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Exhibit 4.3
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WARRANT AGREEMENT
Dated as of February 17, 2000
between
INTERMEDIA COMMUNICATIONS INC.
and
ICI VENTURES LLC
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WARRANT AGREEMENT dated as of February 17, 2000 between INTERMEDIA
COMMUNICATIONS INC., a Delaware corporation (the "Company"), and ICI VENTURES
LLC (the "Initial Holder").
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Grant. The Company hereby grants to the Initial Holder warrants
("Warrants") which shall entitle the registered holder thereof to purchase from
the Company, at any time or from time to time hereafter until 5:00 P.M., New
York time, on February 17, 2004 (the "Expiration Date"), up to 1,000,000 shares
(the "Warrant Shares") of Common Stock, par value $.01 per share, of the Company
("Common Stock"), subject to adjustment as provided in Section 6, at the
exercise price of $40.00 per share, subject to adjustment as provided in Section
6 (the "Exercise Price"), all subject to the terms and upon the conditions set
forth herein. Each Warrant not exercised or deemed exercised on or prior to the
Expiration Date shall become invalid and all rights thereunder, and all rights
in respect thereof under this Agreement, shall cease as of that time.
2. Warrant Certificates. The Warrants shall be evidenced by certificates
issued pursuant to this Agreement (the "Warrant Certificates") in the form set
forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions, and other variations as are required or permitted by this
Agreement.
3. Exercise of Warrant.
(a) General. Subject to the provisions of this Agreement, upon surrender
to the Company at its principal office of a Warrant Certificate with the annexed
Form of Election to Purchase duly executed, together with payment in accordance
with Section 3(b) of the Exercise Price then in effect, the Company shall issue
and deliver promptly to the registered holder of such Warrant Certificate, a
certificate or certificates for the Warrant Shares or other securities or
property to which the registered holder is entitled, registered in the name of
such registered holder or, upon the written order of such registered holder, in
such name or names as such registered holder may designate. Any certificate or
certificates representing Warrant Shares shall be deemed to have been issued and
any person so designated to be named therein shall be deemed to have become the
holder of record of the Warrant Shares as of the date of the surrender of such
Warrant Certificate (together with such duly executed Form of Election to
Purchase) and payment of the Exercise Price.
(b) Payment. Payment of the Exercise Price shall be made, at the option of
the registered holder of the Warrants, (i) in cash, (ii) by wire transfer
payable to the order of the Company, or (iii) on a net basis, such that without
the exchange of any funds, such holder receives that number of Warrant Shares
that would otherwise be issuable upon a cash exercise of such Warrants less that
number of Warrant Shares having a current market price equal to the
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aggregate Exercise Price that would otherwise have been paid by such holder for
the number of Warrant Shares with respect to which such Warrant is being
exercised.
For the purpose of any computation under this paragraph 3(b), the current
market price per share of Common Stock on any day shall be deemed to be the
average of the Closing Prices of the Common Stock for the 10 consecutive trading
days ending on the day before the day the Warrant Certificate (together with a
duly executed Form of Election to Purchase) is delivered to the Company. The
term "Closing Price" shall mean, for each trading day, the last reported sale
price regular way on the Nasdaq National Market or, if the Common Stock is not
quoted on the Nasdaq National Market but is listed on a national securities
exchange, the last reported sale price on the principal national securities
exchange on which the Common Stock is then listed or admitted for trading or, if
the Common Stock is neither listed on a national securities exchange nor quoted
on the Nasdaq National Market, the average of the closing bid and asked prices
in the over-the-counter market as furnished by any New York Stock Exchange
member firm selected from time to time by the Company for that purpose. If for
any reason the current market price per share cannot be determined pursuant to
the foregoing provisions of this paragraph, the current market price per share
shall be the fair market value thereof as determined in good faith by the Board
of Directors of the Company (the "Board").
(c) Exercise in Whole or in Part. The purchase rights evidenced by a
Warrant Certificate shall be exercisable, at the election of the registered
holder thereof, in whole or in part, but only for lots of 100 Warrant Shares or
integral multiples thereof if less than all the Warrants then held by such
registered holder are being exercised. If less than all of the Warrant Shares
purchasable under any Warrant Certificate are purchased, the Company shall
cancel such Warrant Certificate upon the surrender thereof and shall execute and
deliver a new Warrant Certificate of like tenor for the remaining number of
Warrant Shares purchasable thereunder.
