EXHIBIT 2
EXECUTION COPY
CONFIDENTIAL
SUPPORT AGREEMENT
This SUPPORT AGREEMENT, is entered into as of July 19, 2004 among MCCC ICG
Holdings LLC, a Delaware limited liability company ("Buyer"), MCCC Merger Corp.,
a Delaware corporation ("Merger Sub"), the persons listed on Schedule A hereto
(each a "Stockholder", and, collectively, the "Stockholders") and, for the
purposes of Section 9 hereof, ICG Communications, Inc., a Delaware corporation
(the "Company").
WHEREAS, Buyer, Merger Sub and the Company propose to enter into an
Agreement and Plan of Merger as of the date hereof (as the same may be amended
or supplemented, the "Merger Agreement") providing for the merger of Merger Sub
with and into the Company (the "Merger") in which the Company's Stockholders
would receive $0.75 per share;
WHEREAS, each Stockholder is the record and beneficial owner of the number
of shares of Common Stock, par value $.01 per share, of the Company ("Company
Common Stock") set forth opposite such Stockholder's name on Schedule A hereto,
such shares of Company Common Stock, as the same may be adjusted by stock
dividend, stock split, recapitalization, combination or exchange of shares,
merger, consolidation, reorganization or other change or transaction of or by
the Company, together with shares of Company Common Stock that may be acquired
after the date hereof by such Stockholder, including shares of Company Common
Stock issuable upon the exercise of options or warrants to purchase or other
securities exchangeable for or convertible into Company Common Stock (as the
same may be adjusted as aforesaid) being collectively referred to herein as the
"Shares"; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Buyer and Merger Sub have requested that the Stockholders enter into
this Agreement;
NOW, THEREFORE, to induce Buyer and Merger Sub to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the promises and the representations, warranties and agreements contained
herein, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholders. Each Stockholder
hereby, severally and not jointly, represents and warrants to Buyer and Merger
Sub as to itself as follows:
(a) Authority. The Stockholder has all requisite partnership,
corporate or similar power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Stockholder. This Agreement
has been duly executed and delivered by the Stockholder and, assuming this
Agreement constitutes a valid and binding obligation of Merger Sub and the
Company, constitutes a valid and binding obligation of the Stockholder
enforceable against the Stockholder in accordance with its terms. Except for the
expiration or termination of the waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 0000 (xxx "XXX Xxx") (xx
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applicable) and informational filings with the Securities and Exchange
Commission, neither the execution, delivery or performance of this Agreement by
the Stockholder nor the consummation by the Stockholder of the transactions
contemplated hereby will (i) require any filing with, or permit, authorization,
consent or approval of, any federal, state, local, municipal or foreign or other
government or subdivision, branch, department or agency thereof or any
governmental or quasi-governmental authority of any nature, including any court
or other tribunal, (a "Governmental Entity"), (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default under, or give rise to any right of termination, amendment, cancellation
or acceleration under, or result in the creation of any tax, lien, claim,
charge, encumbrance or other restriction (collectively, a "Lien") upon any of
the properties or assets of the Stockholder under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, lease, license, permit,
concession, franchise, contract, agreement or other instrument or obligation (a
"Contract") to which the Stockholder is a party or by which the Stockholder or
any of the Stockholder's properties or assets, including the Stockholder's
Shares, may be bound or (iii) violate any judgment, order, writ, preliminary or
permanent injunction or decree (an "Order") or any statute, law, ordinance, rule
or regulation of any Governmental Entity (a "Law") applicable to the Stockholder
or any of the Stockholder's properties or assets, including the Stockholder's
Shares, except any of the foregoing which could not interfere with the
Stockholder's ability to perform its obligations under this Agreement.
(b) The Shares. The Stockholder is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), of the Shares set forth opposite such Stockholder's name on
Schedule A and the certificates representing such Shares are now, and at all
times during the term hereof will be, held by such Stockholder, or by a nominee
or custodian for the benefit of such Stockholder, and the Stockholder has good
and marketable title to such Shares, in each case, free and clear of any Liens,
proxies, voting trusts or agreements, understandings or arrangements, except for
any such Liens or proxies arising hereunder. The Stockholder owns of record or
beneficially no shares of the Company Common Stock and has no other rights to
purchase or acquire any such shares other than such Stockholder's Shares and
shares of the Company Common Stock issuable upon the exercise of Company stock
options, except as set forth on Schedule A-2 hereto. The Shares set forth
opposite the Stockholder's name on Schedule A and Schedule A-2 constitute all of
the securities (as defined in Section 3(a)(10) of the Exchange Act) of the
Company beneficially owned, directly or indirectly by such Stockholder.
