As filed with the Securities and Exchange Commission on February 14, 2005
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDIACOM COMMUNICATIONS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 06-1566067
(State of Incorporation) (I.R.S. Employer Identification No.)
100 CRYSTAL RUN ROAD
MIDDLETOWN, NEW YORK 10941
(Address of Principal Executive Offices)
MEDIACOM COMMUNICATIONS CORPORATION 2003 INCENTIVE PLAN
(FORMERLY NAMED: MEDIACOM COMMUNICATIONS CORPORATION 1999 STOCK OPTION PLAN)
(Full Title of the Plan)
ROCCO B. COMMISSO
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
100 CRYSTAL RUN ROAD
MIDDLETOWN, NEW YORK 10941
(845) 695-2600
(Name, Address and Telephone Number of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED (1)(2) PRICE PER SHARE (3) OFFERING PRICE REGISTRATION FEE
- ----------------------------- ----------------------- ----------------------- ------------------------ ----------------------
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Common Stock, $.01 par
value per share (4)...........12,000,000 shares $5.81 $69,720,000 $8,206.04
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this registration
statement also covers any additional securities that may be offered or
issued in connection with any stock split, stock dividend or similar
transaction.
(2) The shares of common stock registered by this Registration Statement are in
addition to 9,000,000 shares of common stock previously registered on Form
S-8 (Registration No. 333-41360) with respect to the Mediacom
Communications Corporation 2003 Incentive Plan (formerly the 1999 Stock
Option Plan (the "Plan"))
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) under the Securities Act of 1933.
(4) As provided under the Plan, the shares of common stock issued or issuable
under the Plan may be either Class A common stock or Class B common stock
of the Registrant.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Mediacom Communications Corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
(File No. 0-29227) are hereby incorporated by reference and made a part of this
Registration Statement:
o The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2003;
o The Registrant's Definitive Proxy Statement for the Registrant's 2004
Annual Meeting, filed with the Commission on April 29, 2004;
o The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2004;
o The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2004;
o The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2004;
o The Registrant's Current Report on Form 8-K, dated December 17, 2004,
filed with the Commission on December 23, 2004;
o The Registrant's Current Report on Form 8-K, dated November 23, 2004,
filed with the Commission on November 26, 2004;
o The Registrant's Current Report on Form 8-K, dated October 21, 2004,
filed with the Commission on October 27, 2004; and
o The Registrant's Registration Statement on Form 8-A containing a
description of the Registrant's Class A common stock.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") on or
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities registered hereby have been sold or which deregisters such securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents, except for information furnished to the Commission that is not deemed
to be "filed" for purposes of the Exchange Act (such documents, and the
documents listed above, being hereinafter referred to as "Incorporated
Documents"). Any statement contained in an Incorporated Document shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Registrant's Class A common stock is registered under Section 12 of the
Exchange Act and a description of such common stock is set forth in the
Registrant's Registration Statement on Form 8-A. The Registrant's Class B common
stock is not registered under Section 12 of the Exchange Act. The following is a
description of the Registrant's Class B common stock.
The rights of the holders of Class A and Class B common stock are
substantially identical in all respects, except for voting and conversion
rights. Only certain directors, officers and other members of the Registrant's
management group and certain other permitted holders, including relatives and
affiliates of these persons, as described in the Registrant's restated
certificate of incorporation, may hold Class B common stock. There is no
limitation on who may hold Class A common stock. Holders of Class A common stock
are entitled to one vote per share. Holders of Class B common stock are entitled
to ten votes per share. Holders of all classes of common stock entitled to vote
will vote together as a single class on all matters presented to the
stockholders for their vote or approval, except as otherwise required by the
Delaware General Corporation Law. Under Delaware law, the holders of each class
of common stock are entitled to vote as a separate class with respect to any
amendment to the Registrant's certificate of incorporation that would increase
or decrease the aggregate number of authorized shares of such class, increase or
decrease the par value of such class, or modify or change the powers,
preferences or special rights of the shares of such class so as to affect such
class adversely. The Registrant's certificate of incorporation does not provide
for cumulative voting for the election of the Registrant's directors, with the
result that stockholders owning or controlling more than 50% of the total votes
cast for the election of directors can elect all of the directors.