(d) Fractional Shares. No fractional shares of Common Stock shall be
issued upon exercise of any Warrants. Instead the Company shall round the
results of an exercise up to the nearest full share of Common Stock.
(e) Reservation of Shares. The Company will at all times reserve and keep
available out of its authorized Common Stock solely for the purpose of issuance
upon exercise of the Warrants as herein provided, such number of shares of
Common Stock as shall from time to time be issuable upon the exercise of all
outstanding Warrants. All shares of Common Stock that may be issued upon
exercise of the Warrants will, upon issuance, be validly issued, fully paid and
nonassessable and not subject to preemptive rights of any stockholder.
4. Restrictions on Transfer.
(a) Warrant Register. The Company shall maintain at its principal office a
Warrant Register for registration of Warrant Certificates and transfers thereof.
The Company shall initially register the outstanding Warrants in the name of the
Initial Holder. The Company
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may deem and treat the registered holder(s) of the Warrant Certificates as the
absolute owner(s) thereof and of the Warrants represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificates made by any person) for the purpose of any exercise thereof or any
distribution to the holder(s) thereof, and for all other purposes, and the
Company shall not be affected by any notice to the contrary. For the purpose of
this Agreement, all references to a holder herein shall refer to a registered
holder of Warrants.
(b) Warrants and Warrant Shares Not Registered. Each registered holder of
the Warrants, by acceptance thereof, represents and acknowledges that the
Warrants and the Warrant Shares which may be purchased upon exercise of a
Warrant are not registered under the Securities Act of 1933, as amended (the
"Securities Act"), that the issuance of the Warrants and the offering and sale
of such Warrant Shares are being made in reliance on the exemption from
registration under Section 4(2) of the Securities Act as not involving any
public offering and that the Company's reliance on such exemption is predicated
in part on the representations made by the Initial Holder of the Warrants to and
with the Company that such holder (1) is acquiring the Warrants for investment
for its own account, with no present intention of reselling or otherwise
distributing the same, (2) is an "accredited investor" as defined in Regulation
D under the Securities Act, and (3) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the investments made or to be made in connection with the acquisition
and exercise of the Warrants. Neither the Warrants nor the related Warrant
Shares may be transferred except (i) pursuant to an effective registration
statement under the Securities Act, (ii) pursuant to Rule 144 under the
Securities Act if the transferor delivers a certificate, in form and substance
reasonably satisfactory to the Company, that such transfer complies with the
requirements of Rule 144, or (iii) pursuant to any other available exemption
from registration if such transferee makes the representations set forth in the
preceding sentence in writing to the Company and, in the case of clause (iii),
with the delivery to the Company of an opinion of counsel reasonably
satisfactory to the Company by counsel reasonably satisfactory to the Company
(and the Company hereby acknowledges and agrees that Xxxxxxx Xxxxxxx & Xxxxxxxx
is reasonably satisfactory to the Company), stating that no registration is
required under the Securities Act.
(c) Notice and Registration of Transfer. Each registered holder of the
Warrants, by acceptance thereof, agrees that prior to any disposition by such
holder of the Warrants or of any Warrant Shares, such holder will give written
notice to the Company expressing such holder's intention to effect such
disposition and describing briefly such holder's intention as to the manner in
which the Warrants or the Warrant Shares theretofore issued or thereafter
issuable upon exercise hereof, are to be disposed of together with the opinion
described in paragraph 4(b) above, if required, whereupon, but only if such
transfer is permitted pursuant to paragraph 4(b) above, such transferring holder
shall be entitled to dispose of the Warrants and/or the Warrant Shares
theretofore issued upon the exercise thereof, all in accordance with the terms
of the notice delivered by such holder to the Company. In the event of such
transfer, the Company shall register the transfer of any outstanding Warrants in
the Warrant Register upon surrender of the Warrant Certificate(s) evidencing
such Warrants to the Company at its principal
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office, accompanied by a written instrument of transfer in form reasonably
satisfactory to it, duly executed by the registered holder thereof. Upon any
such registration or transfer, new Warrant Certificate(s) evidencing such
transferred Warrants shall be issued to the transferee(s) and the surrendered
Warrant Certificate(s) shall be canceled.
5. Special Agreements of the Company. The Company covenants and agrees as
follows:
(a) Listing on Securities Exchanges. If the Common Stock is listed on a
stock exchange or quoted on the Nasdaq National Market, the Company will use its
reasonable best efforts to procure at its sole expense the listing of all
Warrant Shares (subject to issuance or notice of issuance) on all stock
exchanges on which the Common Stock is then listed, or the quotation of the
Warrant Shares on the Nasdaq National Market, as the case may be, and maintain
the listing or quotation of such shares and other securities after issuance.
