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EXECUTION COPY
STOCKHOLDERS AGREEMENT dated as of September
1, 2000 (this "Agreement"), among WORLDCOM, INC., a
Georgia corporation ("Parent"), and the individuals
and other parties listed on Schedule A attached
hereto (each, a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS Parent, Wildcat Acquisition Corp., a Delaware
corporation and a direct wholly owned subsidiary of Parent ("Merger Sub"), and
Intermedia Communications Inc., a Delaware corporation ("Target"), propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement"; terms used but not
defined herein shall have the meanings set forth in the Merger Agreement)
providing for the merger of Merger Sub with and into Target upon the terms and
subject to the conditions set forth in the Merger Agreement (the "Merger");
WHEREAS each Stockholder owns the number of shares of Target
Common Stock or Target Series G Preferred Stock set forth opposite such
Stockholder's name on Schedule A hereto (such shares of Target Common Stock or
Target Series G Preferred Stock, together with any other shares of Target Common
Stock or Target Series G Preferred Stock acquired by such Stockholder before or
after the date hereof and during the term of this Agreement (including through
the exercise of any stock options, warrants or similar instruments), being
collectively referred to herein as the "Subject Shares"); and
WHEREAS as a condition to its willingness to enter into the
Merger Agreement, Parent has requested that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements set forth herein, the parties hereto
agree as follows:
SECTION 1. Representations and Warranties of Each Stockholder.
Each Stockholder hereby, severally and not jointly, represents and warrants to
Parent as follows:
(a) Organization; Authority; Execution and Delivery;
Enforceability. Such Stockholder has all requisite power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. To the extent that such
Stockholder is an entity other than an individual, such
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Stockholder is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. The execution and delivery of this
Agreement by such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Stockholder. This Agreement has been duly executed
and delivered by such Stockholder and, assuming due authorization, execution and
delivery by Parent, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
The execution and delivery by such Stockholder of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof, will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, or give rise to
a right of termination, cancelation or acceleration of any obligation or loss of
a benefit under, or result in the creation of any Lien on any properties or
assets of such Stockholder under, (i) any provision of any certificate of
incorporation or by-laws or partnership or limited liability company agreement
or the comparable organizational documents applicable to such Stockholder, (ii)
any loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license or similar
authorization (a "Contract") to which such Stockholder is a party or by which
any of the properties or assets of such Stockholder are bound or (iii) subject
to the filings and other matters referred to in the following sentence of this
Section 1(a), any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to such Stockholder or its properties or assets, except in
the case of each of clauses (ii) and (iii), as is not reasonably likely to (x)
impair the ability of such Stockholder to perform its obligations under this
Agreement or (y) prevent or materially delay the consummation of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, action by or in respect of, or registration, declaration or
filing with, any Governmental Entity is required by or with respect to such
Stockholder in connection with the execution and delivery of this Agreement by
such Stockholder or the consummation by such Stockholder of the transactions
contemplated hereby, except for such filings under the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated
hereby and except those which are not reasonably likely to (x) impair the
ability of such Stockholder to perform its obligations under this Agreement or
(y) prevent or materially delay the consummation of the transactions
contemplated by this Agreement. No trust of which such Stockholder is a trustee
requires the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated hereby, except
for such consents which have been obtained prior to the date hereof.
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(b) The Subject Shares. Such Stockholder is the record and
beneficial owner of (or is the trustee of a trust that is the record holder of,
and whose beneficiaries are the beneficial owners of), and has good and
marketable title to, the Subject Shares set forth opposite its name on Schedule
A hereto, free and clear of any Liens. Such Stockholder does not own of record
any shares of Target Common Stock or Target Series G Preferred Stock other than
the Subject Shares set forth opposite its name on Schedule A hereto, and does
not beneficially own any shares of capital stock of Target other than Subject
Shares. Such Stockholder has the sole right to vote and Transfer (as defined
below) the Subject Shares set forth opposite its name on Schedule A hereto, and
none of such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or the Transfer of such
Subject Shares, except as set forth in Section 3 and Section 4 of this
Agreement.
