<PAGE>
As filed with the Securities and Exchange Commission on February 10, 2000
Registration No. 333-94857
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
Amendment No. 2 to
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------
Digex, Incorporated
(Exact name of registrant as specified in its charter)
--------------
Delaware 4813 59-3582217
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
One Digex Plaza
Beltsville, MD 20705
(240) 264-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
Mark K. Shull
President and Chief Executive Officer
Digex, Incorporated
One Digex Plaza
Beltsville, MD 20705
(240) 264-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies to:
Ralph J. Sutcliffe, Esq. Raymond Y. Lin, Esq.
Kronish Lieb Weiner & Hellman LLP Latham & Watkins
1114 Avenue of the Americas 885 Third Avenue
New York, New York 10036-7798 New York, New York 10022-4802
(212) 479-6000 (212) 906-1200
--------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, 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(c)
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. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
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- -------------------------------------------------------------------------------------
<CAPTION>
Proposed Proposed
Number of Maximum Maximum Amount of
Title of Securities Shares to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price(1) Fee
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.01 per
share................ 11,500,000 $94.69 $1,088,935,000 $287,478.84 (2)
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
</TABLE>
(1) Based on the average high and low prices of the Class A Common Stock on
February 7, 2000 in accordance with Rule 457(c) under the Securities Act.
(2) $194,212.92 of the registration fee was previously paid.
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until this Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Digex has duly caused
this Amendment No. 2 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Beltsville, State of Maryland, on this 10th day
of February, 2000.
Digex, Incorporated
/s/ David C. Ruberg
By: _________________________________
David C. Ruberg
Chairman of the Board
Pursuant to the requirements of the Securities Act, this Amendment No. 2 has
been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Principal Executive Officer:
* Director, President and February 10, 2000
___________________________________________ Chief Executive Officer
Mark K. Shull
Principal Financial and Accounting
Officers:
* Chief Financial Officer February 10, 2000
___________________________________________
Timothy M. Adams
* Controller February 10, 2000
___________________________________________
T. Scott Zimmerman
</TABLE>
Directors:
<TABLE>
<S> <C> <C>
/s/ David C. Ruberg Chairman of the Board February 10, 2000
___________________________________________
David C. Ruberg
* Director February 10, 2000
___________________________________________
John C. Baker
* Director February 10, 2000
___________________________________________
Philip A. Campbell
Director February 10, 2000
___________________________________________
Richard A. Jalkut
* Director February 10, 2000
___________________________________________
George F. Knapp
Director February 10, 2000
___________________________________________
Robert M. Manning
* Director February 10, 2000
___________________________________________
Jack E. Reich
</TABLE>
/s/ David C. Ruberg
*By: ________________________________
David C. Ruberg
as Attorney-In-Fact
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Page
------- ------- ----
<C> <S> <C>
1.1 Proposed Form of Underwriting Agreement.
2.1 Contribution Agreement by and between Digex and Business
Internet, Inc., dated as of
April 30, 1999.*
2.2 Assignment and Assumption Agreement by and between Digex and
Business Internet, Inc., dated as of April 30, 1999.*
2.3 Trademark Assignment by and between Digex and Business
Internet, Inc., dated as of April 30, 1999.*
2.4 Bill of Sale to the Contribution Agreement, dated as of April
30, 1999.*
3.1 Certificate of Incorporation of Digex, as amended to date.**
3.2 Bylaws of Digex.*
3.3 Certificate of Designation for the Series A Preferred Stock.**
4.1 See the Certificate of Incorporation of Digex, as amended to
date, filed as Exhibit 3.1.
4.2 Warrant Agreement, dated as of January 12, 2000, among Digex,
Microsoft Corporation and CPQ Holdings, Inc.**
4.3 Registration Rights Agreement, dated as of January 12, 2000,
among Digex, Microsoft Corporation and CPQ Holdings, Inc.**
5.1 Opinion of Kronish Lieb Weiner & Hellman LLP.
10.1 Intentionally Omitted.
10.2 Lease by and between Intermedia and Intel Corporation, dated as
of November 10, 1998.*
10.3 Lease by and between Intermedia and Ammendale Commerce Center
Limited Partnership, dated as of April 15, 1998.*
10.4 Lease by and between Intermedia and 1111 19th Street
Associates, dated as of July 23, 1998.*
10.5 Contract for Construction by and between Intermedia and R.W.
Murray Company, d/b/a
The Murray Company, dated as of February 19, 1999.*
10.6 Contract for Construction by and between Intermedia and R.W.
Murray Company, d/b/a
The Murray Company, dated as of January 4, 1999.*
10.7 Software License and Services Agreement by and between Digex
and Oracle Corporation, dated as of May 27, 1999.*
10.8 License Agreement by and between Digex and Microsoft
Corporation.*
10.9 Consulting Letter Agreement by and between Digex, Intermedia
and Andersen Consulting LLP, dated as of April 1, 1999.*
10.10 Internet Transit Services Agreement (East Coast) between Digex
and Business Internet, Inc., dated as of April 30, 1999.(1)*
10.11 Internet Transit Services Agreement (West Coast) between Digex
and Business Internet, Inc., dated as of April 30, 1999.(1)*
10.12 Managed Firewall Services Agreement between Digex and Business
Internet, Inc., dated as of April 30, 1999.(1)*
10.13 Employment Letter dated June 29, 1999 between Digex and Mark K.
Shull, and amendments thereto.**
10.14 Employment Letter dated December 14, 1998 between Digex and
Nancy G. Faigen, and amendments thereto.**
10.15 Employment Letter dated July 9, 1999 between Digex and Rebecca
Ward, and amendments thereto.**
10.16 Employment Letter dated July 9, 1999 between Digex and Bryan T.
Gernet, and amendments thereto.**
10.17 Employment Letter dated December 15, 1999 between Digex and
Timothy M. Adams, and amendments thereto.**
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Page
------- ------- ----
<C> <S> <C>
10.18 Employment Letter dated September 11, 1996 between Digex and
Robert B. Patrick, and amendments thereto.**
10.19 Digex Long-Term Incentive Plan.**
10.20 Intermedia 1996 Long-Term Incentive Plan.**
10.21 General and Administrative Services Agreement between Digex and
Intermedia, dated as of April 30, 1999.*
10.22 Amendment No. 1, dated as of January 17, 2000, to General and
Administrative Services Agreement between Digex and Intermedia.
10.23 Use of Proceeds Agreement between Digex and Intermedia, dated
as of June 2, 1999.**
10.24 Use of Proceeds Agreement between Digex and Intermedia, dated
as of January 11, 2000.**
10.25 Use of Proceeds Agreement between Digex and Intermedia, dated
as of January 24, 2000.
10.26 Expense Summary and Indemnity Arrangement Agreement between
Digex and Intermedia, dated as of January 24, 2000.
23.1 Consent of Kronish Lieb Weiner & Hellman LLP, included in
Exhibit 5.1.
23.2 Consent of Ernst & Young LLP.**
24.1 Power of Attorney.**
</TABLE>
- --------
(1) Confidential treatment of certain provisions of this exhibit was requested
and granted by the Commission in connection with the filing of Digex's
registration statement on Form S-1 (Commission File #333-77105).
* Filed as an exhibit to Digex's registration statement on Form S-1
(Commission File #333-77105) and incorporated herein by reference.
** Previously filed.
*** To be filed by Amendment to this Registration Statement.
<PAGE>
Exhibit 1.1
DIGEX, INCORPORATED
10,000,000
Shares of Common Stock
UNDERWRITING AGREEMENT
February ___, 2000
BEAR, STEARNS & CO. INC.
SALOMON SMITH BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
LEGG MASON WOOD WALKER, INCORPORATED
PAINE WEBBER INCORPORATED
<PAGE>
10,000,000 Shares of Common Stock
DIGEX, INCORPORATED
UNDERWRITING AGREEMENT
February ___, 2000
Bear, Stearns & Co. Inc.
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities Corporation
Morgan Stanley & Co. Incorporated
Legg Mason Wood Walker, Incorporated
Paine Webber Incorporated
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Digex, Incorporated, a corporation organized and existing
under the laws of Delaware (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (collectively, the "Underwriters"), and Intermedia
Communications Inc. (the "Selling Stockholder") severally proposes, subject to
the terms and conditions stated herein, to sell to the several Underwriters, an
aggregate of 10,000,000 shares (the "Firm Shares") of the Company's Class A
common stock, par value $0.01 per share (the "Common Stock"), of which 2,000,000
shares are to be issued and sold by the Company and 8,000,000 shares are to be
sold by the Selling Stockholder. The Selling Stockholder also proposes to sell
to the several Underwriters, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares, at the option of the Underwriters,
up to an additional 1,500,000 shares (the "Additional Shares") of Common Stock.
The Firm Shares and any Additional Shares purchased by the Underwriters are
referred to herein as the "Shares." The Shares are more fully described in the
Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
333-94857), and any amendments thereto, and related preliminary
prospectuses for the registration under the Securities Act of 1933 (the
"Securities Act") of shares of Common Stock, which registration statement,
as so amended, has been declared effective by the Commission and copies of
which have heretofore been delivered
<PAGE>
to the Underwriters. The registration statement, as amended at the time it
became effective, including the exhibits and information (if any) deemed
to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act, and any post-effective
amendments thereto under Rule 462(d) through the Closing Date, is
hereinafter referred to as the "Registration Statement." If the Company
has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Securities Act
registering additional shares of Common Stock (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement,
which became effective upon filing, no other document with respect to the
Registration Statement has been filed with the Commission since the
Registration Statement was declared effective (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act (the "Securities Act Regulations"),
each in the form heretofore delivered to the Underwriters). No stop order
suspending the effectiveness of either the Registration Statement or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission. The Company, if required by the
Securities Act Regulations, proposes to file the Prospectus (as defined
below) with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations. The Prospectus, in the form in which it is to be filed with
the Commission pursuant to Rule 424(b) of the Securities Act Regulations,
is hereinafter referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters
by the Company for use in connection with the offering and sale of the
Shares (the "Offering") which differs from the Prospectus (whether or not
such revised prospectus or prospectus supplement is required to be filed
by the Company pursuant to Rule 424(b) of the Securities Act Regulations),
the term "Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Any preliminary prospectus or
prospectus subject to completion included in the Registration Statement or
filed with the Commission pursuant to Rule 424 under the Securities Act is
hereafter called a "Preliminary Prospectus." All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration
Statement, a Preliminary Prospectus and the Prospectus, or any amendments
or supplements to any of the foregoing, shall be deemed to include any
copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
(b) The Registration Statement and Preliminary Prospectus, dated as
of January 25, 2000, and each Preliminary Prospectus thereafter, complied
in all material respects with the requirements of the Securities Act and
the Securities Act Regulations, and did not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
Registration Statement and the Prospectus, at the time the Registration
Statement became effective and as of the Closing Date (as defined in
Section 2(b) below) complied and will comply in all material respects with
the requirements of the Securities Act and the Securities Act Regulations,
and did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Prospectus,
as of the date hereof (unless the term "Prospectus" refers to a prospectus
which has been provided to the Underwriters by the Company for use in
connection with the offering of the Shares which differs from the
Prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations, in which case at the time it is first
2
<PAGE>
provided to the Underwriters for such use) and on the Closing Date, does
not and will not include any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this Section
(1)(b) shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by any Underwriter expressly for use in the Registration Statement
or the Prospectus. Each Preliminary Prospectus and Prospectus filed as
part of the Registration Statement, as part of any amendment thereto or
pursuant to Rule 424 under the Securities Act Regulations, if filed by
electronic transmission pursuant to Regulation S-T under the Securities
Act, was identical to the copy thereof delivered to the Underwriters for
use in connection with the Offering (except as may be permitted by
Regulation S-T under the Securities Act). There are no contracts or other
documents required to be described in the Prospectus or to be filed as
exhibits to the Registration Statement under the Securities Act that have
not been described or filed therein as required, and there are no business
relationships or related-party transactions involving the Company or any
of its subsidiaries or any other person required to be described in the
Prospectus that have not been described therein as required.
