-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RAVZSrbb7pzQYvCZrW/eJ0/TXOi7ipuh3HOGJykTxq1E6gTMA3ifny23QJS44PVZ ENKM10F936Ny888BTCvBYw== 0000940180-97-000693.txt : 19970813 0000940180-97-000693.hdr.sgml : 19970813 ACCESSION NUMBER: 0000940180-97-000693 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19970811 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTERMEDIA COMMUNICATIONS OF FLORIDA INC CENTRAL INDEX KEY: 0000885067 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 592913586 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-32815 FILM NUMBER: 97656095 BUSINESS ADDRESS: STREET 1: 3625 QUEEN PALM DR STREET 2: STE 720 CITY: TAMPA STATE: FL ZIP: 33619 BUSINESS PHONE: 8138290011 S-4/A 1 AMENDMENT NO. 1 TO FORM S-4 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 1997 REGISTRATION NO. 333-32817 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- AMENDMENT NO. 1 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- INTERMEDIA COMMUNICATIONS INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ---------------- DELAWARE 4813 59-29-13586 (Primary Standard (I.R.S. Employer (State or other Industrial Identification No.) jurisdiction Classification of incorporation or Code Number) organization) 3625 QUEEN PALM DRIVE TAMPA, FLORIDA 33619 (813) 829-0011 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ---------------- DAVID C. RUBERG, CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER INTERMEDIA COMMUNICATIONS INC. 3625 QUEEN PALM DRIVE TAMPA, FLORIDA 33619 (813) 829-0011 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------- COPY TO: RALPH J. SUTCLIFFE, ESQ. KRONISH, LIEB, WEINER & HELLMAN LLP 1114 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10036-7798 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as practicable after the effective date of this Registration Statement. If any of the securities being registered on this form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [_] ---------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
PROPOSED MAXIMUM MAXIMUM AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE PROPOSED OFFERING REGISTRATION TO BE REGISTERED REGISTERED PER UNIT(1) PRICE FEE - ------------------------------------------------------------------------------ 11 1/4% Series B Senior Discount Notes due 2007.............. $649,000,000 58.145% $377,361,164 $114,352*
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (1) Calculated pursuant to Rule 457(f)(2) based upon the book value on July 31, 1997 of the securities to be received by the registrant in the exchange. * Previously paid. ---------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE OR DATES AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company's Restated Certificate of Incorporation, as amended, provides that the Company shall to the fullest extent permitted by the General Corporation Law of the State of Delaware (the "GCL"), as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto. The Company's Bylaws contain a similar provision requiring indemnification of the Company's directors and officers to the fullest extent authorized by the GCL. The GCL permits a corporation to indemnify its directors and officers (among others) against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by them in connection with any action, suit or proceeding brought (or threatened to be brought) by third parties, if such directors or officers acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. In a derivative action, i.e., one by or in the right of the corporation, indemnification may be made for expenses (including attorneys' fees) actually and reasonably incurred by directors and officers in connection with the defense or settlement of such action if they had acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged liable unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses. The GCL further provides that, to the extent any director or officer has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in this paragraph, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. In addition, the Company's Restated Certificate of Incorporation, as amended, contains a provision limiting the personal liability of the Company's directors for monetary damages for certain breaches of their fiduciary duty. The Company has indemnification insurance under which directors and officers are insured against certain liability that may occur in their capacity as such. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable. II-1 ITEM 21. EXHIBITS. (A) EXHIBITS 1.1* --Purchase Agreement, dated as of July 3, 1997, among the Company and the Initial Purchasers. 2.1 --Agreement and Plan of Merger, dated as of June 4, 1997, among the Company, Daylight Acquisition Corp. and DIGEX. Exhibit 99(c)(1) to the Company's Schedule 14D-1 filed with the Commission on June 11, 1997 is incorporated herein by reference. 