(b) Actions in Avoidance; Non-Dilution. The Company will not, by amendment
of its Restated Certificate of Incorporation, as amended, or through any
reorganization, transfer of assets, consolidation, merger, issue or sale of
securities or otherwise, avoid or take any action which would have the effect of
avoiding the observance or performance of any of the terms to be observed or
performed hereunder by the Company but will at all times in good faith assist in
carrying out all of the provisions of the Warrants and in taking all of such
action as may be necessary or appropriate in order to protect the rights of the
registered holders of the Warrants against impairment.
If any shares of Common Stock required to be reserved for purposes of
exercise of Warrants would require, under any federal or state law (other than
the Securities Act or any state "blue sky" statutes), registration with or
approval of any governmental authority, before such shares may be issued upon
exercise, the Company will cause such shares to be duly registered or approved
by such governmental authority, at its expense.
6. Adjustment of Exercise Price and Number of Warrant Shares Issuable.
The number and kind of shares purchasable upon the exercise of Warrants and the
Exercise Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall pay or make a dividend or other distribution
on any class of capital stock of the Company in Common Stock other than the
payment of regularly scheduled dividends on any series of preferred stock, the
Exercise Price in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such Exercise
Price by a fraction the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator of which shall be the sum of such number of
shares and the total number shares constituting such dividend or other
distribution, such reduction to become effective immediately after the opening
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of business on the day following the date fixed for such determination of the
holders entitled to such dividends and distributions. For the purposes of this
paragraph 6(a), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.
(b) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock entitling them to subscribe for, purchase or acquire
shares of Common Stock at a price per share less than the current market price
per share (determined as provided in paragraph 6(h) below) of the Common Stock
on the date fixed for the determination of stockholders entitled to receive such
rights, options or warrants, the Exercise Price in effect at the opening of
business on the day following the date fixed for such determination shall be
reduced by multiplying such Exercise Price by a fraction the numerator of which
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock which the aggregate offering price for the total number of shares
of Common Stock so offered for subscription, purchase or acquisition would
purchase at such current market price per share and the denominator of which
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription, purchase or acquisition, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination of the holders entitled to
such rights, options or warrants. However, upon the expiration of any right,
option or warrant to purchase Common Stock, the issuance of which resulted in an
adjustment in the Exercise Price pursuant to this paragraph 6(b), if any such
right, option or warrant shall expire and shall not have been exercised, the
Exercise Price shall be recomputed immediately upon such expiration and
effective immediately upon such expiration shall be increased to the price it
would have been (but reflecting any other adjustments to the Exercise Price made
pursuant to the provisions of this paragraph 6 after the issuance of such
rights, options or warrants) had the adjustment of the Exercise Price made upon
the issuance of such rights, options or warrants been made on the basis of
offering for subscription or purchase only that number of shares of Common Stock
actually purchased upon the exercise of such rights, options or warrants. No
further adjustment shall be made upon exercise of any right, option or warrant
if any adjustment shall have been made upon the issuance of such security. For
the purposes of this paragraph 6(b), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company.
The Company will not issue any rights, options or warrants in respect of shares
of Common Stock held in the treasury of the Company.
