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Registration Statement No.333-
SECURITY AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Intermedia Communications Inc. and Digex Incorporated
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(Exact name of registrant as specified in its charter)
Delaware 59-2913586/59-3582217
- ------------------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3625 Queen Palm Drive, Tampa, Florida 33619
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(Address, including zip code, of principal executive offices)
Intermedia Communications Inc. 401(k) Plan
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(Full title of the plan)
David C. Ruberg
Chairman of the Board, President
And Chief Executive Officer
Intermedia Communications Inc.
3625 Queen Palm Drive
Tampa, FL 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)
Copies 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 to Maximum Maximum Amount of
Securities be Offering Aggregate Registration
to be Registered Price Per Offering Fee
Registered (1) Share(2) Price(2)
- ---------------------- ---------- --------- ------------ ------------
<S> <C> <C> <C> <C>
Digex Incorporated
Class A Common Stock,
par value $.01
per share 650,000 $72.34 $47,021,000 $12,413.55
</TABLE>
(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.
(2) Average of the high and low prices of Digex Incorporated Common Stock
reported on the Nasdaq National Market on April 4, 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 Intermedia
Communications, Inc. ("the Company") or Digex, Incorporated (the "subsidiary" or
"Digex") 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, 1999.
Digex's Annual Report on Form 10-K for the year ended December 31,
1999.
The description of the Digex's capital stock which is contained in the
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 July 29,
1999.
All documents subsequently filed by the Company or the Subsidiary 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 the Company
and the subsidiary, beneficially own 21,450 shares of the subsidiary's Class A
Common Stock. In addition, Ralph J. Sutcliffe, a partner of Kronish Lieb Weiner
& Hellman LLP, beneficially owns 11,490 shares of the Company's common stock,
par value $.01 per share, a warrant to purchase 200,000 shares of the Company's
common stock at an exercise price equal to $20.75 per share, and subject to
vesting, options to purchase 22,000 shares of the Company's common stock at an
exercise price of $34.1875 per share. The Company, through its wholly-owned
subsidiary Intermedia Financial Company, owns all of Digex's issued and
outstanding shares of Class B common stock entitling the Company to control a
majority of the voting power of the Company. Mr. Sutcliffe is a director of
the Company.
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Item 6. Indemnification of Directors and Officers
The Company's and the subsidiary's Certificates of Incorporation
provides that the Company and the subsidiary will to the fullest extent
permitted by the General Corporation Law of the State of Delaware (the "DGCL"),
as amended from time to time, indemnify all persons whom it may indemnify
pursuant thereto. The Company's and the subsidiary's By-laws, as amended,
contain a similar provision requiring indemnification of the Company's and
subsidiary's directors and officers to the fullest extent authorized by the
DGCL.
The DGCL permits a corporation to indemnify its directors and officers
(among others) against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by them in
connection with any action, suit or proceeding brought (or threatened to be
brought) by third parties, if such directors or officers acted in good faith and
in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation,
indemnification may be made for expenses (including attorneys' fees) actually
and reasonably incurred by directors and officers in connection with the defense
or settlement of such action if they had acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged liable
to the corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses. The DGCL further provides that, to the extent any
director or officer has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in this paragraph, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
In addition, the subsidiary's Certificate of Incorporation contains a
provision limiting the personal liability of the subsidiary's directors for
monetary damages for certain breaches of their fiduciary duty.
The Company and the subsidiary have indemnification insurance under
which directors and officers are insured against certain liability that may
occur in their capacity as such.
The subsidiary has entered into indemnification agreements with each of
its directors and executive officers to give them additional contractual
assurances regarding the scope of the indemnification described above and to
provide additional procedural protections. Generally, pursuant to each
indemnification agreement, the subsidiary will indemnify a
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director or officer who is or was a party to any legal action by or in the right
of the subsidiary or against the indemnitee due to his or her position as a
director or officer of the subsidiary, known as the "indemnitee," against the
expenses, judgments, fines and amounts paid in settlement that were actually and
reasonably incurred by the indemnitee in connection with such legal action,
provided that such indemnitee acted in good faith and in a manner not opposed to
the best interests of the subsidiary.
