exv10w1






Exhibit 10.1




EXECUTION COPY




VOTING AGREEMENT




     This VOTING AGREEMENT (this “Agreement”), dated as of November 12, 2010, is entered
into by and among Mediacom Communications Corporation, a Delaware corporation (“Mediacom”),
Rocco B. Commisso (“Parent”) and JMC Communications LLC, a Delaware limited liability
company (“Merger Sub”), (each of Parent and Merger Sub, a “Stockholder” and
collectively, the “Stockholders”).



     WHEREAS, concurrently with the execution and delivery of this Agreement, Mediacom, Parent and
Merger Sub are entering into an Agreement and Plan of Merger (as the same may be amended, modified
or supplemented from time to time, the “Merger Agreement”), which provides, among other
things, for the merger of Merger Sub with and into Mediacom, with Mediacom surviving as the
surviving corporation (the “Merger”);



     WHEREAS, as of the date hereof, each Stockholder is the record owner of the number of shares
of Class A common stock of Mediacom (the “Class A Shares”) and shares of Class B common
stock of Mediacom (the “Class B Shares” and together with the Class A Shares, the
“Shares”) set forth opposite such Stockholder’s name on Annex A hereto; and



     WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Mediacom has
required that each of the Stockholders agree, and each of the Stockholders is willing to agree, to
the matters set forth herein.



     NOW, THEREFORE, in consideration of the foregoing and the agreements set forth below, the
parties hereto agree as follows:


1. Voting of Shares.




     1.1 Voting Agreement. From the date hereof, and until the termination of this
Agreement pursuant to Section 5, each Stockholder hereby agrees to vote all of its Shares, at any
annual, special or other meeting of the stockholders of Mediacom, and at any adjournment or
adjournments or postponement thereof, or pursuant to any consent in lieu of a meeting or otherwise,
which such Stockholder has the right to so vote in favor of the adoption of the Merger Agreement,
the transactions contemplated thereby (including, without limitation, the Merger) and any actions
required in furtherance thereof.



     1.2 Irrevocable Proxy. Each Stockholder constitutes and appoints Mediacom and Mark E.
Stephan, from and after the date hereof until the earlier to occur of the Effective Time (as
defined in the Merger Agreement) and the termination of this Agreement pursuant to Section 5 (at
which point such constitution and appointment shall automatically be revoked), as such
Stockholder’s attorney, agent and proxy (each such constitution and appointment, an
“Irrevocable Proxy”), with full power of substitution, to vote and otherwise act with
respect to all of such Stockholder’s Shares at any annual, special or other meeting of the
stockholders of Mediacom, and at any adjournment or adjournments or postponement thereof, and in
any action by written consent of the stockholders of Mediacom, on the matters and in the manner
specified in Section 1.1. EACH SUCH PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN
INTEREST AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY
PERSON TO WHOM SUCH STOCKHOLDER MAY TRANSFER ANY OF ITS SHARES IN BREACH OF THIS AGREEMENT. Each
Stockholder hereby revokes all other proxies and powers of attorney with respect to all of such
Stockholder’s Shares that may have heretofore been appointed or granted with respect to the matters
covered by Section 1.1, and no subsequent proxy or power of attorney shall be given (and if given,
shall not be effective) by such Stockholder with respect thereto on the matters covered by Section
1.1. It is agreed that Mediacom will not use the Irrevocable Proxy granted by any Stockholder
unless such Stockholder fails to comply with Section 1.1 and that, to the extent Mediacom uses any
such Irrevocable Proxy, it will only vote the Shares subject to such Irrevocable Proxy with respect
to the matters specified in, and in accordance with the provisions of, Section 1.1.



     1.3 Not Applicable to Parent in Other Capacities. Nothing herein contained shall (a)
restrict, limit or prohibit Parent from exercising (in his capacity as a director or officer) his
fiduciary duties to the stockholders of Mediacom under applicable law, or (ii) require Parent, in
his capacity as an officer of Mediacom, to take any action in









 



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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 of Directors of
Mediacom undertaken in the exercise of his fiduciary duties, provided that nothing in this Section
1.3 shall relieve or be deemed to relieve Parent from his obligations under Section 1.1 of this
Agreement.




     1.4 Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of appraisal
or rights to dissent from the Merger.



     1.5 Stop Transfer. Each Stockholder agrees that it shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing such Stockholder’s Shares, unless such transfer is made in compliance with this
Agreement.


