Exhibit 4.5
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REGISTRATION RIGHTS AGREEMENT
Depositary Shares Representing a One-Hundredth Interest in a Share of
7% Series E Junior Convertible Preferred Stock
Dated as of October 30, 1997
by and among
INTERMEDIA COMMUNICATIONS INC.,
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
and
SALOMON BROTHERS INC
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This Registration Rights Agreement (this "Agreement") is made and
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entered into as of October 30, 1997 by and among Intermedia Communications Inc.,
a Delaware corporation (the "Company"), and Bear, ▇▇▇▇▇▇▇ & Co. Inc., and
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Salomon Brothers Inc (each an "Initial Purchaser" and together, the "Initial
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Purchasers"), each of whom have agreed to purchase Depositary Shares (the
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"Depositary Shares"), each representing a one-hundredth interest in a share of
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the Company's 7% Series E Junior Convertible Preferred Stock (the "Series E
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Preferred Stock") pursuant to the Purchase Agreement (as defined below).
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This Agreement is made pursuant to the Depositary Share Purchase
Agreement in respect to the Series E Preferred Stock, dated October 24, 1997
(the "Purchase Agreement"), by and among the Company and the Initial Purchasers.
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In order to induce the Initial Purchasers to purchase the Depositary Shares, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 8 of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended.
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Average Stock Price: The average of the high and low sales prices of the
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Common Stock (as defined herein) as reported by the Nasdaq National Market or
any national securities exchange upon which the Common Stock is then listed, for
each of the ten consecutive trading days immediately preceding the twentieth
calendar day preceding the Dividend Payment Date.
Business Day: Any day except a Saturday, Sunday or other day in the City
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of New York, on which banks are authorized to close.
Certificate of Designation: The Certificate of Designation pursuant to
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which the Depositary Shares, Series E Preferred Stock, and Common Stock are to
be issued, as such Certificate of Designation is amended or supplemented from
time to time in accordance with the terms thereof.
Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Common Dividend Filing Deadline: As defined in Section 4 hereof.
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Common Dividend Registration Statement: As defined in Section 4 hereof.
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Common Stock: The common stock of the Company to be issued upon
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conversion of the Series E Preferred Stock or to be issued as dividends in
respect of the Series E Preferred Stock.
Common Stock Dividends: Common Stock to be issued as dividends in
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respect of the Series E Preferred Stock.
Definitive Securities: As defined in the Deposit Agreement.
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Deposit Agreement: The Deposit Agreement dated the date hereof between
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the Company and Continental Stock Transfer & Trust Company.
Dividend Payment Date: As defined in the Certificate of Designation.
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Effectiveness Target Date: As defined in Section 5.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Global Certificate Holder: As defined in the Deposit Agreement.
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Holders: As defined in Section 2 hereof.
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Liquidated Damages: As defined in Section 5 hereof.
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Liquidation Preference: As defined in the Certificate of Designation.
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NASD: National Association of Securities Dealers, Inc.
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Offering Memorandum: The final offering memorandum, dated October 24,
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1997, relating to the Company, the Depositary Shares, and the Series E Preferred
Stock.
Person: An individual, partnership, corporation, trust, unincorporated
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organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: The Shelf Registration Statement and Common
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Dividend Registration Statement.
Shelf Registration Statement: As defined in Section 4 hereof.
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Shelf Filing Deadline: As defined in Section 4 hereof.
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Shelf Registration Statement: As defined in Section 4 hereof.
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Transfer Agent: The transfer agent with respect to the Depositary Shares
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and the Series E Preferred Stock.
Transfer Restricted Securities: Each Depositary Share, each share of
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Series E Preferred Stock, and each share of Common Stock until the earliest to
occur of (i) the date on which such Depositary Share, share of Series E
Preferred Stock, or share of Common Stock, as the case may be, is effectively
registered under the Act and disposed of in accordance with the Shelf
Registration Statement or Common Dividend Registration Statement, (ii) the date
on which such Depositary Share, share of Series E Preferred Stock, or share of
Common Stock, as the case may be, is distributed to the public pursuant to Rule
144 under the Act or may be distributed to the public pursuant to Rule 144(k)
under the Securities Act or (iii) in the case of Common Stock Dividends, the
date the Common Stock Dividends are issued by the Company pursuant to an
effective Common Stock Registration Statement.
