Exhibit 7(d)
AMENDMENT, dated as of April 10, 2000 (the
"Agreement"), between ICG Communications, Inc., a
---------
Delaware corporation (the "Company"), and the
-------
Purchasers whose signatures appear below (the
"Purchasers").
----------
WHEREAS, reference is made to the Preferred Stock and Warrant Purchase
Agreement dated as of February 27, 2000 (the "Purchase Agreement"), by and
------------------
between the Company and the Purchasers. Capitalized terms used herein but not
otherwise defined shall be given the meaning ascribed to them in the Purchase
Agreement;
WHEREAS, pursuant to an Assignment of Rights Under Preferred Stock and
Warrant Purchase Agreement dated as of March 8, 2000, HM4 ICG Qualified Fund,
LLC, HM4 ICG Private Fund, LLC, HM PG-IV ICG, LLC, HM 4-SBS ICG Coinvestors,
LLC, and HM 4-EQ ICG Coinvestors became parties to the Purchase Agreement;
WHEREAS, in accordance with Section 8.6 of the Purchase Agreement, the
parties hereto desire to amend the Purchase Agreement as more fully set forth
below in order to reflect (1) the redesignation of the Series A Preferred Stock
into Series A-1 Preferred Stock (as defined below), Series A-2 Preferred Stock
(as defined below) and Series A-3 Preferred Stock (as defined below), (2) the
increase of the initial Liquidation Preference per share of Series A Preferred
Stock from $1,000 to $10,000 per share and the concomitant reduction in the
number of shares of Series A Preferred Stock being issued by the Company and
purchased by the Purchasers and (3) related conforming changes;
NOW, THEREFORE, in consideration of the foregoing, and of the
covenants and agreements contained herein, the parties hereby agree as follows:
1. Amendment of Recitals. The recitals of the Purchase Agreement shall be
---------------------
amended by deleting the first "Whereas" clause in its entirety and substituting,
in lieu thereof, the following:
"WHEREAS, the Company proposes, subject to the terms and
conditions set forth herein, to issue and sell to the
Purchasers 50,000 shares of its 8% Series A-1 Convertible
Preferred Stock due 2015, initial liquidation preference
$10,000 per share, par value $0.01 per share (the "Series X-
0 Xxxxxxxxx Stock"), 23,000 shares of its 8% Series A-2
Convertible Preferred Stock due 2015, initial liquidation
preference $10,000 per share, par value $0.01 per share (the
"Series A-2 Preferred Stock") and 2,000 shares of its 8%
Series A-3 Convertible Preferred Stock due 2015, initial
liquidation preference $10,000 per share, par value $0.01
per share (the "Series A-3 Preferred Stock" and together
with the Series A-1 Preferred Stock and the Series A-2
Preferred Stock, the "Series A Preferred Stock");"
2. Amendment of Definitions. Section (a) of Article I is hereby amended
------------------------
by inserting or amending, as the case may be, the following definitions:
""Amending Agreement" means the Amendment dated as of April 10,
------------------
2000 by and among the Company and the other parties listed on the signature
pages thereof."
""Equity Documents" means this Agreement, the Registration Rights
----------------
Agreement, the Certificate of Designation, the Management Rights Agreements, the
Share Exchange Agreement, the Warrants and the Amending Agreement."
""HMTF Issued Series A Preferred Shares" shall mean the shares of
-------------------------------------
Series A-2 Preferred Stock issued to members of the HMTF Group on the Closing
Date under this Agreement."
""Liberty Issued Series A Preferred Shares" shall mean the shares
----------------------------------------
of Series A-1 Preferred Stock issued to members of the Liberty Group on the
Closing Date under this Agreement."
""Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated as of April 7, 2000, by and among the Company and the
Purchasers, in the form attached hereto as Exhibit C."
""Series A-1 Preferred Stock" has the meaning set forth in the
--------------------------
first recital to this Agreement."
""Series A-2 Preferred Stock" has the meaning set forth in the
--------------------------
first recital to this Agreement."
""Series A-3 Preferred Stock" has the meaning set forth in the
--------------------------
first recital to this Agreement."
3. Amendment of Section 2.1. The Purchase Agreement is hereby amended by
------------------------
deleting "one thousand dollars ($1,000) per share" in the fifth line of Section
2.1 and substituting, in lieu thereof, "ten thousand dollars ($10,000) per
share."