(c) In case the outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Exercise Price in effect at
the opening of business on the day following the day upon which such subdivision
becomes effective shall be reduced, and, conversely, in case the outstanding
shares of Common Stock shall each be combined into a smaller number of shares of
Common Stock, the Exercise Price in effect at the opening of business on the day
following the day upon which such combination becomes
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effective shall be increased to equal the product of the Exercise Price in
effect on such date and a fraction the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such subdivision or
combination, as the case may be, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately after such subdivision
or combination, as the case may be. Such reduction or increase, as the case may
be, shall become effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock (A) evidences of its indebtedness or (B) shares of
any class of capital stock, cash or other property or assets (including
securities, but excluding (x) any rights, options or warrants referred to in
paragraph 6(b) above and (y) any dividend or distribution referred to in
paragraph 6(a) or 6(c) above), unless with respect to cash dividends, cash
distributions and cash repurchases, the sum of (1) all such cash dividends and
cash distributions made within the preceding 12 months in respect of which no
adjustment has been made and (2) any cash consideration paid in respect of any
repurchases of Common Stock by the Company or any of its subsidiaries within the
preceding 12 months in respect of which no adjustment has been made, does not
exceed 20% of the Company's market capitalization (being the product of the then
current market price per share (determined as provided in paragraph 6(h) below)
of the Common Stock times the aggregate number of shares of Common Stock then
outstanding on the date fixed for the determination of the holders of Common
Stock entitled to receive such distribution), then in each case, the Exercise
Price in effect at the opening of business on the day following the date fixed
for the determination of holders of Common Stock entitled to receive such
distribution shall be adjusted by multiplying such Exercise Price by a fraction
of which the numerator shall be the current market price per share (determined
as provided in paragraph 6(h) below) of the Common Stock on such date of
determination less the then fair market value as determined by the Board (whose
determination shall be conclusive) of the portion of the capital stock, cash or
other assets or evidences of indebtedness so distributed (and for which an
adjustment to the Exercise Price has not previously been made pursuant to the
terms of this paragraph 6) applicable to one share of Common Stock, and the
denominator shall be such current market price per share of the Common Stock,
such adjustment to become effective immediately after the opening of business on
the day following such date of determination of the holders entitled to such
distribution. The repurchases of Common Stock issued under the Company's stock
incentive programs, to the extent permitted by the Company's then existing
indentures, shall be excluded from the foregoing clauses (1) and (2).
(e) The reclassification or change of Common Stock into securities,
including securities other than Common Stock, (other than any reclassification
upon a consolidation or merger to which paragraph 6(o) below shall apply) shall
be deemed to involve (A) a distribution of such securities other than Common
Stock to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the determination of
holders of Common Stock entitled to receive such distribution" within the
meaning of paragraph 6(d) above), and (B) a subdivision or combination, as the
case may be, of the number of shares of
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Common Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision or combination becomes effective" within the meaning of
paragraph 6(c) above).
(f) In case the Company shall issue shares of its Common Stock (excluding
shares issued (i) in any of the transactions described in paragraphs 6(a) - (d)
above, (ii) pursuant to the grant of awards or the exercise of options or other
awards issued under the Company's employee incentive plans, (iii) upon exercise
of options and warrants of the Company outstanding as of the date hereof, (iv)
to shareholders of any corporation (which is not an affiliate of the Company)
which merges into the Company or a subsidiary of the Company in proportion to
their stock holdings of such corporation immediately prior to such merger, upon
such merger, (v) as regularly scheduled dividend payments on shares of preferred
stock of the Company, (vi) upon conversion or exchange of any preferred stock or
convertible debt of the Company, (vii) in a bona fide offering pursuant to a
firm commitment underwriting or distribution pursuant to Rule 144A under the
Securities Act or (viii) pursuant to the Company's Incentivized Conversion
Program) for a consideration per share less than the current market price per
share of Common Stock (as defined in paragraph 6 (h) below) in effect
immediately prior to the earlier of (x) the issuance of such securities or (y)
the date the Company has a contractual obligation to issue such securities
(whether or not such contractual obligation is contingent upon the passage of
time or the occurrence of certain events or both), then the Exercise Price in
effect at the opening of business on the day following the date of issuance of
such shares of Common Stock shall be reduced by multiplying such Exercise Price
by a fraction (A) the numerator of which shall be the sum of (1) the number of
shares of Common Stock outstanding (on a fully diluted basis) immediately prior
to such issuance, and (2) the number of shares of Common Stock which the
aggregate consideration received by the Company for the total number of shares
of Common Stock issued would purchase at the current market price per share (as
defined in paragraph 6(h)), and (B) the denominator of which is the total number
of shares of Common Stock outstanding (on a fully diluted basis) immediately
after such issuance. For the purposes of this Agreement, the Company's
Incentivized Conversion Program means a program which may, from time to time at
the option of the Company, be instituted by the Company whereby the Company
offers cash and/or non-cash incentives (by way of reducing the conversion price
or otherwise) to holders of its outstanding convertible securities to convert
such securities into shares of Common Stock.
