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Registration Statement No.333-_________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DIGEX, INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 59-3582217
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Digex Plaza
Beltsville, MD 20705
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(Address of principal executive offices)
Digex, Incorporated Long-Term Incentive Plan
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(Full title of the plan)
Mark K. Shull
President and Chief Executive Officer
Digex, Incorporated
One Digex Plaza
Beltsville, MD 20705
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(Name and address of agent for service)
(240)264-2000
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(Telephone number of agent for service)
With a copy to:
Ralph J. Sutcliffe, Esq.
Kronish Lieb Weiner & Hellman LLP
1114 Avenue of the Americas
New York, New York 10036-7798
(212) 479-6170
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Maximum Maximum Amount of
Securities to be Offering Aggregate Registration
to be Registered Price Per Offering Fee
Registered (1) Share(2) Price(2)
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<S> <C> <C> <C> <C>
Class A
Common 6,000,000 $ 56.13 $ 336,750,000 $ 88,902
Stock, par
value $.01 per share
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</TABLE>
(1) The securities to be registered in this Registration Statement represent
additional securities of the same class as other securities for which a
registration statement (File no. 333-84025) has been filed with the SEC on
July 29, 1999.
(2) Average of the high and low prices as reported on the Nasdaq National
Market on June 7, 2000, pursuant to Rule 457 (h) (1).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been filed by Digex, Incorporated
("Digex") with the Securities and Exchange Commission (the "SEC"), are
incorporated by reference in this Registration Statement as of their respective
dates:
(a) Annual Report on Form 10-K for the year ended December 31, 1999,
filed with the SEC on March 10, 2000.
(b) Form 10-Q for the three months ended March 31, 2000, filed with
the SEC on May 12, 2000.
(c) The description of Digex's Class A Common Stock which is contained
in Digex's Registration Statement on Form 8-A (File No. 000-26873)
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), filed with the SEC on July 29, 1999.
(d) The contents of the Registration Statement on Form S-8 (File No.
333-84025) of Digex, filed with the SEC on July 29, 1999 (the
"Initial S-8).
All documents subsequently filed by Digex with the SEC pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
Item 4. Description of Securities
N/A
Item 5. Interests of Named Experts and Counsel
Partners of Kronish Lieb Weiner & Hellman LLP, counsel to Digex,
beneficially own 20,450 shares of Class A Common Stock. In addition, Ralph J.
Sutcliffe, a partner of Kronish Lieb Weiner & Hellman LLP, beneficially owns
11,490 shares of common stock, par value $.01 per share, of Intermedia
Communications Inc. ("Intermedia"), a warrant to purchase 200,000 shares of
Intermedia common stock at an exercise price equal to $20.75 per share, and,
subject to vesting, options to purchase 22,000 shares of Intermedia
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common stock at an exercise price of $34.1875 per share. Intermedia indirectly
owns all of the issued and outstanding shares of Digex's Class B Common Stock
entitling Intermedia to control a majority of the voting power of Digex. Mr.
Sutcliffe is a director of Intermedia.
Item 6. Indemnification of Directors and Officers
Digex's Certificate of Incorporation provides that Digex shall, to the
fullest extent permitted by the Delaware General Corporation Law (the "DGCL"),
indemnify all persons whom it may indemnify pursuant thereto (i.e., directors
and officers) and shall advance expenses incurred in defending any proceeding
for which such right to indemnification is applicable, provided that, if the
DGCL so requires, the indemnitee provides Digex with an undertaking to repay all
amounts advanced if it is determined by a final judicial decision that such
person is not entitled to indemnification pursuant to this provision. Digex's
Certificate of Incorporation also contains a provision eliminating the personal
liability of Digex's directors for monetary damages for breach of any fiduciary
duty. By virtue of this provision, under the DGCL, a director of Digex will not
be personally liable for monetary damages for breach of his fiduciary duty as a
director, except for liability for (i) any breach of the director's duty of
loyalty to Digex or its stockholders, (ii) acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
dividends or stock purchases or redemptions that are unlawful under the DGCL,
and (iv) any transaction from which a director derives an improper personal
benefit. However, this provision of Digex's Certificate of Incorporation
pertains only to breaches of duty by directors as directors and not in any other
corporate capacity such as officers, and limits liability only for breaches of
fiduciary duties under the DGCL and not for violations of other laws, such as
the federal securities laws.