4. Amendment of Section 5.2.
------------------------
(a) The Purchase Agreement is hereby amended by deleting Section
5.2(a) in its entirety and substituting, in lieu thereof, the following:
"For so long as the members of the HMTF Group in the
aggregate own any combination of shares of Common Stock and
Series A-2 Preferred Stock representing an amount of Common
Stock (on an as-converted basis) that, taken together,
equals at least 4,107,143 shares of Common Stock (as
adjusted for any stock dividends, splits and combinations
and similar events affecting the Common Stock from time to
time), the holders of a majority of the then outstanding
HMTF Shares shall have the right to designate one
2
person for election to the Company's Board of Directors or,
if greater, such number of persons (rounded up to the next
whole number) equal to 10% of the then authorized number of
members of the Company's Board of Directors (each such
person an "HMTF Director"); provided, however, that the
right to designate an HMTF Director under this Section 5.2
shall be suspended at any time that the holders of the
Series A-2 Preferred Stock have the right to elect a person
to the Board of Directors under the terms of the Series A-2
Preferred Stock set forth in the Certificate of Designation.
In the event the holders of a majority of the then
outstanding HMTF Shares are entitled under this Section 5.2
to designate an HMTF Director for election to the Company's
Board of Directors and so designate an HMTF Director, they
shall so notify the Company in writing and the Company shall
use its best efforts (a) to cause the size of the Board of
Directors to be increased by one and the vacancy created
thereby to be filled by electing an HMTF Director and (b) in
connection with the meeting of stockholders of the Company
next following such election, to cause an HMTF Director to
be nominated for election as a director by the stockholders
and to cause the HMTF Director to be so elected. If the
holders of a majority of the then outstanding HMTF Shares
are entitled under this Section 5.2 to designate an HMTF
Director for election to the Company's Board of Directors
and a vacancy shall exist in the office of an HMTF Director,
the holders of a majority of the then outstanding HMTF
Shares shall be entitled to designate a successor and the
Board of Directors shall use its best efforts to (x) elect
such successor and (y) in connection with the meeting of
stockholders of the Company next following such election,
cause such successor to be nominated for election as
director by the stockholders and to be elected."
(b) The Purchase Agreement is hereby amended by deleting Section 5.2(b)(i)
in its entirety and substituting, in lieu thereof, the following:
"For so long as the members of the Liberty Group in the
aggregate own any combination of shares of Common Stock and
Series A-1 Preferred Stock representing an amount of Common
Stock (on an as-converted basis) that, taken together,
equals at least 2,687,571 shares of Common Stock (as
adjusted for any stock dividends, splits and combinations
and similar events affecting the Common Stock from time to
time), the members of the Liberty Group, voting together as
a single class by a plurality of the votes cast or by the
written consent of a majority in interest of such members,
shall have a right to designate one person for election to
the Company's Board of Directors or, if greater, such number
of persons (rounded up to the next whole number) equal to
10% of the then authorized number of members of the
Company's Board
3
of Directors (each such person a "Liberty Director");
provided, however, that the right to designate a Liberty
Director under this Section 5.2 shall be suspended at any
time that the holders of the Series A-1 Preferred Stock have
the right to elect a person to the Board of Directors under
the terms of the Series A-1 Preferred Stock set forth in the
Certificate of Designation. In the event the members of the
Liberty Group are entitled under this Section 5.2 to
designate the Liberty Director for election to the Company's
Board of Directors and elect to so designate a Liberty
Director, they shall so notify the Company in writing and
the Company shall use its best efforts (a) to cause the size
of the Board of Directors to be increased by one and the
vacancy created thereby to be filled by electing a Liberty
Director and (b) in connection with the meeting of
stockholders of the Company next following such election, to
cause a Liberty Director to be nominated for election as
director by the stockholders and to cause the Liberty
Director to be so elected. If the members of the Liberty
Group are entitled under this Section 5.2 to designate a
Liberty Director for election to the Company's Board of
Directors and a vacancy shall exist in the office of a
Liberty Director, the members of the Liberty Group, voting
together as a single class by a plurality of the votes cast
or by the written consent of a majority in interest of such
members, shall be entitled to designate a successor and the
Board of Directors shall use its best efforts to (x) elect
such successor and (y) in connection with the meeting of
stockholders of the Company next following such election,
cause such successor to be nominated for election as
director by the stockholders and to be elected."