(g) In case the Company shall issue any securities (including rights,
warrants and options) convertible into, exercisable for or exchangeable for its
Common Stock (excluding securities issued (i) in any of the transactions
described in paragraphs 6(b) and (d) above, (ii) pursuant to the grant of awards
or the exercise of options or other awards issued under the Company's employee
incentive plans, (iii) upon exercise of options and warrants of the Company
outstanding as of the date hereof, (iv) to shareholders of any corporation
(which is not an affiliate of the Company) which merges into the Company or a
subsidiary of the Company in proportion to their stock holdings of such
corporation immediately prior to such merger, upon
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such merger, (v) as regularly scheduled dividend payments on shares of preferred
stock of the Company, (vi) upon conversion or exchange of any preferred stock or
convertible debt of the Company, (vii) in a bona fide offering pursuant to a
firm commitment underwriting or distribution pursuant to Rule 144A under the
Securities Act or (viii) pursuant to the Company's Incentivized Conversion
Program) for a consideration per share of Common Stock initially deliverable
upon conversion, exercise or exchange of such securities (determined as provided
in paragraph 6(i) below) less than the current market price per share of Common
Stock (as defined in paragraph 6(h) below) in effect immediately prior to the
earlier of (x) the issuance of such securities or (y) the date the Company has a
contractual obligation to issue such securities (whether or not such contractual
obligation is contingent upon the passage of time or the occurrence of certain
events or both), then the Exercise Price in effect at the opening of business on
the day following the date of issuance of such securities shall be reduced by
multiplying such Exercise Price by a fraction, (A) the numerator of which shall
be the sum of (1) the number of shares of Common Stock outstanding (on a fully
diluted basis) immediately prior to the issuance of such securities, and (2) the
number of shares of Common Stock which the aggregate consideration received by
the Company (determined as provided in paragraph 6(i) below) for such securities
would purchase at such current market price per share of Common Stock, and (B)
the denominator of which shall be the sum of the number of shares of Common
Stock outstanding immediately prior to such issuance and the maximum number of
shares of Common Stock of the Company deliverable upon conversion, exercise or
exchange of such securities at the initial conversion, exercise or exchange
price or rate. However, upon the expiration of any security convertible into,
exercisable for or exchangeable into Common Stock, the issuance of which
resulted in an adjustment in the Exercise Price pursuant to this paragraph 6(g),
if any such security shall expire and shall not have been converted, exercised
or exchanged, the Exercise Price shall be recomputed immediately upon such
expiration and effective immediately upon such expiration shall be increased to
the price it would have been (but reflecting any other adjustments to the
Exercise Price made pursuant to the provisions of this paragraph 6 after the
issuance of such security) had the adjustment of the Exercise Price made upon
the issuance of such security been made on the basis of offering for
subscription or purchase only that number of shares of Common Stock actually
purchased upon the conversion, exercise or exchange of such security. No further
adjustment shall be made upon the conversion, exercise or exchange of such
security if any adjustment shall have been made upon the issuance of such
security.
(h) For the purpose of any computation under this Section 6, the current
market price per share of Common Stock on any day shall be deemed to be the
average of the Closing Prices of the Common Stock for the 10 consecutive trading
days immediately preceding the trading day before the day in question; provided
that, in the case of paragraph 6(d), if the period between the date of the
public announcement of the dividend or distribution and the date for the
determination of holders of Common Stock entitled to receive such dividend or
distribution shall be less than 20 trading days, the period shall be such lesser
number of trading days but, in any event, not less than five trading days.
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(i) For purposes of any computation respecting consideration received
pursuant to paragraphs 6(f) and (g) above, the following shall apply:
(A) in the case of the issuance of shares of Common Stock
for cash, the consideration shall be the gross proceeds to the
Company from such issuance, which shall not include any
deductions for any commissions, discounts or other expenses
incurred by the Company in connection therewith;
(B) in the case of the issuance of shares of Common Stock
for a consideration in whole or in part other than cash or,
subject to clause C, securities, the consideration other than
cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board (irrespective of the
accounting treatment thereof), whose determination shall be
conclusive;
(C) in the case of the issuance of shares of Common Stock
for a consideration in whole or in part consisting of securities,
the value of any securities shall be deemed to be: (x) if traded
on a securities exchange or through the Nasdaq National Market,
the average of the closing prices of the securities on such
quotation system over the 10 trading day period ending on the
trading day immediately preceding the day in question, (y) if
actively traded over-the-counter, the average of the closing bid
or sale prices (whichever is applicable) over the 10 day period
ending on the trading day immediately preceding the day in
question and (z) if there is no active public market, the fair
market value thereof, determined as provided in clause (B) above;
and
(D) in the case of the issuance of securities convertible
into, exercisable for or exchangeable for shares of Common Stock,
the aggregate consideration received therefor shall be deemed to
be the consideration received by the Company for the issuance of
such securities plus the additional consideration, if any, to be
received by the Company upon the conversion, exercise or exchange
thereof (the consideration in each case to be determined in the
same manner as provided in clauses (A) through (C) of this
paragraph 6(i)).