(c) Brokers. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of such Stockholder
(d) Other Agreements. Other than (i) this Agreement, (ii) the
Merger Agreement, (iii) the Note and Warrant Purchase Agreement, dated as of
July 25, 2002, by and among the Company, Xxxxxxxxx L.L.C. ("Xxxxxxxxx:") and
certain other parties identified therein (the "Note and Warrant Purchase
Agreement"), (iv) the Registration Rights Agreement, dated as of the Effective
Date (as defined in the Note and Warrant Purchase Agreement) by and among the
Company, Xxxxxxxxx and certain other parties identified therein (the
"Registration Rights Agreement"), (v) the By-Laws of the Company and (vi) as may
be disclosed in the
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Company's annual report of Form 10-K, there are not as of the date hereof, and
there will not be at the effective time of the Merger, any stockholder
agreements, voting trusts or other agreements or understandings relating in any
way to any of the Stockholder's Shares or to a Potential Transaction (as defined
below) to which the Stockholder (or any of its affiliates, representatives, or
agents) is a party or to which it is bound.
(e) Merger Agreement. The Stockholder understands and acknowledges
that Buyer and Merger Sub are entering into the Merger Agreement in reliance
upon the Stockholder's execution and delivery of this Agreement.
(f) No Other Claims. (i) Except as provided in the Note and
Warrant Purchase Agreement and the Registration Rights Agreement, all of which
are hereby waived in accordance with Section 4 below, neither the Company nor
any of its subsidiaries has any outstanding material liabilities or obligations
to such Stockholder, and (ii) as of the date hereof and as of the Closing Date
such Stockholder has no outstanding material liabilities or obligations to the
Company or its Subsidiaries, which have either been asserted by the Company or a
Subsidiary or are liquidated or arise under a contract or agreement.
2. Representations and Warranties of Buyer and Merger Sub. Each of
Buyer and Merger Sub hereby represents and warrants to the Stockholders as
follows:
(a) Authority. Each of Buyer and Merger Sub has the requisite
power (corporate or otherwise) and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by each of Buyer and Merger Sub and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Buyer and Merger
Sub. This Agreement has been duly executed and delivered by each of Buyer and
Merger Sub and, assuming this Agreement constitutes a valid and binding
obligation of the Stockholders and the Company, constitutes a valid and binding
obligation of Buyer and Merger Sub, respectively, enforceable in accordance with
its terms.
3. Covenants of the Stockholders. Each Stockholder, severally and not
jointly, agrees as follows:
(a) The Stockholder shall not (i) tender into any tender or
exchange offer or otherwise sell, transfer, pledge, assign or otherwise dispose
of, or enter into any Contract, option or other arrangement (including any
profit sharing arrangement) or understanding with respect to the sale, transfer,
pledge, assignment or other disposition of the Shares to any person other than
Buyer or Merger Sub or Buyer's designee, (ii) enter into any voting arrangement,
whether by proxy, voting agreement, voting trust, power-of-attorney or
otherwise, with respect to the Shares, (iii) purchase or otherwise voluntarily
acquire any Company Common Stock or other securities of the Company, except (A)
as provided in Section 12 and (B) for such other securities as will constitute
Shares subject to the terms hereof, (iv) take any other action that would in any
way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby or (v) do indirectly that
which it may not do directly in respect of the restrictions on its rights with
respect to the Stockholders' Shares pursuant to this Section 3(a), including,
but not limited to, the sale of any direct or indirect holding company of the
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Stockholders or the granting of a proxy on the shares of any direct or indirect
holding company of the Stockholders which would have, indirectly, the effect
prohibited by this Section 3(a); provided, however, that the Stockholder shall
be entitled to transfer any and all of the Shares to an affiliate of the
Stockholder that undertakes through a binding written agreement with Buyer and
Merger Sub to be bound by the terms of this Agreement.
(b) At any meeting of Stockholders of the Company called to vote
upon the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
each Stockholder shall as requested by Buyer or Merger Sub (including, without
limitation, by cooperating with Buyer and Merger Sub with respect to the
irrevocable proxy granted to Buyer pursuant to Section 7 below), vote (or cause
to be voted) such Stockholder's Shares in favor of the Merger, the adoption by
the Company of the Merger Agreement and the approval of the other transactions
contemplated by the Merger Agreement.