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 Company or subsidiary pursuant to the
foregoing provisions, or otherwise, the Company and the subsidiary have 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.
Item 7. Exemption from Registration Claimed
N/A
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Item 8. Exhibits
The Company has submitted the Intermedia Communications 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.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------- -------
<S> <C>
23.1 Consent of independent auditors
24.1 Power of Attorney (see signature page)
</TABLE>
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Item 9. Undertakings
A. Post-Effective Amendments
The Company and subsidiary 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 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.
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B. Subsequent Documents Incorporated by Reference
The Company and subsidiary 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.
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 Company and subsidiary pursuant to the foregoing provisions, or
otherwise, the Company and the subsidiary have been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
and/or subsidiary of expenses incurred or paid by a director, officer or
controlling person of the Company and/or subsidiary 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
Company and/or the subsidiary 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
Company 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 10th day of April, 1999.
Intermedia Communications Inc.
By: /s/ Robert M. Manning
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Robert M. Manning,
Senior Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below authorizes David C. Ruberg and Robert M. Manning, or either of them, as
attorney-in-fact to sign and file in each capacity stated below, all amendments
and post-effective amendments to this Registration Statement.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Principal Executive Officer:
/s/ David C. Ruberg Chairman of the Board April 10, 2000
- ---------------------------- President, and Chief
David C. Ruberg Executive Officer
Principal Financial and
Accounting Officers:
/s/ Robert M. Manning
- ---------------------------- Senior Vice President and April 10, 2000
Robert M. Manning Chief Financial Officer
/s/ Jeanne M. Walters Vice President, Controller April 10, 2000
- --------------------------- And Chief Accounting
Jeanne M. Walters Officer
Other Directors:
/s/ John C. Baker
- --------------------------- Director April 10, 2000
John C. Baker
/s/ Philip A. Campbell
- ---------------------------- Director April 10, 2000
Philip A. Campbell
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ George F. Knapp
- ---------------------------- Director April 10, 2000
George F. Knapp
/s/ James H. Green
- ---------------------------- Director April 10, 2000
James H. Green
/s/ Alex Navab
- --------------------------- Director April 10, 2000
Alex Navab
/s/ Ralph Sutcliffe
- --------------------------- Director April 10, 2000
Ralph Sutcliffe
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
subsidiary 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 10th day of April, 1999.
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 David C. Ruberg and Robert M. Manning, or either of them, as
attorney-in-fact to sign and file in each capacity stated below, all amendments
and post-effective amendments to this Registration Statement.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Principal Executive Officer:
/s/ Mark K. Shull
- ---------------------------- President and Chief April 10, 2000
Mark K. Shull Executive Officer
Principal Financial and
Accounting Officers:
/s/ Timothy M. Adams
- --------------------------- Chief Financial Officer April 10, 2000
Timothy M. Adams
/s/ T. Scott Zimmerman
- --------------------------- Vice President and April 10, 2000
T. Scott Zimmerman Controller
Other Directors:
/s/ David C. Ruberg
- --------------------------- Chairman of the Board April 10, 2000
David C. Ruberg
/s/ John C. Baker
- --------------------------- Director April 10, 2000
John C. Baker
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Philip A. Campbell
- --------------------------- Director April 10, 2000
Philip A. Campbell
/s/ George F. Knapp
- --------------------------- Director April 10, 2000
George F. Knapp
/s/ Robert M. Manning
- --------------------------- Director April 10, 2000
Robert M. Manning
/s/ Jack E. Reich
- --------------------------- Director April 10, 2000
Jack E. Reich
/s/ Richard A. Jalkut
- --------------------------- Director April 10, 2000
Richard A. Jalkut
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Exhibit Page
- ------ ------- ----
23.1 Consent of independent auditors
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. 401(k) Plan of our
report dated March 15, 2000, 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, 1999, filed with the
Securities and Exchange Commission.
We also consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Intermedia Communications Inc. 401(k) Plan of our
report dated March 7, 2000, with respect to the financial statements and
schedule of Digex, Incorporated included in its Annual Report (Form 10-K) for
the year ended December 31, 1999, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Tampa, Florida
April 6, 2000
