AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is dated December 15, 1997 and is entered into by
and among ICG Communications, Inc., a Delaware corporation
("ICG"), ICG Acquisition, Inc., a Delaware corporation
("Acquisition Sub"), and NETCOM On-Line Communication Services,
Inc., a Delaware corporation (the "Company").
RECITALS
--------
A. ICG and the Company entered into an Agreement and Plan
of Merger dated October 12, 1997 (the "Agreement") pursuant to
which Acquisition Sub will merge with and into the Company.
B. Capitalized terms used but not defined in this
Amendment shall have the meanings ascribed thereto in the
Agreement.
C. ICG and the Company desire to amend the Agreement to
(i) include Acquisition Sub as a party to the Agreement, (ii)
modify the conversion of the common stock, $.01 par value, of
Acquisition Sub and (iii) provide for the Surviving Corporation
to assume certain obligations of ICG under the Agreement.
D. The Board of Directors of each of ICG, Acquisition Sub
and the Company has determined that this Amendment is in the best
interests of their respective corporations and stockholders.
NOW, THEREFORE, in consideration of the foregoing
premises, the parties to this Amendment agree as follows:
1. The Agreement is hereby amended so that each obligation
of ICG under the Agreement, financial or otherwise, which is to
be fulfilled from and after the Effective Time (except those
obligations under Sections 3.7, 7.9(a) and 7.9(c) of the
Agreement) shall be the obligation of the Surviving Corporation,
and ICG shall hereby be released from each such obligation
thereunder. ICG agrees that it shall, in its capacity as the sole
stockholder, directly or indirectly, of the Surviving
Corporation, use its best efforts to cause the Surviving
Corporation to satisfy all such obligations. Nothing contained
in this Amendment shall affect the obligations of ICG prior to
the Effective Time under the Agreement, including without
limitation, its obligations under Section 9.2(c) of the
Agreement.
2. Section 3.1(c) of the Agreement is hereby deleted in
its entirety and replaced with the following:
"(c) All of the shares of common stock, par value $.01
per share, of Acquisition Sub issued and outstanding
immediately prior to the Effective Time (except shares
subject to Section 3.1(d)) will be converted into and
will thereafter evidence and become, a total of ten
shares of common stock, par value $.01 per share, of
the Surviving Corporation."
3. Except to the extent specifically amended herein, the
terms and conditions of the Agreement shall remain in full force
and effect.
4. This Amendment sets forth the entire agreement among
the parties hereto as to the subject matter herein, and may not
be amended or modified except in accordance with Section 9.3 of
the Agreement.
IN WITNESS WHEREOF, the parties have caused this
Amendment to be signed by their respective officers thereunder
duly authorized all as of the date first written above.
ICG COMMUNICATIONS, INC.
By: /s/ J. Xxxxxx Xxxxx
-----------------------------
Name: J. Xxxxxx Xxxxx
Title: President and Chief
Executive Officer
ICG ACQUISITION, INC.
By: /s/ H. Xxx Xxxxxx
---------------------------
Name: H. Xxx Xxxxxx
Title: Executive Vice President
NETCOM ON-LINE COMMUNICATION
SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
and Chairman of the Board
