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Registration Statement No.333-_________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DIGEX, INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 59-3582217
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Digex Plaza
Beltsville, MD 20705
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(Address of principal executive offices)
Digex, Incorporated 401(k) Plan
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(Full title of the plan)
Mark K. Shull
President and Chief Executive Officer
Digex, Incorporated
One Digex Plaza
Beltsville, MD 20705
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(Name and address of agent for service)
(240)264-2000
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(Telephone number of agent for service)
With a copy to:
Ralph J. Sutcliffe, Esq.
Kronish Lieb Weiner & Hellman LLP
1114 Avenue of the Americas
New York, New York 10036-7798
(212) 479-6170
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Aggregate Registration
be Registered Registered Price Per Offering Fee
(1) Share(2) Price (2)
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<S> <C> <C> <C> <C>
Digex
Class A Common
Stock, par value $.01 per
share 700,000 $ 67.41 $ 47,187,000 $ 12,457.37
-----------------------------------------------------------------------------------------------------------------
Intermedia
Communications
Inc. Common
Stock, par
value $.01 per
share 250,000 $ 34.34 $ 8,585,000 $ 2,266.44
=================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act") this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Average of the high and low prices as reported on the Nasdaq National
Market on June 23, 2000, pursuant to Rule 457 (h) (1).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been filed by Digex,
Incorporated ("Digex") or Intermedia Communications Inc., Digex's parent company
("Intermedia"), with the Securities and Exchange Commission (the "SEC"), are
incorporated by reference in this Registration Statement as of their respective
dates:
(a) Digex's Annual Report on Form 10-K for the year ended December 31,
1999, filed with the SEC on March 10, 2000.
(b) Intermedia's Annual Report on Form 10-K for the year ended December
31, 1999, filed with the SEC on March 21, 2000.
(c) Digex's Quarterly Report on Form 10-Q for the three months ended
March 31, 2000, filed with the SEC on May 12, 2000.
(d) Intermedia's Quarterly Report on Form 10-Q for the three months
ended March 31, 2000, filed with the SEC on May 15, 2000.
(e) The description of Digex's Class A Common Stock which is contained
in Digex's Registration Statement on Form 8-A (File No. 000-26873)
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), filed with the SEC on July 29, 1999.
(f) The description of Intermedia's capital stock which is contained in
Intermedia's Registration Statement on Form 8-A (File No. 000-20135)
under the Exchange Act, filed with the SEC on April 7, 1992, April
28, 1992, and April 30, 1992.
All documents subsequently filed by Digex or Intermedia with the SEC
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
registered have been sold or which deregisters all 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.
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Item 4. Description of Securities
N/A
Item 5. Interests of Named Experts and Counsel
Partners of Kronish Lieb Weiner & Hellman LLP, counsel to Digex and
Intermedia, beneficially own 20,450 shares of Class A Common Stock. In addition,
Ralph J. Sutcliffe, a partner of Kronish Lieb Weiner & Hellman LLP, beneficially
owns 11,490 shares of common stock, par value $.01 per share, of Intermedia, a
warrant to purchase 200,000 shares of Intermedia common stock at an exercise
price equal to $20.75 per share, and, subject to vesting, options to purchase
22,000 shares of Intermedia common stock at an exercise price of $34.1875 per
share. Intermedia indirectly owns all of the issued and outstanding shares of
Digex's Class B Common Stock entitling Intermedia to control a majority of the
voting power of Digex. Mr. Sutcliffe is a director of Intermedia.
Item 6. Indemnification of Directors and Officers
Digex's and Intermedia's Certificates of Incorporation each provide
that Digex and Intermedia, respectively, will to the fullest extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL"), as amended
from time to time, indemnify all persons whom it may indemnify pursuant thereto.
Digex's and Intermedia's By-laws, as amended, each contain a similar provision
requiring indemnification of their respective directors and officers to the
fullest extent authorized by the DGCL.
The DGCL permits a corporation to indemnify its directors and
officers (among others) against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by them in
connection with any action, suit or proceeding brought (or threatened to be
brought) by third parties, if such directors or officers acted in good faith and
in a manner they 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 their conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation,
indemnification may be made for expenses (including attorneys' fees) actually
and reasonably incurred by directors and officers in connection with the defense
or settlement of such action if they had acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged liable
to the corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
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of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses. The DGCL further provides that, to the
extent any director or officer has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in this paragraph, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
In addition, Digex's Certificate of Incorporation contains a provision
limiting the personal liability of Digex's directors for monetary damages for
certain breaches of their fiduciary duty.
Digex and Intermedia have indemnification insurance under which directors
and officers are insured against certain liability that may occur in their
capacity as such.
Digex has entered into indemnification agreements with each of its
directors and executive officers to give them additional contractual assurances
regarding the scope of the indemnification described above and to provide
additional procedural protections. Generally, pursuant to each indemnification
agreement, Digex will indemnify a director or officer who is or was a party to
any legal action by or in the right of Digex or against the indemnitee due to
his or her position as a director or officer of Digex, known as the
"indemnitee," against the expenses, judgments, fines and amounts paid in
settlement that were actually and reasonably incurred by the indemnitee in
connection with such legal action, provided that such indemnitee acted in good
faith and in a manner not opposed to the best interests of Digex.