(c) Such Stockholder will exercise all voting rights attaching to
such Stockholder's Shares to oppose any proposed action by the Company, its
stockholders, any of its subsidiaries or any other person which reasonably could
be regarded as being directed towards or would be reasonably likely to impede,
frustrate, prevent, delay or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (collectively,
"Frustrating Transactions"). Without in any way limiting the foregoing, at any
meeting of the Stockholders of the Company or at any adjournment thereof or in
any other circumstances upon which the Stockholder's vote, consent or other
approval is sought, such Stockholder shall, as requested by Buyer or Merger Sub,
vote (or cause to be voted) such Stockholder's Shares against, (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company or
any other Alternative Proposal (collectively, "Alternative Transactions") or
(ii) (A) any change in a majority of the persons who constitute the board of
directors of the Company as of the date hereof, (B) any change in the present
capitalization of the Company as of the date hereof, (C) any amendment of the
Company's articles of incorporation or by-laws or (D) any action or inaction
which reasonably would be expected to result in any breach, violation or
contravention of the Merger Agreement.
4. Waiver and Releases. (a) Each Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger that such Stockholder may
have. Effective as of the date on which the Merger is consummated (the "Closing
Date"), each Stockholder on its own behalf and on behalf of its heirs,
successors, assigns, executors and personal representatives hereby releases and
discharges the Company and its predecessors, successors (by merger or
otherwise), parents, subsidiaries, affiliated entities, divisions and assigns,
together with each and every of their officers, directors, stockholders, general
partners, limited partners, members, employees and agents and the heirs,
personal representatives and executors of the same (herein collectively referred
to as the "Company Releasees"), from any and all suits, causes of action,
complaints, obligations, demands or claims of any kind, whether in law or in
equity, direct or indirect, known or unknown, suspect or unsuspected
(hereinafter "Claims"), which such Stockholder ever had, now has, or may have
against the Company Releasees or any one of them in relation to the Company
arising out of or relating to any matter, thing or event occurring up to and
including the
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Closing Date; provided, however, that nothing herein shall be deemed to release
any Claim which a Stockholder may have against the Company (i) arising out of
the Merger Agreement, including, without limitation the right to receive Merger
Consideration and the rights to indemnification of directors and officers as set
forth therein or (ii) arising under indemnification agreements or arrangements
existing as of the date hereof between the Company and its officers or
directors.
(b) Effective as of the Closing Date, each of the Buyer and Merger
Sub on its own behalf and on behalf of its heirs, successors (by merger or
otherwise), assigns, executors and personal representatives hereby releases and
discharges each Stockholder and its predecessors, successors, parents,
subsidiaries, affiliated entities, divisions and assigns, together with each and
every of their officers, directors, stockholders, general partners, limited
partners, members, employees and agents and the heirs, personal representatives
and executors of the same (herein collectively referred to as the "Stockholder
Releasees"), from any and all Claims, which Parent or Merger Sub (and, from and
after the effective date of the Merger, the Company) ever had, now has, or may
have against the Stockholder Releasees or any one of them in relation to the
Company arising out of or relating to any matter, thing or event occurring up to
and including the Closing Date; provided, however, that nothing herein shall be
deemed to release any Claim which a Buyer or Merger Sub may have against the
Stockholder under this Agreement.
5. Notice of Acquisition of Additional Shares. Each Stockholder hereby
agrees, while this Agreement is in effect, to promptly notify Buyer of the
number of any new Shares acquired by such Stockholder, if any, after the date
hereof.
6. Non-Solicitation. Without limiting the provisions of Section 14
hereof, each Stockholder, whether acting as an individual or in his capacity as
an agent of the Company, severally and not jointly agrees that it shall not (and
shall, subject to the provisions of Section 14 hereof, cause each affiliate,
agent, trustee or other person acting on such Stockholder's behalf not to),
directly or indirectly, other than with Buyer and its representatives and
agents, (a) initiate, solicit, encourage, entertain, accept, discuss or
negotiate any inquiries, proposals or offers (whether initiated by the
Stockholder or otherwise) with respect to (i) the acquisition or sale of any
Shares or other capital stock or capital stock equivalents of the Company, any
of its subsidiaries or any interests therein or other securities of the Company
or any of its subsidiaries, (ii) the acquisition of all or a material portion of
the assets and properties of the Company, its subsidiaries or any interests
therein, (iii) the merger, consolidation or combination of the Company or any of
its subsidiaries, (iv) the refinancing, reorganization, recapitalization,
dissolution, liquidation, wind-up or other restructuring of the Company or (v)
the acquisition, directly or indirectly, by the Company or any of its
subsidiaries or affiliates of capital stock or assets and properties of any
other person or persons in excess of $1 million in the aggregate(each a
"Potential Transaction") from any party, (b) provide information to any party in
connection with a Potential Transaction or (c) enter into any contract,
agreement or arrangement with any party, concerning or relating to a Potential
Transaction or requiring such Stockholder to abandon, terminate or fail to
consummate or vote against the Merger or the other transactions with Buyer and
Merger Sub contemplated hereby; provided, however, that nothing in this
Agreement shall be deemed to prohibit the Stockholder from participating in
discussions or negotiations regarding a Company Takeover Proposal from and after
the time at which the Company has terminated the
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Merger Agreement pursuant to and has complied with all of the terms and
conditions of, Section 8.1(e) of the Merger Agreement .
7. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of
Proxy.
(a) Each Stockholder hereby irrevocably grants to, and appoints,
each of Xxxx Xxxxxx and Xxxxx X.X. Xxxxxx, acting individually or collectively,
and any other individual who shall hereafter be designated by Buyer, such
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Stockholder, to vote such Stockholder's
Shares, or grant a consent or approval in respect of such Shares, at any meeting
of Stockholders of the Company or at any adjournment thereof or in any other
circumstances upon which their vote, consent or other approval is sought, (i) in
favor of the Merger, the adoption by the Company of the Merger Agreement and the
approval of the other transactions contemplated by the Merger Agreement and (ii)
against any Alternative Transaction or Frustrating Transaction.
(b) Each Stockholder represents that any proxies heretofore given
in respect of such Stockholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the proxy set forth in
this Section 7 is coupled with an interest and is irrevocable until such time as
this Agreement terminates in accordance with its terms. Such Stockholder hereby
further affirms that the irrevocable proxy is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of such Stockholder under this Agreement.
Such Stockholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done in accordance with the terms of this
Agreement by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212 of the Delaware
General Corporation Law. Such irrevocable proxy shall be valid until the
termination of this Agreement pursuant to Section 11.
8. Further Assurances. Each Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Buyer or Merger Sub may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement and to vest the
power to vote such Stockholder's Shares as contemplated by Section 7.
9. Covenants of the Company. The Company covenants to Buyer and Merger
Sub that (1) it and its Board of Directors shall use reasonable best efforts to
ensure that no state takeover law or similar statute becomes applicable to the
transactions herein that would have the effect of preventing such transactions,
and if such law becomes applicable, to use its reasonable best efforts to
minimize the effect of such law on the transactions contemplated herein; (2) it
will not register any transfer of any certificate representing the Stockholders'
shares in contravention of this Agreement; and (3) the transactions contemplated
herein and in the Merger Agreement are not in contravention of Section 203 of
the Delaware General Corporation Law.
10. Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to
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the preceding sentence, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns. Notwithstanding the foregoing, Each of Buyer and Merger
Sub shall have the right to assign its rights, interests and obligations
hereunder to any of its affiliates or financing sources and any of their
respective affiliates at its sole option and without the prior written consent
of the other parties hereto. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
11. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest to occur of (a) termination
of the Merger Agreement in accordance with its terms, (b) the agreement of the
parties hereto to terminate this Agreement, or (c) the effective time of the
Merger. Nothing in this Section 11 shall relieve any party from liability for
willful breach of this Agreement.
12. Dividends and Split-Ups. In the event of any change in the number of
issued and outstanding Shares by reason of any stock dividend, split-up,
recapitalization, merger, combination, conversion, exchange of shares, rights
plan or other change in the corporate or capital structure of the Company which
would have the effect of diluting the rights of Buyer and Merger Sub hereunder,
the number and kind of Shares subject to this Agreement shall be appropriately
adjusted.
13. General Provisions.
(a) Expenses. Subject to the terms of the Merger Agreement (and
except to the extent already paid by the Company on behalf of the Stockholders),
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense.
(b) Amendments. This Agreement may not be amended except by an
instrument in writing signed by Buyer, Merger Sub and each Stockholder as to
which such amendment is to be effective.
(c) Notice. All notices and other communications hereunder shall
be in writing and shall be deemed given upon receipt to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to Buyer or Merger Sub, to
c/o COLUMBIA CAPITAL LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
and
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c/o M/C VENTURE PARTNERS
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy (which shall not constitute notice
to Buyer or Merger Sub) to:
Xxxxxxxx & Xxxxx LLP
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
(ii) if to the Company, to
ICG Communications, Inc.
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice
to the Company) to:
(iii) if to a Stockholder, to the address set forth under the
name of such Stockholder on Schedule A hereto
with a copy (which shall not constitute notice to Buyer
or Merger Sub) to:
ICG Communications, Inc.
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(d) Interpretation. When a reference is made in this Agreement to
a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
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(e) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (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
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law.