(c) Each of the Company and its subsidiaries (i) has been duly
organized and is validly existing as a corporation in good standing under
the laws of its respective jurisdiction of incorporation, (ii) has all
requisite corporate power and authority to carry on its business as it is
currently being conducted and as described in the Prospectus and to own,
lease and operate its properties, and (iii) is duly qualified and in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification except, with respect to
clauses (i) (as it relates to good standing) and (iii), where the failure
to be so qualified or in good standing does not and could not reasonably
be expected to (x) individually or in the aggregate, result in a material
adverse effect on the properties, business, results of operations,
condition (financial or otherwise), affairs or prospects of the Company
and its subsidiaries, taken as a whole, (y) interfere with or adversely
affect the issuance or marketability of the Shares pursuant hereto or (z)
in any manner draw into question the validity of this Agreement or the
transactions described in the Prospectus under the caption "Use of
Proceeds" (any of the events set forth in clauses (x), (y) or (z), a
"Material Adverse Effect").
(d) All of the outstanding shares of capital stock of the Company,
including the Shares being sold by the Selling Stockholder under this
Agreement, have been duly authorized, validly issued, and are fully paid
and nonassessable and were not issued in violation of any preemptive or
similar rights. The Shares to be sold by the Company, when issued,
delivered and sold in accordance with this Agreement, will be duly
authorized and validly issued, fully paid and nonassessable, and will not
have been issued in violation of or subject to any preemptive or similar
rights. At September 30, 1999, after giving effect to the sale of Series A
Preferred Stock and warrants (the "Strategic Investor Securities") to
Microsoft Corporation and CPQ Holdings, Inc. and to the issuance and sale
of the Shares to be sold by the Company pursuant hereto and the
application of the net proceeds from the sale thereof, the Company had the
pro forma consolidated capitalization as set forth in the Prospectus under
the caption "Capitalization."
(e) All of the outstanding capital stock of, or other ownership
interests in, the Company's subsidiaries is owned by the Company, free
and clear of any security interest, claim, lien, limitation on voting
rights or encumbrance except as described in the Prospectus; and
3
<PAGE>
all such securities have been duly authorized, validly issued, and are
fully paid and nonassessable and were not issued in violation of any
preemptive or similar rights.
(f) Except as disclosed in the Prospectus there are not currently,
and will not be as a result of the Offering, any outstanding
subscriptions, rights, warrants, calls, commitments of sale or options to
acquire or instruments convertible into or exchangeable for, any capital
stock or other equity interest of the Company or any of its subsidiaries
(other than options issued pursuant to the Company's stock option plans).
(g) The Common Stock (including the Shares) is registered pursuant
to Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act") and is listed for quotation on the Nasdaq National Market System
("Nasdaq"), and the Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Common Stock under
the Exchange Act or delisting the Common Stock from Nasdaq, nor has the
Company received any notification that the Commission or Nasdaq is
contemplating terminating such registration or listing.
(h) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby, including, without
limitation, the corporate power and authority to issue, sell and deliver
the Shares to be sold by the Company as provided herein and the corporate
power to effect the Use of Proceeds as described in the Prospectus.
(i) This Agreement has been duly and validly authorized, executed
and delivered by the Company and is the legal, valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity, and except insofar as
indemnification and contribution provisions may be limited by applicable
law or equitable principles.
(j) Neither the Company nor any of its subsidiaries is, nor after
giving effect to the Offering will be, (i) in violation of its charter or
bylaws, (ii) in default in the performance of any bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties is subject, or (iii) in violation of any local, state or
federal law, statute, ordinance, rule, regulation, requirement, judgment
or court decree applicable to the Company or any of its subsidiaries or
any of their assets or properties (whether owned or leased) other than, in
the case of clauses (ii) and (iii), any default or violation that (A)
could not reasonably be expected to have a Material Adverse Effect or (B)
which is disclosed in the Prospectus. There exists no condition that, with
notice, the passage of time or otherwise, would constitute a default under
any such document or instrument, except as would not reasonably be
expected to have a Material Adverse Effect or as disclosed in the
Prospectus.
(k) None of (i) the execution, delivery or performance by the
Company of this Agreement, (ii) the issuance and sale of the Shares to be
sold by the Company and (iii) consummation by the Company of the
transactions contemplated hereby and in the Prospectus violate, conflict
with or constitute a breach of any of the terms or provisions of, or a
default under (or an event that with notice or the lapse of time, or both,
would constitute a default), or require consent under, or result in the
imposition of a lien on any properties of the Company or any of its
4
<PAGE>
subsidiaries, or an acceleration of any indebtedness of the Company or any
of its subsidiaries pursuant to, (A) the charter or bylaws of the Company
or any of its subsidiaries, (B) any bond, debenture, note, indenture,
mortgage, deed of trust, contract or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or its subsidiaries or their properties is or may be bound, (C)
any statute, rule or regulation applicable to the Company or any of its
subsidiaries or any of their assets or properties or (D) any judgment,
order or decree of any court or governmental agency or authority having
jurisdiction over the Company or any of its subsidiaries or any of their
assets or properties, except in the case of clauses (B), (C) and (D) for
such violations, conflicts, breaches, defaults, consents, impositions of
liens or accelerations that (x) would not singly, or in the aggregate,
have a Material Adverse Effect, (y) which are disclosed in the Prospectus
or (z) with respect to consents, have been obtained. Other than as
described in the Prospectus, no consent, approval, authorization or order
of, or filing, registration, qualification, license or permit of or with,
(i) any court or governmental agency, body or administrative agency or
(ii) any other person is required for (A) the execution, delivery and
performance by the Company of this Agreement, (B) the issuance and sale of
the Shares to be sold by the Company and the consummation by the Company
of the transactions contemplated hereby, except (x) such as have been
obtained and made under the Securities Act and state securities or Blue
Sky laws and regulations or such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD"), (y) where the
failure to obtain any such ---- consent, approval, authorization or order
of, or filing registration, qualification, license or permit would not
reasonably be expected to result in a Material Adverse Effect or (z) such
as have been obtained.
(l) None of (i) the execution, delivery or performance by the
Company of this Agreement, (ii) the issuance and sale of the Shares to be
sold by the Company and the sale of the Shares to be sold by the Selling
Stockholder, (iii) consummation by the Company of the transactions
contemplated hereby and in the Prospectus, and (iv) the consummation by
Intermedia Communications, Inc. ("Intermedia") of the transactions
contemplated in the Prospectus under the caption "Use of Proceeds"
violates, conflicts with or constitutes a breach of any of the terms or
provisions of, or a default under (or an event that with notice or the
lapse of time, or both, would constitute a default), or requires consent
under, or will result in the imposition of a lien on any properties of
Intermedia or any of its subsidiaries listed on Schedule II hereto (the
"Intermedia Subsidiaries"), or an acceleration of any indebtedness of
Intermedia or any of the Intermedia Subsidiaries pursuant to, (A) the
charter or bylaws of Intermedia or any of the Intermedia Subsidiaries, (B)
any bond, debenture, note, indenture, mortgage, deed of trust, contract or
other agreement or instrument to which Intermedia or any of the Intermedia
Subsidiaries is a party or by which Intermedia or the Intermedia
Subsidiaries or their properties is or may be bound, (C) any statute, rule
or regulation applicable to Intermedia or any of the Intermedia
Subsidiaries or any of their assets or properties or (D) any judgment,
order or decree of any court or governmental agency or authority having
jurisdiction over Intermedia or any of the Intermedia Subsidiaries or any
of their assets or properties, except in the case of clauses (B), (C) and
(D) for such violations, conflicts, breaches, defaults, consents,
impositions of liens or accelerations that (x) would not singly, or in the
aggregate, have a Material Adverse Effect, (y) which are disclosed in the
Prospectus or (z) with respect to consents, have been obtained.
(m) There is (i) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to the best knowledge of the Company or any of
its subsidiaries, threatened or contemplated to which the Company or any
of its subsidiaries is a party or to which the business or property of the
Company or any of its subsidiaries is subject, (ii) no statute, rule,
regulation or order that has been enacted,
5
<PAGE>
adopted or issued by any governmental agency or that has been proposed by
any governmental body or (iii) no injunction, restraining order or order
of any nature by a federal or state court or foreign court of competent
jurisdiction to which the Company or any of its subsidiaries is or may be
subject or to which the business, assets, or property of the Company or
any of its subsidiaries are or may be subject, that, in the case of
clauses (i), (ii) and (iii) above, (w) is required to be disclosed in the
Prospectus and that is not so disclosed, or (x) could reasonably be
expected to, individually or in the aggregate, result in a Material
Adverse Effect.
(n) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency that
prevents the issuance of the Shares to be sold by the Company or prevents
or suspends the use of the Prospectus; no injunction, restraining order or
order of any kind by a federal or state court of competent jurisdiction
has been issued that prevents the issuance of the Shares to be sold by the
Company, prevents or suspends the sale of the Shares in any jurisdiction
referred to in Section 5(d) hereof or that could adversely affect the
consummation of the transactions contemplated by this Agreement or the
Prospectus; and every request of any securities authority or agency of any
jurisdiction for additional information has been complied with in all
material respects.
(o) Except as set forth in the Prospectus, there is (i) no
significant unfair labor practice complaint pending against the Company or
any of its subsidiaries nor, to the best knowledge of the Company,
threatened against any of them, before the National Labor Relations Board,
any state or local labor relations board or any foreign labor relations
board, and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Company or any of its subsidiaries nor, to the best knowledge
of the Company, threatened against any of them, (ii) no significant
strike, labor dispute, slowdown or stoppage pending against the Company or
any of its subsidiaries nor, to the best knowledge of the Company,
threatened against the Company or any of its subsidiaries and (iii) to the
best knowledge of the Company, no union representation question existing
with respect to the employees of the Company or any of its subsidiaries
that, in the case of clauses (i), (ii) or (iii) above, could reasonably be
expected to result in a Material Adverse Effect. To the best knowledge of
the Company, no collective bargaining organizing activities are taking
place with respect to the Company or any of its subsidiaries. None of the
Company or any of its subsidiaries has violated (A) any federal, state or
local law or foreign law relating to discrimination in hiring, promotion
or pay of employees, (B) any applicable wage or hour laws or (C) any
provision of the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations thereunder
(collectively, "ERISA"), which in the case of clause (A), (B) or (C) above
could reasonably be expected to result in a Material Adverse Effect.
(p) None of the Company or any of its subsidiaries has violated any
environmental, safety or similar law or regulation applicable to it or its
business or property relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), lacks any permit,
license or other approval required of it under applicable Environmental
Laws or is violating any term or condition of such permit, license or
approval, which could reasonably be expected to, either individually or in
the aggregate, have a Material Adverse Effect.
(q) Each of the Company and its subsidiaries has (i) good and
marketable title to all of the properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances and restrictions, except such as are described in the
Prospectus or
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as would not have a Material Adverse Effect, (ii) peaceful and undisturbed
possession of its properties under all material leases to which it is a
party as lessee, (iii) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made
all declarations and filings with, all federal, state and local
authorities, all self-regulatory authorities and all courts and other
tribunals (each an "Authorization") necessary to engage in the business
conducted by it in the manner described in the Prospectus, except as
described in the Prospectus or where failure to hold such Authorizations
would not, individually or in the aggregate, have a Material Adverse
Effect and (iv) no reason to believe that any governmental body or agency
is considering limiting, suspending or revoking any such Authorization.
Except where the failure to be in full force and effect would not have a
Material Adverse Effect, all such Authorizations are valid and in full
force and effect, and each of the Company and its subsidiaries is in
compliance in all material respects with the terms and conditions of all
such Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect thereto. All material leases
to which the Company or any of its subsidiaries is a party are valid and
binding, and no default by the Company or any subsidiary has occurred and
is continuing thereunder and, to the best knowledge of the Company and its
subsidiaries, no material defaults by the landlord are existing under any
such lease that could reasonably be expected to result in a Material
Adverse Effect.
(r) Each of the Company and its subsidiaries owns, possesses or has
the right to employ all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, software, systems or
procedures), trademarks, service marks and trade names, inventions,
computer programs, technical data and information (collectively, the
"Intellectual Property") presently employed by it in connection with the
businesses now operated by it or which are proposed to be operated by it
or its subsidiaries free and clear of and without violating any right,
claimed right, charge, encumbrance, pledge, security interest, restriction
or lien of any kind of any other person and none of the Company or any of
its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing,
except as could not reasonably be expected to have a Material Adverse
Effect. The use of the Intellectual Property in connection with the
business and operations of the Company and its subsidiaries does not
infringe on the rights of any person, except as could not reasonably be
expected to have a Material Adverse Effect.
