As filed with the Securities and Exchange Commission on November 5, 2001
Registration No. 333-72440
Registration No. 333-72440-01
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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MEDIACOM BROADBAND LLC
MEDIACOM BROADBAND CORPORATION
(Exact names of registrants as specified in their charters)
Delaware 4841 06-1615412
Delaware 4841 06-1630167
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification Numbers)
incorporation or Classification Code
organization) Numbers)
100 Crystal Run Road
Middletown, New York 10941
(845) 695-2600
(Address, including zip code, and telephone number, including area
code, of registrants' principal executive offices)
Rocco B. Commisso
Chairman and Chief Executive Officer
Mediacom Communications Corporation
100 Crystal Run Road
Middletown, New York 10941
(845) 695-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Robert L. Winikoff, Esq.
Ira I. Roxland, Esq.
Sonnenschein Nath & Rosenthal
1221 Avenue of the Americas
New York, New York 10020
(212) 768-6700
Approximate date of commencement of proposed
sale to the public: As soon as practicable after
this Registration Statement becomes effective.
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If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] _________
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_] _________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Mediacom Broadband LLC
Article VIII of Mediacom Broadband LLC's Amended and Restated Operating
Agreement (the "Operating Agreement") provides as follows:
No Indemnified Person (as defined) shall be liable, directly or indirectly,
to the Company or to any other member for any act or omission in relation to the
Company or the Operating Agreement taken or omitted by such Indemnified Person
in good faith, provided that such act or omission does not constitute gross
negligence, fraud or willful violation of the law or the Operating Agreement.
The Company shall, to the fullest extent permitted by the Delaware Act,
indemnify and hold harmless each Indemnified Person against all claims,
liabilities and expenses of whatsoever nature relating to activities undertaken
in connection with the Company, including but not limited to, amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and counsel,
accountants' and experts' and other fees, costs and expenses reasonably incurred
in connection with the investigation, defense or disposition (including by
settlement) of any action, suit or other proceeding, whether civil or criminal,
before any court or administrative body in which such Indemnified Person may be
or may have been involved, as a party or otherwise, or with which such
Indemnified Person may be or may have been threatened, while acting as such
Indemnified Person, provided that no indemnity shall be payable hereunder
against any liability incurred by such Indemnified Person by reason of such
Indemnified Person's gross negligence, fraud or willful violation of law or the
Operating Agreement or with respect to any matter as to which such Indemnified
Person shall have been adjudicated not to have acted in good faith.
Section 18-108 of the Delaware Limited Liability Company Act (the "Delaware
Act") empowers a limited liability company to indemnify and hold harmless any
member or manager or other person from and against any and all claims and
demands whatsoever, subject to such standards and restrictions, if any, as are
set forth in its limited liability company agreement.
Mediacom Broadband Corporation
Article VI of Mediacom Broadband Corporation's Certificate of Incorporation
provides as follows:
To the fullest extent permitted by the General Corporation Law of the State
of Delaware as the same exists or may hereafter be amended, a director of the
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
Article VII of Mediacom Broadband Corporation's By-Laws provides as
follows:
The Corporation shall indemnify any person to the full extent permitted,
and in the manner provided, by the Laws of the State of Delaware, as the same
now exists or may hereafter be amended.
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 also empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
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procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses (including attorneys'
fees)actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted under similar standards, except
that no indemnification may be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless, and only to the extent that, the Court of Chancery or the court in which
such action was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent that a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation is empowered to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits
Exhibit
Number Exhibit Description
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3.1 Certificate of Formation of Mediacom Broadband LLC*
3.2 Amended and Restated Limited Liability Company Operating Agreement of
Mediacom Broadband LLC*
3.3 Certificate of Incorporation of Mediacom Broadband Corporation*
3.4 By-Laws of Mediacom Broadband Corporation*
4.1 Indenture relating to the 11% Senior Notes due 2013 of Registrants, dated
as of June 29, 2001*
4.2 Registration Rights Agreement, dated as of June 29, 2001, among Registrants
and Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Credit Suisse
First Boston Corporation, BMO Nesbitt Burns Corp., Dresdner Kleinwort
Wasserstein-Grantchester, Inc., Scotia Capital (USA) Inc., SunTrust
Equitable Securities Corporation, BNY Capital Markets, Inc. and Mizuho
International plc, as the initial purchasers of the initial notes.*
5.1 Opinion of Sonnenschein Nath & Rosenthal
8.1 Opinion of Sonnenschein Nath & Rosenthal regarding federal income tax
matters
10.1 Credit Agreement dated as of July 18, 2001 for the Mediacom Broadband
subsidiary credit facility*
21.1 Subsidiaries of Mediacom Broadband LLC*
23.1 Consent of Arthur Andersen LLP*
23.2 Consent of PriceWaterhouseCoopers LLP*
23.3 Consents of Sonnenschein Nath & Rosenthal (included in Exhibits 5.1 and
8.1)
24.1 Powers of Attorney (included as part of signature pages)*
25.1 Statement of Eligibility on Form T-1 of The Bank of New York to act as
Trustee under the Indenture*
99.1 Form of Letter of Transmittal with respect to the exchange offer
99.2 Form of Instruction Letter to Registered Holders*
99.3 Form of Notice of Guaranteed Delivery*
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* Previously filed with this Registration Statement
(b) Financial Statement Schedules
None.
Item 22. Undertakings.
Mediacom Broadband LLC and Mediacom Broadband Corporation (the
"Registrants") hereby undertake:
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(1) To file, during any period in which offers or sales are being made, a
post- effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; (iii) to include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the Registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrants of expenses incurred
or paid by a director, officer or controlling person of the Registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Middletown, State of New
York, on November 5, 2001
Mediacom Broadband LLC
By: Mediacom Communications Corporation
its managing member
By: /s/ ROCCO B. COMMISSO
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Rocco B. Commisso,
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Rocco B. Commisso Chairman and Chief Executive Officer (Principal November 5, 2001
--------------------------------
Rocco B. Commisso Executive Officer )
/s/ Mark E. Stephan Senior Vice President, Chief Financial Officer, November 5, 2001
---------------------------------
Mark E. Stephan Treasurer and Director (Principal Financial and
Accounting Officer)
* Director November 5, 2001
---------------------------------
William S. Morris III
* Director November 5, 2001
---------------------------------
Craig S. Mitchell
* Director November 5, 2001
---------------------------------
Thomas V. Reifenheiser
* Director November 5, 2001
---------------------------------
Natale S. Ricciardi
* Director November 5, 2001
---------------------------------
Robert L. Winikoff
* Mark E. Stephan, pursuant to Powers of Attorney (selected by each of the
officers and directors listed above and indicated by signing above, and filed
with the Securities and Exchange Commission), by signing his name hereto does
hereby sign and execute this Amendment to the Registration Statement on behalf
of each of the persons referenced above.
November 5, 2001 /s/ Mark E. Stephan
--------------------------------
Mark E. Stephan
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Middletown, State of New
York, on November 5, 2001.
Mediacom Broadband Corporation
By:/s/ ROCCO B. COMMISSO
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Rocco B. Commisso,
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ ROCCO B. COMMISSO Chairman and Chief Executive Officer (Principal November 5, 2001
-------------------------------------- Executive Officer )
Rocco B. Commisso
/s/ MARK E. STEPHAN Senior Vice President, Chief Financial Officer, November 5, 2001
------------------------------------- Treasurer and Director (Principal Financial and
Mark E. Stephan Accounting Officer)
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