EXHIBIT 7(e)
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REGISTRATION RIGHTS AGREEMENT
between
ICG COMMUNICATIONS, INC.
AND
THE PURCHASERS LISTED ON SCHEDULE I
dated as of April 7, 2000
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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
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between ICG Communications, Inc., a Delaware
corporation (the "Company") and the entities
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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
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Agreement");
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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.
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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.
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"Demand Registration" means a registration under the Securities Act
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requested in accordance with Section 2.1.
"Gleacher Holder" means Gleacher/ICG Investors LLC.
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"HMTF Holders" means the Initial HMTF Holders and any direct or
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indirect transferee of any Registrable Securities initially held by the Initial
HMTF Holders.
"Holders" means, collectively, the HMTF Holders, the Liberty Holders
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and the Gleacher Holder (including their respective Affiliates) and any direct
or indirect transferee of any Registrable Securities held by any of such
Persons.
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"Initial Amount," on any particular date and with respect to the
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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
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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.
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"Piggyback Registration" has the meaning set forth in Section 2.2.
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"Registrable Common Stock" means (a) shares of Common Stock issued or
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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
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(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
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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)
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promulgated under the Securities Act.
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"Selling Holder" means any Holder who is selling Registrable
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Securities pursuant to a public offering registered hereunder.
"Series A Preferred Stock" means collectively the Company's (i) 8%
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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).
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"Underwriter" means a securities dealer who purchases any Registrable
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Securities as principal and not as part of such dealer's market-making
activities.
"Warrants" means the Warrants (as defined in the Stock Purchase
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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
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(including their respective direct 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
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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
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Holders") shall have the right to withdraw all, or any part, of their shares
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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
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Registration"). Each Holder will have seven business days after receipt of any
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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
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Company 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
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Registration") pursuant to Rule 415; provided, that the aggregate amount of
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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
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Company shall promptly (but in 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")
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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
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
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(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
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respect to a Shelf 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
forthwith
-11-
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 the occurrence
-12-
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
-13-
Commission or documents provided 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
-14-
Company and the 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.
-15-
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.
-16-
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
-17-
under the terms 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.
-18-
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.
-19-
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:_______________________________
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
Purchasers Preferred of 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