(s) None of the Company or any of its subsidiaries or, to the best
knowledge of the Company, any of their respective officers, directors,
partners, employees, agents or affiliates or any other person acting on
behalf of the Company or any of its subsidiaries has, directly or
indirectly, given or agreed to give any money, gift or similar benefit
(other than legal price concessions to customers in the ordinary course of
business) to any customer, supplier, employee or agent of a customer or
supplier, official or employee of any governmental agency (domestic or
foreign), instrumentality of any government (domestic or foreign) or any
political party or candidate for office (domestic or foreign) or other
person who was, is or may be in a position to help or hinder the business
of the Company or any of its subsidiaries (or assist the Company or any of
its subsidiaries in connection with any actual or proposed transaction),
which (i) might subject the Company or any of its subsidiaries, or any
other individual or entity, to any damage or penalty in any civil,
criminal or governmental litigation or proceeding (domestic or foreign),
(ii) if not given in the past, might have had a material adverse effect on
the assets, business or operations of the Company or any of its
subsidiaries or (iii) if not continued in the future, might have a
Material Adverse Effect.
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(t) All material tax returns required to be filed by the Company and
each of its subsidiaries in all jurisdictions have been so filed. All
taxes, including withholding taxes, penalties and interest, assessments,
fees and other charges due or claimed to be due from such entities or that
are due and payable have been paid, other than those being contested in
good faith and for which adequate reserves have been provided or those
currently payable without penalty or interest. To the knowledge of the
Company, there are no material proposed additional tax assessments against
the Company, the assets or property of the Company or any of its
subsidiaries. The Company has made adequate (in the opinion of the
Company) charges, accruals and reserves in the applicable financial
statements included in the Prospectus in respect of all federal, state and
foreign income and franchise taxes for all periods presented therein as to
which the tax liability of the Company or any of its consolidated
subsidiaries has not been finally determined.
(u) None of the Company or any of its subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or (ii) a "holding company" or a "subsidiary
company" or an "affiliate" of a holding company within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(v) Except as disclosed in the Prospectus, there are no holders of
securities of the Company or any of its subsidiaries who, by reason of the
execution by the Company of this Agreement or the consummation by the
Company or any of its subsidiaries of the transactions contemplated
hereby, have the right to request or demand that the Company or any of its
subsidiaries register under the Securities Act or analogous foreign laws
and regulations securities held by them, other than such that have been
duly waived.
(w) Each of the Company and its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences thereto.
(x) Each of the Company and its subsidiaries maintains insurance
covering its properties, operations, personnel and businesses. Such
insurance insures against such losses and risks as are adequate in
accordance with customary industry practice to protect the Company and its
subsidiaries and their respective businesses. None of the Company or any
of its subsidiaries has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures will
have to be made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof, subject only to changes
made in the ordinary course of business, consistent with past practice,
which do not, singly or in the aggregate, materially alter the coverage
thereunder or the risks covered thereby. The Company has no reason to
believe that it or any subsidiary will not be able (a) to renew, through
Intermedia or otherwise, its existing insurance coverage as and when such
policies expire or (b) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as
now conducted or as presently contemplated and at a cost that would not
result in a Material Adverse Effect.
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(y) The Company has not (a) taken, directly or indirectly (other
than through the actions, if any, of the Underwriters), any action
designed to, or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares or (b) since the date of
the Preliminary Prospectus (1) sold, bid for, purchased or paid any person
any compensation for soliciting purchases of, the Shares or (2) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(z) The Company and its subsidiaries and any "employee benefit plan"
(as defined under ERISA) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in
compliance in all material respects with ERISA. "ERISA Affiliate" means,
with respect to the Company or a subsidiary, any member of any group of
organizations described in Sections 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder (the "Code") of which the Company or
such subsidiary is a member. No "reportable event" (as defined under
ERISA) has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such "employee benefit plan" were terminated, would
have any "amount of unfunded benefit liabilities" (as defined under
ERISA). Neither the Company, its subsidiaries nor any of their ERISA
Affiliates has incurred or reasonably expects to incur any liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of
the Code. Each "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or failure to act, which would
cause the loss of such qualification.
(aa) Subsequent to the respective dates as of which information is
given in the Prospectus and up to the Closing Date, except as set forth in
the Prospectus, (i) none of the Company or any of its subsidiaries has
incurred any liabilities or obligations, direct or contingent, that are
material, individually or in the aggregate, to the Company and its
subsidiaries taken as a whole, nor entered into any transaction not in the
ordinary course of business, (ii) none of the Company or any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, that will be material to the Company and its subsidiaries
taken as a whole, (iii) there has not been, singly or in the aggregate,
any change or development that could reasonably be expected to result in a
Material Adverse Effect; and (iv) there has been no dividend or
distribution of any kind declared, paid or made by the Company or any of
its subsidiaries on any class of its capital stock.
(bb) To the Company's knowledge, Ernst & Young LLP, who have
expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) and
supporting schedules included in the Prospectus, are independent public or
certified public accountants within the meaning of Regulation S-X under
the Securities Act and the Exchange Act.
(cc) The financial statements, together with the related notes,
included in the Prospectus present fairly in all material respects the
consolidated financial position of the Company and its subsidiaries as of
and at the dates indicated and the results of their operations and cash
flows for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods
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involved, except as may be expressly stated in the related notes thereto.
The financial data set forth in the Prospectus under the captions
"Prospectus Summary--Summary Financial Data", "Selected Financial Data"
and "Capitalization" fairly present the information set forth therein on a
basis consistent with that of the audited financial statements contained
in the Prospectus.
(dd) Except pursuant to this Agreement, there are no contracts,
agreements or understandings between the Company and any other person that
would give rise to a valid claim against the Company or any of the
Underwriters for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Shares.
(ee) The statements (including the assumptions described therein)
included in the Prospectus (i) are within the coverage of Rule 175(b)
under the Securities Act to the extent such data constitute forward
looking statements as defined in Rule 175(c) and (ii) were made by the
Company with a reasonable basis and reflect the Company's good faith
estimate of the matters described therein.
(ff) Through Intermedia, each of the Company and its subsidiaries
has implemented Year 2000 compliance programs designed to ensure that its
computer systems and applications will function properly beyond 1999. The
Company believes that adequate resources have been allocated for this
purpose and that the Company's and its subsidiaries' Year 2000 date
conversion programs have been completed on a timely basis.
(gg) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters pursuant to
this Agreement shall be deemed to be a representation and warranty by the
Company to the Underwriters as to the matters covered thereby.
(hh) As of the date hereof the Company does not have, and as of the
Closing Date will not have, any subsidiaries.
The Company acknowledges that each of the Underwriters and, for purposes
of the opinions to be delivered to the Underwriters pursuant to Section 8
hereof, counsel to the Company and counsel to the Underwriters, will rely upon
the accuracy and truth of the foregoing representations and hereby consents to
such reliance.
2. Representations and Warranties of the Selling Stockholder. The Selling
Stockholder represents and warrants to, and agrees with, the Underwriters that:
(a) The Selling Stockholder is the lawful owner of the Shares to be
sold by such Selling Stockholder pursuant to this Agreement and has good,
valid and marketable title to the Shares to be sold by it pursuant to this
Agreement, and at the time of delivery of such Shares, such Shares will be
free and clear of all liens, encumbrances, adverse claims, security
interests, restrictions on transfer, stockholders' agreements, voting
trusts, options and other defects in title whatsoever, and the Selling
Stockholder will have full power to deliver such Shares hereunder, and,
upon the delivery of and payment for such Shares as herein contemplated,
each of the Underwriters will receive good, valid and marketable title to
the Shares purchased by it from the Selling Stockholder, free and clear of
all liens, encumbrances, adverse claims, security interests,
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restrictions on transfer, stockholders' agreements, voting trusts, options
and other defects in title whatsoever created by or relating to the
Selling Stockholder.
(b) The Selling Stockholder has, and will have at the time of
delivery of the Shares to be sold by it, full legal right, power,
authority and capacity, and, except as required under the Securities Act
and state securities and Blue Sky laws, all necessary consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses
and permits of and from all public, regulatory or governmental agencies
and bodies, as are required for the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby, including the sale, assignment, transfer and delivery of the
Shares to be sold, assigned, transferred and delivered by the Selling
Stockholder hereunder.
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Selling Stockholder and is the valid and binding
obligation of the Selling Stockholder, enforceable against the Selling
Stockholder in accordance with its terms.
(d) The execution, delivery and performance of this Agreement by the
Selling Stockholder, the offering and sale of the Firm Shares being sold
by the Selling Stockholder hereunder and the consummation of the
transactions contemplated hereby and thereby will not violate, conflict
with or constitute a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) or require consent under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
properties or assets of the Selling Stockholder, or result in an
acceleration of any indebtedness of the Selling Stockholder, pursuant to
(i) the articles of incorporation or bylaws or comparable organizational
documents of the Selling Stockholder, (ii) any bond, debenture, note,
indenture, mortgage, deed of trust, contract or other agreement or
instrument to which the Selling Stockholder or any of its subsidiaries is
a party or by which it or they or their respective properties or assets
are or may be bound, (iii) any statute, rule or regulation applicable to
the Selling Stockholder or any of its subsidiaries or any of its or their
properties or assets or (iv) any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Selling
Stockholder or any of its subsidiaries or any of its or their properties
or assets. No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with (i) any court or any
governmental agency or authority having jurisdiction over the Selling
Stockholder or any of its subsidiaries or any of its or their properties
or assets or (ii) any other person is required for (A) the execution,
delivery and performance by the Selling Stockholder of this Agreement, (B)
the sale and delivery of the Shares to be sold and delivered by the
Selling Stockholder hereunder and the consummation of the transactions
contemplated hereby, except such as have been obtained under the
Securities Act and from Nasdaq and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses
and permits as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters and such other consents or approvals which have been
obtained.
(e) The Selling Stockholder has not directly or indirectly (i) taken
(other than through the actions, if any, of the Underwriters) any action
designed to, or that might reasonably be expected to, cause or result in
or which constitutes or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or (ii) since the
filing of the Preliminary Prospectus (A) sold, bid for, purchased or paid
any person any compensation for soliciting
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purchases of shares of Common Stock or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(f) The Selling Stockholder (i) does not directly or indirectly have
any preemptive right, co-sale right or right of first refusal or other
similar right to purchase any of the Shares that are to be sold by the
Underwriters pursuant to this Agreement, and (ii) does not directly or
indirectly own any warrants, options or similar rights to acquire, and
does not directly or indirectly have any right or arrangement to acquire,
any capital stock, rights, warrants, options or other securities from the
Company.
(g) The Selling Stockholder does not directly or indirectly possess
any registration rights with respect to any securities of the Company.
(h) The information in the Registration Statement under the caption
"Principal and Selling Stockholders" which specifically relates to the
Selling Stockholder does not, and will not on the Closing Date, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(i) If there is any change in the information referred to in Section
2(k) from the first business day after the date of this Agreement and from
time to time thereafter for such period as in the opinion of counsel for
the Underwriters a prospectus is required by law to be delivered in
connection with sales by an Underwriter or a dealer, the Selling
Stockholder will immediately notify the Underwriters of such change.
(j) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Code with respect to the
transactions herein contemplated, the Selling Stockholder will deliver to
the Underwriters prior to or on the Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by Treasury Department regulations in lieu
thereof).
(k) Each certificate signed by any officer or other representative
of the Selling Stockholder and delivered to the Underwriters or counsel
for the Underwriters pursuant to this Agreement shall be deemed to be a
representation and warranty by the Selling Stockholder to the Underwriters
as to the matters covered thereby.
The Selling Stockholder acknowledges that each of the Underwriters and,
for purposes of the opinions to be delivered to the Underwriters pursuant to
Section 8 hereof, counsel to the Company and counsel to the Underwriters, will
rely upon the accuracy and truth of the foregoing representations and hereby
consents to such reliance.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions
herein set forth, (i) the Company agrees to sell 2,000,000 of the Firm
Shares to the Underwriters, on a pro rata basis, (ii) the Selling
Stockholder agrees, to sell 8,000,000 of the Firm Shares to the
Underwriters, on a pro rata basis, and (iii) the Underwriters, severally
and not jointly, agree to purchase from the Company and the Selling
Stockholder, on a pro rata basis, at a purchase price per share of $____,
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the number of Firm Shares set forth opposite the respective names of the
Underwriters in Schedule I hereto plus any additional number of Shares
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 11 hereof.
