REGISTRATION RIGHTS AGREEMENT
between
ICG COMMUNICATIONS, INC.
AND
THE PURCHASERS LISTED ON SCHEDULE I
dated as of April 7, 2000
TABLE OF CONTENTS
Article I Definitions..........................................................1
1.1 Definitions..........................................................1
1.2 Internal References..................................................3
Article II Registration Rights.................................................3
2.1 Demand Registration..................................................3
2.2 Piggyback Registration...............................................6
2.3 Shelf Registration...................................................7
Article III Registration Procedures............................................9
3.1 Filings; Information.................................................9
3.2 Registration Expenses...............................................13
Article IV Indemnification and Contribution...................................14
4.1 Indemnification by the Company......................................14
4.2 Indemnification by Selling Holders..................................15
4.3 Conduct of Indemnification Proceedings..............................15
4.4 Contribution........................................................16
Article V Miscellaneous.......................................................16
5.1 Participation in Underwritten Registrations.........................16
5.2 Rule 144............................................................17
5.3 Holdback Agreements.................................................17
5.4 Termination.........................................................18
5.5 Amendments, Waivers, Etc............................................18
5.6 Counterparts........................................................18
5.7 Entire Agreement....................................................18
5.8 Governing Law.......................................................18
5.9 Assignment of Registration Rights...................................18
This REGISTRATION RIGHTS
AGREEMENT (the "Agreement"), is
made as of April 7, 2000, by
and between ICG Communications,
Inc., a Delaware corporation
(the "Company") and the entities
listed on Schedule I to this
Agreement.
WHEREAS, the Company, Liberty Media Corporation, HMTF Bridge
ICG, LLC and Gleacher/ICG Investors LLC entered into a Preferred Stock and
Warrant Purchase Agreement dated as of February 27, 2000 (the "Stock Purchase
Agreement");
WHEREAS, pursuant to an Assignment of Rights under Preferred
Stock and Warrant Purchase Agreement dated as of March 8, 2000, the remaining
Initial HMTF Holders (as defined below) became parties to the Stock Purchase
Agreement;
WHEREAS, it is a condition precedent to the closing of the
transactions contemplated in the Stock Purchase Agreement that the parties
hereto execute and deliver this Agreement;
NOW THEREFORE, in consideration of the premises, mutual
promises and covenants contained in this Agreement and intending to be legally
bound, the parties hereto hereby agree as follows:
Article I
Definitions
1.1 Definitions.
Terms defined in the Stock Purchase Agreement are used herein as
therein defined except as otherwise indicated below. In addition, the following
terms, as used herein, have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Demand Registration" means a registration under the
Securities Act requested in accordance with Section 2.1.
"Gleacher Holder" means Gleacher/ICG Investors LLC.
"HMTF Holders" means the Initial HMTF Holders and any direct
or indirect transferee of any Registrable Securities initially held by the
Initial HMTF Holders.
"Holders" means, collectively, the HMTF Holders, the Liberty
Holders and the Gleacher Holder (including their respective Affiliates) and any
direct or indirect transferee of any Registrable Securities held by any of such
Persons.
"Initial Amount," on any particular date and with respect to
the Liberty Holders or the HMTF Holders, as applicable, means the number of
shares of Common Stock that would have been issuable on such date upon
conversion of all of the shares of Series A Preferred Stock and the exercise of
all Warrants issued to the Liberty Holders or the HMTF Holders, respectively, on
the Closing Date (as adjusted for stock splits, stock dividends and similar
events affecting the Series A Preferred Stock).
"Initial HMTF Holders" means HM4 ICG Qualified Fund, LLC, HM4
ICG Private Fund, LLC, HM PG-IV ICG, LLC, HM 4-SBS ICG Coinvestors, LLC, HM 4-EQ
ICG Coinvestors, LLC, and HMTF Bridge ICG, LLC.
"Liberty Holders" means Liberty and each of its Affiliates.
"Piggyback Registration" has the meaning set forth in
Section 2.2.
"Registrable Common Stock" means (a) shares of Common Stock
issued or issuable upon conversion of the Series A Preferred Stock purchased
pursuant to the Stock Purchase Agreement, plus any additional shares of Series A
Preferred Stock issued in respect thereof in connection with any stock split,
stock dividend or similar event with respect to the Series A Preferred Stock,
plus any additional shares of Common Stock issued with respect to such issued
shares of Common Stock in connection with any stock splits, stock dividends, or
similar events with respect to the Common Stock, (b) shares of Common Stock
issued or issuable upon exercise of the Warrants, plus any additional shares of
Common Stock issued in respect of such issued shares of Common Stock in
connection with any stock split, stock dividend or similar event with respect to
the Common Stock and (c) any shares of Common Stock owned by a Holder that are
restricted securities within the meaning of Rule 144 or all such shares if such
Holder reasonably believes at such time that it may be deemed to be an
"affiliate" (as that term is defined in Rule 144) of the Company.
"Registrable Securities" means (a) the Registrable Common
Stock and (b) any securities of the Company or any successor entity into which
Registrable Common Stock may hereafter be converted or changed. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of under such registration statement, (ii)
such securities shall have been transferred pursuant to Rule 144, (iii) such
securities shall have been otherwise transferred or disposed of, and new
certificates therefor not bearing a legend restricting further transfer shall
have been delivered by the Company, and subsequent transfer or disposition of
them shall not require their registration or qualification under the Securities
Act or any similar state law then in force, or (iv) such securities shall have
ceased to be outstanding.
