Exhibit 4.4
AMENDMENT NO. 1 TO WARRANT AGREEMENT
THIS AMENDMENT NO. 1 TO WARRANT AGREEMENT, is made and entered into
as of December 19, 2002 (the "Amendment"), by and between ICG COMMUNICATIONS,
INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent (the "Warrant Agent").
WITNESSETH:
WHEREAS, the Company and the Warrant Agent entered into that certain
Warrant Agreement, dated as of October 10, 2002 (the "Warrant Agreement"); and
WHEREAS, in connection with the financial restructuring of the
Company pursuant to the Second Amended Joint Plan of Reorganization filed by
the Company with the Bankruptcy Court, dated as of April 3, 2002, as modified
(the "Plan"), and pursuant to its Chapter 11 Case (as defined in the Warrant
Agreement), the Company proposes to issue warrants which are exercisable to
purchase up to 800,000 shares of Common Stock (as defined in the Warrant
Agreement), subject to adjustment as provided in the Warrant Agreement (the
"Warrants"), to the holders of Allowed Claims in Class H-4 (as defined in the
Plan) on a Pro Rata basis (as defined in the Plan) in exchange for such
Allowed Class H-4 Claims; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing to act, in connection with the
issuance, transfer, exchange, replacement, and exercise of the Warrant
Certificates (as defined in the Warrant Agreement) and other matters as
provided in the Warrant Agreement; and
WHEREAS, the Company desires to amend the Warrant Agreement to remove
reference to restrictive legends on the Warrant Certificates and certificates
for Common Stock,
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual agreements set forth herein, the Company and the Warrant Agent hereby
agree that Section 11.1 of the Warrant Agreement shall be amended and restated
as follows:
11.1 Restrictive Legends. Except as otherwise permitted by this
Section 11, each Warrant (including each Warrant issued upon the transfer of
any Warrant) issued to an Underwriter (as defined in Section 1145(b) of the
Bankruptcy Code), to the extent that the Company has actual knowledge that the
recipient of a Warrant is an Underwriter (as such term is defined in Section
1145(b) of the Bankruptcy Code) shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAW OF ANY STATE, AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION TO THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS."
Except as otherwise permitted by this Section 11, each certificate for Common
Stock (or Other Securities) issued to an Underwriter upon the exercise of any
Warrant, and each certificate issued issued to an Underwriter upon the
transfer of any such Common Stock (or Other Securities), to the extent that
the Company has actual knowledge that the recipient of such Other Securities
is an Underwriter, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAW OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS
OF SUCH ACT AND SUCH LAWS."
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed, as of the day and year first above written.
ICG COMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: General Counsel
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By:/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