(b) Payment of the purchase price for, and delivery of certificates
for, the Firm Shares shall be made at the office of Latham & Watkins, 885
Third Avenue, Suite 1000, New York, New York, 10022, or at such other
place as shall be agreed upon by the Underwriters and the Company, at
10:00 A.M. on February ___, 2000 (unless postponed in accordance with the
provisions of Section 11 hereof) after the determination of the public
offering price of the Firm Shares, or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriters
and the Company (such time and date of payment and delivery being herein
called the "Closing Date"). Payment shall be made to the Company by wire
transfer in same day funds, against delivery to the Underwriters of
certificates for the Shares to be purchased by them. Certificates for the
Firm Shares shall be registered in such name or names and in such
authorized denominations as the Underwriters may request in writing at
least two full business days prior to the Closing Date. The Company will
permit the Underwriters to examine and package such certificates for
delivery at least one full business day prior to the Closing Date.
(c) In addition, the Selling Stockholder hereby grants to the
Underwriters the option to purchase up to 1,500,000 Additional Shares at
the same purchase price per share to be paid by the Underwriters to the
Company for the Firm Shares as set forth in this Section 3, for the sole
purpose of covering over-allotments in the sale of Firm Shares by the
Underwriters. This option may be exercised at any time and from time to
time, in whole or in part, on or before the thirtieth day following the
date of the Prospectus, by written notice by the Underwriters to the
Selling Stockholder. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised and the date
and time, as reasonably determined by the Underwriters, when the
Additional Shares are to be delivered (each such date and time being
herein sometimes referred to as an "Additional Closing Date"); provided,
however, that such Additional Closing Date shall not be earlier than the
Closing Date or earlier than the fifth full business day after the date on
which the option shall have been exercised nor later than the eighth full
business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions
of Section 11 hereof). Certificates for the Additional Shares shall be
registered in such name or names and in such authorized denominations as
the Underwriters may request in writing at least two full business days
prior to such Additional Closing Date. The Selling Stockholder will permit
the Underwriters to examine and package such certificates for delivery at
least one full business day prior to such Additional Closing Date.
(d) The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 11 hereof) bears to the total number of
Firm Shares being purchased from the Company, subject, however, to such
adjustments to eliminate any fractional shares as the Underwriters in
their sole discretion shall make.
(e) Payment for the Additional Shares shall be made by wire transfer
in same day funds payable to the order of the Selling Stockholder upon
delivery of the certificates for the Additional Shares to the Underwriters
at the office of Latham & Watkins, 885 Third Avenue, Suite 1000, New York,
New York, 10022, or such other location as may be mutually acceptable.
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4. Offering. Upon the Underwriters' authorization of the release of the
Firm Shares, the Underwriters propose to offer the Shares for sale to the public
upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each of
the Underwriters that:
(a) The Company will notify the Underwriters promptly (and, if
requested by the Underwriters, will confirm such notice in writing) (i)
when any post-effective amendment to the Registration Statement becomes
effective, (ii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any
additional information, (iii) of the mailing or the delivery to the
Commission for filing of the Prospectus or any amendment of or supplement
to the Registration Statement or the Prospectus or any document to be
filed pursuant to the Exchange Act during any period when the Prospectus
is required to be delivered under the Securities Act, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (v) of the
receipt of any comments or inquiries from the Commission, and (vi) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for that purpose. If the
Commission shall propose or enter a stop order at any time, the Company
will make every reasonable effort to prevent the issuance of any such stop
order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any post-effective amendment to the
Registration Statement or any amendment of or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by
the Underwriters in connection with the offering of the Shares which
differs from the prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act Regulations, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the
Securities Act Regulations) to which the Underwriters or Underwriters'
Counsel (as hereinafter defined) shall reasonably object, will furnish the
Underwriters with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file any such amendment or supplement or use any such
prospectus to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(b) If any event shall occur as a result of which the Prospectus
would, in the judgment of the Underwriters or the Company, include an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or supplement
the Prospectus or the Registration Statement to comply with the Securities
Act or the Securities Act Regulations, the Company will notify the
Underwriters promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to
the Underwriters) which will correct such statement or omission or which
will effect such compliance.
(c) The Company has delivered to the Underwriters five signed copies
of the Registration Statement as originally filed, including exhibits, and
all amendments thereto, and the Company will promptly deliver to each of
the Underwriters, from time to time during the period that the Prospectus
is required to be delivered under the Securities Act, such number of
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copies of the Prospectus and the Registration Statement, and all
amendments of and supplements to such documents, if any, as the
Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with the
Underwriters, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions as the Underwriters may designate and to maintain such
qualification in effect for so long as required for the distribution
thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a
general consent to service of process or take any action that would
subject it to taxation or to service of process in suits, other than those
arising out of the Offering, in any jurisdiction where it is not now so
subject.
(e) The Company will make generally available (within the meaning of
Section 11(a) of the Securities Act) to its security holders and to the
Underwriters as soon as practicable, but not later than 45 days after the
end of its fiscal quarter in which the first anniversary date of the
effective date of the Registration Statement occurs (or if such fiscal
quarter is the Company's fourth fiscal quarter, not later than 90 days
after the end of such quarter), an earnings statement (in form complying
with the provisions of Rule 158 of the Securities Act Regulations)
covering a period of at least twelve consecutive months beginning after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Securities Act).
(f) During the period of 90 days from the date of the Prospectus,
the Company will not, directly or indirectly, without the prior written
consent of Bear, Stearns & Co. Inc. ("Bear Stearns"), offer, sell,
contract to sell, grant any option to purchase, pledge or otherwise
dispose (or announce any offer, sale, contract to sell, grant of an option
to purchase, pledge or other disposition) of any shares of Common Stock of
the Company or any securities convertible into or exercisable or
exchangeable for such Common Stock, except that the Company may issue (i)
shares of Common Stock and options to purchase Common Stock under its 1999
Long-Term Incentive Plan (as such term is defined in the Prospectus), (ii)
shares of Common Stock in connection with strategic relationships and
acquisitions of businesses, technologies and products complementary to
those of the Company, so long as the recipients of such shares agree to be
bound by a lock-up agreement substantially in the form of Exhibit B hereto
(which shall provide that any transferees and assigns of such recipients
shall be bound by the lock-up agreement) for the remainder of the 90-day
lock-up period and (iii) shares of Common Stock issuable upon exercise or
conversion of outstanding warrants or convertible preferred stock.
(g) During a period of three years from the date of the Prospectus,
the Company will furnish to the Underwriters, upon their request, copies
of (i) all reports to its stockholders; and (ii) all reports, financial
statements and proxy or information statements filed by the Company with
the Commission or any national securities exchange.
(h) The Company will apply the proceeds from the sale of the Shares
as set forth under "Use of Proceeds" in the Prospectus.
(i) If the Company elects to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 9:00 A.M., New York
City time, on the date following the date of this Agreement, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission, and all requests for
additional
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information on the part of the Commission shall have been complied with to
the Underwriters' reasonable satisfaction.
(j) The Company, during the period when the Prospectus is required
to be delivered under the Securities Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15 of the Exchange Act within the time periods required
by the Exchange Act and the rules and regulations thereunder.
6. Covenants of the Selling Stockholder. The Selling Stockholder covenants
and agrees with the Underwriters and the Company that:
(a) the Selling Stockholder will pay or cause to be paid all
transfer taxes payable in connection with the transfer of the Shares to be sold
by the Selling Stockholder to the Underwriters.
(b) the Selling Stockholder will do and perform all things to be
done and performed by the Selling Stockholder under this Agreement prior to the
Closing Date and to satisfy all conditions precedent to the delivery of the
Shares to be sold by the Selling Stockholder pursuant to this Agreement.
(c) During the period of 90 days from the date hereof, the Selling
Stockholder will not, and will not permit any of its affiliates, directly or
indirectly, to issue, sell, offer or agree to sell, grant any option for the
sale of, pledge, make any short sale or maintain any short position, establish
or maintain a "put equivalent position" (within the meaning of Rule 16a1(h)
under the Exchange Act), enter into any swap, derivative transaction or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock (whether any such transaction is
to be settled by delivery of Common Stock, other securities, cash or other
consideration) or otherwise dispose of, any Common Stock (or any securities
convertible into, exercisable for or exchangeable for Common Stock) or any
interest therein of the Selling Stockholder or of any of its subsidiaries or
announce any intention to do any of the foregoing without the prior written
consent of Bear Stearns. This provision will not restrict (i) any transactions
with respect to capital stock of Intermedia Communications Inc. or (ii) the
Selling Stockholder from entering private negotiations for any sale of all or
any portion of the Common Stock owned by it.
7. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (a)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereto (including all
exhibits thereto), any Preliminary Prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), (b) the printing or reproduction and
delivery of the underwriting documents (including this Agreement, the Agreement
Among Underwriters and the Selling Agreement) and all other documents related to
the public offering of the Shares (including those supplied to the Underwriters
in quantities as hereinabove stated), (c) the issuance, transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes payable
thereon (other than any transfer taxes payable with respect to the Shares being
sold by the Selling Stockholder, which shall be borne by the Selling
Stockholder), (d) the qualification of the Shares under state or foreign
securities or Blue Sky laws, including the costs of printing and mailing a
preliminary and
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final "Blue Sky Memorandum" and the fees of counsel in connection therewith and
such counsel's disbursements in relation thereto, (e) listing of the Shares for
quotation on the Nasdaq, (f) filing fees of the Commission and the NASD, (g) the
cost of printing certificates representing the Shares, (h) the cost and charges
of any transfer agent or registrar and (i) all costs and expenses of the
Underwriters.
8. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Selling Stockholder herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 8,
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to the Underwriters or to Latham & Watkins ("Underwriters' Counsel") pursuant to
this Section 8 of any material misstatement or omission, to the performance by
the Company or the Selling Stockholder of its obligations hereunder, and to the
following additional conditions:
(a) Prior to the Closing Date the Registration Statement shall have
become effective, and on the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Securities Act or proceedings therefor initiated or, to the Company's
knowledge, threatened by the Commission. The Prospectus shall have been
filed or transmitted for filing with the Commission pursuant to Rule
424(b) of the Securities Act Regulations within the prescribed time
period, and prior to Closing Date the Company shall have provided evidence
satisfactory to the Underwriters of such timely filing or transmittal.
(b) All of the representations and warranties of the Company and the
Selling Stockholder contained in this Agreement shall be true and correct
on the date hereof and on the Closing Date with the same force and effect
as if made on and as of the date hereof and the Closing Date,
respectively. The Company and the Selling Stockholder shall have performed
or complied with all of the agreements herein contained and required to be
performed or complied with by them at or prior to the Closing Date.
(c) The Prospectus shall have been printed and copies distributed to
the Underwriters not later than 10:00 a.m., New York City time, on the
second business day following the date of this Agreement or at such later
date and time as to which the Underwriters may agree, and no stop order
suspending the qualification or exemption from qualification of the Shares
in any jurisdiction referred to in Section 5(d) shall have been issued and
no proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(d) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Shares; no action, suit or proceeding shall have been commenced and be
pending against or affecting or, to the best knowledge of the Company,
threatened against, the Company or any of its subsidiaries before any
court or arbitrator or any governmental body, agency or official that (i)
could reasonably be expected to result in a Material Adverse Effect and
(ii) has not been disclosed in the Prospectus.
(e) Since the dates as of which information is given in the
Prospectus and except as contemplated by the Prospectus, (i) there shall
not have been any material adverse change, or any development that is
reasonably likely to result in a material adverse change, in the capital
stock or the long-term debt, or material increase in the short-term debt,
of the Company or
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any of its subsidiaries from that set forth in the Prospectus, (ii) no
dividend or distribution of any kind shall have been declared, paid or
made by the Company or any of its subsidiaries on any class of its capital
stock, (iii) neither the Company nor any of its subsidiaries shall have
incurred any liabilities or obligations, direct or contingent, that are
material, individually or in the aggregate, to the Company and its
subsidiaries, taken as a whole, and that are required to be disclosed on a
balance sheet or notes thereto in accordance with generally accepted
accounting principles and are not disclosed on the latest balance sheet or
notes thereto included in the Prospectus. Since the date hereof and since
the dates as of which information is given in the Prospectus, there shall
not have occurred any development that has resulted in a Material Adverse
Effect or could reasonably be expected to result in a Material Adverse
Effect.
