SIGNIFICANT STOCKHOLDER
AGREEMENT
This
Significant Stockholder Agreement, dated as of September 7,
2008 (this “ Agreement ”), is entered into by
and between Mediacom Communications Corporation, a Delaware
corporation (the “ Company ”), and Rocco B.
Commisso, the Chief Executive Officer, Chairman of the Board of
Directors (the “ Board ”) and a significant
stockholder of the Company (the “ Stockholder
”). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in Section 5.1
of this Agreement.
WHEREAS,
the Company received an offer, dated July 7, 2008, from
certain entities affiliated with William Morris (the “
Selling Entities ”) with respect to a transaction or
transactions (the “ Proposed Transaction ”)
pursuant to which the Selling Entities would exchange all of the
shares of Class A Common Stock of the Company beneficially
owned by them for all of the issued and outstanding capital stock
of a newly formed, wholly owned subsidiary of the Company, which
would, directly or indirectly, hold cash and certain cable
television systems currently owned and operated by the
Company;
WHEREAS,
the Board has formed a special committee, consisting of three
independent and disinterested members of the Board (the “
Special Committee ”), to consider the Proposed
Transaction;
WHEREAS,
in considering the Proposed Transaction, the Special Committee has
determined that it is advisable and in the best interests of the
Company and its stockholders (other than the Stockholder and his
Affiliates) to condition the Company’s entry into the
Proposed Transaction on, among other things, the Stockholder
entering into this Agreement;
WHEREAS,
the Company, Shivers Investments, LLC and Shivers Trading and
Operating Company are entering into a Share Exchange Agreement,
dated the date hereof (the “ Share Exchange Agreement
”) in respect of the Proposed Transaction; and
WHEREAS,
the Stockholder has agreed to enter into this Agreement in
connection with the Proposed Transaction.
NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I.
EXTRAORDINARY STOCKHOLDER TRANSACTIONS
Section 1.1. Extraordinary Stockholder Transaction
. The Stockholder agrees that, prior to the second anniversary
of the date of this Agreement, the Stockholder shall not, and shall
cause his Affiliates not to, consummate an Extraordinary
Stockholder Transaction, unless the consummation of such
Extraordinary Stockholder Transaction is conditioned on receipt of
the recommendation in favor of such Extraordinary Stockholder
Transaction by a majority of either (x) the Disinterested Directors
that are members of the Board or (y) the members of
a
special
committee of the Board consisting entirely of Disinterested
Directors. The Stockholder further agrees that any public
disclosure by the Stockholder or his Affiliates made prior to the
second anniversary of the date of this Agreement proposing an
Extraordinary Stockholder Transaction will reference that the
consummation of any such Extraordinary Stockholder Transaction will
be subject to the receipt of the recommendation referred to in the
immediately preceding sentence.
Nothing
set forth in this Agreement shall be deemed to prohibit the
Stockholder and his Affiliates from (i) selling or otherwise
disposing of all or a portion of the Securities beneficially owned
by Stockholder and his Affiliates and (ii) voting all
Securities beneficially owned by Stockholder and his Affiliates
with respect to any Buyout Transaction that does not constitute an
Extraordinary Stockholder Transaction.
Section 1.2. Approval by Disinterested Directors
. Any decisions by the Company pursuant to or in respect of
this Agreement (including, for the avoidance of doubt, any decision
to waive compliance with any provision of this Agreement or amend
or voluntarily terminate this Agreement) shall be approved in
advance by a majority of the Disinterested Directors.
Section 1.3. Not Applicable to Stockholder in Other
Capacities . Nothing herein contained shall
(a) restrict, limit or prohibit Stockholder from exercising
(in his capacity as a director or officer) his fiduciary duties to
the stockholders of the Company under applicable law,
(b) require Stockholder, in his capacity as an officer of the
Company, to take any action in contravention of, or omit to take
any action pursuant to, or otherwise take or refrain from taking
any actions which are inconsistent with, instructions or directions
of the Board undertaken in the exercise of its fiduciary duties or
(c) restrict, limit or prohibit Stockholder from voting all
Securities beneficially owned by Stockholder as such Stockholder
determines in his sole discretion, other than in connection with
the approval of any Extraordinary Stockholder Transaction that
would violate the terms of Section 1.1.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Stockholder as
follows:
Section 2.1. Organization . The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
Section 2.2. Authority . The Company has all
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has
been duly and validly authorized, executed and delivered by the
Company and is a legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditor’s rights generally or
by general principles of equity.
Section 2.3. No Conflicts . The execution,
delivery and performance by the Company of this Agreement do not
(i) violate or conflict with any provision of the
Company’s Restated Certificate of Incorporation or Amended
and Restated By-Laws; (ii) violate any
-2-
provision of
any statute, law, code, ordinance, treaty, policy, judgment, order,
injunction, decree, rule, consent, writ, determination, arbitration
award, rule or regulation of or by any federal, state, foreign or
other governmental or public body, agency or authority, or
subdivision thereof, instrumentality, subdivision, court,
administrative agency, commission, official or other authority of
the United States or any other country or any state, province,
prefect, municipality, locality or other government or political
subdivision thereof, or any quasi-governmental or private body
exercising any regulatory, taxing, importing or other governmental
or quasi-governmental authority, applicable to the Company or any
of its properties or assets; or (iii) violate, conflict with,
result in a breach of or the loss of any benefit under, constitute
(with due notice or lapse of time or both) a default under, result
in the termination of or a right of termination or cancellation
under, accelerate the performance required by or rights or
obligations under, any of the terms, conditions or provisions of
any material contract, note, bond, lease, loan agreement, mortgage,
security agreement, indenture, deed or trust, license, agreement or
instrument to which the Company is a party or by which it is bound
or to which any of its properties, assets or business is
subject.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The
Stockholder represents and warrants to the Company as
follows:
Section 3.1. Authority . This Agreement has been
duly and validly executed and delivered by the Stockholder and is a
legal, valid and binding obligation of such Stockholder enforceable
in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws affecting
the enforcement of creditor’s rights generally or by general
principles of equity.
Section 3.2. No Conflicts . The execution,
delivery and performance by the Stockholder of this Agreement do
not violate, conflict with, result in a breach of or the loss of
any benefit under, constitute (with due notice or lapse of time or
both) a default under, result in the termination of or a right of
termination or cancellation under, accelerate the performance
required by or rights or obligations under, any of the terms,
conditions or provisions of any material contract, note, bond,
lease, loan agreement, mortgage, security agreement, indenture,
deed or trust, license, agreement or instrume
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