Subject to the dividend rights of holders of preferred stock, holders of
common stock are entitled to receive dividends when, as and if declared by the
board of directors out of funds legally available for this purpose. In the event
of the Registrant's liquidation, dissolution or winding up, the holders of both
classes of common stock are entitled to receive on a proportional basis any
assets remaining available for distribution after payment of the Registrant's
liabilities and after provision has been made for payment of liquidation
preferences to all holders of preferred stock. Holders of common stock have no
conversion, redemption or sinking fund provisions or preemptive or other
subscription rights, except that:
o in the event any shares of Class B common stock are transferred to
persons other than certain directors, officers and other members of
the Registrant's management group, or certain other permitted holders,
such shares will be converted automatically into shares of Class A
common stock on a one-for-one basis; and
o each share of Class B common stock is convertible into one share of
Class A common stock at the option of the holder at any time.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Robert L. Winikoff, a director of the Registrant, is a member of
Sonnenschein Nath & Rosenthal LLP, counsel to the Registrant. Mr. Winikoff
beneficially owns 15,000 shares of the Registrant's Class A common stock. Mr.
Winikoff serves as a manager of a limited liability company which owns 30,000
shares of the Registrant's Class A common stock. Mr. Winikoff disclaims
beneficial ownership of the shares held by the limited liability company except
to the extent of his pecuniary interest therein. Mr. Winikoff has options to
purchase 48,000 additional shares of the Registrant's Class A common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee of or agent to the corporation. The
statute provides that it is not exclusive of other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
The amended and restated by-laws of the Registrant provides for
indemnification by the Registrant of any director or officer (as such term is
defined in the by-laws) of the Registrant who is or was a director of any of its
subsidiaries, or, at the request of the Registrant, is or was serving as a
director or officer of, or in any other capacity for, any other enterprise, to
the fullest extent permitted by law. The by-laws also provide that the
Registrant shall advance expenses to a director or officer and, if reimbursement
of such expenses is demanded in advance of the final disposition of the matter
with respect to which such demand is being made, upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount if it is
ultimately determined that the director or officer is not entitled to be
indemnified by the Registrant. To the extent authorized from time to time by the
board of directors of the Registrant, the Registrant may provide to any one or
more employees of the Registrant, one or more officers, employees and other
agents of any subsidiary or one or more directors, officers, employees and other
agents of any other enterprise, rights of indemnification and to receive payment
or reimbursement of expenses, including attorneys' fees, that are similar to the
rights conferred in the by-laws of the Registrant on directors and officers of
the Registrant or any subsidiary or other enterprise. The by-laws do not limit
the power of the Registrant or its board of directors to provide other
indemnification and expense reimbursement rights to directors, officers,
employees, agents and other persons otherwise than pursuant to the by-laws. the
Registrant intends to enter into agreements with certain directors, officers and
employees who are asked to serve in specified capacities at subsidiaries and
other entities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
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4.1* Mediacom Communications Corporation 2003 Incentive Plan
(included as an exhibit in the Registrant's Proxy Statement
for the 2003 Annual Meeting)
4.2* Restated Certificate of Incorporation of the Registrant
(included as an exhibit in the Registrant's Registration
Statement on Form S-1, Registration No. 333-90879)
4.3* Amended and Restated Bylaws of the Registrant (included as
an exhibit in the Registrant's Quarterly Report on Form 10-Q
for the period ended June 30, 2001)
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP relating to the
validity of the securities
23.1 Consent of PricewaterhouseCoopers LLP, independent
registered public accounting firm
23.2 Consent of Arthur Andersen, LLP, independent certified
public accountants (1)
23.3 Consent of Sonnenschein Nath & Rosenthal LLP (contained in
Exhibit 5.1)
24.1 Power of Attorney (included as part of signature page)
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* The exhibits have previously been filed with the Commission as part of the
filing indicated and are incorporated herein by reference.
(1) The consolidated financial statements of the Registrant for the year ended
December 31, 2001, which are incorporated by reference into the
Registrant's Registration Statement on Form S-8, have been audited by
Arthur Andersen, LLP, independent certified public accountants ("AA").
However, after reasonable efforts, the Registrant has been unable to obtain
the written consent of AA with respect to the incorporation by reference of
such financial statements into this Registration Statement. Therefore, the
Registrant has dispensed with the requirement to file the written consent
of AA in reliance upon Rule 437a of the Securities Act of 1933 (the
"Securities Act"). As a result, you may not be able to recover damages from
AA under Section 11 of the Securities Act, for any untrue statements of
material fact or any omissions to state a material fact, if any, contained
in the
aforementioned financial statements of the Registrant which are
incorporated into this Registration Statement by reference.
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement; and
(iii)to include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered hereby which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of the restated certificate of
incorporation and by-laws of the Registrant and the provisions of the Delaware
law described under Item 6 above, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Middletown and State of New York on this 11th day of
February 2005.
MEDIACOM COMMUNICATIONS CORPORATION
By: /s/ Rocco B. Commisso
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Rocco B. Commisso
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert B. Commisso and Mark E. Stephan, and each
or either of them, as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities to approve, sign and file with the U.S.