(f) The Underwriters shall have received a certificate, dated the
Closing Date, signed on behalf of the Company by each of the Company's
Chief Executive Officer and Chief Financial Officer in form and substance
reasonably satisfactory to the Underwriters, confirming, as of the Closing
Date, the matters set forth in paragraphs (a) through (e) of this Section
8 and that, as of the Closing Date, the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed in all
material respects.
(g) At the Closing Date the Underwriters shall have received a
certificate of the Selling Stockholder, dated the Closing Date, to the
effect that the Selling Stockholder has examined the Registration
Statement, the Preliminary Prospectus, the Prospectus, any supplement to
the Prospectus and this Agreement and that the representations and
warranties of the Selling Stockholder in this Agreement are true and
correct in all material respects and as of the Closing Date to the same
effect as if made on the Closing Date.
(h) The Underwriters shall have received on the Closing Date an
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters, of Kronish, Lieb, Weiner &
Hellman LLP, counsel for the Company, to the effect set forth in Exhibit
A-1 hereto.
(i) The Underwriters shall have received the opinion of Kronish,
Lieb, Weiner & Hellman LLP, counsel for the Selling Stockholder, dated the
Closing Date, in form and substance satisfactory to the Underwriters and
counsel to the Underwriters, to the effect set forth in Exhibit A-2
hereto.
(j) The Underwriters shall have received an opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters, of Latham & Watkins, counsel to the Underwriters, covering
such matters as are customarily covered in such opinions.
(k) Latham & Watkins shall have been furnished with such documents,
in addition to those set forth above, as they may reasonably require for
the purpose of enabling them to review or pass upon the matters referred
to in this Section 8 and in order to evidence the accuracy, completeness
or satisfaction in all material respects of any of the representations,
warranties or conditions herein contained.
(l) At the time this Agreement is executed and at the Closing Date
the Underwriters shall have received from Ernst & Young LLP, independent
public accountants for the Company and its subsidiaries, dated as of the
date of this Agreement and as of the Closing Date, customary comfort
letters addressed to the Underwriters in form and substance satisfactory
to the
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Underwriters and counsel to the Underwriters with respect to the financial
statements and certain financial information of the Company and its
subsidiaries contained in the Prospectus.
(m) At the time this Agreement is executed, the Underwriters shall
have received a "lock-up" agreement, substantially in the form attached as
Exhibit B hereto, from each of the executive officers, directors and
stockholders of the Company identified on Exhibit C hereto.
(n) At the Closing Date, the Shares shall have been approved for
quotation on the Nasdaq.
(o) At the time this Agreement is executed and at the Closing Time,
the NASD shall not have withdrawn, or given notice of an intention to
withdraw, its approval of the fairness of the underwriting terms and
arrangements of the offering of the Shares by the Underwriters.
(p) Each of the General Administrative and Services Agreement and
the network services agreements described in the Prospectus under the
caption "Certain Relationships and Related Transactions" shall be in full
force and effect, and no party to any such agreement shall have given any
notice of termination or amendment of any material provision thereof, or
of any intention to terminate or amend any material provision thereof, to
any other party, and no event shall have occurred which would prevent
either party from substantially performing its obligations under such
agreements.
(q) The Underwriters shall have received a certificate, dated the
Closing Date, signed on behalf of Intermedia by Robert M. Manning, Chief
Financial Officer of Intermedia, to the effect that (i) all material tax
returns required to be filed by Intermedia and each of its subsidiaries in
all jurisdictions have been so filed; (ii) all taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities or that are due and
payable have been paid, other than those being contested in good faith and
for which adequate reserves have been provided or those currently payable
without penalty or interest; (iii) to the knowledge of Intermedia, there
are no material proposed additional tax assessments against Intermedia,
the assets or property of Intermedia or any of its subsidiaries; and (iv)
Intermedia has made adequate (in the opinion of Intermedia) charges,
accruals and reserves in its most recent financial statements filed with
the Commission in respect of all federal, state and foreign income and
franchise taxes for all periods presented therein as to which the tax
liability of Intermedia or any of its consolidated subsidiaries has not
been finally determined, except where the failure to do any of the
foregoing would not, singly or in the aggregate, have a Material Adverse
Effect.
(r) All opinions, certificates, letters and other documents required
by this Section 8 to be delivered by the Company will be in compliance
with the provisions hereof only if they are reasonably satisfactory in
form and substance to the Underwriters. The Company will furnish the
Underwriters with such conformed copies of such opinions, certificates,
letters and other documents as Bear Stearns shall reasonably request.
Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
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If any of the conditions specified in this Section 8 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to the Underwriters or to
Underwriters' Counsel pursuant to this Section 8 shall not be in all material
respects reasonably satisfactory in form and substance to the Underwriters and
to Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by the Underwriters at, or at any time prior to, the Closing Date and
the obligations of the Underwriters to purchase the Additional Shares may be
canceled by the Underwriters at, or at any time prior to, the Additional Closing
Date. Notice of such cancellation shall be given to the Company in writing, or
by telephone, telecopy, telex or telegraph, confirmed in writing.
9. Indemnification.
(a) The Company agrees, jointly with the Selling Stockholder and
severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act against any
and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing for or defending
against any litigation, commenced or threatened, or any claim whatsoever,
and any and all amounts paid in settlement of any claim or litigation),
joint or several, to which they or any of them may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or any related Preliminary
Prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that neither the Company nor the Selling Stockholder will be
liable in any such case (i) to the extent but only to the extent that any
such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter expressly for use therein as set forth in Section 14 hereof,
and (ii) with respect to any Preliminary Prospectus or Preliminary
Prospectus supplement to the extent that any such loss, claim, damage or
liability results from the fact that an Underwriter sold Shares to a
person as to whom it shall be established that there was not sent or
given, at or prior to written confirmation of such sale, a copy of the
prospectus or prospectus supplement as then amended or supplemented in any
case where such delivery is required by the Securities Act if the Company
has previously furnished copies thereof in sufficient quantity to such
Underwriter and with sufficient time to effect a recirculation pursuant to
Rule 461 under the Securities Act and the loss, claim, damage or liability
of the Underwriters results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus or Preliminary
Prospectus supplement which was identified in writing prior to the
effective date of the registration statement to such underwriter and
corrected in the prospectus or prospectus supplement as then amended, and
such correction would have cured the defect giving rise to such loss,
claim, damage or liability. This indemnity agreement will be in addition
to any liability which the Company and/or the Selling Stockholder may
otherwise have including under this Agreement.
(b) The Selling Stockholder agrees, jointly with the Company and
severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20(a) of the
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Exchange Act (i) to the same extent as the foregoing indemnity from the
Company to each Underwriter and (ii) against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing for or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any
and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon a breach by the Selling Stockholder of the
representations and warranties contained in Section 2 hereof, provided,
however, that neither the Selling Stockholder or the Company will be
liable in any such case with respect to any Preliminary Prospectus or
Preliminary Prospectus supplement to the extent that any such loss, claim,
damage or liability results from the fact that an Underwriter sold Shares
to a person as to whom it shall be established that there was not sent or
given, at or prior to written confirmation of such sale, a copy of the
prospectus or prospectus supplement as then amended or supplemented in any
case where such delivery is required by the Securities Act if the Company
has previously furnished copies thereof in sufficient quantity to such
Underwriter and with sufficient time to effect a recirculation pursuant to
Rule 461 under the Securities Act and the loss, claim, damage or liability
of the Underwriters results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus or Preliminary
Prospectus supplement which was identified in writing prior to the
effective date of the registration statement to such underwriter and
corrected in the prospectus or prospectus supplement as then amended, and
such correction would have cured the defect giving rise to such loss,
claim, damage or liability.
(c) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, the Selling Stockholder and each other
person, if any, who controls the Company or the Selling Stockholder within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating,
preparing for or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, as originally filed or any
amendment thereof, or any related Preliminary Prospectus, or the
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or
on behalf of any Underwriter expressly for use therein as set forth in
Section 14 hereof; provided, that in no case shall any Underwriter be
liable or responsible for any amount in excess of the underwriting
discount applicable to the Shares purchased by such Underwriter hereunder.
This indemnity will be in addition to any liability which any Underwriter
may otherwise have, including under this Agreement.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the
commencement thereof (but the failure so to notify an indemnifying party
shall not relieve it from any liability which it may have under this
Section 9 except to the extent that it has been prejudiced in any material
respect by such failure or from any liability which it may otherwise
have). In case any such action is brought
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against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party. Notwithstanding
the foregoing, the indemnified party or parties shall have the right to
employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been
authorized in writing by the indemnifying parties in connection with the
defense of such action, (ii) the indemnifying parties shall not have
employed counsel to take charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties
(in which case the indemnifying party or parties shall not have the right
to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses of counsel shall
be borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a), (b) or (c) above, shall only be
liable for the legal expenses of one counsel (in addition to any local
counsel) for all indemnified parties under each such subsection in each
jurisdiction in which any claim or action is brought. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement of any claim or action effected without
its prior written consent; provided, however, that such consent was not
unreasonably withheld.
10. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 9 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Selling Stockholder
(the "Sellers") jointly and severally, on the one hand, and each Underwriter, on
the other hand, shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Sellers any
contribution received by the Sellers from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company) as incurred to which the Sellers and one
or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Sellers, on the one
hand, and such Underwriter, on the other hand, from the offering of the Shares
or, if such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received notice
as provided in Section 9 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Sellers, on the one hand, and the Underwriter, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Sellers, on the
one hand, and the Underwriters, on the other hand, shall be deemed to be in the
same proportion as (x) the total proceeds from the offering (net of the
underwriting discount but before deducting expenses) received by the Sellers and
(y) the underwriting discount received by the Underwriters, respectively, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Sellers, on the one hand, and each Underwriter, on the
other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information
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supplied by the Sellers or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Sellers and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 10 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 10, (i) in no case shall any Underwriter be
liable or responsible for any amount in excess of the underwriting discount
applicable to the Shares purchased by such Underwriter hereunder, and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Notwithstanding the
provisions of this Section 10 and the preceding sentence, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. For purposes of this Section
10, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person, if any,
who controls any Seller within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company and the Selling Stockholder,
subject in each case to clauses (i) and (ii) of this Section 10. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 10 or otherwise. No party shall be liable for contribution with respect
to any action or claim settled without its consent; provided, however, that such
consent was not unreasonably withheld.
11. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by the
Underwriters pursuant to Subsection (b) below) exceed in the aggregate 10%
of the number of Firm Shares or Additional Shares, the Firm Shares or
Additional Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase shall be purchased by the non-defaulting
Underwriters in proportion to the respective proportions which the numbers
of Firm Shares set forth opposite their respective names in Schedule I
hereto bear to the aggregate number of Firm Shares set forth opposite the
names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of the
Firm Shares or Additional Shares, as the case may be, the Underwriters may
in their discretion arrange for themselves or for another party or parties
(including any non-defaulting Underwriter or Underwriters who so agree) to
purchase such Firm Shares or Additional Shares, as the case may be, to
which such default relates on the terms contained herein. In the event
that within five calendar days after such a default the Underwriters do
not arrange for the purchase of the Firm Shares or Additional Shares, as
the case may be, to which such default relates as provided in this Section
11, this Agreement, or in the case of a default with respect to the
Additional Shares, the
23
<PAGE>
obligations of the Underwriters to purchase and of the Company to sell the
Additional Shares, shall thereupon terminate, without liability on the
part of the Company or the Selling Stockholder with respect thereto
(except in each case as provided in Section 7, 9 and 10 hereof) or the
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the
other Underwriters, the Company and the Selling Stockholder for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which
the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as
aforesaid, the Underwriters or the Company shall have the right to
postpone the Closing Date or Additional Closing Date, as the case may be,
for a period not exceeding five business days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus or in any other documents and arrangements, and the Company
agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters'
Counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party
substituted under this Section 11 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares or
Additional Shares.
12. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company and the
Selling Stockholder contained in this Agreement, including the agreements
contained in Section 7, the indemnity agreements contained in Section 9 and the
contribution agreements contained in Section 10, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof or by or on behalf of the
Company, any of its officers and directors, or any controlling person of the
Company, or by or on behalf of the Selling Stockholder, any of its officers and
directors or any controlling person thereof, and shall survive delivery of and
payment for the Shares to and by the Underwriters. The representations contained
in Section 1 and 2 and the agreements contained in Sections 7, 9, 10, 13(d) and
14 hereof shall survive the termination of this Agreement, including termination
pursuant to Section 11 or 13 hereof.
13. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution and
delivery of a counterpart hereof by each of the parties hereto.
(b) The Underwriters shall have the right to terminate this
Agreement at any time prior to the Closing Date or the obligations of the
Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if on or prior to such date,
(i) the Company shall have failed, refused or been unable to perform in
any material respect any agreement on its part to be performed hereunder,
(ii) any other condition to the obligations of the Underwriters hereunder
as provided in Section 8 is not fulfilled when and as required in any
material respect, (iii) in the judgment of the Underwriters any changes of
circumstance shall have occurred since the respective dates as of which
information is given in the Prospectus which could have a Material Adverse
Effect, other than as set forth in the Prospectus, or (iv) (A) any
domestic or international event or act or occurrence has materially
adversely affected, or in the opinion of the Underwriters will in the
immediate future materially adversely affect, the market for the Company's
securities or for securities in general; or (B) trading in securities
generally on the New York Stock Exchange ("NYSE") or quotations on the
Nasdaq shall have been suspended or
24
<PAGE>
materially limited, or minimum or maximum prices for trading shall have
been established, or maximum ranges for prices for securities shall have
been required, on such exchange, or by such exchange or other regulatory
body or governmental authority having jurisdiction; or (C) a banking
moratorium shall have been declared by federal or state authorities, or a
moratorium in foreign exchange trading by major international banks or
persons shall have been declared; or (D) there is an outbreak or
escalation of armed hostilities involving the United States on or after
the date hereof, or if there has been a declaration by the United States
of a national emergency or war, the effect of which shall be, in the
Underwriters' judgment, to make it inadvisable or impracticable to proceed
with the offering, sale and delivery of the Firm Shares or the Additional
Shares, as the case may be, on the terms and in the manner contemplated by
the Prospectus; or (E) there shall have been such a material adverse
change in general economic, political or financial conditions or if the
effect of international conditions on the financial markets in the United
States shall be such as, in the Underwriters' judgment, makes it
inadvisable or impracticable to proceed with the offering, sale and
delivery of the Firm Shares or the Additional Shares, as the case may be,
on the terms and in the manner contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 13 shall be
by telephone, telecopy, telex, or telegraph, confirmed in writing by
letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than pursuant to Section 11(b) or 13(b) hereof),
or if the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth
herein is not satisfied or because of any refusal, inability or failure on
the part of the Company or the Selling Stockholder to perform any
agreement herein or comply with any provision hereof, the Company or the
Selling Stockholder, as applicable, will, subject to demand by the
Underwriters, reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees and expenses of their counsel), incurred by
the Underwriters in connection herewith.
14. Underwriters' Information. The Company, the Selling Stockholder and
the Underwriters severally acknowledge that the statements set forth in (i) the
fourth paragraph under the caption "Underwriting" in the Prospectus concerning
the proposed public offering price, discount and concession, (ii) the eighth
paragraph under the caption "Underwriting" in the Prospectus concerning
transactions that stabilize, maintain, or otherwise affect the price of the
Common Stock and (iii) the last paragraph on the front cover page of the
Prospectus concerning delivery of the Shares, constitute the only information
furnished in writing by or on behalf of any Underwriter expressly for use in the
Registration Statement, as originally filed or in any amendment thereof, any
related Preliminary Prospectus or preliminary prospectus supplement or the
Prospectus or in any amendment thereof or supplement thereto, as the case may
be.
15. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to the
Underwriters shall be mailed, delivered, telegraphed or telecopied and confirmed
in writing to the Underwriters, c/o Bear, Stearns & Co. Inc., 245 Park Avenue,
New York, New York 10167, Attention: Corporate Finance Department, telecopy
number: (212) 272-3092, with a copy to Latham & Watkins, 885 Third Avenue, New
York, New York 10022, Attention: Raymond Y. Lin, telecopy number: (212) 751-
4864; if sent to the Company, shall be mailed, delivered or telexed, telegraphed
or telecopied and confirmed in writing to Digex, Incorporated, One Digex Plaza,
Beltsville, Maryland 20705, Attention: Chief Financial Officer, telecopy number:
(301) 847-6694, with a copy to Kronish, Lieb, Weiner & Hellman LLP, 1114 Avenue
of the Americas, 46th Floor, New York, New York 10036, Attention: Ralph J.
Sutcliffe; and if sent to the Selling Stockholder,
25
<PAGE>
shall be mailed, delivered, telegraphed or telecopied and confirmed in writing
to Intermedia Communications Inc., 3625 Queen Palm Drive, Tampa, Florida 33619,
Attention: Chief Financial Officer, telecopy number: (813) 829-2470, with a copy
to Kronish, Lieb, Weiner & Hellman LLP, 1114 Avenue of the Americas, New York,
New York 10036, telecopy number: (212) 479-6275; provided, however, that any
notice pursuant to Sections 9 or 10 shall be mailed, delivered, telegraphed or
telecopied and confirmed in writing.
16. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company and the Selling Stockholder
and the controlling persons, directors, officers, employees and agents referred
to in Section 9 and 10, and their respective successors and assigns, and no
other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. The term "successors and assigns" shall not include
a purchaser, in its capacity as such, of Shares from any of the Underwriters.
17. Construction. This Agreement shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed within New York, without giving any effect to any provisions thereof
relating to conflicts of law. TIME IS OF THE ESSENCE IN THIS AGREEMENT.
18. Captions. The captions included in this Agreement are included solely
for convenience of reference and are not to be considered a part of this
Agreement.
19. Counterparts. This Agreement may be executed in various counterparts
which together shall constitute one and the same instrument.
26
<PAGE>
If the foregoing correctly sets forth the understanding among the
Underwriters and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
DIGEX, INCORPORATED
By:
-------------------------------
Name:
Title:
INTERMEDIA COMMUNICATIONS INC.
By:
-------------------------------
Name:
Title:
Accepted as of the date first above written
BEAR, STEARNS & CO. INC.
- --------------------------
- --------------------------
- --------------------------
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto
By:
BEAR, STEARNS & CO. INC.
By:
----------------------
Name:
Title:
<PAGE>
By:
SALOMON SMITH BARNEY INC.
By:
----------------------
Name:
Title:
By:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
----------------------
Name:
Title:
By:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
----------------------
Name:
Title:
By:
MORGAN STANLEY & CO. INCORPORATED
By:
----------------------
Name:
Title:
By:
LEGG MASON WOOD WALKER, INCORPORATED
By:
----------------------
Name:
Title:
<PAGE>
By:
PAINE WEBBER INCORPORATED
By:
----------------------
Name:
Title:
<PAGE>
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
- ------------------- ----------------------
Bear, Stearns & Co. Inc. ....................................................
Salomon Smith Barney Inc. ...................................................
Credit Suisse First Boston Corporation.......................................
Donaldson, Lufkin & Jenrette Securities Corporation .........................
Morgan Stanley & Co. Incorporated ...........................................
Legg Mason Wood Walker, Incorporated ........................................
Paine Webber Incorporated ...................................................
Total..............................................................10,000,000
<PAGE>
SCHEDULE II
Intermedia Communications, Inc. Subsidiaries
Access Network Services, Inc.
Access Virginia, Inc.
Business Internet, Inc.
Digex, Incorporated
Express Communication, Inc.
Intermedia Capital Inc.
Intermedia Communications of Virginia Inc.
Intermedia Financial Company
Intermedia Licensing Company
National Telecommunications of Florida, Inc.
Netwave Systems, Inc.
NTC, Inc.
Shared Technologies Fairchild Inc.
Shared Technologies Fairchild Telecom, Inc.
Shared Technologies Fairchild Communications Corp.
STF Canada, Inc.
<PAGE>
Exhibit A-1
Form of Opinion of Kronish, Lieb, Weiner & Hellman LLP
1. The Company is duly organized and validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, and has all requisite corporate power and authority to carry on
its business as described in the Prospectus and to own, lease and operate its
properties, and is duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified or in good standing would not,
singly or in the aggregate, have a Material Adverse Effect.
2. All of the outstanding shares of capital stock of the
Company have been duly authorized, validly issued, and are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights under the Delaware General Corporation Law. The authorized, issued and
outstanding capital stock of the Company conforms in all respects to the
description thereof set forth in the Prospectus. There are not, to our
knowledge, currently, and will not be immediately following the Offering, any
outstanding subscriptions, rights, warrants, calls, commitments of sale or
options to acquire or instruments convertible into or exchangeable for, any
capital stock or other equity interest of the Company (other than options issued
pursuant to the Company's Long-Term Incentive Plan and the Strategic Investor
Securities).
3. The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Underwriting Agreement
and to consummate the transactions contemplated thereby and in the Prospectus,
including, without limitation, the corporate power and authority to issue, sell
and deliver the Shares to be sold by the Company as provided herein and therein.
4. The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and, assuming due execution by
the other parties hereto, is the legally valid and binding agreement of the
Company.
5. The Registration Statement, Preliminary Prospectus and
Prospectus comply as to form in all material respects with the requirements for
registration statements on Form S-1 under the Securities Act and the Securities
Act Regulations; it being understood, however, that such counsel need not
express an opinion with respect to the financial statements, schedules and other
financial and statistical data included in the Registration Statement,
Preliminary Prospectus or Prospectus. To such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein, and, to such counsel's knowledge, the descriptions thereof
or references thereto are correct in all material respects.
6. None of (A) the execution, delivery or performance by the
Company of the Underwriting Agreement, (B) the issuance and sale of the Shares
to be sold by the Company or (C) the consummation by the Company of the
transactions described in the Prospectus under the caption "Use of Proceeds"
violates, conflicts with or constitutes a breach of any of the terms or
provisions of, or a default under (or an event that with notice or the lapse of
time, or both, would constitute a default), or requires consent under, or will
result in the imposition of a lien or encumbrance on any properties of the
<PAGE>
Company, or an acceleration of any indebtedness of the Company pursuant to, (i)
the charter or bylaws of the Company, (ii) any bond, debenture, note, indenture,
mortgage, deed of trust, contract or other agreement or instrument to which the
Company is a party or by which it or its property is or may be bound identified
to such counsel as material (assuming all of such agreements are governed by New
York law), (iii) any judgment, order or decree of any court or governmental
agency or authority having jurisdiction over the Company or any of its assets or
properties known to such counsel, and except in the case of clauses (ii) and
(iii) for such violations, conflicts, breaches, defaults, consents, impositions
of liens or accelerations that (x) would not, singly or in the aggregate, have a
Material Adverse Effect, (y) are disclosed in the Prospectus or (z) with respect
to consents, have been obtained. No consent, approval, authorization or order
of, or filing, registration, qualification, license or permit of or with, any
court or governmental agency, body or administrative agency is required for (1)
the execution, delivery and performance by the Company of the Underwriting
Agreement, (2) the issuance and sale of the Shares to be sold by the Company or
(3) consummation by the Company of the transactions described in the Prospectus
except (i) such as have been obtained and made or have been disclosed in the
Prospectus or (ii) where the failure to obtain such consents or waivers would
not, singly or in the aggregate, have a Material Adverse Effect. To the best of
such counsel's knowledge, after reasonable inquiry, no consents or waivers from
any other person are required for the execution, delivery and performance by the
Company of the Underwriting Agreement and the issuance and sale of the Shares,
other than such consents and waivers as have been obtained or are being applied
for.