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Company are sold to an underwriter for re-offering to
the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Transfer Restricted Securities are registered
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in such Person's name.
SECTION 3. [INTENTIONALLY OMITTED].
SECTION 4. REGISTRATION
(a) Shelf Registration. The Company shall:
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(x) cause to be filed on or prior to 60 days after the
consummation of the offering of Series E Preferred Stock (and the related
Depositary Shares) (the "Shelf Filing Deadline"), a shelf registration statement
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pursuant to Rule 415 under the Act (the "Shelf Registration Statement"),
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relating to resales of all Transfer Restricted Securities
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(except Common Stock Dividends) the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof, and
(y) use its reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 120 days after the
Shelf Filing Deadline.
The Company shall use its best efforts to keep the Shelf Registration
Statement discussed in this Section 4(a) continuously effective, supplemented
and amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Transfer
Restricted Securities by the Holders thereof entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period expiring on the earlier to occur of:
(i) the date when all Transfer Restricted Securities (except Common Stock
Dividends) have been sold; and (ii) 730 days from the date of the Closing Date,
provided, that the Company will have the option of suspending the effectiveness
of the Shelf Registration Statement for periods of up to an aggregate of 60 days
in any calendar year if the Board of Directors of the Company determines that
compliance with the disclosure obligations necessary to maintain the
effectiveness of the Shelf Registration Statement at such time could reasonably
be expected to have a material adverse effect on the Company or a pending
corporate transaction of the Company (a "Permitted Shelf Suspension").
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(b) Provision by Holders of Certain Information in Connection with
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the Shelf Registration Statement. No Holder of Transfer Restricted Securities
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may include any of its Transfer Restricted Securities in the Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefor, such information specified in item 507 of Regulation S-K under the Act
for use in connection with the Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein, including the information set forth in
the questionnaire included as Annex A to the Offering Memorandum. No Holder of
Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 5 hereof unless and until such Holder shall have provided all such
information required to be provided by such Holder for inclusion therein. Each
Holder as to which the Shelf Registration Statement is being effected agrees to
furnish promptly to the Company, for so long as the Shelf Registration Statement
is effective, all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
(c) Registration of Common Dividends. The Company shall:
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(x) cause to be filed on or prior to 60 days after the
consummation of the offering of Series E Preferred Stock (and the related
Depositary Shares) (the "Common Dividend Filing Deadline"), a registration
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statement (the "Common Dividend Registration Statement"), relating to the
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issuance of dividends on the Series E Preferred Stock to the extent that such
dividends are paid in Common Stock; and
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(y) use its reasonable best efforts to cause such Common
Stock Dividend Registration Statement to become effective on or prior to 120
days after the Common Dividend Filing Deadline.
The Company shall use its best efforts to keep the Common Dividend
Registration Statement discussed in this Section 4(c) continuously effective,
supplemented and amended as required by the provisions of Sections 6(b) and (c)
hereof to the extent necessary to ensure that it is available on each dividend
payment date of the Series E Preferred Stock and to ensure that it conforms with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period
expiring on the earlier to occur of: (i) the date when all Series E Preferred
Stock is no longer Transfer Restricted Securities; and (ii) 730 days from the
date of the Closing Date, provided, that the Company will have the option of
suspending the effectiveness of the Common Dividend Registration Statement for
periods of up to an aggregate of 60 days in any calendar year if the Board of
Directors of the Company determines that compliance with the disclosure
obligations necessary to maintain the effectiveness of the Shelf Registration
Statement at such time could reasonably be expected to have a material adverse
effect on the Company or a pending corporate transaction of the Company (a
"Permitted Dividend Suspension," and together with a Permitted Shelf Suspension,
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a "Permitted Suspension").