"Requesting Holders" means the Holders requesting a Demand
Registration, and shall include parties deemed "Requesting Holders" pursuant to
Section 2.1(a)(iv).
"Rule 144" means Rule 144 (or any successor rule of similar
effect) promulgated under the Securities Act.
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"Selling Holder" means any Holder who is selling Registrable
Securities pursuant to a public offering registered hereunder.
"Series A Preferred Stock" means collectively the Company's
(i) 8% Series A-1 Convertible Preferred Stock, par value $0.01 per share, (ii)
8% Series A-2 Convertible Preferred Stock, par value $0.01 per share, and (iii)
8% Series A-3 Convertible Preferred Stock, par value $0.01 per share.
"Shelf Registration" has the meaning set forth in Section
2.3(b).
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
"Warrants" means the Warrants (as defined in the Stock
Purchase Agreement) to purchase Common Stock.
1.2 Internal References
Unless the context indicates otherwise, references to Articles,
Sections and paragraphs shall refer to the corresponding articles, sections and
paragraphs in this Agreement, and references to the parties shall mean the
parties to the Stock Purchase Agreement.
Article II
Registration Rights
2.1 Demand Registration
(a)
(i) Holders of a majority of the Registrable Securities held
by the HMTF Holders may make up to three (3) written requests for a
Demand Registration of all or any part of the Registrable Securities
held by the HMTF Holders and their direct or indirect transferees;
provided, that (A) each such Demand Registration by the HMTF Holders
must be in respect of Registrable Securities with a fair market value
of at least $50,000,000 or all of the Registrable Securities held by
the requesting HMTF Holders if the aggregate fair market value of all
of such Registrable Securities is less than $50,000,000 and (B) the
HMTF Holders shall not be entitled to a Demand Registration if, during
the 120 days preceding such request, the HMTF Holders had requested a
Demand Registration unless the Company preempted such Demand
Registration in accordance with Section 2.1(e) or the Company postponed
the filing thereof in accordance with Section 3.1(a) and the requesting
HMTF Holders withdrew the request for such Demand Registration. Upon
exercise of all or any portion of the Warrants held by the HMTF
Holders, the Holders of a majority of the Registrable Securities held
by the HMTF Holders may make one (1) additional written request for a
Demand Registration, subject to the proviso set forth in the foregoing
sentence.
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(ii) Holders of a majority of the Registrable Securities held
by the Liberty Holders may make up to six (6) written requests for
a Demand Registration of all or any part of the Registrable Securities
held by the Liberty Holders and their direct or indirect transferees;
provided, that (A) each such Demand Registration by the Liberty
Holders must be in respect of Registrable Securities with a fair
market value of at least $50,000,000 or all of the Registrable
Securities held by the requesting Liberty Holders if the aggregate
fair market value of all of such Registrable Securities is less than
$50,000,000, and (B) the Liberty Holders shall not be entitled to a
Demand Registration if, during the 120 days preceding such request,
the Liberty Holders had requested a Demand Registration unless the
Company preempted such Demand Registration in accordance with Section
2.1(e) or the Company postponed the filing thereof in accordance with
Section 3.1(a) and the requesting Liberty Holders withdrew the request
for such Demand Registration. Upon exercise of all or any portion of
the Warrants held by the Liberty Holders, the Holders of a majority of
the Registrable Securities held by the Liberty Holders may make up to
two (2) additional written requests for a Demand Registration, subject
to the proviso set forth in the foregoing sentence.
(iii)Any request for a Demand Registration will specify
the aggregate number of shares of Registrable Securities proposed to be
sold by the Requesting Holders and will also specify the intended
method of disposition thereof. A registration will not count as a
Demand Registration until it has become effective. Should a Demand
Registration not become effective due to the failure of a Holder to
perform its obligations under this Agreement or the inability of the
Requesting Holders to reach agreement with the Underwriters for the
proposed sale on price or other customary terms for such transaction,
or in the event the Requesting Holders withdraw or do not pursue the
request for the Demand Registration (in each of the foregoing cases,
provided that at such time the Company is in compliance in all
material respects with its obligations under this Agreement), then,
subject to Section 2.1(b), such Demand Registration shall be deemed to
have been effected (provided that (i) if, the Demand Registration does
not become effective because a material adverse change has occurred,
or is reasonably likely to occur, in the condition (financial or
otherwise), business, assets or results of operations of the Company
and its subsidiaries taken as a whole subsequent to the date of the
written request made by the Requesting Holders (ii) if the Company
withdraws the Demand Registration for any reason or preempts the
request for the Demand Registration or (iii) if, after the Demand
Registration has become effective, an offering of Registrable
Securities pursuant to a registration is interfered with by any stop
order, injunction, or other order or requirement of the Commission or
other governmental agency or court or (iv) if the Demand Registration
is withdrawn at the request of the Requesting Holders pursuant to
Section 2.1(f) or Section 3.1(a), then the Demand Registration shall
not be deemed to have been effected and will not count as a Demand
Registration).
(iv) Upon receipt of any request for a Demand Registration
by holders of a majority of the Registrable Securities held by the HMTF
Holders or the Liberty Holders, as the case may be, the Company shall
promptly (but in any event within ten (10) days) give written notice
of such proposed Demand Registration to the HMTF Holders, in the case
of a request by an HMTF Holder, and to the Liberty Holders, in the
case of a request by a Liberty Holder, and all such HMTF Holders or
Liberty Holders, as the case may be (including their respective direct
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or indirect transferees) shall have the right, exercisable by written
notice to the Company within twenty (20) days of their receipt of the
Company's notice, to elect to include in such Demand Registration such
portion of their Registrable Securities as they may request. All such
Holders requesting to have their Registrable Securities included in a
Demand Registration in accordance with the preceding sentence shall be
deemed to be "Requesting Holders" for purposes of this Section 2.1.