(h) Publicity. Except as otherwise required by law, court process
or the rules of a national securities exchange or the NASDAQ National Market or
as contemplated or provided in the Merger Agreement (any of the foregoing, a
"Required Disclosure"), for so long as this Agreement is in effect, neither any
Stockholder nor Buyer or Merger Sub shall issue or cause the publication of any
press release or other public announcement with respect to the transactions
contemplated by this Agreement or the Merger Agreement without the consent of
the other parties, which consent shall not be unreasonably withheld; provided,
that in any case, Except for Required Disclosures, a Stockholder will not use
the name of Buyer or Merger Sub or any affiliate thereof without Buyer's written
permission and will discuss the term and contents of any such release with Buyer
prior to dissemination; provided, further, that nothing contained herein shall
preclude Buyer or Merger Sub from making any announcement or disclosing any
information to its financing and/or management resources.
14. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company (or who has
designated a director or officer of the Company) makes any agreement or
understanding herein in his or her capacity as such director or officer (or with
respect to any such designated director or officer, in his capacity as such).
Each Stockholder signs solely in his or her capacity as the record holder and
beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of, such Stockholder's Shares and nothing herein shall limit
or affect any actions taken by a Stockholder (or such Stockholder's designee(s))
in its capacity as an officer or director of the Company to the extent not
prohibited by the Merger Agreement.
15. Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States
(without posting of bond or other security). This being in addition to any other
remedy to which they are entitled at law or in equity.
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16. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
17. Waiver of Jury Trial. Each party to this Agreement hereby waives, to
the extent permitted by applicable law, trial by jury in any litigation in any
court with respect to, in connection with, or arising out of this Agreement or
any ancillary agreement or the validity, protection, interpretation, collection
or enforcement thereof.
* * * * *
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IN WITNESS WHEREOF, Buyer, Merger Sub, the Company and each
Stockholder have signed, or caused this Agreement to be signed by its officer
duly authorized, all as of the date first written above.
MCCC ICG HOLDINGS LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
MCCC MERGER CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
ICG COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
[STOCKHOLDER SIGNATURE PAGES FOLLOW]
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Stockholder Signature Page to
Support Agreement
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, L.L.C., its general
partner
By: /s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
CERBERUS INTERNATIONAL, LTD.
By: Xxxxxxxxx Xxxx Overseas Management, LLC
its Investment Manager
By: /s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
CERBERUS SERIES ONE HOLDINGS, LLC
By: Cerberus Institutional Partners, L.P.,
its managing partner
By: Cerberus Institutional Associates,L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
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CERBERUS SERIES TWO HOLDINGS, LLC
By: Cerberus Institutional Partners, L.P.,
its managing member
By: Cerberus Institutional Associates, L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
X.X. XXXX ASSET MANAGEMENT CO. L.L.C.
signing in its capacity as investment manager
for various of its clients
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
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SCHEDULE A
A A-2
NUMBER OF OPTIONS TO
NUMBER OF SHARES OF THE COMPANY PURCHASE THE COMPANY
STOCKHOLDER AND ADDRESS COMMON STOCK COMMON STOCK
----------------------- ------------ ------------
CERBERUS PARTNERS, L.P. 225,045 Warrants to purchase 22,245
shares of common stock at $9.12
per share
c/o
000 Xxxx Xxxxxx
Xxxxxx 00 - 00
Xxx Xxxx, XX 00000
CERBERUS INTERNATIONAL, LTD. 452,324 Warrants to purchase 284,210
shares of common stock at $0.01
per share
x/x
000 Xxxx Xxxxxx
Xxxxxx 00 - 00 Xxxxxxxx to purchase 164,814
Xxx Xxxx, XX 00000 shares of common stock at $9.12
per share
CERBERUS SERIES ONE HOLDINGS, LLC 75,498 Warrants to purchase 56,843
shares of common stock at $0.01
per share
x/x
000 Xxxx Xxxxxx
Xxxxxx 00 - 00 Xxxxxxxx to purchase 31,494
Xxx Xxxx, XX 00000 shares of common stock at $9.12
per share
CERBERUS SERIES TWO HOLDINGS, LLC N/A Warrants to purchase 85,263
shares of common stock at $0.01
per share
c/o Warrants to purchase 36,000
000 Xxxx Xxxxxx shares of common stock at $9.12
Floors 21 - 23 per share
Xxx Xxxx, XX 00000
X.X. XXXX ASSET MANAGEMENT CO. L.L.C. 1,163,453 Warrants to purchase 17,043
shares of common stock at $9.12
c/o per share
00 Xxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