SECTION 2. Representations and Warranties of Parent. Parent
hereby represents and warrants to each Stockholder as follows: Parent has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Parent. This Agreement has been duly executed and delivered by Parent and,
assuming due authorization, execution and delivery by each Stockholder,
constitutes a legal, valid and binding obligation of Parent, enforceable against
Parent in accordance with its terms. The execution and delivery by Parent of
this Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the provisions hereof, will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of time
or both) under, or give rise to a right of termination, cancelation or
acceleration of any obligation or loss of a benefit under, or result in the
creation of any Lien on any properties or assets of Parent under, (i) any
provision of the Second Amended and Restated Articles of Incorporation or
by-laws of Parent, (ii) any Contract to which Parent is a party or by which any
of its properties or assets are bound or (iii) subject to the filings and other
matters referred to in the last sentence of this Section 2, any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Parent or any
of its properties or assets, except in the case of each of clauses (ii) and
(iii), as is not reasonably likely to (x) have a Material Adverse Effect on
Parent, (y) impair the ability of Parent to perform its obligations under this
Agreement or (z) prevent or materially delay the consummation of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, action by or in respect of, or registration, declaration or
filing with, any Governmental Entity is required
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by or with respect to Parent in connection with the execution and delivery of
this Agreement by Parent or the consummation by Parent of the transactions
contemplated hereby except for such filings under the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated
hereby and except those which are not reasonably likely to (x) have a Material
Adverse Effect on Parent, (y) impair the ability of Parent to perform its
obligations under this Agreement or (z) prevent or materially delay the
consummation of the transactions contemplated by this Agreement.
SECTION 3. Covenants of Each Stockholder. Each Stockholder,
severally and not jointly, covenants and agrees during the term of this
Agreement as follows:
(a) At any meeting of the stockholders of Target called to
vote upon the Merger or the Merger Agreement or at any adjournment thereof or in
any other circumstances upon which a vote, consent, adoption or other approval
(including by written consent solicitation) with respect to the Merger or the
Merger Agreement is sought, such Stockholder shall, including by executing a
written consent solicitation if requested by Parent, vote (or cause to be voted)
the Subject Shares in favor of the adoption by Target of the Merger Agreement
and the approval of the terms thereof and of the Merger and each of the other
transactions contemplated by the Merger Agreement. Such Stockholder hereby
agrees not to take any action by written consent in any circumstance other than
in accordance with this paragraph.
(b) At any meeting of the stockholders of Target or at any
adjournment thereof or in any other circumstances upon which a vote, consent,
adoption or other approval (including by written consent solicitation) is
sought, such Stockholder shall vote (or cause to be voted) all of the Subject
Shares of such Stockholder against, and shall not consent to (and shall cause
not to be consented to) any of the following (or any agreement to enter into,
effect, facilitate or support any of the following): (i) any Takeover Proposal
or transaction or occurrence which if proposed and offered to Target or its
stockholders (or any of them) would be a Takeover Proposal or (ii) any amendment
of Target's Restated Certificate of Incorporation or By-laws or other proposal,
action or transaction involving Target or any of its subsidiaries or any of its
stockholders, which amendment or other proposal, action or transaction would, or
could reasonably be expected to, prevent, impede, interfere with, hinder or
delay the consummation of the Merger or any of the other transactions
contemplated by the Merger Agreement or the consummation of the transactions
contemplated by this Agreement or to dilute in any material respect the benefits
to Parent of the Merger and the other transactions contemplated by the Merger
Agreement or the transactions contemplated by this Agreement, or change, other
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than pursuant to the Merger Agreement, in any manner the voting rights of Target
Common Stock, Target Series G Preferred Stock or any other voting securities of
Target (collectively, "Frustrating
Transactions").
(c) Other than in accordance with the terms of this Agreement,
such Stockholder shall not (i) sell, transfer, pledge, assign or otherwise
dispose of (including by gift) (collectively, "Transfer"), or consent to any
Transfer of, any Subject Shares or any interest therein or enter into any
contract, option or other arrangement (including any profit sharing or other
derivative arrangement) with respect to the Transfer of, any Subject Shares or
any interest therein to any person other than pursuant to the Merger Agreement
or (ii) enter into any voting arrangement, whether by proxy, voting agreement or
otherwise, in connection with, directly or indirectly, any Takeover Proposal or
otherwise with respect to the Subject Shares. Such Stockholder shall not commit
or agree to take any action inconsistent with the foregoing. Notwithstanding any
other provision of this Agreement, each Stockholder may Transfer all or a
portion of such Stockholder's Subject Shares to any other person if such person
expressly agrees in writing to be bound by all of the provisions of this
Agreement.
(d) From and after the date of this Agreement, such
Stockholder shall not, and shall not authorize or permit any of its Subsidiaries
or affiliates (other than Target in accordance with the Merger Agreement) or any
of its or their directors, officers, employees, investment bankers, financial
advisors, attorneys, accountants or other representatives to, directly or
indirectly, (i) solicit, initiate, encourage (including by way of furnishing
information), or take any other action designed to facilitate, any inquiries or
the making of any proposal that constitutes, a Takeover Proposal or a
Frustrating Transaction, (ii) enter into any agreement with respect to any
Takeover Proposal or Frustrating Transaction or (iii) participate in any
discussions or negotiations regarding a Takeover Proposal or a Frustrating
Transaction; provided that the foregoing shall not restrict actions taken by
Stockholders in their capacity as directors of Target in accordance with Section
4.3 of the Merger Agreement.