(b) In the event that the Requesting Holders withdraw or do not
pursue a request for a Demand Registration and, pursuant to Section 2.1(a)
hereof, such Demand Registration is deemed to have been effected, the Holders
may reacquire such Demand Registration (such that the withdrawal or failure
to pursue a request will not count as a Demand Registration hereunder) if the
Selling Holders reimburse the Company for any and all Registration Expenses
incurred by the Company in connection with such request for a Demand
Registration that was withdrawn or not pursued.
(c) If the Requesting Holders so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a "firm commitment" underwritten offering. A majority in interest of the
Requesting Holders shall have the right to select the managing Underwriters
and any additional investment bankers and managers to be used in connection
with any offering under this Section 2.1, subject to the Company's approval,
which approval shall not be unreasonably withheld.
(d) The Requesting Holders will inform the Company of the time
and manner of any disposition of Registrable Common Stock, and agree to
reasonably cooperate with the Company in effecting the disposition of the
Registrable Common Stock in a manner that does not unreasonably disrupt the
public trading market for the Common Stock; provided, however, that the Holders'
only right to a shelf registration statement shall be pursuant to Section
2.3.
(e) The Company will have the right to preempt any Demand
Registration with a primary registration by delivering written notice (within
seven business days after the Company has received a request for such Demand
Registration) of such intention to the Requesting Holders indicating that the
Company has identified a specific business need and use for the proceeds of the
sale of such securities and had contemplated such sale of securities prior to
receiving the Requesting Holders' notice, and the Company shall use commercially
reasonable efforts to effect a primary registration within 90 days of such
notice. In the ensuing primary registration, the Holders will have such
piggyback registration rights as are set forth in Section 2.2 hereof. Upon the
Company's preemption of a requested Demand Registration, such requested
registration will not count as the Holders' Demand Registration. If the Company
thereafter decides to abandon its intention to pursue such sale of securities,
it shall give notice thereof to any preempted Holders within two business days
following the Company's decision. The Company may exercise the right to preempt
a Demand Registration only once in any 360-day period; provided, that during any
360-day period the Company shall use its reasonable best efforts to permit
a period of at least 180 consecutive days during which the Selling Holders may
effect a Demand Registration.
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(f) Securities to be sold for the account of any Person (including
the Company) other than a Requesting Holder shall not be included in a Demand
Registration if the managing Underwriter or Underwriters shall advise the
Company and the Requesting Holders in writing that the inclusion of such
securities will materially and adversely affect the price of the offering (a
"Material Adverse Effect"). Furthermore, in the event the managing Underwriter
or Underwriters shall advise the Company or the Requesting Holders that even
after exclusion of all securities of other Persons (including the Company)
pursuant to the immediately preceding sentence, the amount of Registrable
Securities proposed to be included in such Demand Registration by Requesting
Holders is sufficiently large to cause a Material Adverse Effect, the
Registrable Securities of the Requesting Holders to be included in such Demand
Registration shall equal the number of shares which the Company and the
Requesting Holders are so advised can be sold in such offering without a
Material Adverse Effect and such shares shall be allocated pro rata among the
Requesting Holders on the basis of the number of Registrable Securities
requested to be included in such registration by each such Requesting Holder;
provided, however, that if any Registrable Securities requested to be registered
pursuant to a Demand Registration under Section 2.1 are excluded from
registration hereunder, then the Holder(s) having shares excluded ("Excluded
Holders") shall have the right to withdraw all, or any part, of their shares
from such registration and if withdrawn in full such Demand Registration shall
not be deemed to have been effected and will not count as a Demand Registration.
2.2 Piggyback Registration
(a) If the Company proposes to file a registration statement
under the Securities Act with respect to an offering of Common Stock for its own
account or for the account of another Person (other than a registration
statement on Form S-4 or S-8, or, except as provided for in Section 2.3,
pursuant to Rule 415 (or any substitute form or rule, respectively, that may be
adopted by the Commission)), the Company shall give written notice of such
proposed filing to the Holders at the address set forth in the share register
of the Company as soon as reasonably practicable (but in no event less than 15
days before the anticipated filing date), undertaking to provide each Holder the
opportunity to register on the same terms and conditions such number of shares
of Registrable Securities as such Holder may request (a "Piggyback
Registration"). Each Holder will have seven business days after receipt of any
such notice to notify the Company as to whether it wishes to participate in a
Piggyback Registration (which notice shall not be deemed to be a request for a
Demand Registration); provided that should a Holder fail to provide timely
notice to the Company, such Holder will forfeit any rights to participate in the
Piggyback Registration with respect to such proposed offering other than as
described in Section 2.1(a)(iv). In the event that the registration statement
is filed on behalf of a Person other than the Company, the Company will use its
best efforts to have the shares of Registrable Securities that the Holders
wish to sell included in the registration statement. If the Company or the
Person for whose account such offering is being made shall determine in its sole
discretion not to register or to delay the proposed offering, the Company may,
at its election, provide written notice of such determination to the Holders
and (i) in the case of a determination not to effect the proposed offering,
shall thereupon be relieved of the obligation to register such Registrable
Securities in connection therewith, and (ii) in the case of a determination to
delay a proposed offering, shall thereupon be permitted to delay registering
such Registrable Securities for the same period as the delay in respect of the
proposed offering. As between the Company and the Selling Holders, the Company
6
shall be entitled to select the Underwriters in connection with any Piggyback
Registration.