(j) No adjustment in the Exercise Price need be made until all
cumulative adjustments amount to 1% or more of the Exercise Price as last
adjusted. Any adjustments that are not made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this paragraph
6 shall be made to the nearest 1/1,000th of a cent or to the nearest 1/1,000th
of a share, as the case may be.
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(k) For purposes of this paragraph 6, "Common Stock" includes any
stock of any class of the Company which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject
to redemption by the Company. However, subject to the provisions of paragraph
6(n) below, shares issuable on exercise of the Warrants shall include only
shares of the class designated as Common Stock of the Company on the date hereof
or shares of any class or classes resulting from any reclassification thereof
and which have no preferences in respect of dividends or amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Company and which are not subject to redemption by the Company; provided
that, if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
(l) No adjustment in the Exercise Price shall reduce the Exercise
Price below the then par value of the Common Stock. The Company hereby agrees
with each holder of Warrants that it shall not increase the par value of the
Common Stock above its current par value of $.01 per share. No adjustment in the
Exercise Price need be made under paragraphs 6(a), 6(b) and 6(d) above if the
Company issues or distributes to each registered holder of Warrants the shares
of Common Stock, evidences of indebtedness, assets or other property, rights,
options or warrants referred to in those paragraphs which each registered holder
would have been entitled to receive had the Warrants been exercised prior to the
happening of such event or the record date with respect thereto.
(m) Whenever the Exercise Price is adjusted pursuant to paragraphs
6(a), 6(b), 6(c), 6(d), 6(f) or 6(g) above, (A) the number of Warrant Shares
purchasable upon exercise of any Warrant shall be adjusted by multiplying such
number of Warrant Shares by a fraction the numerator of which is the Exercise
Price immediately prior to such adjustment and the denominator of which is the
Exercise Price immediately after such adjustment and (B) the Company shall
promptly mail to registered holders of Warrants, first class, postage prepaid, a
notice of the adjustment together with a certificate from the Company's
independent public accountants briefly stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct.
(n) If:
(A) the Company takes any action which would require an
adjustment in the Exercise Price pursuant to this paragraph 6;
(B) the Company consolidates or merges with, or transfers
all or substantially all of its assets to, another corporation, and
stockholders of the Company must approve the transaction; or
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(C) there is a dissolution or liquidation of the Company;
the Company shall mail to registered holders of the Warrants, first class,
postage prepaid, a notice stating the proposed record or effective date, as the
case may be. The Company shall mail the notice at least 5 days before such
proposed record or effective date. However, failure to mail the notice or any
defect in it shall not affect the validity of any transaction referred to in
clause (A), (B) or (C) of this paragraph 6(n).
(o) In the case of any consolidation of the Company or the merger of the
Company with or into any other entity or the sale or transfer of all or
substantially all the assets of the Company pursuant to which the Company's
Common Stock is converted into other securities, cash or assets or other
property, upon consummation of such transaction, each Warrant shall
automatically thereafter become exercisable for the kind and amount of
securities, cash or other assets or other property receivable upon the
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock into which such Warrant might have been converted immediately prior
to such consolidation, merger, transfer or sale (assuming such holder of Common
Stock failed to exercise any rights of election and received per share the kind
and amount of consideration receivable per share by a plurality of non-electing
shares). Appropriate adjustment (as determined by the Board) shall be made in
the application of the provisions herein set forth with respect to the rights
and interests thereafter of the holders of Warrants, to the end that the
provisions set forth herein (including provisions with respect to changes in and
other adjustment of the Exercise Price and the number of shares of Common Stock
issuable upon the exercise of the Warrants) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of stock or other
securities or assets or property thereafter deliverable upon the exercise of
Warrants. If this paragraph 6(o) applies to any transaction, paragraphs 6(a),
6(c) and 6(e) do not apply to such transaction.
(p) In any case in which this paragraph 6 shall require that an adjustment
as a result of any event become effective from and after a record date, the
Company may elect to defer until after the occurrence of such event the issuance
to the holder of any Warrants exercised after such record date and before the
occurrence of such event of the additional shares of Common Stock issuable upon
such conversion over and above the shares issuable on the basis of the Exercise
Price and number of Warrant Shares in effect immediately prior to adjustment;
provided, however, that if such event shall not have occurred and authorization
of such event shall be rescinded by the Company, the Exercise Price and number
of Warrant Shares shall be recomputed immediately upon such recission to the
price that would have been in effect had such event not been authorized,
provided that such recission is permitted by and effective under applicable
laws.