Insofar as indemnification for liabilities arising under the Securities
Act, may be permitted to directors, officers and controlling persons of Digex or
Intermedia pursuant to the foregoing provisions, or otherwise, Digex and
Intermedia have been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Item 7. Exemption from Registration Claimed
N/A
Item 8. Exhibits
Digex will submit the Digex, Incorporated 401(k)Plan (the "Plan") to the
Internal Revenue Service ("IRS") and hereby undertakes to submit any amendment
thereto to the IRS in a timely manner, and to make all changes required by the
IRS to maintain qualification of the Plan.
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<TABLE>
<CAPTION>
Exhibit
Number Exhibit
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<S> <C>
23.1 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney, included in signature page.
</TABLE>
Item 9. Undertakings
A. Post-Effective Amendments
Digex and Intermedia hereby undertake:
(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;
(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.
(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 subparagraphs (i) and (ii) above will
not apply if the information required to be included in a post-
effective amendment by those subparagraphs is contained in
periodic reports filed with or furnished to the SEC by Digex or
Intermedia, as the case may be, pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by reference in this
Registration Statement.
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(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 which remain
unsold at the termination of the offering.
B. Subsequent Documents Incorporated by Reference
Digex and Intermedia hereby undertake that, for purposes of determining
any liability under the Securities Act, each filing of their respective annual
reports pursuant to Section 13(a) or 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 will 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.
C. Claims for Indemnification
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of Digex and
Intermedia pursuant to the foregoing provisions, or otherwise, Digex and
Intermedia have been advised that in the opinion of the SEC 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 Digex and/or Intermedia of expenses
incurred or paid by a director, officer or controlling person of Digex and/or
Intermedia 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, Digex and/or Intermedia 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 is
against public policy as expressed in the Securities 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 of 1933, Digex
certifies that it has reasonable grounds to believe it meets all 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 Beltsville, State of Maryland, on this 27th day of
June, 2000.
Digex, Incorporated
By: /s/ MARK K. SHULL
-----------------------------------
Mark K. Shull,
President 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. Each person whose signature appears below
authorizes Mark K. Shull and Timothy M. Adams, or either of them, as
attorney-in-fact to sign and file in each capacity stated below, all amendments
and post-effective amendments to this Registration Statement.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
Principal Executive Officer:
/s/ MARK K. SHULL Director, President, June 27, 2000
--------------------------- and Chief Executive Officer
Mark K. Shull
Principal Financial and
Accounting Officers:
/s/ TIMOTHY M. ADAMS Chief Financial Officer June 27, 2000
---------------------------
Timothy M. Adams
/s/ T. SCOTT ZIMMERMAN Vice President & Controller June 27, 2000
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T. Scott Zimmerman
</TABLE>
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<TABLE>
<S> <C> <C>
Other Directors:
/s/ DAVID C. RUBERG Chairman of the Board June 27, 2000
---------------------------
David C. Ruberg
/s/ JOHN C. BAKER Director June 27, 2000
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John C. Baker
/s/ PHILIP A. CAMPBELL Director June 27, 2000
---------------------------
Philip A. Campbell
/s/ RICHARD A. JALKUT Director June 27, 2000
---------------------------
Richard A. Jalkut
/s/ GEORGE F. KNAPP Director June 27, 2000
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George F. Knapp
/s/ ROBERT M. MANNING Director June 27, 2000
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Robert M. Manning
/s/ JACK E. REICH Director June 27, 2000
---------------------------
Jack E. Reich
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Intermedia
certifies that it has reasonable grounds to believe it meets all 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 Tampa, State of Florida, on this 27th day of June,
2000.
Intermedia Communications Inc.
By: /s/ ROBERT M. MANNING
------------------------------
Robert M. Manning,
Senior Vice President and
Chief Financial 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. Each person whose signature appears below
authorizes David C. Ruberg and Robert M. Manning, or either of them, as
attorney-in-fact to sign and file in each capacity stated below, all amendments
and post-effective amendments to this Registration Statement.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
Principal Executive Officer:
/s/ DAVID C. RUBERG Chairman of the Board, June 27, 2000
--------------------------- President, and
David C. Ruberg Chief Executive Officer
Principal Financial and
Accounting Officers:
/s/ ROBERT M. MANNING Senior Vice President and June 27, 2000
--------------------------- Chief Financial Officer
Robert M. Manning
/s/ JEANNE M. WALTERS Vice President, Controller June 27, 2000
--------------------------- and Chief Accounting Officer
Jeanne M. Walters
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
Other Directors:
/s/ JOHN C. BAKER Director June 27, 2000
---------------------------
John C. Baker
/s/ PHILIP A. CAMPBELL Director June 27, 2000
---------------------------
Philip A. Campbell
/s/ GEORGE F. KNAPP Director June 27, 2000
---------------------------
George F. Knapp
/s/ JAMES H. GREENE, JR. Director June 27, 2000
---------------------------
James H. Greene, Jr.
/s/ ALEX NAVAB Director June 27, 2000
---------------------------
Alex Navab
/s/ RALPH J. SUTCLIFFE Director June 27, 2000
---------------------------
Ralph J. Sutcliffe
</TABLE>
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