(b) If the Registrable Securities requested to be included in the
Piggyback Registration by any Holder differ from the type of securities proposed
to be registered by the Company and the managing Underwriter advises the Company
that due to such differences the inclusion of such Registrable Securities would
cause a Material Adverse Effect, then (i) the number of such Holders'
Registrable Securities to be included in the Piggyback Registration shall be
reduced to an amount which, in the opinion of the managing Underwriter, would
eliminate such Material Adverse Effect or (ii) if no such reduction would, in
the opinion of the managing Underwriter, eliminate such Material Adverse Effect,
then the Company shall have the right to exclude all such Registrable Securities
from such Piggyback Registration, provided, that no other securities of such
type are included and offered for the account of any other Person in such
Piggyback Registration. Any partial reduction in number of Registrable
Securities of any Holder to be included in the Piggyback Registration pursuant
to clause (i) of the immediately preceding sentence shall be effected pro rata
based on the ratio which such Holder's requested shares bears to the total
number of shares requested to be included in such Piggyback Registration by all
Persons other than the Company who have the contractual right to request that
their shares be included in such registration statement and who have requested
that their shares be included. If the Registrable Securities requested to be
included in the registration statement are of the same type as the securities
being registered by the Company and the managing Underwriter advises the Company
that the inclusion of such Registrable Securities would cause a Material Adverse
Effect, the Company will be obligated to include in such registration statement,
as to each Holder only a portion of the shares such Holder has requested be
registered equal to the ratio which such Holder's requested shares bears to the
total number of shares requested to be included in such registration statement
by all Persons (other than the Person or Persons initiating such registration
request) who have the contractual right to request that their shares be included
in such registration statement and who have requested their shares be included.
If the Company initiated the registration, then the Company may include all of
its securities in such registration statement before any such Holder's requested
shares are included. If another security holder initiated the registration, then
the Company may not include any of its securities in such registration statement
unless all Registrable Securities requested to be included in the registration
statement by all Holders are included in such registration statement. If as a
result of the provisions of this Section 2.2(b) any Holder shall not be entitled
to include all Registrable Securities in a registration that such Holder has
requested to be so included, such Holder may withdraw such Holder's request to
include Registrable Securities in such registration statement prior to its
effectiveness.
2.3 Shelf Registration
(a) Holders of a majority of the Registrable Securities held by
the Liberty Holders ("Majority Liberty Holders") may, at any time after the
first anniversary of the Closing Date, make a written request that the Company
effect a shelf registration of a portion of the Registrable Securities held by
the Liberty Holders and their direct or indirect transferees (the "Liberty Shelf
Registration") pursuant to Rule 415; provided, that the aggregate amount of
Registrable Securities that may be included in such Liberty Shelf Registration
may not exceed 25% of the Liberty Holders' Initial Amount. Upon receipt of a
request for the Liberty Shelf Registration, the Company shall promptly (but in
7
any event within 10 business days) give written notice of the proposed Liberty
Shelf Registration to all other Liberty Holders, and all such Holders (including
their direct and indirect transferees) shall have the right to include
Registrable Securities in the Liberty Shelf Registration subject to the
foregoing limitation. From and after the second anniversary of the Closing Date,
the Majority Liberty Holders may make a written request that the Company amend
the Liberty Shelf Registration to include in the Liberty Shelf Registration no
more than 50% of the Liberty Holders' Initial Amount. Upon receipt of such
request, the Company shall promptly (but in any event within 10 business days)
give written notice of the proposed amendment to all other Liberty Holders, and
all such Holders (including their direct and indirect transferees) shall have
the right to include Registrable Securities in the amended Liberty Shelf
Registration subject to the foregoing limitation. From and after the third
anniversary of the Closing Date, the Majority Liberty Holders' may make a
written request that the Company amend the Liberty Shelf Registration to include
in the Liberty Shelf Registration no more than 75% of the Liberty Holders'
Initial Amount. Upon receipt of such request, the Company shall promptly (but in
any event within 10 business days) give written notice of the proposed amendment
to all other Liberty Holders, and all such Holders (including their direct and
indirect transferees) shall have the right to include Registrable Securities in
the amended Liberty Shelf Registration subject to the foregoing limitation. From
and after the fourth anniversary of the Closing Date, the Majority Liberty
Holders may make a written request that the Company amend the Liberty Shelf
Registration to include in the Liberty Shelf Registration up to 100% of the
Liberty Holders' Initial Amount. Upon receipt of such request, the Company shall
promptly (but in any event within 10 business days) give written notice of the
proposed amendment to all other Liberty Holders, and all such Holders (including
their direct and indirect transferees) shall have the right to include
Registrable Securities in the amended Liberty Shelf Registration up to 100% of
the Liberty Holders' Initial Amount.