2. Representations and Warranties of Each Stockholder.




     Each Stockholder, severally, as to itself, represents and warrants to Mediacom as follows:



     2.1 Binding Agreement. Such Stockholder has the capacity, power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby. Such
Stockholder has duly and validly executed and delivered (and if such Stockholder is not a natural
person, authorized) this Agreement, and this Agreement constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms
except that (i) such enforcement may be subject to applicable bankruptcy, insolvency or other
similar laws, now or hereafter in effect, affecting creditors’ rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any proceeding therefor may be
brought.



     2.2 No Conflict. Neither the execution and delivery of this Agreement, the
consummation by such Stockholder of the transactions contemplated hereby, nor the performance of
such Stockholder’s obligations hereunder will (a) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, or acceleration) under any contract, agreement, instrument,
commitment, arrangement or understanding, or result in the creation of a security interest, lien,
charge, encumbrance, equity or claim with respect to such Stockholder’s Shares, (b) require
any consent, authorization or approval of any person or (c) violate or conflict with any
law, writ, injunction or decree applicable to such Stockholder or such Stockholder’s Shares.



     2.3 Ownership of Shares. Such Stockholder is the record owner of the number of Shares
set forth opposite such Stockholder’s name on Annex A hereto, free and clear of any security
interests, liens, charges, encumbrances, equities, claims, options or limitations of whatever
nature and free of any other limitation or restriction (including any restriction on the right to
vote, sell or otherwise dispose of such Shares), except, in each case, as may exist by reason of
this Agreement and as otherwise set forth on Schedule 2.3. As of the date hereof, such
Shares constitute all of the Shares owned of record by such Stockholder.


3. Transfer and Other Restrictions.




     Until the termination of this Agreement pursuant to Section 5:



     3.1 Certain Prohibited Transfers. Each Stockholder agrees not to:



     (a) sell, sell short, transfer (including by gift), pledge, mortgage, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, pledge, encumbrance, assignment or other disposition of (each a
“Transfer”), any of its Class B Shares, other than pursuant to this Agreement;



     (b) with respect to any of its Shares, grant any proxy or power of attorney or enter into any
voting agreement or other arrangement relating to the matters covered by Section 1.1, other than
this Agreement; or



     (c) deposit any of its Shares into a voting trust.









 



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     3.2 Additional Shares. Without limiting any provisions of the Merger Agreement, in the
event of any stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of capital stock of Mediacom on, of or affecting any Stockholder’s Shares, then
the terms of this Agreement shall apply to the shares of capital stock or other such securities of
Mediacom held by such Stockholder immediately following the effectiveness of such event.



     3.3 Exempt Transfers. Notwithstanding the restrictions set forth in Section 3.1,
each Stockholder will be entitled to Transfer Class B Shares to the other Stockholder and Parent,
with the prior consent of the Special Committee (as defined in the Merger Agreement), which consent
shall not be unreasonably withheld, delayed or conditioned, will be entitled to Transfer Class B
Shares to (a) his wife, children and other members of his family, (b) trusts, foundations, limited
and general partnerships, limited liability companies and other entities in connection with good
faith estate planning and similar wealth management programs and arrangements and (c) foundations
charitable organizations and similar entities in connection with Parent’s charitable giving, in
each case so long as Parent has the right to vote such shares in accordance with this Agreement.


4. Specific Enforcement. The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in accordance with the
terms hereof or were otherwise breached and that each party shall be entitled to seek specific
performance of the terms hereof in addition to any other remedy which may be available at law or in
equity.



5. Termination. This Agreement shall terminate on the earliest to occur of (a) the
termination of the Merger Agreement in accordance with its terms, (b) a written agreement
between Mediacom and any Stockholder to terminate this Agreement, provided that any such
termination shall be effective only with respect to such Stockholder and (c) the
consummation of the transactions contemplated by the Merger Agreement. The termination of this
Agreement in accordance with this Section 5 shall not relieve any party from liability for any
willful breach of its obligations hereunder committed prior to such termination.



6. Survival. The representations, warranties and agreements of the parties contained in
this Agreement shall not survive any termination of this Agreement, provided,
however, that no such termination shall relieve any party hereto from any liability for any
willful breach of this Agreement.



7. Notices. All notices, consents, waivers and other communications required or permitted
by this Agreement shall be in writing and shall be deemed given to a party when (a)
delivered to the appropriate address by hand or by nationally recognized overnight courier service
(costs prepaid), (b) sent by facsimile or e-mail with confirmation of transmission by the
transmitting equipment or (c) received or rejected by the addressee, if sent by certified
mail, return receipt requested, in each case to the following addresses, facsimile numbers or
e-mail addresses and marked to the attention of the person (by name or title) designated below (or
to such other address, facsimile number, e-mail address or person as a party may designate by
notice to the other parties):




If to Mediacom, to:

Mediacom Communications Corporation

100 Crystal Run Road

Middletown, NY 10941

Telecopier: (845) 695-2669

Attention: General Counsel



with a copy (which shall not constitute notice) to:




Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Telecopier: (212) 455-2502

Attention: Charles I. Cogut

                 Sean D. Rodgers










 



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and




SNR Denton US LLP

Two World Financial Center

New York, NY 10281

Telecopier: (212) 768-6800

Attention: Denise Tormey




If to Parent or Merger Sub:




c/o Mediacom Communications Corporation

100 Crystal Run Road

Middletown, NY 10941

Telecopier: (845) 695-2699

Attention: Rocco B. Commisso




with a copy (which shall not constitute notice) to:




Baker Botts L.L.P.