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If for any reason the Common Dividend Registration Statement is not
filed or is not declared effective (including by reason of any position,
determination, rule or regulation of the Commission or the Staff of the
Commission not permitting such Common Dividend Registration Statement), the
Company shall file the Common Dividend Registration Statement as a registration
statement to permit resales of the Common Stock issued as dividends on the
Series E Preferred Stock and to keep such registration statement effective for
the equivalent periods.
SECTION 5. LIQUIDATED DAMAGES
If (i) the Company fails to file the Shelf Registration Statement
with the Commission on or prior to the Shelf Filing Deadline, (ii) the Shelf
Registration Statement has not been declared effective by the Commission on or
prior to the 120th day after the Shelf Filing Deadline (the "Effectiveness
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Target Date"), whether or not the Company has breached any obligation to use its
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best efforts to cause the Shelf Registration Statement to be declared effective,
or (iii) the Shelf Registration Statement is declared effective but thereafter
ceases to be effective or usable in connection with resales of Transfer
Restricted Securities (except Common Stock Dividends) for any period of ten
consecutive days or for any 20 days in any 180-day period without being
succeeded within the time period provided for herein by a post effective
amendment to such Shelf Registration Statement that cures such failure and that
is itself declared effective within ten Business Days of the filing thereof,
provided, that such effectiveness was not suspended in connection with a
Permitted Suspension (a "Registration Default"), then commencing on the day
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following the date on which such Registration Default occurs, the Company agrees
to pay to each Holder of Transfer Restricted Securities affected by such
Registration Default, liquidated damages ("Liquidated Damages") at a rate of
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$0.25 per $2,500 Liquidation Preference of Series E Preferred Stock (or $.0025
per $25.00 Liquidation Preference of Depositary Shares) constituting Transfer
Restricted Securities held by such Holder until such Registration Default is
cured. All accrued Liquidated Damages will be paid in shares of Common Stock
valued at the Average Stock Price by the Company on each Dividend Payment Date.
All accrued Liquidated Damages shall be paid to the Global
Certificate Holder by wire transfer of immediately available funds or by federal
funds check and to Holders of Definitive Securities by mailing checks to their
registered addresses by the Company on each Interest Payment Date. All
obligations of the Company set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Shelf Registration Statement. In connection with the Shelf
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Registration Statement, the Company shall comply with all the provisions of
Section 6(b) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company will prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
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(b) General Provisions. In connection with the Registration
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Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities, the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective, subject to a Permitted Suspension, and provide all
requisite financial statements for the period specified in Section 4 of this
Agreement. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or emission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement (1) in the case of clause (A), correcting any such
misstatement or omission, and (2) in the case of either clause (A) or (B), use
its best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(ii) except in the event of a Permitted Suspension, prepare
and file with the Commission such amendments and post-effective amendments to
the Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section 4 hereof, or
such shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold, cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424
and 430A, as applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities covered
by such Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set forth
in such Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to the Registration Statement or any post-
effective amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act or of
the suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of
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any additions to or changes in the Shelf Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company shall use its
best efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) make available, if requested, to each selling Holder
named in the Registration Statement or Prospectus and each of the underwriters)
in connection with such sale, if any, before filing with the Commission, copies
of the Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial filing of
such Registration Statement), substantially in the form to be filed, which
documents will be subject to the review and comment of such Holders and
underwriters, in connection with such sale, if any, for a period of at least
five Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by reference)
to which the selling Holders of the Transfer Restricted Securities covered by
such Registration Statement or the underwriters, in connection with such sale,
if any, shall reasonably object within five Business Days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission or fails to comply with the applicable
requirements of the Act;
(v) promptly upon the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, make