(b) Holders of a majority of the Registrable Securities held by
the HMTF Holders ("Majority HMTF Holders") may, at any time after the first
anniversary of the Closing Date, make a written request that the Company effect
a shelf registration of a portion of the Registrable Securities held by the HMTF
Holders and their direct or indirect transferees (the "HMTF Shelf Registration")
pursuant to Rule 415; provided, that the aggregate amount of Registrable
Securities that may be included in such HMTF Shelf Registration may not exceed
25% of the HMTF Holders' Initial Amount. Upon receipt of a request for the HMTF
Shelf Registration, the Company shall promptly (but in any event within 10
business days) give written notice of the proposed HMTF Shelf Registration to
all other HMTF Holders, and all such Holders (including their direct and
indirect transferees) shall have the right to include Registrable Securities in
the HMTF Shelf Registration subject to the foregoing limitation. From and after
the second anniversary of the Closing Date, the Majority HMTF Holders may make a
written request that the Company amend the HMTF Shelf Registration to include in
the HMTF Shelf Registration no more than 50% of the HMTF Holders' Initial
Amount. Upon receipt of such request, the Company shall promptly (but in any
event within 10 business days) give written notice of the proposed amendment to
8
all other HMTF Holders, and all such Holders (including their direct and
indirect transferees) shall have the right to include Registrable Securities in
the amended HMTF Shelf Registration subject to the foregoing limitation. From
and after the third anniversary of the Closing Date, the Majority HMTF Holders'
may make a written request that the Company amend the HMTF Shelf Registration to
include in the HMTF Shelf Registration no more than 75% of the HMTF Holders'
Initial Amount. Upon receipt of such request, the Company shall promptly (but in
any event within 10 business days) give written notice of the proposed amendment
to all other HMTF Holders, and all such Holders (including their direct and
indirect transferees) shall have the right to include Registrable Securities in
the amended HMTF Shelf Registration subject to the foregoing limitation. From
and after the fourth anniversary of the Closing Date, the Majority HMTF Holders
may make a written request that the Company amend the HMTF Shelf Registration to
include in the HMTF Shelf Registration up to 100% of the HMTF Holders' Initial
Amount. Upon receipt of such request, the Company shall promptly (but in any
event within 10 business days) give written notice of the proposed amendment to
all other HMTF Holders, and all such Holders (including their direct and
indirect transferees) shall have the right to include Registrable Securities in
the amended HMTF Shelf Registration up to 100% of the HMTF Holders' Initial
Amount.
(c) If the Company's ability to amend the registration statement
for the Liberty Shelf Registration or the HMTF Shelf Registration (each, a
"Shelf Registration") to increase the number of Registrable Securities included
therein (or to file a new shelf registration statement in respect thereof) in
accordance with this Section 2.3 is subject to any contractual limitations that
could delay the Company's ability to file or cause to become effective such
registration statement, then, if requested by the Majority Liberty Holders (in
the case of Section 2.3(a)) or the Majority HMTF Holders (in the case of Section
2.3(b)) the Company shall, in lieu of following the procedure set forth in
Section 2.3(a) or Section 2.3(b), as the case may be, file a single registration
statement for the Shelf Registration referred to in the applicable provisions of
such Sections (and cause such registration statement to become and remain
effective for the period set forth in Section 3.1) that would permit the
offering of such portion of the Registrable Securities (up to 100%) as may be
requested by the Majority Liberty Holders (in the case of Section 2.3(a)) or the
Majority HMTF Holders (in the case of Section 2.3(b)), (it being understood and
agreed that the Holders of the Registrable Securities would not have the right
to offer and sell from such Shelf Registration Registrable Securities other than
in accordance with the schedule and amounts set forth in Section 2.3(a) or
Section 2.3(b), as applicable).
Article III
Registration Procedures
3.1 Filings; Information
In connection with the registration of Registrable Securities pursuant
to Section 2.1, Section 2.2 and Section 2.3 hereof, the Company will use its
reasonable best efforts to effect the registration of such Registrable
Securities as promptly as is reasonably practicable, and in connection with any
such request:
(a) The Company will expeditiously prepare and file with the
Commission a registration statement on any form for which the Company then
qualifies and which counsel for the Company shall deem appropriate and available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its
reasonable best efforts to cause such filed registration statement to become and
remain effective (i) with respect to any Demand Registration or Piggyback
Registration, for such period, not to exceed 60 days, as may be reasonably
necessary to effect the sale of such securities, (ii) with respect to a Shelf
9
Registration, until the earlier of the sale of all Registrable Securities
thereunder and the fifth anniversary of the Closing Date (or if such Shelf
Registration is filed or amended on or after the fourth anniversary of the
Closing Date, then the earlier of the sale of all Registrable Securities
thereunder and the second anniversary of the effective date of such Shelf
Registration) (it being understood that if at any time all the Registrable
Securities then permitted to be sold under such Shelf Registration pursuant to
Section 2.3 have been sold but the Holders have the right to request the
addition of additional Registrable Securities to the Shelf Registration in the
future pursuant to Section 2.3, the Company may (at its option) either cause the
registration statement to remain effective (notwithstanding the fact that all
securities then registrable on such shelf registration statement shall have been
sold) and file post-effective amendments when required to permit the sale of the
additional Registrable Securities or prepare and file, and cause to become and
remain effective, a new shelf registration statement to effect the registration
of the additional Registrable Securities when required pursuant to Section 2.3);
provided that if the Company shall furnish to the Selling Holder a certificate
signed by the Company's Chairman, President or any Executive Vice-President or
Vice-President stating that the Company's Board of Directors has determined in
good faith that it would be detrimental or otherwise disadvantageous to the
Company or its stockholders for such a registration statement to be filed as
expeditiously as possible because the sale of Registrable Securities covered by
such Registration Statement or the disclosure of information in any related
prospectus or prospectus supplement would materially interfere with any
acquisition, financing or other material event or transaction which is then
intended or the public disclosure of which at the time would be materially
prejudicial to the Company, the Company may postpone the filing or effectiveness
of a registration statement for a period of not more than 120 days; provided
that during any 360-day period the Company shall use its reasonable best efforts
to permit a period of at least 180 consecutive days during which the Company
will make a registration statement available under this Agreement; and provided
further that if (i) the effective date of any registration statement filed
pursuant to a Demand Registration would otherwise be at least 45 calendar days,
but fewer than 90 calendar days, after the end of the Company's fiscal year, and
(ii) the Securities Act requires the Company to include audited financials as of
the end of such fiscal year, the Company may delay the effectiveness of such
registration statement for such period as is reasonably necessary to include
therein its audited financial statements for such fiscal year. If the Company
exercises its right to postpone the filing or effectiveness of a registration
statement, the applicable Requesting Holders shall be entitled to withdraw their
request for such Demand Registration and it shall not count as a Demand
Registration.