Our bylaws also provide that we must indemnify our directors, officers,
employees and agents, and that we must advance expenses, as incurred, to our
directors and officers in connection with a legal proceeding to the fullest
extent permitted by Delaware law, subject to certain very limited exceptions.
We have entered into indemnification agreements with each of our
directors and executive officers to give them additional contractual assurances
regarding the scope of the indemnification described above and to provide
additional procedural protections. Generally, pursuant to each indemnification
agreement, Digex will indemnify a director or officer who is or was a party to
any legal action by or against the indemnitee due to his or her position as a
Digex director or officer, known as the "Indemnitee," against the expenses,
judgments, fines and amounts paid in settlement that were actually and
reasonably incurred by the Indemnitee in connection
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with such legal action, provided that such Indemnitee acted in good faith and in
a manner not opposed to the best interests of Digex.
We also participate in Intermedia's directors' and officers' insurance
providing $50.0 million in indemnification coverage for our directors, officers
and certain employees for certain liabilities.
As a result of the inclusion of such provision, stockholders may be
unable to recover monetary damages against directors for actions taken by them
that constitute negligence or gross negligence or that are in violation of their
fiduciary duties, although it may be possible to obtain injunctive or other
equitable relief with respect to such actions. The inclusion of this provision
in Digex's Certificate of Incorporation may have the effect of reducing the
likelihood of derivative litigation against directors, and may discourage or
deter stockholders or management from bringing a lawsuit against directors for
breach of their duty of care, even though such an action, if successful, might
otherwise have benefited Digex and its stockholders.
There is no pending litigation or proceeding involving any of our
directors, officers or employees regarding which indemnification is sought, nor
are we aware of any threatened litigation that may result in claims for
indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling Digex
pursuant to the foregoing provisions, we have been informed that in the opinion
of the SEC such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
N/A
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
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<S> <C>
5.1 Opinion of Kronish Lieb Weiner & Hellman LLP, as to the legality
of the shares of Class A Common Stock covered by this registration
statement.
23.1 Consent of Kronish Lieb Weiner & Hellman LLP, included in Exhibit
5.1.
</TABLE>
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<TABLE>
<S> <C>
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney, included in signature page.
Item 9. Undertakings
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Incorporated by reference from our Initial S-8.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Digex
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Beltsville, State of Maryland, on this 12th day of
June, 2000.
Digex, Incorporated
By: /s/ Mark K. Shull
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Mark K. Shull,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
authorizes Mark K. Shull and Timothy M. Adams, or either of them, as
attorney-in-fact to sign and file in each capacity stated below, all amendments
and post-effective amendments to this Registration Statement.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
Principal Executive Officer:
/s/ Mark K. Shull Director, President, June 12, 2000
--------------------------- and Chief Executive Officer
Mark K. Shull
Principal Financial and
Accounting Officers:
/s/ Timothy M. Adams Chief Financial Officer June 12, 2000
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Timothy M. Adams
/s/ T. Scott Zimmerman Vice President & Controller June 12, 2000
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T. Scott Zimmerman
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<TABLE>
<S> <C> <C>
Other Directors:
/s/ David C. Ruberg Chairman of the Board June 12, 2000
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David C. Ruberg
/s/ John C. Baker Director June 12, 2000
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John C. Baker
/s/ Philip A. Campbell Director June 12, 2000
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Philip A. Campbell
Director June 12, 2000
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Richard A. Jalkut
/s/ George F. Knapp Director June 12, 2000
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George F. Knapp
/s/ Robert M. Manning Director June 12, 2000
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Robert M. Manning
Director June 12, 2000
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Jack E. Reich
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