available copies of such document to the selling Holders and to the underwriters
in connection with such sale, if any, make the Company's representatives
available for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the filing
thereof as such selling Holders or underwriters, if any, reasonably may request;
(vi) make available at reasonable times for inspection by
the selling Holders, any underwriter participating in any disposition pursuant
to such Registration Statement and any attorney or accountant retained by such
selling Holders or any of such underwriters, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in connection
with such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness; provided that
any person to whom information is provided under this clause (vi) agrees in
writing to maintain the confidentiality of such information to the extent such
information is not in the public domain;
(vii) if requested by any selling Holders or the underwriters
in connection with such sale, if any, promptly include in the Registration
Statement or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriters, if any,
may reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer Restricted
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Securities, information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriters, the purchase price being
paid therefor and any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
the Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Shelf Registration Statement to be rated with the appropriate rating agencies,
if so requested by the Holders of a majority in aggregate Liquidation Preference
of Series E Preferred Stock (and the related Depositary Shares) covered thereby,
or by the underwriters, if any;
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(ix) furnish to each selling Holder and each of the underwriters, if
any, in connection with such sale, if any, without charge, at least one copy of
the Registration Statement, as first filed with the Commission, and of each
amendment thereto, and make available all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the underwriters, if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use of the Prospectus
and any amendment or supplement thereto by each of the selling Holders and each
of the underwriters, if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(xi) enter into such agreements (including, unless not required
pursuant to Section 10 hereof, an underwriting agreement) and make such
representations and warranties and take all such other actions in connection
therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to the Registration Statement contemplated by
this Agreement as may be reasonably requested by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to the Registration Statement contemplated by this Agreement, and
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in such connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration, the Company
shall:
(A) furnish to each selling Holder and each underwriter, if any, upon
the effectiveness of the Registration Statement:
(1) a certificate, dated the date of effectiveness of the
Registration Statement signed by (x) the President or any Vice President
and (y) a principal financial or accounting officer of the Company,
confirming with respect to the Prospectus or any purchase or
underwriting agreement and the Transfer Restricted Securities, as of the
date thereof, the matters set forth in paragraphs (a), (b), (c) and (d)
of Section 8 of the Purchase Agreement and such other matters as the
Holders and/or underwriters may reasonably request;
(2) an opinion, dated the date of effectiveness of the
Registration Statement of counsel for the Company, covering (i) due
authorization and enforceability of the Depositary Shares, Series E
Preferred Stock, and Common Stock, (ii) a statement to the effect that
such counsel has participated in conferences with officers and other
representatives of the Company and representatives of the independent
public accountants for the Company and have considered the matters
required to be stated therein and the statements contained therein,
although such counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying as to materiality
to a large extent upon facts provided to such counsel by officers and
other representatives of the Company and without independent check or
verification), no facts came to such counsel's attention that caused
such counsel to believe that the Registration Statement, at the time
such Registration Statement or any post-effective amendment thereto
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of its date
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading
and (iii) such other matters of the type customarily covered in opinions
of counsel for an issuer in connection with similar securities
offerings, as may reasonably be requested by such parties. Without
limiting the foregoing, such counsel may state further that such counsel
assumes no responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements, notes
and schedules and other financial, statistical and accounting data
included in the Registration Statement contemplated by this Agreement or
the related Prospectus; and
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(3) if the registration is a registration in which
securities of the Company are sold to an underwriter for reoffering to
the public, obtain a customary comfort letter, dated as of the date of
effectiveness of the Registration Statement, addressed to the Board of
Directors of the Company or any underwriter from the Company's
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to boards of directors
in underwritten offerings;
(B) set forth in full or incorporated by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to the Registration Statement the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause (A)
above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company pursuant to this
clause (xi), if any.