(c) The Purchase Agreement is hereby amended by deleting Section
5.2(b)(ii) in its entirety and substituting, in lieu thereof, the following:
"For so long as the members of the Liberty Group own any
combination of shares of Common Stock and Series A-1
Preferred Shares representing an amount of Common Stock (on
an as-converted basis) that, taken together, equals
8,928,571 shares of Common Stock (as adjusted for any stock
dividends, splits and combinations and similar events
affecting the Common Stock from time to time), the members
of the Liberty Group, voting together as a single class by a
plurality of the votes cast or by the written consent of a
majority in interest of such members, shall have a right, in
addition to the rights set forth in clause (i) above, to
designate one additional person for election to the
Company's Board of Directors or, if greater, such number of
additional persons (rounded up to the next whole number)
equal to 10% of the then authorized number of members of the
Company's Board of Directors (each such person an
"Additional Liberty Director"); provided, however, that the
right to designate an Additional
4
Liberty Director under this Section 5.2 shall be suspended
at any time that the holders of the Series A-1 Preferred
Stock have the right to elect a person to the Board of
Directors under the terms of the Series A-1 Preferred Stock
set forth in the Certificate of Designation. In the event
the members of the Liberty Group are entitled under this
Section 5.2 to designate an Additional Liberty Director for
election to the Company's Board of Directors and elect to so
designate an Additional Liberty Director, they shall so
notify the Company in writing and the Company shall use its
best efforts (a) to cause the size of the Board of Directors
to be increased by one and the vacancy created thereby to be
filled by electing an Additional Liberty Director and (b) in
connection with the meeting of stockholders of the Company
next following such election, to cause an Additional Liberty
Director to be nominated for election as director by the
stockholders and to cause an Additional Liberty Director to
be so elected. If the members of the Liberty Group are
entitled under this Section 5.2 to designate an Additional
Liberty Director for election to the Company's Board of
Directors and a vacancy shall exist in the office of an
Additional Liberty Director, the members of the Liberty
Group, voting together as a single class by a plurality of
the votes cast or by the written consent of a majority in
interest of such members, shall be entitled to designate a
successor and the Board of Directors shall use its best
efforts to (x) elect such successor and (y) in connection
with the meeting of stockholders of the Company next
following such election, cause such successor to be
nominated for election as director by the stockholders and
to be elected."
5. Amendment of Section 5.16. Section 5.16 of the Purchase Agreement is
-------------------------
hereby amended by deleting the third sentence in it entirety and substituting,
in lieu thereof, the following sentence:
"This proportional purchase right shall not apply to shares
issued pursuant to the Share Exchange Agreement, any rights
or obligations referenced on Schedule 3.2, any shares of
capital stock issued by the Company in lieu of any fees
payable in connection with the Transaction to the Company's
financial advisors, any shares issued pursuant to any stock
option plan or arrangement or employee benefit plan or
arrangement existing as of the date hereof or hereafter
approved by the Board of Directors of the Company or the
shares of Common Stock issued from time to time upon
conversion of the Series A Preferred Stock or upon exercise
of the Warrants."
6. Amendment of Schedule I. Schedule I to the Purchase Agreement is
-----------------------
hereby amended by deleting it in its entirety and substituting, in lieu thereof,
Schedule I attached hereto.
5
7. No Other Waivers. Except as expressly provided in this Agreement, each
----------------
of the terms and provisions of the Purchase Agreement shall remain in full force
and effect in accordance with its terms.
8. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
9. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of New York (without giving effect to
principles of conflicts of law).
10. Headings. The headings used herein are for convenience of reference
--------
only and shall not affect the construction of, nor shall they be taken in
consideration in interpreting, this Agreement.
6
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Amendment as of the date first written above.
ICG COMMUNICATIONS, INC.
By:______________________________________
Name: H. Xxx Xxxxxx
Title: Executive Vice President
HMTF BRIDGE ICG, LLC
By:______________________________________
Name:
Title:
HM4 ICG QUALIFIED FUND, LLC
By:______________________________________
Name:
Title:
HM4 ICG PRIVATE FUND, LLC
By:______________________________________
Name:
Title:
HM PG-IV ICG, LLC
By:______________________________________
Name:
Title:
HM 4-SBS ICG COINVESTORS, LLC
By:______________________________________
Name:
Title:
HM 4-EQ ICG COINVESTORS, LLC
By:______________________________________
Name:
Title:
LIBERTY MEDIA CORPORATION
By:______________________________________
Name:
Title:
GLEACHER/ICG INVESTORS, LLC
By:______________________________________
Name:
Title:
SCHEDULE I
Series of Number
Preferred of Preferred Number of Purchase Price
Purchasers 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
