revenues and direct expenses and cash flows for the
periods shown; and such financial statements comply as to form with all
requirements of the Act and have been prepared in conformity with the
generally accepted accounting principles in the United States ("GAAP")
applied on a consistent basis; any schedules included in the Registration
Statement present fairly the information required to be stated therein; the
summary and selected financial and operating data included in 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
the 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"); the
assumptions used in preparing the pro forma financial statements included
in the 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; and the assumptions
used in preparing the adjusted pro forma financial data included in the
Prospectus provide a reasonable basis for presenting the expected
significant effects attributable to the transactions or events described
therein, the related adjusted pro forma adjustments give appropriate effect
to those assumptions.
(u) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements of the Company included in the
Prospectus there has been no material adverse change, nor any development
or event involving a prospective material adverse change,
-7-
in the condition (financial or other), business, properties or results of
operations of the Company and its 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 the Company
on any class of its capital stock.
(v) Except as disclosed in the Prospectus, to the knowledge of the
Company, since the date of the latest audited financial statements of the
AT&T Systems 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 AT&T Systems taken as a whole.
(w) The statistical and market-related data included in the Prospectus
are based on or derived from sources that the Company believes to be
accurate and reliable.
(x) The Company and its 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 GAAP 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.
(y) There are no contracts, agreements or other documents required to
be described in the Prospectus or to be filed as exhibits to the
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 of this Agreement; and
none of the Company or its subsidiaries and, to the knowledge of the
Company, 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.
(z) 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 issue, any securities of the Company
or any securities convertible into or exchangeable for securities of the
Company.
(aa) Each of the franchises held by the Company and its subsidiaries
that are material to the Company and its subsidiaries taken as a whole, is
in full force and effect, with no material restrictions or qualifications;
to the best knowledge of the Company, 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 or its subsidiaries in the franchises; and the
Company has
-8-
no reason to believe that any franchise that is required for the operation
of the Company or the its subsidiaries will not be renewed in the ordinary
course.
(bb) The Company and its 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 or any of its subsidiaries that could
reasonably be expected to result individually or in the aggregate in a
Material Adverse Effect.
(cc) Each of the Company and its subsidiaries carries insurance
(including self- insurance) in such amounts and covering such risks as in
the reasonable determination of the Company is adequate for the conduct of
its business and the value of its properties; each of the Company and its
subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the
Company under any such policies and instruments as to which the insurer
thereunder is denying liability or defending under a reservation of rights
clause; the Company has not been refused any insurance coverage sought or
applied for; and the Company has no 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.
(dd) The statements set forth (i) in the Prospectus under the captions
"Risk Factors -- Risks Related to the AT&T Acquisitions", "-- Risk Related
to Our Industry", "Business -- Franchise Overview", "-- Employees", "The
AT&T Agreements", "Description of Certain Indebtedness", "Description of
the Convertible Notes" and "Certain United States Federal Income Tax
Considerations", (ii) in the Annual Report on Form 10-K for the fiscal year
ended December 31, 2000 of the Company under the captions "Item 1. Business
-- General Business Developments", "-- Products and Services -- High-Speed
Internet Access", "-- Programming Supply", "-- Customer Rates", "--
Franchises", "-- Competition", "-- Legislation and Regulation" and "Item 3.
Legal Proceedings" and (iii) in the Definitive Proxy Statement of the
Company for fiscal year 2001 under the captions "Executive Compensation"
and "Certain Relationships", insofar as such statements purport to describe
the provisions of the laws, documents and arrangements referred to therein,
are accurate in all material respects.
(ee) Each of the following firms are independent public accountants
within the meaning of the Act and the Rules and Regulations: (i) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP who have certified certain financial statements of the Company
included in the Prospectus; and (ii) PricewaterhouseCoopers LLP who have
certified certain financial statements of the AT&T Systems included in the
Prospectus.
(ff) The Company is not 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, the Company will not 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.
-9-
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 97.0% of the principal amount thereof
plus accrued interest from June 27, 2001 to the First Closing Date (as defined
herein), the respective principal amounts of Firm Securities set forth opposite
the names of the Underwriters in Schedule A hereto.