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any time
the representations and warranties of the Company contemplated in (A)(1) above
cease to be true and correct, the Company shall so advise the underwriter(s), if
any, and selling Holders promptly and if requested by such Persons, shall
confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriters, if any,
and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriters), if any, may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Registration Statement;
provided, however, that the Company shall not be required to register or
qualify as a foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(xiii) [Intentionally Omitted];
(xiv) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the selling Holders and the underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Securities in such
denominations and such names as the Holders or the underwriters), if
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any, may request at least two Business Days prior to such sale of Transfer
Restricted Securities;
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (xii) above;
(xvi) if any fact or event contemplated by Section 6(b)(iii)(D)
above shall exist or have occurred, except in the event of a Permitted
Suspension prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Shelf Registration Statement covering
such Transfer Restricted Securities and provide the Transfer Agent or the
Trustee, as the case may be, with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is required
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to be retained in accordance with the rules and regulations of the NASD, and use
its best efforts to cause such Registration Statement to become effective and
approved by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders with regard to the Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the requirements of Rule
158 (which need not be audited) covering a twelve-month period beginning after
the effective date of the Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Act);
(xx) [Intentionally Omitted];
(xxi) [Intentionally Omitted];
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(xxii) cause all Transfer Restricted Securities covered by the
Shelf Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by the
Holders of a majority in aggregate Liquidation Preference of Series E Preferred
Stock (and the related Depositary Shares) or the managing underwriters, if any;
and
(xxiii) provide promptly to each Holder upon written request
each document filed with the Commission pursuant to the requirements of Section
13 or Section 15(d) of the Exchange Act.
(c) Restrictions on Holders. Each Holder agrees by acquisition of a
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Transfer Restricted Security that, upon receipt of any notice from the Company
of the existence of any fact of the kind described in Section 6(b)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 6(b)(xvi) hereof, or until it is advised in writing (the "Advice") by
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the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice,
the time period regarding the effectiveness of such Registration Statement set
forth in Section 4 hereof, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether the
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made with the NASD,
including, if applicable, the fees and expenses (excluding underwriting
discounts or commissions, of any "qualified independent underwriter" and its
counsel, as may be required by the rules and regulations of the NASD)); (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Depositary Shares, Series E Preferred Stock and Common Stock and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and, in accordance with
Section 7(b) below, the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Depositary Shares,
Series E Preferred Stock, or Common Stock on a national exchange or automated
quotation system if required hereunder; and (vi) all fees and
12
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with the Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities being registered pursuant to the Registration
Statement for the reasonable fees and disbursements of not more than one
counsel, or such other counsel as may be chosen by the Holders of a majority in
number of shares or principal amount, as the case may be, of the Transfer
Restricted Securities for whose benefit the Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder,
(ii) each person, if any, who controls a Holder within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act and (iii) the respective
officers, directors, partners, employees, representatives and agents of any
Holder or any controlling person to the fullest extent lawful, from and against
any and all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
investigation or 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 or are subject under the 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 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
will not be liable in any such case to the extent, but only to the extent, that
(i) 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 such Holder expressly
for use therein and (ii) the foregoing indemnity with respect to any untrue
statement contained in or omitted from a Registration Statement or the
Prospectus shall not inure to the benefit of any Holder (or any person
controlling such Holder), from whom the person asserting any such loss,
liability, claim, damage or expense purchased (or received upon conversion), any
of the Depositary Shares, Series E Preferred Stock or Common Stock which are the
subject thereof if it is finally judicially determined that such loss,
liability, claim, damage or expense resulted solely from the fact that the
13
Holder sold Depositary Shares, Series E Preferred Stock or Common Stock, to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Registration Statement and the
Prospectus, as amended or supplemented, and (x) the Company shall have
previously and timely furnished sufficient copies of the Registration Statement
or Prospectus, as so amended or supplemented, to such Holder in accordance with
this Agreement and (y) the Registration Statement or Prospectus, as so amended
or supplemented, would have corrected such untrue statement or omission of a
material fact. This indemnity agreement will be in addition to any liability
which the Company may otherwise have, including, under this Agreement.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
investigation or 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 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 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, in the light of the circumstances