(b) Anything in this Agreement to the contrary notwithstanding, it
is understood and agreed that the Company shall not be required to keep any
shelf registration effective or useable for offers and sales of the Registrable
Securities, file a post effective amendment to a shelf registration statement or
prospectus supplement or to supplement or amend any registration statement, if
the Company is then involved in discussions concerning, or otherwise engaged in,
any material financing or investment, acquisition or divestiture transaction or
other material business purpose if the Company determines in good faith that the
making of such a filing, supplement or amendment at such time would interfere
with such transaction or purpose. The Company shall promptly give the Holders of
Registrable Securities written notice of such postponement containing a general
statement of the reasons for such postponement and an approximation of the
anticipated delay. Upon receipt by a Holder of Registrable Securities of notice
of an event of the kind described in this Section 3.1(b), such Holder shall
10
forthwith discontinue such Holder's disposition of Registrable Securities until
such Holder's receipt of notice from the Company that such disposition may
continue and of any supplemented or amended prospectus indicated in such notice.
The Company shall use its reasonable best efforts to permit sales of Registrable
Securities on such shelf registration statement for at least 180 days during any
360-day period. In the event the Company shall give notice of an event of the
kind described in this Section 3.1(b), the Company shall extend the period
during which the applicable registration statement shall be maintained effective
as provided in Section 3.1(a) hereof by the number of days during the period
from and including the date of the giving of such notice to the date when the
Company shall give notice to the Selling Holders that such dispositions of such
Registrable Securities may continue and shall have made available to the Selling
Holders any such supplemented or amended prospectus.
(c) The Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish to the
Selling Holders, and each applicable managing Underwriter, if any, copies
thereof, and thereafter furnish to the Selling Holders and each such
Underwriter, if any, such number of copies of such registration statement,
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and the prospectus included in
such registration statement (including each preliminary prospectus) as the
Selling Holders or each such Underwriter may reasonably request in order to
facilitate the sale of the Registrable Securities by the Selling Holders.
(d) After the filing of the registration statement, the Company
will promptly notify the Selling Holders of any stop order issued or, to the
Company's knowledge, threatened to be issued by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(e) The Company will use its commercially reasonable efforts
to qualify the Registrable Securities for offer and sale under such other
securities or blue sky laws of such jurisdictions in the United States as the
Selling Holders reasonably request; keep each such registration or qualification
(or exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each Selling
Holder to consummate the disposition of the Registrable Securities owned by such
Selling Holder in such jurisdictions; provided that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph 3.1(e), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction.
(f) The Company will as promptly as is practicable notify the
Selling Holders, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection with
sales by an Underwriter or dealer, of the occurrence of any event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any 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 and promptly make available to the Selling Holders and to
the Underwriters any such supplement or amendment. Upon receipt of any notice of
11
the occurrence of any event of the kind described in the preceding sentence,
Selling Holders will forthwith discontinue the offer and sale of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until receipt by the Selling Holders and the Underwriters of the
copies of such supplemented or amended prospectus and, if so directed by the
Company, the Selling Holders will deliver to the Company all copies, other than
permanent file copies then in the possession of Selling Holders, of the most
recent prospectus covering such Registrable Securities at the time of receipt of
such notice. In the event the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective as provided in Section 3.1(a) hereof by the number of days during the
period from and including the date of the giving of such notice to the date when
the Company shall make available to the Selling Holders such supplemented or
amended prospectus.
(g) The Company will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions
(including, without limitation, participation in road shows and investor
conference calls) as are required in order to expedite or facilitate the sale of
such Registrable Securities.
(h) At the request of any Underwriter in connection with an
underwritten offering the Company will furnish (i) an opinion of counsel,
addressed to the Underwriters, covering such customary matters as the managing
Underwriter may reasonably request and (ii) a comfort letter or comfort letters
from the Company's independent public accountants covering such customary
matters as the managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling
Holder, the Company shall promptly incorporate in a prospectus supplement or
post effective amendment such information as the managing Underwriter or any
Selling Holder reasonably requests to be included therein, including without
limitation, with respect to the Registrable Securities being sold by such
Selling Holder, the purchase price being paid therefor by the Underwriters and
with respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering, and promptly make all required filings
of such prospectus supplement or post effective amendment.