----------
The Company will deliver against payment of the purchase price the
Firm Securities in the form of one or more permanent global securities in
definitive form (the "Firm Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any Firm Global Securities will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Firm Securities shall be made by
the Underwriters in Federal (same day) funds by wire transfer to an account at a
bank acceptable to Credit Suisse First Boston Corporation ("CSFBC"), at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at
9:00 A.M., New York time, on June 27, 2001, 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", against delivery to
the Trustee as custodian for DTC of the Firm Global Securities representing all
of the Firm Securities. For purposes of Rule 15c6-1 under the Exchange Act, the
First Closing Date (if later than the otherwise 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 Firm Global
Securities will be made available for checking at the above offices of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 principal amount of Firm Securities (including any accrued
interest thereon to the related Optional Closing Date (as defined herein)) to be
paid for the Firm Securities. The Company agrees to sell to the Underwriters the
amount 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, if at all, from the Company for the
account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name in Schedule A hereto bears
----------
to the total number 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
-10-
to purchase Optional Securities is given. The Company will deliver against
payment of the purchase price the Optional Securities being purchased on each
Optional Closing Date in the form of one or more permanent global securities in
definitive form (each, an "Optional Global Security") deposited with the Trustee
as custodian for DTC and registered in the name of Cede & Co., as nominee for
DTC. Payment for such Optional Securities shall be made by the Underwriters 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 at the above offices
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ at a reasonable time in advance of such Optional
Closing Date.
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.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by CSFBC, subparagraph (5)) not later than the second business
day following the execution and delivery of this Agreement.
(b) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, will afford CSFBC
a reasonable opportunity to comment on any such proposed amendment of the
supplement and will not effect such amendment or supplement without CSFBC's
consent; and the Company will also advise CSFBC promptly of the filing of
any such amendment or supplement and of the institution by the Commission
of any stop order proceedings in respect of the Registration Statement or
any part thereof 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 hereof.
(d) As soon as practicable, but not later than 16 months after the
date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective
-11-
date of the Registration Statement, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (iii) the filing date of
the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, the Prospectus, any related
preliminary prospectus supplement and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as
CSFBC reasonably requests. 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 after the date of this
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, 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 Company will pay all expenses incident to the performance of
its obligations under this Agreement and the Indenture, 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 Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities and for expenses
incurred in distributing the Prospectus, any related preliminary prospectus
supplement or any other amendments and supplements to the Prospectus to the
Underwriters.
(i) For a period of 90 days after the date of the Prospectus, 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 shares of its Class A
Common Stock, 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 shares of its Class A Common
Stock or shares of its Class B Common Stock, or publicly disclose the
intention to make any such offer, sale,
-12-
pledge, disposition or filing without the prior written consent of CSFBC
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., except for (A) grants of employee stock
options pursuant to the terms of the Company's 1999 Stock Option Plan as in
effect on the date of this Agreement, (B) issuances of shares of its Class
A Common Stock and shares of Class B Common Stock pursuant to the exercise
of options granted under the 1999 Stock Option Plan outstanding on the date
of this Agreement, (C) issuances of shares of its Class A Common Stock
pursuant to the Company's 1999 Stock Purchase Plan as in effect on the date
of this Agreement and pursuant to the Company's proposed 2001 Stock
Purchase Plan (provided that such plan complies with Section 423 of the
Internal Revenue Code), and (D) the issuance of 26,000,000 shares of Class
A Common Stock on or about the First Closing Date (and the issuance of up
to 3,900,000 shares of Class A Common Stock upon the exercise of the option
described in the Underwriting Agreement dated as of June 22, 2001, among
the Company and Credit Suisse First Boston Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., Banc of America Securities LLC,
Deutsche Banc. ▇▇▇▇ ▇▇▇▇▇ Inc., First Union Securities, Inc, ▇▇ ▇▇▇▇▇
Securities Corporation and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.) and issuances of
shares of Securities upon the conversion of such notes and in accordance
with the terms thereof. The Company will not authorize any transfer of
shares of Securities in violation of clause (B) of the "lock-up" agreements
described in Section 6(l) of this Agreement.
