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As filed with the Securities and Exchange Commission on June 17, 1999
Registration Statement No.333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Intermedia Communications Inc.
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(Exact name of issuer as specified in its charter)
Delaware 59-29-13586
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(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
3625 Queen Palm Drive, Tampa, Florida 33619
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(Address of Principal Executive Offices) (Zip Code)
Intermedia Communications Inc. 401(k) Plan
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(Full Title of Plan)
David C. Ruberg
Chairman of the Board, President
and Chief Executive Officer
Intermedia Communications Inc.
3625 Queen Palm Drive
Tampa, Florida 33619
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(Name and address of agent for service)
(813) 829-0011
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(Telephone number, including area code, of agent for service)
With a copy to:
Ralph J. Sutcliffe, Esq.
Kronish Lieb Weiner & Hellman LLP
1114 Avenue of the Americas
New York, NY 10036-7798
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of Amount
securities Amount Offering Aggregate of
to be to be price offering registration
registered registered(1) per share(2) price(2) fee
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par 650,000 $22.97 $14,930,500.00 $4,151.00
value(3)
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</TABLE>
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
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(2) Average of the bid and asked prices as reported on the Nasdaq National
Market on June 10, 1999, pursuant to Rule 457(h)(1).
(3) This Registration Statement also pertains to rights to purchase one
one-thousandth of a share of Series A Preferred Stock of the Registrant
("Rights"). Upon the occurrence of certain prescribed events, one Right
will be issued for each share of Common Stock. Until the occurrence of
such events, the Rights are not exercisable, will be evidenced by the
ownership of the Common Stock and will be transferred along with and
only with the Common Stock.
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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 Intermedia
Communications Inc. (the "Company" or "registrant") with the Securities and
Exchange Commission (the "SEC"), are incorporated by reference in this
Registration Statement as of their respective dates:
The Company's Annual Report on Form 10-K for the year ended December
31, 1998.
The Proxy Statement for the Annual Meeting of Stockholders of the
Company held on May 20, 1999.
The Company's Quarterly Report on Form 10-Q for the period ending March
31, 1999.
The description of the Company's capital stock contained in the
Company's Registration Statement on Form 8-A (File No. 0-20135) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), filed April 7,
1992, April 28, 1992 and April 30, 1992.
All documents subsequently filed by the Company 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 5. Interests of Named Experts and Counsel
Ralph J. Sutcliffe, a partner of Kronish Lieb Weiner & Hellman LLP and
counsel to the registrant, beneficially owns 11,490 shares of the Company's
common stock, $.01 par value per share (the "Common Stock"), and a warrant to
purchase 200,000 shares of Common Stock at an exercise price equal to $20.75 per
share.
Item 6. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation, as amended,
provides that the Company will to the fullest extent permitted by the General
Corporation Law of the State of Delaware (the "GCL"), as amended from time to
time, indemnify all persons whom it may indemnify pursuant thereto. The
Company's By-laws, as amended, contain a similar provision requiring
indemnification of the Company's directors and officers to the fullest extent
authorized by the GCL. The GCL permits a corporation to indemnify its directors
and officers (among others) against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with any action, suit or proceeding brought (or threatened
to be brought) by third parties, if such directors or officers acted in good
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faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation,
indemnification may be made for expenses (including attorneys' fees) actually
and reasonably incurred by directors and officers in connection with the defense
or settlement of such action if they had acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged liable
to the Company unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses. The GCL further provides that, to the extent any director or officer
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in this paragraph, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. In addition, the Company's Restated Certificate of Incorporation, as
amended, contains a provision limiting the personal liability of the Company's
directors for monetary damages for certain breaches of their fiduciary duty. The
Company has indemnification insurance under which directors and officers are
insured against certain liability that may occur in their capacity as such.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
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Item 8. Exhibits.
The Registrant has submitted the Intermedia Communications Inc. 401(k)
Plan (the "Plan") to the Internal Revenue Service ("IRS") and hereby
undertakes to submit any amendment thereto to the IRS in a timely
manner, and to make all changes required by the IRS to maintain
qualification of the Plan.
23.1 Consent of independent accountants
24.1 Power of Attorney (see signature page)
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Item 9. Undertakings.
A. Post-Effective Amendments
The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that subparagraphs (i) and (ii) above will not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed with or furnished to the
SEC by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. Subsequent Documents Incorporated by Reference
The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement will be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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C. Claims for Indemnification
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Tampa,
state of Florida, on this 15th day of June, 1999.
INTERMEDIA COMMUNICATIONS INC.
By: /s/ Robert M. Manning
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Robert M. Manning,
Chief Financial Officers
Secretary and Senior Vice
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
authorizes David C. Ruberg and Robert M. Manning, or either of them, as
attorney-in-fact to sign and file in each capacity stated below, all amendments
and post-effective amendments to this Registration Statement.
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Signature Title Date
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<S> <C> <C>
/s/ David C. Ruberg Chairman of the Board, June 15, 1999
- ------------------------------------------------ President and Chief
David C. Ruberg Executive Officer
Principal Financial and
Accounting Officers:
/s/ Robert M. Manning Chief Financial Officer,
- ------------------------------------------------ Secretary and Senior June 15, 1999
Robert M. Manning Vice President
/s/ Jeanne M. Walter Controller and Chief June 15, 1999
- ------------------------------------------------ Accounting Officer
Jeanne M. Walter
Other Directors:
/s/ John C. Baker Director June 15, 1999
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John C. Baker
/s/ George F. Knapp Director June 15, 1999
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George F. Knapp
/s/ Phillip A. Campbell Director June 15, 1999
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Phillip A. Campbell
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Pierce Jackson Roberts, Jr. Director June 15, 1999
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Pierce Jackson Roberts, Jr.
</TABLE>
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EXHIBIT INDEX
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Exhibit Page
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<S> <C> <C>
23.1 Consent of independent accountants
24.1 Power of Attorney (see signature page)
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Intermedia Communications Inc. 401K Plan of our
report dated February 17, 1999, with respect to the consolidated financial
statements and schedule of Intermedia Communications Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Tampa, Florida
June 11, 1999