(e) Except in his capacity as a director of Target, such
Stockholder shall not issue any press release or make any other public
statement, and shall not authorize or permit any of its Subsidiaries or
affiliates (other than Target in accordance with the Merger Agreement) or any of
its or their directors, officers, employees, partners, investment bankers,
attorneys or other advisors or representatives to issue any press release or
make any other public statement, with respect to the Merger Agreement, this
Agreement, the Merger or any of the other transactions contemplated by the
Merger Agreement or this
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Agreement without the prior written consent of Parent, except as may be required
by applicable law, including any filings required under the Exchange Act.
(f) Such Stockholder hereby waives any rights of appraisal, or
right to dissent from the Merger, that such Stockholder may have.
SECTION 4. Grant of Irrevocable Proxy. Each Stockholder hereby
irrevocably grants throughout the term of this Agreement to, and appoints, John
T. Stupka and K. William Grothe, Jr. and any other individual who shall
hereafter be designated by Parent, and each of them, such Stockholder's proxy
and attorney-in-fact (with full power of substitution), for and in the name,
place and stead of such Stockholder, to vote, or cause to be voted, such
Stockholder's Subject Shares, or grant a consent or approval in respect of such
Subject Shares, at any meeting of stockholders of Target or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, in favor of the adoption by Target of the Merger Agreement
and the approval of the terms thereof and of the Merger and each of the other
transactions contemplated by the Merger Agreement. Each Stockholder shall not,
directly or indirectly, grant any proxies or powers of attorney with respect to
his, her or its Subject Shares to any person in connection with or directly
affecting the Merger other than as set forth in this Section 4.
SECTION 5. Further Assurances. Each Stockholder will, from
time to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Parent may
reasonably request for the purpose of effectuating the matters covered by this
Agreement. In addition, ICI Ventures LLC hereby waives, effective as of the
Effective Time, ICI Ventures LLC's rights under (i) Sections 3.I.m and 6 of the
Purchase Agreement dated January 11, 2000, between Target and ICI Ventures LLC
and (ii) Sections 7(ii), 7(iii)(C)-(E) and 8 of the Certificate of Designation
of Target's 7% Series G Junior Convertible Participating Preferred Stock.
SECTION 6. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Subject Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Subject Shares shall pass, whether by operation of
law or otherwise, including such Stockholder's heirs, guardians, administrators
or successors. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of
Target affecting Target Common Stock or Target Series G Preferred Stock, or the
acquisition of additional shares of Target Common Stock, Target Series G
Preferred Stock or other voting securities of Target by any
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Stockholder, the number of Subject Shares listed on Schedule A hereto beside the
name of such Stockholder shall be adjusted appropriately and this Agreement and
the obligations hereunder shall attach to any additional shares of Target Common
Stock, Target Series G Preferred Stock or other voting securities of Target
issued to or acquired by such Stockholder.
SECTION 7. Assignment. Except as permitted under Section 3(c),
neither this Agreement nor any of the rights, interests or obligations under
this Agreement shall be assigned, in whole or in part, by operation of law or
otherwise, by any of the parties hereto without the prior written consent of the
other parties hereto, except that Parent may assign, in its sole discretion, any
of or all its rights, interests and obligations under this Agreement to any
direct or indirect wholly owned subsidiary of Parent, but no such assignment
shall relieve Parent of its obligations under this Agreement. Any purported
assignment in violation of this Section 7 shall be void. Subject to the
preceding sentences of this Section 7, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties hereto and their
respective successors and assigns.
SECTION 8. Termination. This Agreement shall terminate upon
the earlier of (a) the Effective Time and (b) 10 Business Days after the
termination of the Merger Agreement in accordance with its terms. No such
termination of this Agreement shall relieve any party hereto from any liability
for any breach of this Agreement prior to termination.
SECTION 9. General Provisions. (a) Amendments. This
Agreement may not be amended except by an instrument in writing
signed by each of the parties hereto.