7. None of (A) the execution, delivery or performance by the
Company of the Underwriting Agreement and the consummation of the transactions
contemplated thereby, (B) the issuance and sale of the Shares to be sold by the
Company and the sale of the Shares to be sold by the Selling Stockholder or (C)
the consummation by the Company and Intermedia of the transactions described in
the Prospectus under the caption "Use of Proceeds" violates, conflicts with or
constitutes a breach of any of the terms or provisions of, or a default under
(or an event that with notice or the lapse of time, or both, would constitute a
default), or requires consent under, or will result in the imposition of a lien
or encumbrance on any properties of Intermedia or any of the Intermedia
Subsidiaries, or an acceleration of any indebtedness of Intermedia or any of the
Intermedia Subsidiaries pursuant to, (i) the charter or bylaws of Intermedia or
any of the Intermedia Subsidiaries, (ii) any bond, debenture, note, indenture,
mortgage, deed of trust, contract or other agreement or instrument to which
Intermedia or any of the Intermedia Subsidiaries is a party or by which any of
them or their property is or may be bound identified to such counsel as material
(assuming all of such agreements are governed by New York law), (iii) any
judgment, order or decree of any court or governmental agency or authority
having jurisdiction over Intermedia or any of the Intermedia Subsidiaries or any
of their assets or properties known to such counsel, and except in the case of
clauses (ii) and (iii) for such violations, conflicts, breaches, defaults,
consents, impositions of liens or accelerations that (x) would not, singly or in
the aggregate, have a Material Adverse Effect, (y) are disclosed in the
Prospectus or (z) with respect to consents, have been obtained.
8. The Company is not (i) an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or (ii) a "holding company" or a "subsidiary
company" or an "affiliate" of a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
9. Except as set forth in the Underwriting Agreement or in the
Prospectus, to such counsel's knowledge, after reasonable inquiry there are no
holders of any securities of the Company who, by reason of the execution by the
Company of the Underwriting Agreement or the consummation
ii
<PAGE>
by the Company of the transactions contemplated thereby, have the right to
request or demand that the Company register under the Securities Act securities
held by them.
10. To the knowledge of such counsel, after reasonable
inquiry, no search of court records having been made, there is (i) no action,
suit, investigation or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending, or
threatened or contemplated to which the Company is or may be a party or to which
the business or property of the Company is or may be subject, (ii) no statute,
rule, regulation or order that has been enacted, adopted or issued by any
governmental agency or that has been proposed by any governmental body, or (iii)
no injunction, restraining order or order of any nature by a federal or state
court of competent jurisdiction to which the Company is or may be subject has
been issued that, in the case of clauses (i), (ii) and (iii) above, (w) is
required to be disclosed in the Prospectus and that is not so disclosed or, (x)
could reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect, except as disclosed in the Prospectus; or (y) might
interfere with, adversely affect or in any manner question the validity of the
issuance and sale of the Shares or any of the other transactions contemplated by
the Underwriting Agreement.
11. The statements contained in the Prospectus under the
captions "Management--Indemnification of Directors and Executive Officers and
Limitation of Liability," "Management--Long-Term Incentive Plan," "Certain
Relationships and Related Transactions," "Principal and Selling Stockholders,"
"Description of Capital Stock" and "Shares Eligible for Future Sale," in each
case, insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the information
required with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein in all material respects.
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent certified
public accountants of the Company and the Underwriters and their representatives
at which the contents of the Registration Statement, Preliminary Prospectus and
Prospectus and related matters were discussed and, although we have not
undertaken to investigate or verify independently, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement, Preliminary Prospectus or Prospectus
(except as indicated above), on the basis of the foregoing, no facts have come
to our attention which led us to believe that the Registration Statement and
Prospectus, as of its date or the Closing Date, and the Preliminary Prospectus,
as of its date, contained an untrue statement of a material fact or omitted to
state any fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except as to financial statements and related notes, the financial
statement schedules and other financial and statistical data included therein).
iii
<PAGE>
Exhibit A-2
Form of Opinion of Kronish, Lieb, Weiner & Hellman LLP
1. The Selling Stockholder is duly organized and validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation.
2. The Selling Stockholder has all requisite corporate power
and authority to execute, deliver and perform its obligations under the
Underwriting Agreement including, without limitation, the corporate power and
authority to sell and deliver the Shares to be delivered by the Selling
Stockholder as provided herein and therein.
3. The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Selling Stockholder and, assuming due
execution by the other parties hereto, is the legally valid and binding
agreement of the Selling Stockholder.
4. Assuming that each Underwriter acquires its interest in the
Shares it has purchased from such Selling Stockholder without notice of any
adverse claim (within the meaning of Section 8-105 of the UCC), each
Underwriter, that has purchased such Shares delivered on the Closing Date by
making payment therefor as provided in the Underwriting Agreement, will have
acquired a security entitlement (within the meaning of Section 8-102(a)(17) of
the UCC) to such Shares purchased by such Underwriter, and no action based on an
adverse claim (within the meaning of Section 8-105 of the UCC) as a result of
any action, inaction, debt or obligation of the Selling Stockholder may be
asserted against such Underwriter with respect to such Shares.
5. None of (A) the execution, delivery or performance by the
Selling Stockholder of the Underwriting Agreement or (B) the sale of the Shares
to be sold by the Selling Stockholder violates, conflicts with or constitutes a
breach of any of the terms or provisions of, or a default under (or an event
that with notice or the lapse of time, or both, would constitute a default), or
requires consent under, or will result in the imposition of a lien or
encumbrance on any properties of the Selling Stockholder, or an acceleration of
any indebtedness of the Selling Stockholder pursuant to, (i) the charter or
bylaws of the Selling Stockholder, (ii) any bond, debenture, note, indenture,
mortgage, deed of trust, contract or other agreement or instrument to which the
Selling Stockholder is a party or by which it or its property is or may be bound
identified to such counsel as material (assuming all of such agreements are
governed by New York law), (iii) any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Selling
Stockholder or any of its assets or properties known to such counsel, and except
in the case of clauses (ii) and (iii) for such violations, conflicts, breaches,
defaults, consents, impositions of liens or accelerations that (x) would not,
singly or in the aggregate, have a Material Adverse Effect, (y) are disclosed in
the Prospectus (z) with respect to consents, have been obtained. No consent,
approval, authorization or order of, or filing, registration, qualification,
license or permit of or with, any court or governmental agency, body or
administrative agency is required for (1) the execution, delivery and
performance by the Selling Stockholder of the Underwriting Agreement, (2) the
sale of the Shares to be sold by the Selling Stockholder or (3) the consummation
by the Selling Stockholder of the transactions contemplated thereby except (i)
such as have been obtained and made or have been disclosed in the Prospectus or
(ii) where the failure to obtain such consents or waivers would not, singly or
in the aggregate, have a Material Adverse Effect. To the best of such counsel's
knowledge, after reasonable inquiry, no consents or waivers from any other
person are required for the execution, delivery and performance by the Selling
Stockholder of the Underwriting Agreement, the issuance and sale of the Shares,
other than such consents and waivers as have been obtained or are being applied
for.
<PAGE>
We have participated in conferences with officers and other
representatives of the Selling Stockholder, representatives of the independent
certified public accountants of the Selling Stockholder and the Underwriters and
their representatives at which the contents of the Registration Statement,
Preliminary Prospectus and Prospectus and related matters were discussed and,
although we have not undertaken to investigate or verify independently, and do
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, Preliminary Prospectus or
Prospectus (except as indicated above), on the basis of the foregoing, no facts
have come to our attention which led us to believe that the Registration
Statement and Prospectus, as of its date or the Closing Date, and the
Preliminary Prospectus, as of its date, contained an untrue statement of a
material fact or omitted to state any fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except as to financial statements
and related notes, the financial statement schedules and other financial and
statistical data included therein).
ii
<PAGE>
Exhibit B
Lock-Up Agreement
Digex Corporation
One Digex Plaza
Beltsville, Maryland
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Dear Sirs:
In consideration of the agreement of the several Underwriters, for
which Bear, Stearns & Co. Inc., Salomon Smith Barney Inc., Donaldson, Lufkin &
Jenrette Securities Corporation, Morgan Stanley Dean Witter, Legg Mason Wood
Walker, Incorporated and Paine Webber Incorporated intend to act as
Representative, to underwrite a proposed public offering (the "Offering") of
shares of Class A common stock, par value $.01 per share (the "Common Stock"),
of Digex, Incorporated a corporation organized under the laws of the State of
Delaware (the "Company"), as contemplated by a registration statement to be
filed with the Securities and Exchange Commission on Form S-1, the undersigned
hereby (i) agrees that the undersigned will not, directly or indirectly, during
a period of ninety (90) days from the date of the final prospectus for the
Offering (the "Lock-Up Period"), without the prior written consent of Bear,
Stearns & Co. Inc., issue, sell, offer or agree to sell, grant any option for
the sale of, pledge, make any short sale or maintain any short position,
establish or maintain a "put equivalent position" (within the meaning of Rule
16-a-1(h) under the Securities Exchange Act of 1934, as amended), enter into any
swap, derivative transaction or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock (whether any such transaction is to be settled by delivery of Common
Stock, other securities, cash or other consideration) or otherwise dispose of,
any Common Stock (or any securities convertible into, exercisable for or
exchangeable for Common Stock, whether currently or at any time in the future)
or interest therein of the Company or of any of its subsidiaries, and (ii)
authorizes the Company during the Lock-Up Period to cause the transfer agent to
decline to transfer and/or to note stop transfer restrictions on the transfer
books and records of the Company with respect to any shares of Common Stock and
any securities convertible into exercisable or exchangeable for Common Stock for
which the undersigned is the record holder and, in the case of any such share or
securities for which the undersigned is the beneficial but not the record
holder, agrees to cause the record holder to cause the transfer agent to decline
to transfer and/or to note stop transfer restrictions on such books and records
with respect to such shares or securities. This provision will not restrict any
offer, sale, contract for sale, swap, short sale, pledge, "put equivalent
position," option, or other transaction with respect to any capital stock of
Intermedia Communications Inc.
The undersigned further agrees, from the date hereof until the end of
the Lock-up Period, that the undersigned will not exercise and will waive his,
her or its rights, if any, to require the Company to register its Common Stock
and to receive notice thereof.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into the agreements set forth herein, and
that, upon request, the undersigned will execute any additional documents
necessary in connection with enforcement hereof. Any obligations of the
undersigned shall be binding upon the successors and assigns of the undersigned.
Very truly yours,
<PAGE>
By:
___________________________________
Name:
Title:
Dated: ___________, 2000
ii
<PAGE>
Exhibit C
Individuals Delivering a Lock-Up Agreement Pursuant to Section 8(m)
Timothy M. Adams
John C. Baker
Philip A. Campbell
Nancy G. Faigen
Bryan T. Gernert
Richard A. Jalkut
George F. Knapp
Marthe S. Lattinville Pace
Robert B. Patrick
Jack E. Reich
David C. Ruberg
Mark K. Shull
Robert M. Manning
Rebecca Ward
Intermedia Communications Inc.
<PAGE>
Exhibit 5.1
KRONISH LIEB WIENER & HELLMAN LLP
1114 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
February 9, 2000
Digex, Incorporated
One Digex Plaza
Beltsville, Maryland 20705
Ladies and Gentlemen:
We have acted as counsel to Digex, Incorporated, a Delaware corporation
(the "Company"), in connection with its Registration Statement on Form S-1
(File No. 333-94857), filed pursuant to the Securities Act of 1933, as amended,
related to the proposed underwritten public offering (the "Offering") of
11,500,000 shares of its Class A Common Stock, par value $.01 per share (the
"Shares"), of which 2,000,000 Shares will be offered by the Company and
9,500,000 Shares (including 1,500,000 Shares that may be so offered pursuant
to an over-allotment option granted to the underwriters) will be offered by a
selling stockholder.
In that connection, we have reviewed the Certificate of Incorporation of the
Company, as amended to date, filed as Exhibit 3.1 to the Registration
Statement, the Bylaws of the Company, filed as Exhibit 3.2 to the Registration
Statement, resolutions of the Company's Board of Directors and such other
documents and records as we have deemed appropriate.
On the basis of such review, and having regard to legal considerations that
we deem relevant, it is our opinion that:
The Shares to be offered by the Company pursuant to the Offering, when
issued and delivered upon payment therefor in accordance with the terms set
forth in the Registration Statement, will be duly authorized, validly issued,
fully paid and nonassessable.
The Shares to be offered by the selling stockholder pursuant to the
Offering, and any additional Shares offered by the selling stockholder which may
be registered under the Securities Act pursuant to Rule 462(b) when issued upon
conversion of the Class B Common Stock, par value $.01 per share, currently held
by the selling stockholder, will be duly authorized, validly issued, fully paid
and nonassessable.
We are opining only as to matters involving the corporate laws of the State
of Delaware and the federal laws of the United States.