(j) The Company shall promptly make available for inspection by
any Selling Holder or Underwriter participating in any disposition pursuant to
any registration statement, and any attorney, accountant or other agent or
representative retained by any such Selling Holder or Underwriter (collectively,
the "Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"), as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement; provided, however, that unless the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, the Company
shall not be required to provide any information under this subparagraph (j) if
(A) the Company believes, after consultation with counsel for the Company, that
to do so would cause the Company to forfeit an attorney-client privilege that
was applicable to such information or (B) if either (1) the Company has
requested and been granted from the Commission confidential treatment of such
information contained in any filing with the Commission or documents provided
12
supplementally or otherwise or (2) the Company reasonably determines in good
faith that such Records are confidential and so notifies the Inspectors in
writing unless prior to furnishing any such information with respect to (A) or
(B) such Holder of Registrable Securities requesting such information agrees to
enter into a confidentiality agreement in customary form and subject to
customary exceptions; provided further, however, that each Holder of Registrable
Securities agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action and to
prevent disclosure of the Records deemed confidential.
(k) The Company shall cause the Registrable Securities included
in any registration statement to be (A) listed on each securities exchange, if
any, on which similar securities issued by the Company are then listed,
or (B) authorized to be quoted and/or listed (to the extent applicable) on the
Nasdaq National Market if the Registrable Securities so qualify.
(l) The Company shall provide a CUSIP number for the Registrable
Securities included in any registration statement not later than the effective
date of such registration statement.
(m) The Company shall cooperate with each Selling Holder and each
Underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.
(n) The Company shall during the period when the prospectus is
required to be delivered under the Securities Act, promptly file all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act.
(o) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder.
The Company may require Selling Holders promptly to furnish in writing
to the Company such information regarding such Selling Holders, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time reasonably request or as may be legally required in
connection with such registration.
3.2 Registration Expenses
In connection with any Registration effected hereunder, the Company
shall pay the following expenses incurred in connection with such registration
(the "Registration Expenses"): (i) registration and filing fees with the
Commission and the National Association of Securities Dealers, Inc., (ii) fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
fees and expenses incurred in connection with the listing or quotation of the
Registrable Securities, (v) fees and expenses of counsel to the Company and the
13
reasonable fees and expenses of independent certified public accountants for the
Company (including fees and expenses associated with the special audits or the
delivery of comfort letters), (vi) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration,
(vii) all roadshow costs and expenses not paid by the Underwriters and (viii)
the reasonable fees and expenses of one counsel for the Selling Holders.
Article IV
Indemnification and Contribution
4.1 Indemnification by the Company
The Company agrees to indemnify and hold harmless each Selling Holder
and its Affiliates and their respective officers, directors, partners,
stockholders, members, employees, agents and representatives and each Person (if
any) which controls a Selling Holder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages, liabilities, costs and expenses (including
reasonable attorneys' fees) caused by, arising out of, resulting from or related
to any untrue statement or alleged untrue statement of a material fact contained
or incorporated by reference in any registration statement or prospectus
relating to the Registrable Securities (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by or based upon any information furnished in
writing to the Company by or on behalf of such Selling Holder expressly for use
therein or by the Selling Holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished the Selling Holder with copies of the same; provided,
however, that the Company shall have no obligation to indemnify under this
sentence to the extent any such losses, claims, damages or liabilities have been
finally and non-appealably determined by a court to have resulted from such
Selling Holder's willful misconduct or gross negligence. The Company also agrees
to indemnify any Underwriters of the Registrable Securities, their officers and
directors and each person who controls such Underwriters on substantially the
same basis as that of the indemnification of the Selling Holders provided in
this Section 4.1, except insofar as such losses, claims, damages or liabilities
are caused by or based upon any information furnished in writing to the Company
by or on behalf of such Underwriter expressly for use therein or by the
Underwriter's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished the Underwriter with copies of the same; provided, however, that the
Company shall have no obligation to indemnify under this sentence to the extent
any such losses, claims, damages or liabilities have been finally and
non-appealably determined by a court to have resulted from any such
Underwriter's willful misconduct or gross negligence.
14
4.2 Indemnification by Selling Holders
Each Selling Holder agrees to indemnify and hold harmless the Company,
its officers and directors, and each Person, if any, which controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each Selling Holder, but only with reference to information furnished in
writing by or on behalf of such Selling Holder expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. Each Selling
Holder also agrees to indemnify and hold harmless any Underwriters of the
Registrable Securities, their officers and directors and each person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 4.2, but only with
reference to information furnished in writing by or on behalf of such Selling
Holder expressly for use in any registration statement or prospectus relating to
the Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus. Each such Selling Holder's liability under this Section
4.2 shall be limited to an amount equal to the net proceeds (after deducting the
underwriting discount and expenses) received by such Selling Holder from the
sale of such Registrable Securities by such Selling Holder. The obligation of
each Selling Holder shall be several and not joint.
4.3 Conduct of Indemnification Proceedings
In case any proceeding (including any governmental investigation) shall
be instituted involving any Person in respect of which indemnity may be sought
pursuant to Section 4.1 or Section 4.2, such Person (the "Indemnified Party")
shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party, upon the request of
the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and, in the written
opinion of counsel for the Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent (not to
be unreasonably withheld), or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment.