(q) If any event occurs as to which the foregoing provisions of this
paragraph 6 are not strictly applicable or, if strictly applicable, would not,
in the good faith judgment of the Board, fairly and adequately protect the
purchase rights of the Warrants in accordance with the essential intent and
principles of such provisions, then the Board shall make such adjustments in
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the application of such provisions, in accordance with such essential intent and
principles, as shall be reasonably necessary, in the good faith opinion of the
Board, to protect such purchase rights as aforesaid.
7. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered holder thereof at the principal executive office of the Company, for
a new Warrant Certificate of like tenor and date representing in the aggregate
the right to purchase the same number of Warrant Shares in such denominations as
shall be designated by the registered holder thereof at the time of such
surrender. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of such Warrant
Certificate, if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
8. Payment of Taxes. The Company will pay all documentary stamp taxes
attributable to the initial issuance of the Warrants and of the Warrant Shares
upon the exercise of Warrants; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance of any Warrant Certificates or any certificates for
Warrant Shares in a name other than that of the registered holder of such
Warrant Certificate, and the Company shall not be required to issue or deliver
such Warrant Certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the reasonable satisfaction of the Company that such tax has
been paid.
9. Statement on Warrants. Irrespective of any adjustment in the number or
kind of shares issuable upon the exercise of the Warrants or the Exercise Price,
Warrant Certificates theretofore or thereafter issued may continue to express
the same number and kind of shares and the same Exercise Price as are stated in
the Warrant Certificates initially issuable pursuant to this Agreement.
10. Registration. The Company acknowledge that registered holders shall
have the registration rights set forth in the Registration Rights Agreement
dated the date hereof between the Company and the Initial Holder.
11. Notices.
All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly made when delivered by hand or
sent by facsimile transmission (with receipt confirmed), or, if timely delivered
to an air courier guaranteeing overnight delivery service, on the next business
day, or five business days after being deposited in the mail, first class,
certified or registered, postage prepaid, return receipt requested, in each
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case addressed as follows (or to such other place or places as either of the
parties shall designate by written notice to the other):
(i) if to registered holder, to the address set forth on the Warrant
Register maintained by the Company; and
(ii) if to the Company, to:
Intermedia Communications Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Kronish Xxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
12. Amendment. The Company with the consent of the registered holders of
the unexercised Warrants evidencing at least a majority of the Warrant Shares
underlying the unexercised Warrants may amend or supplement this Agreement or
waive compliance by the Company in a particular instance with any provision of
this Agreement; provided that without the consent of each registered holder
affected, no such amendment shall (with respect to Warrants held by a
non-consenting registered holder) increase the Exercise Price or decrease the
number of Warrant Shares issuable upon exercise of any Warrant .
13. Successors. Except as otherwise provided herein, all the covenants and
provisions of this Agreement by or for the benefit of the Company and the
registered holderS of the Warrants shall inure to the benefit of their
respective successors and assigns hereunder.
14. Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be construed in accordance with the laws of
such State (without regard to the conflicts of law principles thereof).
15. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any person other than the Company and the registered
holders of the unexercised Warrant Certificates any legal or equitable right,
remedy or claim under this Agreement; and this Agreement shall be for the sole
and exclusive benefit of the Company and
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such registered holders. Prior to the exercise of the Warrants, no holder of a
Warrant Certificate, as such, shall be entitled to any rights of a stockholder
of the Company, including, without limitation, the right to receive dividends or
subscription rights, the right to vote, to consent, to exercise any preemptive
right, to receive any notice of meetings of stockholders for the election of
directors of the Company or any other matter or to receive any notice of any
proceedings of the Company, except as may be specifically provided for herein.
The holders of the Warrants are not entitled to share in the assets of the
Company in the event of the liquidation, dissolution or winding up of the
Company's affairs.
16. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute one and the same
instrument.
17. Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
18. Remedies. The Company and the holder hereof each stipulates that the
remedies at law of each party hereto in the event of any default or threatened
default by the other party in the performance or compliance with any of the
terms of this Warrant are not and will not be adequate and that, to the fullest
extent permitted by law, such terms may be specifically enforced by a decree for
the specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
19. Severability. The provisions of this Agreement are severable, and if
any clause or provision shall be held invalid, illegal or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall
affect in that jurisdiction only such clause or provision, or part thereof, and
shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision of this Agreement in any
jurisdiction.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be duly executed as of the day and year first above written.