2.2* --Asset Acquisition Agreement, dated as of June 24, 1997, among the Company, Telco Communications Group, Inc., Telco Network Service, Inc. and Telco Switch Acquisition, Inc. 4.1 --Indenture, dated as of June 2, 1995, between the Company and SunBank National Association, as trustee. Exhibit 4.1 to the Company's Registration Statement on Form S-4 filed with the Commission on June 20, 1995 (No. 33-93622) is incorporated herein by reference. 4.1(a) --Amended and Restated Indenture, dated as of April 26, 1996, governing the Company's 13% Series B Senior Notes due 2005, between the Company and SunTrust Bank, Central Florida, National Association, as trustee. Exhibit 4.1 to the Company's Current Report on Form 8-K filed with the Commission on April 29, 1996 is incorporated herein by reference. 4.2 --Indenture, dated as of May 14, 1996, between the Company and SunTrust Bank, Central Florida, National Association, as trustee. Exhibit 4.1 to Amendment No. 1 to the Company's Registration Statement on Form S-3 (Commission File No. 33-34738) filed with the Commission on April 18, 1996 is incorporated herein by reference. 4.3 --Indenture, dated as of July 9, 1997, between the Company and SunTrust Bank, Central Florida, National Association, as trustee. Exhibit 4.1 to the Company's Current Report on Form 8-K filed with the Commission on July 17, 1997 is incorporated herein by reference. 4.4* --Registration Rights Agreement, dated as of July 9, 1997, among the Company and the Initial Purchasers. 5.1** --Opinion of Kronish, Lieb, Weiner & Hellman LLP. 8.1 --Opinion of Kronish, Lieb, Weiner & Hellman LLP re: tax matters, is contained in their opinion filed as Exhibit 5.1 to this Registration Statement. 12.1* --Statement Re: Computation of Ratios. 23.1 --Consent of Kronish, Lieb, Weiner & Hellman LLP is contained in their opinion filed as Exhibit 5.1 to this Registration Statement. 23.2* --Consent of Ernst & Young LLP to incorporation by reference of its report with respect to the consolidated financial statements of the Company. 23.3* --Consent of Ernst & Young LLP to incorporation by reference of its report with respect to the financial statements of DIGEX. 24.1* --Power of Attorney is set forth on the signature page of this Registration Statement. 25.1* --Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 on Form T-1. 99.1* --Form of Letter of Transmittal.
- -------- *Filed with the Registration Statement on Form S-4 on August 4, 1997. **Filed herewith. (B) FINANCIAL STATEMENT SCHEDULES Financial Data Schedules are not required to be filed since all financial statements have been previously included in filings with the Commission. II-2 ITEM 22. UNDERTAKINGS. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the Prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (4) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (5) For purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (6) To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. II-3 (7) To file an application for the purpose of determining eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act." II-4 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF TAMPA, STATE OF FLORIDA, ON THIS 8TH DAY OF AUGUST, 1997. INTERMEDIA COMMUNICATIONS INC. /s/ Robert M. Manning By___________________________________ ROBERT M. MANNING, CHIEF FINANCIAL OFFICER SECRETARY AND SENIOR VICE PRESIDENT PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED. SIGNATURES TITLE Date Chairman of the * Board, President August 8, 1997 _____________________________________ and Chief DAVID C. RUBERG Executive Officer Principal Financial and Accounting Officers: /s/ Robert M. Manning Chief Financial _____________________________________ Officer, August 8, 1997 ROBERT M. MANNING Secretary and Senior Vice President Controller and * Chief Accounting August 8, 1997 _____________________________________ Officer JEANNE M. WALTERS Other Directors: * Director August 8, 1997 _____________________________________ JOHN C. BAKER * Director August 8, 1997 _____________________________________ GEORGE F. KNAPP * Director August 8, 1997 _____________________________________ PHILIP A. CAMPBELL *By /s/ Robert M. Manning ------------------------------ ROBERT M. MANNING AS ATTORNEY-IN-FACT II-5 EXHIBIT INDEX
NUMBER EXHIBIT PAGE ------ ------- ---- 1.1* --Purchase Agreement, dated as of July 3, 1997, among the Company and the Initial Purchasers. 2.1 --Agreement and Plan of Merger, dated as of June 4, 1997, among the Company, Daylight Acquisition Corp. and DIGEX. Exhibit 99(c)(1) to the Company's Schedule 14D-1 filed with the Commission on June 11, 1997 is incorporated herein by reference. 2.2* --Asset Acquisition Agreement, dated as of June 24, 1997, among the Company, Telco Communications Group, Inc., Telco Network Service, Inc. and Telco Switch Acquisition, Inc. 4.1 --Indenture, dated as of June 2, 1995, between the Company and SunBank National Association, as trustee. Exhibit 4.1 to the Company's Registration Statement on Form S-4 filed with the Commission on June 20, 1995 (No. 33-93622) is incorporated herein by reference. 