Securities and Exchange Commission and any other appropriate authorities the
original of any and all amendments (including post-effective amendments) to this
Registration Statement and any other documents in connection therewith, granting
unto each said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or either of them, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
Chairman and Chief Executive Officer (Principal
/s/ Rocco B. Commisso Executive Officer) February 11, 2005
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Rocco B. Commisso
Executive Vice President and Chief Financial February 11, 2005
Officer (Principal Financial Officer and
/s/ Mark E. Stephan Principal Accounting Officer)
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Mark E. Stephan
/s/ Craig S. Mitchell Director February 11, 2005
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Craig S. Mitchell
/s/ William S. Morris III Director February 11, 2005
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William S. Morris III
Director
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Thomas V. Reifenheiser
/s/ Natale S. Ricciardi Director February 11, 2005
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Natale S. Ricciardi
/s/ Robert L. Winikoff Director February 11, 2005
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Robert L. Winikoff
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
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4.1* Mediacom Communications Corporation 2003 Incentive Plan
(included as an exhibit in the Registrant's Proxy Statement
for the 2003 Annual Meeting)
4.2* Restated Certificate of Incorporation of the Registrant
(included as an exhibit in the Registrant's Registration
Statement on Form S-1, Registration No. 333-90879)
4.3* Amended and Restated Bylaws of the Registrant (included as
an exhibit in the Registrant's Quarterly Report on Form 10-Q
for the period ended June 30, 2001)
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP relating to the
validity of the securities
23.1 Consent of PricewaterhouseCoopers LLP, independent
registered public accounting firm
23.2 Consent of Arthur Andersen, LLP, independent certified
public accountants (1)
23.3 Consent of Sonnenschein Nath & Rosenthal LLP (contained in
Exhibit 5.1)
24.1 Power of Attorney (included as part of signature page)
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* The exhibits have previously been filed with the Commission as part of the
filing indicated and are incorporated herein by reference.
(1) The consolidated financial statements of the Registrant for the year ended
December 31, 2001, which are incorporated by reference into the
Registrant's Registration Statement on Form S-8, have been audited by
Arthur Andersen, LLP, independent certified public accountants ("AA").
However, after reasonable efforts, the Registrant has been unable to obtain
the written consent of AA with respect to the incorporation by reference of
such financial statements into this Registration Statement. Therefore, the
Registrant has dispensed with the requirement to file the written consent
of AA in reliance upon Rule 437a of the Securities Act of 1933 (the
"Securities Act"). As a result, you may not be able to recover damages from
AA under Section 11 of the Securities Act, for any untrue statements of
material fact or any omissions to state a material fact, if any, contained
in the aforementioned financial statements of the Registrant which are
incorporated into this Registration Statement by reference.
Exhibit 5.1
February 14, 2005
Mediacom Communications Corporation
100 Crystal Run Road
Middletown, New York 10941
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
In our capacity as counsel to Mediacom Communications Corporation, a
Delaware corporation (the "Company"), we have been asked to render this opinion
in connection with a registration statement on Form S-8 (the "Registration
Statement") being filed contemporaneously herewith by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), covering 12,000,000 shares of common stock, par value
$.01 per share, of the Company (the "Shares"). The Shares are issuable in
accordance with the terms of the Company's 2003 Incentive Plan, (the "Plan").
In connection with rendering this opinion, we have examined and are
familiar with the Company's Restated Certificate of Incorporation, the Company's
Amended and Restated By-Laws, the Plan, the Registration Statement, corporate
proceedings of the Company relating to the Plan and such other instruments and
documents as we have deemed relevant under the circumstances.
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies furnished
to us as original or photostatic copies. We have also assumed that the corporate
records furnished to us by the Company include all corporate proceedings taken
by the Company to date.
Based upon the foregoing and subject to the assumptions and qualifications
set forth herein, we are of the opinion that the Shares have been duly and
validly authorized and, when issued and paid for in accordance with the terms of
the Plan, will be duly and validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the laws of the United States of
America and Delaware corporate law (which includes the Delaware General
Corporation Law and applicable provisions of the Delaware constitution, as well
as reported judicial decisions interpreting same) and does not purport to
express any opinion on the laws of any other jurisdiction.
We hereby consent to the use of our opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the SEC thereunder.
Very truly yours,
SONNENSCHEIN NATH & ROSENTHAL LLP
By: /s/ Ira Roxland
------------------------------------
A Member of the Firm
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration
Statements on Form S-8 of Mediacom Communications Corporation (the "Company"),
of our reports dated March 9, 2004, relating to the consolidated financial
statements and financial statement schedule as of December 31, 2003 and 2002 and
for the years then ended, which appear in the Company's Annual Report on Form
10-K for the year ended December 31, 2003.
/s/PricewaterhouseCoopers LLP
New York, New York
February 11, 2005