15
4.4 Contribution
If the indemnification provided for in this Article IV is unavailable
to an Indemnified Party in respect of any losses, claims, damages or liabilities
in respect of which indemnity is to be provided hereunder, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall to the
fullest extent permitted by law contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of such party in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company, a Selling Holder and the
Underwriters 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
such party and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Selling Holder agrees that it would not be just
and equitable if contribution pursuant to this Section 4.4 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article IV, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and each Selling
Holder shall not be required to contribute any amount in excess of the amount by
which the net proceeds of the offering (before deducting expenses) received by
such Selling Holder exceeds the amount of any damages which such Selling Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
Article V
Miscellaneous
5.1 Participation in Underwritten Registrations
No Person may participate in any underwritten registered offering
contemplated hereunder unless such Person (a) agrees to sell its securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, custody arrangements, indemnities,
underwriting agreements and other documents reasonably required under the terms
16
of such underwriting arrangements and this Agreement and (c) furnishes in
writing to the Company such information regarding such Person, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time request or as may be legally required in connection with
such registration; provided, however, that no such Person shall be required to
make any representations or warranties in connection with any such registration
other than representations and warranties as to (i) such Person's ownership of
his or its Registrable Securities to be sold or transferred free and clear of
all liens, claims and encumbrances, (ii) such Person's power and authority to
effect such transfer and (iii) such matters pertaining to compliance with
securities laws as may be reasonably requested; provided further, however, that
the obligation of such Person to indemnify pursuant to any such underwriting
agreements shall be several, not joint and several, among such Persons selling
Registrable Securities, and the liability of each such Person will be in
proportion to, and provided further that such liability will be limited to, the
net amount received by such Person from the sale of such Person's Registrable
Securities pursuant to such registration.
5.2 Rule 144
The Company covenants that it will file any reports required to be
filed by it under the Securities Act and the Exchange Act and that it will take
such further action as the Holders may reasonably request to the extent required
from time to time to enable the Holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder, the Company will deliver to such
Holder a written statement as to whether it has complied with such reporting
requirements.
5.3 Holdback Agreements
The Liberty Holders, for so long as they collectively own Registrable
Securities representing 10% or more of the voting power of the outstanding
voting securities of the Company, and the HMTF Holders, for so long as they
collectively own Registrable Securities representing 10% or more of the voting
power of the outstanding voting securities of the Company, severally agree, in
the event of an underwritten offering by the Company (whether for the account of
the Company or otherwise) not to offer, sell, contract to sell or otherwise
dispose of any Registrable Securities, or any securities convertible into or
exchangeable or exercisable for such securities, including any sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
offering), during the 14 days prior to, and during the 90-day period (or such
lesser period as the lead or managing underwriters may require) beginning on,
the effective date of the registration statement for such underwritten offering
(or, in the case of an offering pursuant to an effective shelf registration
statement pursuant to Rule 415, the pricing date for such underwritten
offering), provided that in connection with such underwritten offering each
officer and director of the Company and holder of 10% or more of the Common
Stock is subject to restrictions substantially equivalent to those imposed on
the Liberty Holders and the HMTF Holders.
17
5.4 Termination
The registration rights granted under this Agreement will terminate on
April 10, 2015, or such earlier time as there shall no longer be any Registrable
Securities; provided, however, that if all shares of Series A Preferred Stock
outstanding on such date shall not have been redeemed in full in accordance with
Section 10 of the Certificate of Designations, this Agreement shall remain in
full force and effect with respect to the Registrable Securities until such time
as the shares of Series A Preferred Stock have been so redeemed in full.
5.5 Amendments, Waivers, Etc.
This Agreement may not be amended, waived or otherwise modified or
terminated except by an instrument in writing signed by the Company and the
Holders of at least 50% of the Registrable Securities then held by all the
Holders, if the amendment is to be effective against the Holders.
5.6 Counterparts
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement. Each party need not sign
the same counterpart.
5.7 Entire Agreement
This Agreement (i) constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
5.8 Governing Law
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York regardless of the laws that might otherwise
govern under applicable principles of conflicts of law thereof.
5.9 Assignment of Registration Rights
Each Holder of the Registrable Securities may assign all or any part of
its rights under this Agreement to any person to whom such Holder sells,
transfers, assigns or pledges such Registrable Securities. In the event that the
Holder shall assign its rights pursuant to this Agreement in connection with the
transfer of less than all its Registrable Securities, the Holder shall also
retain its rights with respect to its remaining Registrable Securities.
18
IN WITNESS WHEREOF, the Company and each Holder has caused
this Agreement to be signed on its behalf by its officer thereunto duly
authorized as of the date first written above.
ICG COMMUNICATIONS, INC.
By: /s/ Xxx Xxxxxx
---------------------------------
Name: H. Xxx Xxxxxx
Title: Executive Vice President
IN WITNESS WHEREOF, the Company and each Holder has caused
this Agreement to be signed on its behalf by its officer thereunto duly
authorized as of the date first written above.
HMTF BRIDGE ICG, LLC
HM 4-EQ ICG COINVESTORS, LLC
HM 4-SBS ICG COINVESTORS, LLC
HM PG-IV ICG, LLC
HM4 ICG QUALIFIED FUND, LLC
HM4 ICG PRIVATE FUND, LLC
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
LIBERTY MEDIA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
GLEACHER/ICG INVESTORS LLC
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Member
SCHEDULE I
Purchasers Series of Number of
Preferred Preferred Number of Purchase Price
Stock Shares Warrants of the Shares
Liberty Media Corporation Series A-1 50,000 6,666,667 $500,000,000
HMTF Bridge ICG, LLC Series A-2 11,500 1,533,334 $115,000,000
HM4 ICG Qualified Fund, LLC Series A-2 10,464 1,395,253 $104,644,000
HM4 ICG Private Fund, LLC Series A-2 74 9,885 $741,000
HM PG-IV ICG, LLC Series A-2 557 74,281 $5,571,000
HM 4-SBS ICG Coinvestors, LLC Series A-2 251 33,412 $2,506,000
HM 4-EQ ICG Coinvestors, LLC Series A-2 154 20,502 $1,538,000
Gleacher/ICG Investors LLC Series A-3 2,000 266,666 $20,000,000