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 the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of this Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP confirming that they are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the Act
and the Exchange Act and the applicable published Rules and Regulations and
stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them included in the Prospectus and incorporated by
reference in the Registration Statement 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 and included in the Prospectus and incorporated by
reference in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of
-13-
the Company 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
Prospectus and incorporated by reference in the Registration
Statement do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
Exchange 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 GAAP;
(B) at the date of the latest available balance sheet read by
such accountants, or a subsequent specified date not more than
three business days prior to the date of such letter, there was
any change in the capital stock or any increase in long-term debt
of the Company 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 Registration Statement; or
(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, in the total or per share amounts of
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 Registration Statement
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 Statement (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company'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 inquiries of certain officials of the Company 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
-14-
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.
All financial statements and schedules included in and material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statement for purposes of this subsection.
(b) On or prior to the date of this Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants with respect to the AT&T Systems 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 relating to each of
the AT&T Systems examined by them and included in the Registration
Statement 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 examined by them and included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
relating to each of the AT&T Systems, inquiries of officials of each
of the AT&T Systems 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 examined by them and
included in the Registration Statement 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
GAAP;
(B) at the date of the latest available combined statement of
assets, liabilities and parent's investment read by such
accountants, or a subsequent specified date not more than three
business days prior to the date of such letter, there was any
increase in total liabilities of any of the AT&T Systems
-15-
or, at such date, there was any decrease in total assets, as
compared with amounts shown on the latest statement of assets,
liabilities and parent's investment included in the Registration
Statement; or
(C) for the period from the closing date of the latest income
statement included in the Registration Statement to the closing
date of the latest available combined statements of revenues and
direct expenses and parent's investment 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 available combined statements
of revenues and direct expenses and parent's investment included
in the Registration Statement, in revenues or excess of revenues
over direct expenses,
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; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statement (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of each of the AT&T
Systems subject to the internal controls of each of the AT&T System'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.
All financial statements and schedules included in and material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statement for Purposes of this subsection.
(c) 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 the Registration Statement or of any part thereof shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representatives,
shall be contemplated by the Commission.
(d) 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 and its
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
-16-
for the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company or any of its subsidiaries 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 the Company (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 the Company 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.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, to
the effect that:
(i) The Company is validly existing as a corporation, in good
standing under the laws of the State of Delaware, and has the
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; the Company is authorized to
do business as a foreign corporation 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, leases or operates property or
conducts business, such counsel knows of no other jurisdiction where
the failure to be so authorized would have a Material Adverse Effect;
(ii) Each subsidiary of the Company listed in Exhibit A to such
counsel's opinion (the "Subsidiaries") is validly existing as a
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, and has the 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 authorized to do business as a foreign corporation
or limited liability company, as the case may be, in the respective
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, lease or operate property or conduct
business, such counsel knows of no other jurisdiction where the
failure to be so authorized 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
-17-
except as otherwise disclosed in the Prospectus; and such counsel
knows of no subsidiaries of the Company other than the Subsidiaries;
(iii) The Indenture has been duly authorized, executed and
delivered and has been duly qualified under the Trust Indenture Act;
the Offered Securities delivered on such Closing Date have been duly
authorized, executed, authenticated, issued and delivered and conform
to the description thereof contained in the Prospectus; and under the
laws of the State of New York, the Indenture and the Offered
Securities delivered on such Closing Date constitute valid and legally
binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iv) The Offered Securities delivered on such Closing Date are
convertible into the Underlying Shares in accordance with the terms of
the Indenture; the Underlying Shares initially issuable upon
conversion of such Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable and
will require no further registration under the Act; the outstanding