INTERMEDIA COMMUNICATIONS INC.
By: /s/ XXXXX X. XXXXXX
------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
ICI VENTURES LLC
By: /s/ XXXX XXXXX
-------------------------
Name: Xxxx Xxxxx
Title: President
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
THE TRANSFER OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN
ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, on
February 17, 2004
No. W-
WARRANT CERTIFICATE
This Warrant Certificate certifies that, for value received,
_________________ having an address at ______________ ("Holder"), is the
registered holder of warrants (the "Warrants") to purchase, at any time and from
time to time after the date hereof until 5:00 P.M. New York time, on February
17, 2004, up to 1,000,000 fully-paid and non-assessable shares (subject to
adjustment in certain events) of Common Stock, $.01 par value ("Common Stock"),
of INTERMEDIA COMMUNICATIONS INC., a Delaware corporation (the "Company"), at
the exercise price per share of $40.00, subject to adjustment in certain events
(the "Exercise Price"), upon surrender of this Warrant Certificate, together
with the attached Form of Election to Purchase duly executed, and payment of the
Exercise Price at the principal office of the Company, but subject to the terms
and conditions set forth herein and in the Warrant Agreement dated as of
February 17, 2000 between the Company and the Initial Holder (the "Warrant
Agreement"). Payment of the Exercise Price shall be made, at the option of the
Holder (i) in cash, (ii) by wire transfer payable to the order of the Company,
or (iii) on a net basis, such that without the exchange of any funds, the Holder
receives that number of Warrant Shares that
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would otherwise be issuable upon a cash exercise of this Warrant less that
number of Warrant Shares having a current market price (as defined in paragraph
3(b) of the Warrant Agreement) equal to the aggregate Exercise Price that would
otherwise have been paid by such holder for the number of Warrant Shares with
respect to which this Warrant is being exercised.
This Warrant may be exercised at such times and in such amounts as are
provided for in the Warrant Agreement. Each Warrant not exercised on or prior to
February 17, 2004 shall become invalid and all rights hereunder, and all rights
in respect thereof under the Warrant Agreement, shall cease as of that time.
The Warrants evidenced by this Warrant Certificate are issued pursuant to
the Warrant Agreement, which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the Warrants. A
copy of the Warrant Agreement may be obtained by the holder(s) hereof upon
written request directed to the Company.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and the type and/or number of the Company's securities
issuable upon exercise of the Warrants may, subject to certain conditions, be
adjusted.
Upon due presentment for registration of transfer of this Warrant
Certificate at the principal office of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection therewith which is not payable by the Company pursuant to
paragraph 8 of the Warrant Agreement.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof and of any distribution to the holder(s) hereof and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
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All terms used in this Warrant Certificate which are not defined herein and
are defined in the Warrant Agreement shall have the meanings assigned to them in
the Warrant Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: ___, 2000
INTERMEDIA COMMUNICATIONS INC.
By:_____________________________
Name:
Title:
20
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED, ________________________ hereby sells, assigns and
transfers unto ________________________________, whose address is
__________________________, this Warrant Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint
___________________________, Attorney to transfer the within Warrant Certificate
on the books of the within-named Company, with full power of substitution.
Dated: Signature:
------------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate. Signature must be guaranteed by a
bank or trust company having an office or
correspondent in the United States or a broker or
dealer which is a member of a registered
securities exchange or the National Association of
Securities Dealers, Inc.)
--------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
21
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ________________ shares of
Common Stock and herewith: (choose one by marking "X" in the space provided)
____ tenders payment for such shares, to the order of INTERMEDIA
COMMUNICATIONS INC., in the amount of $________ in accordance with the terms of
the Warrant Agreement.
___ requests that such exercise be on a net basis in accordance with the
terms of the Warrant Agreement.
The undersigned requests that a certificate for such shares of Common Stock
be registered in the name of _________________________________________, whose
address is _____________________________________________ and that such
certificate be delivered to _______________________________________ whose
address is
_____________________________________________.
Dated: Signature:
-------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate. Signature must be guaranteed by a
bank or trust company having an office or
correspondent in the United States or a broker or
dealer which is a member of a registered
securities exchange or the National Association of
Securities Dealers, Inc.)
-------------------------
(Insert Social Security or Other
Identifying Number of Holder)
