EXHIBIT 4.4
[FORM OF REGISTRATION RIGHTS AGREEMENT]
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REGISTRATION RIGHTS AGREEMENT
Depositary Shares Representing a One-Hundredth Interest in a Share of
7% Series D Junior Convertible Preferred Stock
Dated as of July 9, 1997
by and among
INTERMEDIA COMMUNICATIONS INC.,
BEAR, XXXXXXX & 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 July 9, 1997 by and among Intermedia Communications Inc., a
Delaware corporation (the "Company"), and Bear, Xxxxxxx & Co. Inc., and Salomon
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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
"Depositary Shares"), each representing a one-hundredth interest in a share of
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the Company's 7% Series D Junior Convertible Preferred Stock (the "Series D
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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 Purchase Agreement in respect
to the Series D Preferred Stock, dated July 2, 1997 (the "Purchase Agreement"),
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by and among the Company and the Initial Purchasers. 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 D Preferred Stock, and Common Stock issuable
upon conversion 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 Stock: The common stock of the Company to be issued upon conversion
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of the Series D Preferred Stock. For the avoidance of doubt, Common Stock does
not refer to common stock of the Company to be issued as dividends in respect of
the Series D Preferred Stock.
Damages Payment Date: Each Dividend Payment Date.
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Definitive Securities: As defined in the Deposit Agreement.
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Deposit Agreement: The Deposit Agreement dated the date hereof between the
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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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Exempt Resales: The transactions in which the Initial Purchasers propose to
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sell the Depositary Shares to certain "qualified institutional buyers," as such
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term is defined in Rule 144A under the Act, and to certain institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) and
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(7) of Regulation D under the Act.
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 July 2,
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1997, relating to the Company, the Depositary Shares, and the Series D Preferred
Stock.
Person: An individual, partnership, corporation, trust, unincorporated
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organization, or a government or agency or political subdivision thereof.
Preliminary Offering Memorandum: The preliminary offering memorandum, dated
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June 25, 1997, relating to the Company, the Depositary Shares, and the Series D
Preferred Stock.
Prospectus: The prospectus included in a Shelf Registration Statement at
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the time such Shelf 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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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 D Preferred Stock.
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Transfer Restricted Securities: Each Depositary Share, each share of Series
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D Preferred Stock, and each share of Common Stock issuable upon conversion of
the Series D Preferred Stock until the earliest to occur of (i) the date on
which such Depositary Share, share of Series D 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 (ii) the date
on which such Depositary Share, share of Series D 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.
Underwritten Registration or Underwritten Offering: A registration in which
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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 Person owns Transfer Restricted Securities.
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SECTION 3. [INTENTIONALLY OMITTED].
SECTION 4. SHELF 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 D Preferred Stock (and the related
Depositary Shares) (the "Shelf Filing Deadline"), a shelf registration
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statement pursuant to Rule 415 under the Act (the "Shelf Registration
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Statement"), relating to resales of all Transfer Restricted Securities the
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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 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 Suspension").
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(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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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 C 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.
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 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"),
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then commencing on the day 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 $0.25 per $2500 Liquidation Preference of
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Series D 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 Damages 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(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in
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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.
(b) General Provisions. In connection with the Shelf 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 Shelf 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 Shelf 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 Shelf 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 Shelf 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 Shelf Registration Statement as may be necessary to keep the Shelf
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 Shelf 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 Shelf Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Shelf 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 Shelf 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 Shelf
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 Shelf
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 Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of 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
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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 Shelf 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 to each selling Holder named in the Shelf
Registration Statement or Prospectus and each of the underwriters) in
connection with such sale, if any, before filing with the Commission,
copies of the Shelf Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Shelf Registration
Statement or Prospectus (including all documents incorporated by reference
after the initial filing of such Shelf Registration Statement), 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 Shelf
Registration Statement or Prospectus or any amendment or supplement to any
such Shelf Registration Statement or Prospectus (including all such
documents incorporated by reference) to which the selling Holders of the
Transfer Restricted Securities covered by such Shelf 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 Shelf 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 Shelf 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 Shelf 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 Shelf 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 Shelf
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,
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including, without limitation, information relating to the "Plan of
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Distribution" of the Transfer Restricted Securities, information with
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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 D Preferred Stock (and the related
Depositary Shares) covered thereby, or by the underwriters, if any;
(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 Shelf 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 Shelf 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 Shelf Registration Statement
contemplated by this Agreement, and 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 Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness of the Shelf
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;
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(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement of counsel for the Company, covering (i) due
authorization and enforceability of the Depositary Shares, Series D
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 Shelf Registration Statement, at the
time such Shelf 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 Shelf 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 Shelf Registration
Statement contemplated by this Agreement or the related Prospectus;
and
(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 Shelf 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
Shelf 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;
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(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 Shelf 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 Shelf 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 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 Shelf 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 Shelf
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
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required to be retained in accordance with the rules and regulations of the
NASD, and use its best efforts to cause such Shelf Registration Statement
to become effective and approved by such governmental agencies or
authorities as may be
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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 Shelf 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 Shelf
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xx) [Intentionally Omitted];
(xxi) [Intentionally Omitted];
(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
D 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.
(d) 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 Shelf 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 the Company that the use of the Prospectus may be resumed, and has
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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 Shelf 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 Shelf 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
Shelf 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
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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 D 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 D Preferred
Stock, or Common Stock on a national exchange or automated quotation system if
required hereunder; and (vi) all fees and 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 Shelf Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchaser and the Holders of
Transfer Restricted Securities being registered pursuant to the Shelf
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 Shelf 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 Shelf 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 Shelf 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 D Preferred Stock or Common Stock which are the
subject thereof if it is finally judicially determined
11
that such loss, liability, claim, damage or expense resulted solely from the
fact that the Holder sold Depositary Shares, Series D 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 Shelf Registration Statement
and the Prospectus, as amended or supplemented, and (x) the Company shall have
previously and timely furnished sufficient copies of the Shelf Registration
Statement or Prospectus, as so amended or Supplemented, to such Holder in
accordance with this Agreement and (y) the Shelf 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
Shelf 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 D 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 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
12
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 D Preferred Stock (and
the related Depositary Shares), and any such Holder from its sale of Depositary
Shares, Series D 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
D 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 D 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 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 D Preferred Stock, or
Common Stock, exceeds the sum of (A) the amount paid by such Holder for such
Depositary Shares, Series D 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
13
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.
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."
------------
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
14
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.
(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.
0000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Kronish, Lieb, Weiner & Xxxxxxx LLP
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
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.
15
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.
(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 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.
16
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
INTERMEDIA COMMUNICATIONS INC.
By: ____________________________________
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board, President and Chief
Executive Officer
BEAR, XXXXXXX & CO. INC.
By: BEAR, XXXXXXX & CO. INC.
_____________________________
Name:
Title:
SALOMON BROTHERS INC
By: SALOMON BROTHERS INC
_____________________________
Name:
Title:
17