30 Rockefeller Plaza

New York, New York 10112

Telecopier: (212) 259-2500

Attention: Lee D. Charles

                 John M. Winter



8. Entire Agreement. This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.



9. Amendment; Release. This Agreement may not be modified, amended, altered or supplemented
except by a written agreement between Mediacom and any Stockholder, provided that any such
modification, amendment, alteration or supplement shall be effective only with respect to such
Stockholder; and provided further that no such written agreement shall be binding
on Mediacom unless approved by the Special Committee (as defined in the Merger Agreement).



10. Successors and Assigns.




     10.1 This Agreement shall not be assigned by operation of law or otherwise by any Stockholder
without the prior written consent of Mediacom and each Stockholder. This Agreement will be binding
upon, inure to the benefit of and be enforceable by each party and such party’s respective heirs,
beneficiaries, executors, representatives and permitted assigns.



     10.2 Each Stockholder agrees that this Agreement and the obligations hereunder shall attach to
such Stockholder’s Shares and shall be binding upon any person to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise.


11. Counterparts. This Agreement may be executed by facsimile and in two or more
counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.



12. Governing Law; Jurisdiction; Service of Process. THIS AGREEMENT, AND ANY AND ALL
DISPUTES ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR
OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Any action or proceeding arising out of
or relating in any way to this Agreement, or to enforce any of the terms of this Agreement, shall
(i) be brought, heard and determined exclusively in the Court of Chancery of the State of












 



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Delaware (the “Delaware Chancery Court”) (provided that, in the event that subject matter
jurisdiction is unavailable in the Delaware Chancery Court, then any such action or proceeding
shall be brought, heard and determined exclusively in any other state or federal court sitting in
Wilmington, Delaware) and (ii) shall not be litigated or otherwise pursued in any forum or venue
other than the Delaware Chancery Court (or, if subject matter jurisdiction is unavailable in the
Delaware Chancery Court, then in any forum or venue other than any other state or federal court
sitting in Wilmington, Delaware). Each of the Parties hereby (1) irrevocably and unconditionally
consents to submit to the exclusive personal jurisdiction of the Delaware Chancery Court for such
litigation (but not other litigation); (2) consents to service of process by registered mail upon
such party and/or such party’s registered agent; (3) waives any objection to the laying of venue of
any such litigation in the Delaware Chancery Court and agrees not to plead or claim that such
litigation brought therein has been brought in any inconvenient forum; and (4) waives any bond,
surety or other security that might be required of any other party with respect to any such action
or proceeding, including any appeal thereof. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process on such party as
provided in Section 7 shall be deemed effective service of process on such party.



13. Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER RELATED DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.



14. Severability. Any term or provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining terms and provisions
of this Agreement or affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is enforceable.



15. Headings. The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.




[Signature Page Follows]










 



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     IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by a duly authorized
officer of Mediacom and each Stockholder, on the day and year first written above.



	 	 	 	 	 	 	 

	 	 	MEDIACOM COMMUNICATIONS CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Mark Stephan 
	 	 
	 

	 	Name:
	 	Mark Stephan
	 	 
	 

	 	Title:	 	EVP + CFO	 	 
	 
	 	 	 	 	 	 
	 	 	STOCKHOLDERS:
	 
	 
	 	/s/ Rocco B. Commisso	 	 
	 

	 	 

Rocco B. Commisso
	 	 
	 
	 	 	 	 	 	 
	 	 	JMC COMMUNICATIONS LLC
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Rocco B. Commisso	 	 
	 

	 	 	 	 

Rocco B. Commisso
	 	 
	 

	 	 	 	Sole Member	 	 












 



 

ANNEX A





	 	 	 	 	 	      	 	 	 
	 	 	Shares of Class A Common	 	Shares of Class B Common
	Name of Stockholder	 	Stock	 	Stock
	Rocco B. Commisso
	 	213,910	 	 	 	25,789,722	 	 
	JMC Communications LLC
	 	    0	 	 	 	1,000,000