4.1a --Amended and Restated Indenture, dated as of April 26, 1996, governing the Company's 13% Series B Senior Notes due 2005, between the Company and SunTrust Bank, Central Florida, National Association, as trustee. Exhibit 4.1 to the Company's Current Report on Form 8-K filed with the Commission on April 29, 1996 is incorporated herein by reference. 4.2 --Indenture, dated as of May 14, 1996, between the Company and SunTrust Bank, Central Florida, National Association, as trustee. Exhibit 4.1 to Amendment No. 1 to the Company's Registration Statement on Form S-3 (Commission File No. 33- 34738) filed with the Commission on April 18, 1996 is incorporated herein by reference. 4.3 --Indenture, dated as of July 9, 1997, between the Company and SunTrust Bank, Central Florida, National Association, as trustee. Exhibit 4.1 to the Company's Current Report on Form 8- K filed with the Commission on July 17, 1997 is incorporated herein by reference. 4.4* --Registration Rights Agreement, dated as of July 9, 1997, among the Company and the Initial Purchasers. 5.1** --Opinion of Kronish, Lieb, Weiner & Hellman LLP. 8.1 --Opinion of Kronish, Lieb, Weiner & Hellman LLP re: tax matters is contained in their opinion filed as Exhibit 5.1 to this Registration Statement. 12.1* --Statement Re: Computation of Ratios. 23.1 --Consent of Kronish, Lieb, Weiner & Hellman LLP is contained in their opinion filed as Exhibit 5.1 to this Registration Statement. 23.2* --Consent of Ernst & Young LLP to incorporation by reference of its report with respect to the consolidated financial statements of the Company. 23.3* --Consent of Ernst & Young LLP to incorporation by reference of its report with respect to the financial statements of DIGEX. 24.1* --Power of Attorney is set forth on the signature page of this Registration Statement. 25.1* --Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 on Form T-1. 99.1* --Form of Letter of Transmittal.
- -------- * Filed with the Registration Statement on Form S-4 on August 4, 1997. ** Filed herewith. EX-5.1 2 OPINION OF KRONISH, LIEB, WEINER & HELLMAN LLP Exhibit 5.1 [Kronish, Lieb, Weiner & Hellman LLP Letterhead] August 8, 1997 Intermedia Communications Inc. 3625 Queen Palm Drive Tampa, Florida 33619 Ladies and Gentlemen: We have acted as counsel to Intermedia Communications Inc., a Delaware corporation (the "Company"), in connection with its Registration Statement on Form S-4 (the "Registration Statement"), filed pursuant to the Securities Act of 1933, as amended (the "Securities Act"), relating to the Company's proposed offer to exchange (the "Exchange Offer") 11 1/4% Series B Senior Discount Notes due 2007 of the Company (the "New Notes") for any and all outstanding 11 1/4% Senior Discount Notes due 2007 of the Company (the "Old Notes"). The Old Notes were issued and sold on July 9, 1997 pursuant to an indenture (the "Indenture") between the Company and SunTrust Bank, Central Florida, National Association, as trustee, in a transaction exempt from registration under the Securities Act in reliance upon Rule 144A and Section 4(2) of the Securities Act. The New Notes will also be issued pursuant to the Indenture. In that connection, we have reviewed the Indenture, the Registration Statement and such other documents and instruments as we have deemed appropriate. In such review, we have assumed the genuineness of all signatures, the authenticity of all documents submitted as originals and the conformity to the original documents of all documents submitted to us as copies. On the basis of such review, and having regard to such legal consideration as we have deemed relevant, it is our opinion that: 1. The New Notes have been duly and validly authorized for issuance by the Company and, when issued in accordance with the terms of the Exchange Offer and the Indenture, will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except that we express no opinion as to the validity or enforceability of rights of indemnity or contribution, or both, and except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. 2. The statements under the caption "Certain Federal Income Tax Considerations" in the preliminary prospectus relating to the New Notes included in the Registration Statement, insofar as such statements constitute summaries of federal income tax law, fairly summarize the matters referred to therein. We are members of the Bar of the State of New York and do not purport to be experts or give any opinion except as to matters involving the laws of such State, the general corporation laws of the State of Delaware and the federal laws of the Untied States. We hereby consent to the use of our name under the caption "Legal Matters" in the prospectus included in the Registration Statement and to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ KRONISH, LIEB, WEINER & HELLMAN LLP --------------------------------------- Kronish, Lieb, Weiner & Hellman LLP 2 -----END PRIVACY-ENHANCED MESSAGE-----