(b) Notices. All notices, requests, clauses, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (with confirmation) or sent by
overnight or same-day courier (providing proof of delivery) to Parent in
accordance with Section 8.02 of the Merger Agreement and to the Stockholders at
their respective addresses set forth on Schedule A hereto (or at such other
address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement
to Sections or Schedules, such reference shall be to a Section or Schedule to
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Wherever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation". The words "hereof", "herein" and
"hereunder" and words of similar
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import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. The term "or" is not
exclusive. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms. Any agreement or instrument
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement or instrument as from time to time amended,
modified or supplemented. References to a person are also to its permitted
successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties hereto and delivered to the other party. The
effectiveness of this Agreement shall be conditioned upon the execution and
delivery of the Merger Agreement by each of the parties thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter of this Agreement and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO ANY PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.
(g) No Recourse. Notwithstanding anything that may be
expressed or implied in this Agreement, Parent and Merger Sub covenant, agree
and acknowledge that no recourse under this Agreement shall be had against any
current or future director, officer, employee, general or limited partner,
member, affiliate or assignee of any Stockholder or any of the foregoing,
whether by the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any statue, regulation or other applicable law, it
being expressly agreed and acknowledged that no personal liability whatsoever
shall attach to, be imposed on or otherwise incurred by any current or future
officer, agent or employee of any Stockholder or any current or future member of
any Stockholder or any current or future director, officer, employee, partner,
member, affiliate or assignee of any of the foregoing, as such for any
obligation of a Stockholder under this Agreement for any claim based on, in
respect of or by reason of such obligations or their creation.
SECTION 10. Stockholder Capacity. No person executing
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this Agreement who is or becomes during the term hereof a director or officer of
Target makes any agreement or understanding herein in his or her capacity as
such director or officer. Each Stockholder signs solely in his or her capacity
as the record holder and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, such Stockholder's Subject Shares
and nothing herein shall limit or affect any actions taken by a Stockholder in
its capacity as an officer or director of Target, including under Section 4.3 of
the Merger Agreement.
SECTION 11. Enforcement. Each of the parties hereto agrees
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties hereto shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any Delaware state court or any Federal court located in the State of
Delaware, this being in addition to any other remedy to which they are entitled
at law or in equity. In addition, each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any Delaware state court or any
Federal court located in the State of Delaware in the event any dispute arises
out of or under or relates to this Agreement or any of the transactions
contemplated hereby, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(c) agrees that it will not bring any action, suit or proceeding arising out of
or under or relating to this Agreement or any of the transactions contemplated
hereby in any court other than any Delaware state court or any Federal court
located in the State of Delaware and (d) waives any right to trial by jury with
respect to any action, suit or proceeding arising out of or under or relating to
this Agreement or any of the transactions contemplated hereby in any Delaware
state court or any Federal court located in the State of Delaware, and hereby
further and unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
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IN WITNESS WHEREOF, Parent has caused this Agreement to be
signed by its officer thereunto duly authorized and each Stockholder has signed
this Agreement, all as of the date first written above.
WORLDCOM, INC.,
by /s/ BERNARD J. EBBERS
--------------------------------
Name: Bernard J. Ebbers
Title: Director, President &
Chief Executive Officer
STOCKHOLDERS:
ICI VENTURES LLC,
by /s/ JAMES H. GREENE, JR.
--------------------------------
Name: James H. Greene, Jr.
Title: Chief Executive Officer
/s/ DAVID C. RUBERG
--------------------------------
David C. Ruberg
/s/ JOHN C. BAKER
--------------------------------
John C. Baker
/s/ PHILIP A. CAMPBELL
--------------------------------
Philip A. Campbell
/s/ RALPH J. SUTCLIFFE
--------------------------------
Ralph J. Sutcliffe
/s/ JAMES H. GREENE, JR.
--------------------------------
James H. Greene, Jr.
/s/ ALEXANDER NAVAB, JR.
--------------------------------
Alexander Navab, Jr.
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SCHEDULE A
(As of April 20, 2000)
<TABLE>
<CAPTION>
Number of
Shares of
Number of Target
Name and Shares of Series G
Address of Target Preferred
Stockholder Common Stock(1) Stock
----------- --------------- -----
<S> <C> <C>
ICI Ventures LLC 2,172,561 200,000
c/o Kohlberg Kravis Roberts & Co.,
L.P.
9 West 57th Street
New York, NY 10019
David C. Ruberg 1,059,005
John C. Baker 82,228
George F. Knapp 57,508
Philip A. Campbell 28,000
Ralph J. Sutcliffe 213,461
James H. Greene, Jr. 2,000
Alexander Navab, Jr. 2,000
The seven previous individuals,
c/o Intermedia Communications Inc.
One Intermedia Way
Tampa, FL 33647
</TABLE>
--------
(1)From the 2000 proxy statement of Intermedia Communications Inc.
Includes shares subject to options or warrants exercisable within 20 days of
April 20, 2000 and to certain other vesting requirements.