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and, to the knowledge
of such counsel, the stockholders of the Company have no preemptive
rights with respect to the Offered Securities or the Underlying
Shares;
(v) 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 registered pursuant to the Registration Statement (the
relevant provisions of which have not been waived) or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(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, except such as have been obtained and made
under the Act, such as have been obtained under the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended, and such as may be
required under state securities laws or by the NASD; provided that
such counsel expresses no opinion as to any consent, approval,
authorization or order of, or filing or registration as may be
required by the FCC or the U.S. Copyright Office under the
Communications Act or the Copyright Act of 1976, as amended (the
"Copyright Act"), or the FCC Regulations or the written and published
orders, rules and regulations of the U.S. Copyright Office (the
"Copyright Regulations"), and such as may be required under
-18-
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
and the Indenture, the issuance and sale of the Offered Securities and
the consummation of the transactions contemplated hereby and thereby,
will not (i) result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (A) any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument known to such counsel to which the Company or any
Subsidiary of the Company 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 the knowledge of such counsel, order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any such Subsidiary or any of their respective properties,
excluding the Communications Act, 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)(A) 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 Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the 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
the Registration Statement, as of its effective date, the Registration
Statement and the Prospectus, as of the date of this Agreement and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act and the
Rules and Regulations; although such counsel has not independently
checked or verified and is not passing upon or assuming responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement and the Prospectus, nothing has come to
the attention of such counsel that would lead such counsel to believe
that the Registration Statement, as of its effective date, as of the
date of this Agreement or as of such Closing Date, or any amendment
thereto, as of its 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 as of the date of this
Agreement or as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of such Closing Date, contained any
untrue statement of a material fact or omitted
-19-
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 set forth (i) in the Registration
Statement and the Prospectus under the captions "Risk Factors -- Risks
Related to the AT&T Acquisitions", "Business-- Employees", "The AT&T
Agreements", "Description of Certain Indebtedness", "Description of
the Convertible Notes" and "Certain United States Federal Income Tax
Consideration", (ii) in the Annual Report on Form 10-K for the fiscal
year ended December 31, 2000 of the Company under the captions "Item
1. Business -- General Business Developments", "-- Products and
Services -- High- Speed Internet Access", "-- Programming Supply", "--
Customer Rates", "-- Competition" and "Item 3. Legal Proceedings" and
(iii) in the Definitive Proxy Statement of the Company for fiscal year
2001 under the captions "Executive Compensation" and "Certain
Relationships", insofar as such statements summarize statutes, legal
and governmental proceedings and contracts and other documents,
excluding any summaries of the provisions of the Communications Act,
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 does not know of any
legal or governmental proceedings required to be described in the
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 the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that in each case
described above, such counsel need express no opinion as to the
financial statements, schedules or other financial data and related
statistical data contained in the Registration Statement or the
Prospectus;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company; and
(x) The Company is not, 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, the Company will not 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.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., regulatory counsel
for the Company, 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 systems (the "Mediacom Systems") by
the Company and its subsidiaries;
(ii) All material FCC Licenses (as defined below) held by the
Company's subsidiaries in connection with the operation of the
Mediacom Systems are listed on
-20-
such Attachment 1. To the 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. To the knowledge of such
counsel, there is no 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 Mediacom 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 pursuant to Part 78 of the FCC's Regulations;
(iii) Other than proceedings affecting the cable television
industry generally and other than rate proceedings or related rate
matters arising under 47 U.S.C. (S)543, there is no action, suit or
proceeding pending before or, to the knowledge of such counsel,
threatened by the FCC which, if resolved adversely to the Company and
its subsidiaries, is reasonably likely to have a Material Adverse
Effect on the Mediacom Systems;
(iv) All material Statements of Account (i.e., SA Form 3--Long
Form) 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 Mediacom Systems covering each of the accounting
periods beginning with the January 1 through June 30, 1998 accounting
period and ending with the July 1, 2000 through December 31, 2000
accounting period during which such Mediacom 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
knowledge of such counsel, based solely on counsel's review of its
files and on the information and representations provided by the
Company, there is no U.S. 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
infringement or for non-payment of royalty fees which, if determined
adversely to the Company or any of its subsidiaries, 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 Communications Act, the FCC Regulations, the Copyright Act or the
Copyright Regulations 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, except
such as have been obtained under the Communications Act or any FCC
Regulations.