We hereby consent to the use of our name under the caption "Legal Matters"
in the prospectus included in the Registration Statement and to use of this
opinion as an exhibit to the Registration Statement and the incorporation by
reference of this opinion in any Rule 462(b) registration statement filed in
connection with the Offering.
Very truly yours,
/s/ Kronish Lieb Weiner & Hellman LLP
<PAGE>
Exhibit 10.22
AMENDMENT NO. 1 TO
GENERAL AND ADMINISTRATIVE SERVICES AGREEMENT
AMENDMENT NO. 1, dated as of January 17, 2000 (the "Amendment"), to the
---------
GENERAL AND ADMINISTRATIVE SERVICES AGREEMENT dated as of April 30, 1999 (the
--------
"Agreement"), between DIGEX, INCORPORATED, a Delaware corporation ("Digex"), and
- ---------- -----
INTERMEDIA COMMUNICATIONS INC., a Delaware corporation ("Intermedia").
----------
In consideration of the mutual agreements set forth herein, the parties
agree as follows:
1. Revised Service Fees. Section 5.1 of the Agreement is hereby replaced in
--------------------
its entirety with the following:
5.1 In consideration for the Services rendered by Intermedia hereunder,
Digex shall pay to Intermedia the following service fees (the "Service
Fees"):
(a) with respect to each calendar month during the period commencing
on April 1, 1999 and ending on March 31, 2000, the fixed monthly
Service Fee set forth for such month in Schedule C; and
(b) with respect to each calendar month during the period commencing
on April 1, 2000 and ending on March 31, 2001, a fixed monthly
Service Fee which shall be negotiated in good faith by Digex and
Intermedia during the first quarter of 2000.
2. Bonus Payments. Section 5.4 is hereby inserted into the Agreement.
--------------
Section 5.4 shall state as follows:
5.4 Digex shall reimburse Intermedia for 50% of the bonus awards paid in
calendar year 2000 (with respect to performance during calendar year 1999)
to Intermedia's management personnel who support the Services provided to
Digex under the terms of the Agreement. The amount of such reimbursement is
expected to be approximately $1.0 million. Payment of the amounts due under
this Section 5.4 shall be made promptly after
1
<PAGE>
delivery by Intermedia to Digex of a request for payment together with
reasonable supporting documentation of the payment of such amounts.
3. Transition Plan. Section 5.5 is hereby inserted into the Agreement.
---------------
Section 5.5 shall state as follows:
5.5 During the first quarter of 2000, Digex and Intermedia shall work
together to develop a transition plan designed to reduce the reliance by
Digex on the Services rendered by Intermedia hereunder.
4. Revised Schedule C. Schedule C to the Agreement is hereby replaced in its
------------------
entirety with the following:
SCHEDULE C
Monthly Management Fee
----------------------
(Dollar amounts in thousands)
<TABLE>
<CAPTION>
Month Year Fee
============================================================
<S> <C> <C>
============================================================
April 1999 $2,000.00
------------------------------------------------------------
May 1999 $2,000.00
------------------------------------------------------------
June 1999 $2,000.00
------------------------------------------------------------
July 1999 $1,500.00
------------------------------------------------------------
August 1999 $1,500.00
------------------------------------------------------------
September 1999 $1,500.00
------------------------------------------------------------
October 1999 $2,000.00
------------------------------------------------------------
November 1999 $2,000.00
------------------------------------------------------------
December 1999 $2,000.00
------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
------------------------------------------------------------
January 2000 $2,000.00
------------------------------------------------------------
February 2000 $2,000.00
------------------------------------------------------------
March 2000 $2,000.00
------------------------------------------------------------
</TABLE>
5. Governing Law. This Amendment is made under and shall be governed by
-------------
and construed in accordance with the laws of the State of Florida without giving
effect to principles of conflicts of laws.
6. Miscellaneous. Except as amended by this Amendment, the Agreement
-------------
shall remain in full force and effect. The descriptive headings contained in
this Amendment are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Amendment. This
Amendment may be executed in counterparts and all such counterparts taken
together shall be deemed to constitute one and the same instrument and shall be
binding notwithstanding that the parties hereto are not all signatories to the
same counterpart.
[SIGNATURE PAGE FOLLOWS]
3
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date set forth above by their duly authorized representatives,
effective as of the day and year first above written.
DIGEX, INCORPORATED
By: /s/ MARK K. SHULL
-----------------
Name: Mark K. Shull
Title: President and CEO
INTERMEDIA COMMUNICATIONS, INC.
By: /s/ DAVID C. RUBERG
-------------------
Name: David C. Ruberg
Title: President and CEO
4
<PAGE>
Exhibit 10.25
Intermedia Communications Inc.
3625 Queen Palm Drive
Tampa, Florida 33619
January 24, 2000
Digex, Incorporated
One Digex Plaza
Beltsville, Maryland 20705
Ladies and Gentlemen:
In connection with the proposed public offering ("Offering") of Class A
--------
common stock of Digex, Incorporated ("Digex") as reflected in a registration
-----
statement on Form S-1 which was filed with the Securities and Exchange
Commission on January 18, 2000 (File #333-94857), Intermedia Communications Inc.
("Intermedia") and Digex wish to confirm their understanding as set forth in
----------
this letter.
Intermedia and Digex acknowledge that Digex will be required to use all of
the net proceeds of the Offering, if one is consummated, to purchase or
construct Telecommunications Related Assets (as defined in the 12-1/2% Senior
Discount Notes Indenture, dated May 14, 1996 (the "Indenture"), between
---------
Intermedia and SunTrust Bank, Central Florida, National Association, as trustee)
within 270 days after the closing of the Offering. Intermedia and Digex agree
that during such 270-day period:
1. Intermedia, in consultation with the management of Digex, shall, from time
to time, determine the amount of funds required by Digex to meet its
working capital needs or to fund its operating losses ("Unrestricted Uses")
-----------------
during the next calendar month. Within five days of determination of the
amount required by Digex for Unrestricted Uses, Intermedia shall provide to
Digex a list of Telecommunications Related Assets having a purchase price
at least equal to such amount to be purchased by Digex (the "Designated
----------
Assets") and shall designate, and, if necessary, make arrangements with (on
------
Digex's behalf), a vendor or vendors from which Digex should purchase the
Designated Assets. Digex shall purchase the Designated Assets from the
vendor(s) designated by Intermedia from time to time as reasonably required
to fund Unrestricted Uses, and Intermedia shall purchase from Digex, the
Designated Assets at Digex's cost thereof promptly following each purchase.
<PAGE>
Digex, Incorporated
Page 2
2. If on the 260th day after the closing of the Offering there remains an
amount (the "Remaining Amount") of the net proceeds of the Offering that
----------------
has not been used by Digex to purchase or construct Telecommunications
Related Assets, then Intermedia shall provide to Digex a list of Designated
Assets, and, if necessary, make arrangements with (on Digex's behalf), a
vendor or vendors from which Digex should purchase the Designated Assets.
The purchase price of such Designated Assets from such designated vendor(s)
shall at least equal the Remaining Amount. Within five days after its
receipt of such notice from Intermedia, Digex shall purchase the Designated
Assets from the vendor(s) designated by Intermedia. If and to the extent
that the purchase price of such Designated Assets exceeds the Remaining
Amount, Intermedia shall advance such difference to Digex prior to such
purchase. Promptly following any such purchase, Digex shall sell to
Intermedia, and Intermedia shall purchase from Digex, the Designated Assets
at Digex's cost thereof.
3. Intermedia represents and warrants to Digex that Digex's use for
Unrestricted Uses of a portion of the amounts received by it from
Intermedia designated by Intermedia as unrestricted funds ("Unrestricted
------------
Portion") in any purchase and sale transaction pursuant to paragraphs 1 or
-------
2 will not violate, or result in a default by Intermedia under, the
provisions of the Indenture. The amount of the Unrestricted Portion shall
be determined based on a reasonable projection of Digex's need for funds
for Unrestricted Uses during the period commencing on the date of such
purchase and sale and ending on the first anniversary of the closing of the
Offering.
4. Digex represents, warrants and covenants to Intermedia that it shall use
the net proceeds of the Offering only to purchase or construct
Telecommunications Related Assets and as provided in this letter agreement.
5. Each of Digex and Intermedia agrees to cooperate with the other, and to do,
execute, acknowledge and deliver such further acts, instruments and
assurances as shall be necessary or desirable to carry out the provisions,
and the intents and purposes of this letter agreement. Notwithstanding any
of the procedures set forth in this letter agreement, with the consent of
both parties, Intermedia may advance to Digex on a daily basis Digex's cash
requirements for Unrestricted Uses and purchases of Telecommunications
Related Assets. In such circumstances, at the end of every calendar month,
Intermedia shall prepare and provide to Digex a statement of reconciliation
of all advances and expenditures made by Intermedia to Digex or on Digex
behalf during the month-ended, and Digex shall make a corresponding
transfer of funds to Intermedia.
<PAGE>
Digex, Incorporated
Page 3
Please confirm your understanding and acceptance of the foregoing by
signing in the space provided below.
Very truly yours,
INTERMEDIA COMMUNICATIONS INC.
By: /s/ DAVID C. RUBERG
___________________________
Name: David C. Ruberg
Title: President and CEO
Agreed and Accepted
this 24th day of January 2000
DIGEX, INCORPORATED
By: /s/ MARK K. SHULL
________________________
Name: Mark K. Shull
Title: President and CEO
<PAGE>
Exhibit 10.26
Intermedia Communications Inc.
3625 Queen Palm Drive
Tampa, Florida 33619
January 24, 2000
Digex, Incorporated
One Digex Plaza
Beltsville, Maryland 20705
Ladies and Gentlemen:
In connection with the proposed public offering and sale (the "Offering")
--------
of Class A Common Stock, par value $.01 per share, of Digex, Incorporated
("Digex") by Digex and Intermedia Communications Inc., as a selling stockholder
-----
("Intermedia"), as reflected in the registration statement on Form S-1 filed
----------
with the Securities and Exchange Commission on January 18, 2000 (File #333-
94857), and any amendments thereto (the "Registration Statement"), Intermedia
----------------------
and Digex wish to confirm their understanding as set forth in this letter.
1. Digex and Intermedia each hereby agrees to allocate and pay the fees and
expenses associated with and arising from the Offering in proportion to the
number of shares of Class A Common Stock to be sold by each of them in the
Offering. Such fees and expenses shall include, without limitation, those
incurred in connection with (a) preparing, printing, duplicating, filing
and distributing the Registration Statement, as originally filed and all
amendments thereto (including all exhibits thereto), any preliminary
prospectus or prospectus and any amendments or supplements thereto
(including, without limitation, fees and expenses of Digex's accountants
and counsel), (b) the issuance, transfer and delivery of the Shares to the
underwriters of the Offering (the "Underwriters"), including any transfer
------------
or other taxes payable thereon, (c) the qualification of the shares of
Class A Common Stock to be sold in the Offering (the "Shares") under state
------
or foreign securities or Blue Sky laws, including the costs of printing and
mailing a preliminary and final "Blue Sky Memorandum" and the fees of
counsel in connection therewith and such counsel's disbursements in
relation thereto, (d) listing of the Shares for quotation on the Nasdaq
National Market System, (e) filing fees of the Securities and Exchange
<PAGE>
Digex, Incorporated
Page 2
Commission and the NASD, (f) the cost of printing certificates representing
the Shares, (g) the cost and charges of any transfer agent or registrar and
(h) all costs and expenses of the Underwriters payable by Digex and/or
Intermedia pursuant to the underwriting agreement for the Offering.
2. With respect to any joint or several indemnification or contribution
obligation of either Digex or Intermedia or any other losses, claims,
damages or liabilities of either Digex or Intermedia (collectively
"Damages") arising out of, or in any manner relating to or resulting from
-------
the Offering, Digex and Intermedia each hereby agrees to allocate and pay
such Damages in proportion to the number of shares of Class A Common Stock
to be sold by each of them in the Offering.
Please confirm your understanding and acceptance of the foregoing by
signing in the space provided below.
Very truly yours,
INTERMEDIA COMMUNICATIONS INC.
By: /s/ DAVID C. RUBERG
-------------------
Name: David C. Ruberg
Title: President and CEO
Agreed and Accepted
this 24/th/ day of January 2000
DIGEX, INCORPORATED
By: /s/ MARK K. SHULL
-----------------
Name: Mark K. Shull
Title: President and CEO