under which they were made, 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 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 such Holder
expressly for use therein. This indemnity will be in addition to any liability
which a Holder may otherwise have, including under this Agreement. In no event,
however, shall the liability of any selling Holder thereunder be greater in
amount than the dollar amount of the proceeds received by such Holder upon its
sale of the Depositary Shares, Series E Preferred Stock, or Common Stock giving
rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) 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 8 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
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
14
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) or (b) above, shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for all indemnified
parties 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.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 8 is for any reason held to be
unavailable from the Company or is insufficient to hold harmless a party
indemnified thereunder, the Company and each Holder 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 Company, any contribution received by the Company from persons,
other than the Holders, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) to which the Company and any Holder may be
subject, in such proportion as is appropriate to reflect the relative benefits
received by the Company from the offering of the Series E Preferred Stock (and
the related Depositary Shares), and any such Holder from its sale of Depositary
Shares, Series E Preferred Stock, or Common Stock, 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 this Section 8,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Holders in
connection with the statements or emissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and any
Holder shall be deemed to be in the same proportion as (x) the total proceeds
from the offering (net of discounts but before deducting expenses) of the Series
E Preferred Stock (and the related Depositary Shares) received by the Company
and (y) the total proceeds received by such Holder upon its sale of Depositary
Shares, Series E Preferred Stock, or Common Stock which would otherwise give
rise to the indemnification obligation. The relative fault of the Company and of
the Holders shall be determined by reference to, among other things, whether the
untrue
15
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, (i) no Holder shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the total received by such Holder
with respect to the sale of its Depositary Shares, Series E Preferred Stock, or
Common Stock, as the case may be, exceeds the sum of (A) the amount paid by such
Holder for such Depositary Shares, Series E Preferred Stock, or Common Stock,
plus (B) the amount of any damages which such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section II (f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, (A) each person, if any, who
controls a Holder within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act and (B) the respective officers, directors, partners,
employees, representatives and agents of a Holder or any controlling person
shall have the same rights to contribution as such Holder, and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
the Company, subject in each case to clauses (i) and (ii) of this Section 8(d).
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
under this Section 8, notify such party or parties from whom contribution may be
sought, but the failure 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 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent; provided, however, that such written consent was not
unreasonably withheld.
16
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available, upon
request of any Holder of Transfer Restricted Securities, to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
The Holders of Transfer Restricted Securities may elect to sell
their Transfer Restricted Securities pursuant to one or more Underwritten
Registrations; provided, however, that in no event shall any Holder commence any
such Underwritten Registration if a period of less than 180 days has elapsed
since the consummation of the most recent Underwritten Registration hereunder;
and provided further, that in no event shall the Holders effect more than three
such Underwritten Registrations hereunder. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in customary
underwriting arrangements entered into in connection therewith and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
In any Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate Liquidation Preference or
aggregate principal amount of the Transfer Restricted Securities included in
such offering, provided, that such investment bankers and managers must be
reasonably satisfactory to the Company. Such investment bankers and managers
are referred to herein as the "underwriters."
------------
17
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
--------
all rights provided herein, in the Certificate of Designation, the Purchase
Agreement or granted by law, including recovery of liquidated or other damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages (including the Liquidated Damages
contemplated hereby) would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
--------------------------
date of this Agreement enter into any agreement with respect to its securities
that conflicts with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof, except where a waiver with respect
thereto has been obtained prior to the date of effectiveness of any registration
statement required under this Agreement.
18
(c) [Intentionally Omitted].
(d) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding Liquidation
Preference or principal amount of Transfer Restricted Securities.
(e) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(f) if to a Holder, at the address set forth on the records of the
Transfer Agent with a copy to the Transfer Agent; and
if to the Company:
Intermedia Communications Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
19
Kronish, Lieb, Weiner & ▇▇▇▇▇▇▇ LLP
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Transfer Agent at
the address specified in the Certificate of Designation.
(g) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities directly from such Holder.
20
(h) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement together with the other
----------------
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the
21
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understanding between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INTERMEDIA COMMUNICATIONS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
SALOMON BROTHERS INC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
22