-21-
(vi) The execution, delivery and performance of this Agreement
and the issuance and sale of the Offered Securities will not result in
a breach or violation of any of the terms and provisions of or
conflict with any of the Communications Act, the FCC's Regulations,
the Copyright Act or the Copyright Regulations;
(vii) The statements set forth (i) in the Registration Statement
and the Prospectus under the captions "Risk Factors --Risks Relating
to Our Industry" and "Business -- Franchise Overview" and (ii) in the
Annual Report on Form 10-K for the fiscal year ended December 31, 2000
of the Company under the captions "Item 1. Business --Franchises", "--
Competition" and "-- Legislation and Regulation," as supplemented by
any reports on Form 10-Q filed subsequent to such annual report on
Form 10-K, insofar as such statements summarize applicable provisions
of the Communications Act and the FCC's Regulations, are accurate
summaries in all material respects of the provisions purported to be
summarized under such captions in the Registration Statement and the
Prospectus; and the federal and state communications laws summarized
under such captions are the federal and state laws that are material
to the business of the Company and its subsidiaries as described in
Registration Statement and the Prospectus; and
(viii) In the course of such counsel's representation of the
Company and the Company's 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.
(g) The Representatives shall have received an opinion dated such
Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., counsel for the Company, to the effect
that:
(i) 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, except such as have been obtained and made
under or may be required by the FCC or the U.S. Copyright Office under
any of the Communications Act, the FCC Regulations, the Copyright Act
or the Copyright Regulations, 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 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
and the issuance and sale of the Offered Securities 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
-22-
(iii) The statements set forth (i) in the Registration Statement
and the Prospectus under the captions "Risk Factors -- Risks Related
to Our Industry" and "Business -- Franchise Overview" and (ii) in the
Annual Report on Form 10-K for the fiscal year ended December 31, 2000
of the Company under the captions "Item 1. Business --Franchises", "--
Competition" and "-- Legislation and Regulation", 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 Statement 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 the Registration Statement and
the Prospectus.
(h) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the due incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(i) 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 Company in this Agreement are true
and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and that 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.
(j) The Representatives shall have received a letter, dated such
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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.
(k) The Representatives shall have received a letter, dated such
Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (b) 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.
-23-
(l) On or prior to the date of this Agreement, the Representatives
shall have received the "lock-up" agreements, each substantially in the
Form of Exhibit A hereto, among the Representatives and the directors,
executive officers and certain stockholders of the Company (such
stockholders as listed on Schedule C hereto) relating to sales and certain
other dispositions of shares of the Securities and certain other
securities, and such "lock-up" agreements shall be in full force and
effect.
The Company 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) The Company will 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 the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
supplement, 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 Company 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.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to
which the Company 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 the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus supplement, 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 the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being
-24-
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 fourth paragraph; (ii) the independent decision
language and offering benefits language appearing in the tenth paragraph;
(iii) the overallotment and stabilization information in the twelfth
paragraph; and (iv) the electronic distribution language appearing in the
thirteenth 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. 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 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 Company on the one hand and the Underwriters on the other
from the offering of the Offered 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 Company
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 Company 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
-25-
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
Company 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 Offered 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 Company under this Section shall be in
addition to any liability which the Company 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 terms and conditions, to each director of the
Company, to each officer of the Company who has signed a Registration
Statement and to each person, if any, who controls the Company within the
meaning of Section 15 of the Act.
8. 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 principal amount of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total principal amount 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 principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount 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 9 (provided that if such default occurs with respect to
Optional
-26-
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.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its 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, the Company 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 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 and the
obligations of the Company pursuant to Section 8 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 8 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 6(d), the Company 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.
10. 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 Company, will be mailed, delivered or telegraphed and confirmed
to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; 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.
11. 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 no other person will have any right or obligation hereunder.
12. 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.
13. 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.
-27-
14. 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 Company hereby submits 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.
-28-
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
MEDIACOM COMMUNICATIONS
CORPORATION
By _____________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
CIBC WORLD MARKETS CORP.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
UBS WARBURG LLC,
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By ____________________________
Name:
Title:
SCHEDULE A
Principal Amount of
Underwriter Firm Securities
----------- ---------------
Credit Suisse First Boston Corporation............................. $ 35,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc........................................... 35,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc......................................... 35,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc............................................ 9,000,000
CIBC World Markets Corp............................................ 9,000,000
▇▇▇▇▇▇ Brothers Inc................................................ 9,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.................................................. 9,000,000
UBS Warburg LLC.................................................... 9,000,000
------
Total............................................... $150,000,000
============
SCHEDULE B
Jursidiction of
Subsidiary Organization
---------- ------------
Mediacom LLC New York
Mediacom Capital, Inc. New York
Mediacom Arizona LLC Delaware
Mediacom California LLC Delaware
Mediacom Delaware LLC Delaware
Mediacom Illinois LLC Delaware
Mediacom Indiana LLC Delaware
Mediacom Iowa LLC Delaware
Mediacom Minnesota LLC Delaware
Mediacom Southeast LLC Delaware
Mediacom Wisconsin LLC Delaware
▇▇▇▇▇▇▇ Communications Corporation Minnesota
Illini Cable Holding, Inc. Illinois
Illini Cablevision of Illinois, Inc. Illinois
Mediacom Broadband LLC Delaware
Mediacom Broadband Corporation Delaware
MCC Georgia LLC Delaware
MCC Illinois LLC Delaware
MCC Iowa LLC Delaware
MCC Missouri LLC Delaware
SCHEDULE C
Stockholder
-----------
▇▇▇▇▇▇ Communications Corporation
EXHIBIT A
---------
Form of Lock-Up Agreement
[ ], 2001
Mediacom Communications Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
CIBC World Markets Corp.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
UBS Warburg LLC
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
As an inducement to the Underwriters to execute the underwriting
agreement (the "Underwriting Agreement"), dated as of the date hereof, for the
Securities (as defined below), pursuant to which an offering will be made that
is intended to result in an orderly market for the convertible senior notes due
2006 (the "Securities"), of Mediacom Communications Corporation, and any
successor (by merger or otherwise) thereto, (the "Company"), the undersigned
hereby agrees that from the date hereof and until 90 days after the public
offering date set forth on the final prospectus supplement used to sell the
Securities (the "Public Offering Date") pursuant to the Underwriting Agreement,
to which you are or expect to become parties, the undersigned will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any Securities or securities convertible
-2-
into or exchangeable or exercisable for any shares of Class A Common Stock, par
value $.01 per share, of the Company, (the "Common Stock"), enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
In addition, the undersigned agrees that, without the prior written consent of
Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., it will
not, during the period commencing on the date hereof and ending 90 days after
the Public Offering Date, make any demand for or exercise any right with respect
to, the registration of any Securities or any security convertible into or
exercisable or exchangeable for shares of the Common Stock.
Any Common Stock received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Notwithstanding the
foregoing, the undersigned may offer, sell, pledge or dispose of (A) any shares
of Common Stock acquired by the undersigned in the open market after the Public
Offering Date, (B) a number of shares of Common Stock (not to exceed 275,000
shares of Common Stock) authorized by the Company for transfer prior to such
transfer (it being understood that the Company will not authorize all persons
and entities (including the undersigned) party to this Agreement and agreements
similar hereto to transfer more than 275,000 shares of Common Stock in the
aggregate pursuant to this subclause (B)), (C) the undersigned's shares of
Common Stock as a bona fide gift to any person, trust or other entity, (D) the
undersigned's shares of Common Stock to any trust for the benefit of the
undersigned or members of the immediate family of the undersigned, provided that
such transfer shall not involve a disposition for value; provided, however,
that, in the case of each of subclauses (C) and (D), such donee or trust, as the
case may be, (x) duly and validly executes an agreement in the form of this
Agreement prior to such transfer and (y) such executed agreement is delivered to
the Underwriters, c/o Credit Suisse First Boston Corporation, at the address set
forth above, attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇.
Notwithstanding the foregoing, this Agreement will not apply to any
pledge of securities of the Company by the undersigned, including shares of the
Common Stock, existing on the Public Offering Date.
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer Securities
if such transfer would constitute a violation or breach of this Agreement.
[Remainder of page intentionally blank]
-3-
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before September 19, 2001.
Very truly yours,
_____________________________
Name: