Exhibit 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated September 24, 1997
among
ICG COMMUNICATIONS, INC.,
ICG FUNDING, INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED
DEUTSCHE XXXXXX XXXXXXXX INC.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into September 24, 1997, among ICG FUNDING, LLC,
a Delaware limited liability company ("Funding"), ICG
COMMUNICATIONS, INC., a Delaware corporation ("ICG"), and XXXXXX
XXXXXXX & CO. INCORPORATED and DEUTSCHE XXXXXX XXXXXXXX INC. (the
"Placement Agents").
This Agreement is made pursuant to the Placement
Agreement dated September 18, 1997, among Funding, ICG and the
Placement Agents (the "Placement Agreement"), which provides for
the sale by Funding and ICG to the Placement Agents of an
aggregate of 2,300,000 of Funding's 6 % Exchangeable Limited
Liability Company Preferred Securities, liquidation preference
$50 per preferred security (the "Preferred Securities").
Pursuant to the Placement Agreement, Funding and ICG also propose
to issue and sell to the Placement Agents not more than an
additional 345,000 Preferred Securities, if and to the extent
that the Placement Agents shall have determined to exercise the
right to purchase such additional Preferred Securities granted to
the Placement Agents. In order to induce the Placement Agents to
enter into the Placement Agreement, Funding and ICG have agreed
to provide to (i) the Placement Agents and (ii) the holders from
time to time of the Preferred Securities and the shares of the
Common Stock, par value $.01 per share ("ICG Common Stock"), of
ICG issuable upon exchange of the Preferred Securities (together
with the Preferred Securities, the "Securities") the registration
rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Placement
Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Average Market Value" of the ICG Common Stock shall
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mean the average of the Current Market Value for the ten
trading days ending on the second business day prior to the
applicable date of payment.
"Closing Date" shall mean the Closing Date as defined
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in the Placement Agreement.
"Current Market Value" of the ICG Common Stock shall
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mean (i) the Volume Weighted Average Price, as reported on
the Nasdaq National Market or (ii) the average of the high
and low sales prices of the ICG Common Stock, if reported on
any other national securities exchange.
"Funding" shall have the meaning set forth in the
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preamble and shall also include Funding's successors.
"Holder" shall mean the Placement Agent, for so long as
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it owns any Registrable Securities, and the holders from
time to time of the Registrable Securities.
"ICG" shall have the meaning set forth in the preamble
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and shall also include ICG's successors.
"ICG Common Stock" shall have the meaning set forth in
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the preamble.
"LLC Agreement" shall mean the LLC Agreement as defined
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in the Placement Agreement.
"Majority Holders" shall mean the Holders of a majority
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of the aggregate principal amount of outstanding Registrable
Securities; provided that whenever the consent or approval
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of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities
held by ICG or Funding or any of their affiliates (as such
term is defined in Rule 405 under the 0000 Xxx) (other than
the Placement Agents or subsequent holders of Registrable
Securities if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such
Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of
such required percentage or amount.
"Xxxxxx Xxxxxxx" shall mean Xxxxxx Xxxxxxx & Co.
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Incorporated.
"1933 Act" shall mean the Securities Act of 1933, as
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amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of
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1934, as amended from time to time.
"Person" shall mean an individual, partnership,
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corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Placement Agents" shall have the meaning set forth in
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the preamble.
"Placement Agreement" shall have the meaning set forth
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in the preamble.
"Preferred Securities" shall have the meaning set forth
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in the preamble.
"Prospectus" shall mean the prospectus included in a
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Shelf Registration Statement, including any preliminary
prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, and by all other
amendments and supplements to such prospectus, and in each
case including all material incorporated by reference
therein.
"Registrable Securities" shall mean the Securities;
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provided, however, that the Securities shall cease to be
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Registrable Securities (i) when a Shelf Registration
Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities
shall have been disposed of pursuant to such Shelf
Registration Statement, (ii) when such Securities have been
sold to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933
Act or (iii) when such Securities shall have ceased to be
outstanding.
"Registration Expenses" shall mean any and all expenses
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incident to performance of or compliance by Funding and ICG
with this Agreement, including without limitation: (i) all
SEC, stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees
and disbursements of counsel for any Underwriters or Holders
in connection with blue sky qualification of any of the
Registrable Securities), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing,
printing and distributing any Shelf Registration Statement,
any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and
other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees,
if any, (v) the fees and disbursements of the Transfer Agent
and its counsel, if any, (vi) the fees and disbursements of
counsel for Funding and ICG and the fees and disbursements
of one counsel for the Holders (which counsel shall be
selected by the Majority Holders and which counsel may also
be counsel for the Placement Agents) and (vii) the fees and
disbursements of the independent public accountants of
Funding and ICG, including the expenses of any special
audits or "cold comfort" letters required by or incident to
such performance and compliance, but excluding fees and
expenses of counsel to the Underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holders
(other than as set forth in clause (vi) above) and
underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"SEC" shall mean the Securities and Exchange
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Commission.
"Securities" shall have the meaning set forth in the
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preamble.
"Shelf Registration" shall mean a registration effected
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pursuant to Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf"
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registration statement of ICG and Funding pursuant to the
provisions of Section 2(a) of this Agreement which covers
all of the Registrable Securities on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that
may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Transfer Agent" shall mean American Stock Transfer and
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Trust Company.
"Underwriters" shall have the meaning set forth in
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Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering"
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shall mean a registered offering in which Registrable
Securities are sold to an Underwriter for reoffering to the
public.
2. Registration Under the 1933 Act.
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(a) Funding and ICG shall, within 90 days following
the Closing Date, file with the SEC a Shelf Registration
Statement relating to the offer and sale of the Registrable
Securities by the Holders from time to time in accordance with
the methods of distribution elected by such Holders and set forth
in such Shelf Registration Statement and, thereafter, shall each
use their best efforts to cause such Shelf Registration Statement
to be declared effective under the 1933 Act within 180 calendar
days following the Closing Date. Each of ICG and Funding agrees
to use its best efforts to keep the Shelf Registration Statement
continuously effective until November 15, 2009 (or, if, in the
written opinion, satisfactory in form and substance to the
Placement Agents, of counsel to ICG and Funding, which counsel
shall be reasonably satisfactory to the Placement Agents, all
outstanding Registrable Securities held by persons which are not
affiliates of ICG or Funding may be resold at an earlier date
without registration under the 1933 Act pursuant to Rule 144(k)
under the 1933 Act or any successor provision thereof, then until
such earlier date) or such shorter period that will terminate
when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to a Shelf
Registration Statement. ICG and Funding further agree to
supplement or amend the Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the
registration form used by ICG and Funding for such Shelf
Registration Statement or by the 1933 Act or by any other rules
and regulations thereunder for shelf registration or if
reasonably requested by a Holder with respect to information
relating to such Holder, and to use its best efforts to cause any
such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable.
ICG and Funding agree to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(b) ICG shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a). Each
Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(c) A Shelf Registration Statement pursuant to Section
2(a) hereof will not be deemed to have become effective unless it
has been declared effective by the SEC; provided, however, that,
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if, after it has been declared effective, the offering of
Registrable Securities pursuant to a Shelf Registration Statement
is interfered with by any stop order, injunction or other order
or requirement of the SEC or any other governmental agency or
court, such Shelf Registration Statement will be deemed not to
have become effective during the period of such interference
until the offering of Registrable Securities pursuant to such
Shelf Registration Statement may legally resume. As provided in
the LLC Agreement, if on or prior to the 90th day following the
Closing Date, the Shelf Registration Statement has not been
filed, dividends payable on the Preferred Securities (in addition
to the dividends otherwise payable on the Preferred Securities)
will accrue at an annual rate of 0.25% of the liquidation
preference thereof until the Shelf Registration Statement is
filed, and if on or prior to the 180th day following the Closing
Date, the Shelf Registration Statement is not declared effective,
dividends payable on the Preferred Securities (in addition to the
dividends otherwise payable on the Preferred Securities) will
accrue at an additional annual rate of 0.25% of the liquidation
preference thereof until the Shelf Registration Statement is
declared effective, in each case payable in (i) cash, (ii) shares
of ICG Common Stock, valued at 90% of the Average Market Value of
the ICG Common Stock, or (iii) any combination of cash or ICG
Common Stock (provided that such payment must be made in cash to
the extent ICG shall have provided Funding with cash to make all
or any portion of such payment).
(d) Without limiting the remedies available to the
Placement Agents and the Holders, ICG and Funding acknowledge
that any failure by ICG and Funding to comply with their
respective obligations under Section 2(a) hereof may result in
material irreparable injury to the Placement Agents or the
Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the
Placement Agents or any Holder may obtain such relief as may be
required to specifically enforce ICG's and Funding's obligations
under Section 2(a) hereof.
3. Registration Procedures.
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In connection with the obligations of ICG and Funding
with respect to the Shelf Registration Statements pursuant to
Section 2(a) hereof, ICG and Funding shall as expeditiously as
possible:
(a) prepare and file with the SEC a Shelf Registration
Statement on the appropriate form under the 1933 Act, which
form (x) shall be selected by ICG and Funding and (y) shall
be available for the sale of the Registrable Securities by
the selling Holders thereof and (z) shall comply as to form
in all material respects with the requirements of the
applicable form and include all financial statements
required by the SEC to be filed therewith, and use their
best efforts to cause such Shelf Registration Statement to
become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to a Shelf Registration Statement
as may be necessary to keep such Shelf Registration
Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to
Rule 424 under the 1933 Act; to keep each Prospectus current
during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Registrable
Securities;
(c) furnish to each Holder of Registrable Securities,
to counsel for the Placement Agents, to counsel for the
Holders and to each Underwriter of an Underwritten Offering
of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably
request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and ICG and
Funding consent to the use of such Prospectus and any
amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable
Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with
applicable law;
(d) use their best efforts to register or qualify the
Registrable Securities under all applicable state securities
or "blue sky" laws of such jurisdictions as any Holder of
Registrable Securities covered by a Shelf Registration
Statement shall reasonably request in writing by the time
the Shelf Registration Statement is declared effective by
the SEC, to cooperate with such Holders in connection with
any filings required to be made with the National
Association of Securities Dealers, Inc. and do any and all
other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that
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neither ICG nor Funding shall be required to (i) qualify as
a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general
consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not otherwise so
subject;
(e) notify each Holder of Registrable Securities,
counsel for the Holders and counsel for the Placement Agents
promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (i) when a Shelf Registration
Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (ii)
of any request by the SEC or any state securities authority
for amendments and supplements to a Shelf Registration
Statement and Prospectus or for additional information after
the Shelf Registration Statement has become effective, (iii)
of the issuance by the SEC or any state securities authority
of any stop order suspending the effectiveness of a Shelf
Registration Statement or the initiation of any proceedings
for that purpose, (iv) if, between the effective date of a
Shelf Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations
and warranties of ICG and Funding contained in any
underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to
be true and correct in all material respects or if ICG and
Funding receive any notification with respect to the
suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (v) of the happening of any
event during the period a Shelf Registration Statement is
effective which makes any statement made in such Shelf
Registration Statement or the related Prospectus untrue in
any material respect or which requires the making of any
changes in such Shelf Registration Statement or Prospectus
in order to make the statements therein not misleading and
(vi) of any determination by ICG and Funding that a post-
effective amendment to a Shelf Registration Statement would
be appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Shelf Registration Statement at the earliest possible moment
and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Shelf
Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(h) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends and enable such
Registrable Securities to be in such denominations
(consistent with the provisions of the LLC Agreement) and
registered in such names as the selling Holders may
reasonably request at least two business days prior to the
closing of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by
Section 3(e)(v) hereof, use their best efforts to prepare
and file with the SEC a supplement or post-effective
amendment to a Shelf Registration Statement or the related
Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities,
such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading. ICG and Funding
agree to notify the Holders to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an
event, and the Holders hereby agree to suspend use of the
Prospectus until ICG and Funding have amended or
supplemented the Prospectus to correct such misstatement or
omission;
(j) within a reasonable time prior to the filing of
any Shelf Registration Statement, any Prospectus, any
amendment to a Shelf Registration Statement or amendment or
supplement to a Prospectus or any document which is to be
incorporated by reference into a Shelf Registration
Statement or a Prospectus after initial filing of a Shelf
Registration Statement, provide copies of such document to
the Placement Agents and their counsel and the Holders and
their counsel and make such representatives of ICG or
Funding as shall be reasonably requested by the Placement
Agents or their counsel and the Holders or their counsel,
available for discussion of such document, and shall not at
any time file or make any amendment to a Shelf Registration
Statement, any Prospectus or any amendment of or supplement
to a Shelf Registration Statement or a Prospectus or any
document which is to be incorporated by reference into a
Shelf Registration Statement or a Prospectus, of which the
Placement Agents and their counsel and the Holders and their
counsel shall not have previously been advised and furnished
a copy or to which the Placement Agents or their counsel and
the Holders or their counsel shall object, except for any
amendment or supplement or document (a copy of which has
been previously furnished to the Placement Agents and their
counsel and the Holders and their counsel) which counsel to
ICG and Funding shall advise ICG and Funding, in the form of
a written legal opinion, is required in order to comply with
applicable law;
(k) obtain a CUSIP number for all Registrable
Securities not later than the effective date of a Shelf
Registration Statement;
(l) make available for inspection by a representative
of the Holders of the Registrable Securities, any
Underwriter participating in any disposition pursuant to a
Shelf Registration Statement, and attorneys and accountants
designated by the Holders, at reasonable times and in a
reasonable manner, all financial and other records,
pertinent documents and properties of ICG and Funding, and
cause the respective officers, directors and employees of
ICG and Funding to supply all information reasonably
requested by any such representative, Underwriter, attorney
or accountant in connection with a Shelf Registration
Statement;
(m) use their best efforts to cause all shares of ICG
Common Stock issuable upon exchange of or payable as
dividends on the Preferred Securities to be listed on the
Nasdaq National Market;
(n) use their best efforts to cause all Preferred
Securities to be listed on any securities exchange or any
automated quotation system on which similar securities
issued by ICG or Funding are then listed if requested by the
Majority Holders, to the extent such Preferred Securities
satisfy applicable listing requirements;
(o) if reasonably requested by any Holder of
Registrable Securities covered by a Shelf Registration
Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to
be included therein and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment
as soon as ICG and Funding have received notification of the
matters to be incorporated in such filing; and
(p) enter into such customary agreements and take all
such other actions in connection therewith (including those
requested by the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate
the disposition of such Registrable Securities including,
but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such
representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to
the business of ICG and Funding and their subsidiaries, the
Shelf Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by
reference, if any, in each case in form, substance and scope
as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to ICG and
Funding (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders
and such Underwriters and their respective counsel)
addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily
covered in opinions requested in underwritten offerings,
(iii) obtain "cold comfort" letters from the independent
certified public accountants of ICG and Funding (and, if
applicable, any other certified public accountant of any
subsidiary of ICG and Funding, or of any business acquired
by ICG or Funding for which financial statements and
financial data are or are required to be included in the
Shelf Registration Statement) addressed to each selling
Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in
connection with underwritten offerings, and (iv) deliver
such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable
Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence
the continued validity of the representations and warranties
of ICG and Funding made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained
in an underwriting agreement.
ICG and Funding may require each Holder of Registrable
Securities to furnish to ICG and Funding such information
regarding the Holder and the proposed distribution by such Holder
of such Registrable Securities as ICG and Funding may from time
to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice
from ICG and Funding of the happening of any event of the kind
described in Section 3(e)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a
Shelf Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof, and, if so directed by ICG and Funding, such
Holder will deliver to ICG and Funding (at its expense) all
copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such
notice. If ICG and Funding shall give any such notice to suspend
the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, ICG and Funding shall extend the period
during which such Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving
of such notice to and including the date when the Holders shall
have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions.
The Holders of Registrable Securities covered by a
Shelf Registration Statement who desire to do so may sell such
Registrable Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment banker or investment
bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders
of the Registrable Securities included in such offering.
4. Indemnification and Contribution.
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(a) Each of Funding and ICG, jointly and severally,
agrees to indemnify and hold harmless each Placement Agent, each
Holder and each person, if any, who controls any Placement Agent
or any Holder within the meaning of either Section 15 of the 1933
Act or Section 20 of the 1934 Act, or is under common control
with, or is controlled by, any Placement Agent or any Holder,
from and against all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses
reasonably incurred by any Placement Agent, any Holder or any
such controlling or affiliated Person in connection with
defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material
fact contained in any Shelf Registration Statement (or any
amendment thereto) pursuant to which Registrable Securities were
registered under the 1933 Act, including all documents
incorporated therein by reference, 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, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as
amended or supplemented if ICG and Funding shall have furnished
any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact necessary to
make the statements therein in light of the circumstances under
which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Placement Agent
or any Holder furnished to ICG and Funding in writing by any
Placement Agent through Xxxxxx Xxxxxxx or any selling Holder
expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3 of this Agreement, each of ICG
and Funding, jointly and severally, will also indemnify the
Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the
distribution, their officers and directors and each Person who
controls such Persons (within the meaning of the 1933 Act and the
0000 Xxx) to the same extent as provided above with respect to
the indemnification of the Holders, if requested in connection
with a Shelf Registration Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless ICG, Funding, each Placement Agent
and the other selling Holders, and each of their respective
directors, officers who sign a Shelf Registration Statement and
each Person, if any, who controls ICG or Funding, any Placement
Agent and any other selling Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the
same extent as the foregoing indemnity from ICG and Funding to
the Placement Agents and the Holders, but only with reference to
information relating to such Holder furnished to ICG and Funding
in writing by such Holder expressly for use in a Shelf
Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or paragraph (b) above, 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 request of the
indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the 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 indemnifying
party and the indemnified party and 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 (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Placement Agents
and all Persons, if any, who control the Placement Agents within
the meaning of either Section 15 of the 1933 Act or Xxxxxxx 00 xx
xxx 0000 Xxx, (x) the fees and expenses of more than one separate
firm (in addition to any local counsel) for ICG and Funding,
ICG's directors, their officers who sign the Shelf Registration
Statement and each Person, if any, who controls ICG or Funding
within the meaning of either such Section and (c) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all Persons, if any, who control any
Holders within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred.
In such case involving the Placement Agents and Persons who
control any Placement Agent, such firm shall be designated in
writing by Xxxxxx Xxxxxxx. In such case involving the Holders
and such Persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other
cases, such firm shall be designated by ICG. The indemnifying
party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in
accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in paragraph
(a) or paragraph (b) of this Section 4 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall 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 the indemnifying party or parties
on the one hand and of the indemnified party or parties on the
other hand 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 ICG, Funding and the Holders 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 ICG and Funding or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section
4(d) are several in proportion to the respective number of
Registrable Securities of such Holder that were registered
pursuant to a Shelf Registration Statement.
(e) ICG, Funding and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section
4 were determined by pro rata allocation or by any other method
--- ----
of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph
(d) above 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 Section 4, no Holder shall be required to
contribute any amount in excess of the amount by which the total
price at which Registrable Securities were sold by such Holder
exceeds the amount of any damages that such 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 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 4 are not exclusive and
shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions
contained in this Section 4 shall remain operative and in full
force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the
Placement Agents, any Holder or any Person controlling any
Placement Agent or any Holder, or by or on behalf of ICG,
Funding, their officers or ICG's directors or any Person
controlling ICG or Funding and (iii) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
5. Miscellaneous.
-------------
(a) No Inconsistent Agreements. Neither ICG nor
--------------------------
Funding has entered into, and on or after the date of this
Agreement will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of ICG's or
Funding's other issued and outstanding securities under any such
agreements.
(b) Amendments and Waivers. The provisions of this
----------------------
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless ICG
and Funding have obtained the written consent of Holders of at
least a majority in aggregate liquidation preference of the
outstanding Preferred Securities affected by such amendment,
modification, supplement, waiver or consent; provided, however,
-------- -------
that no amendment, modification, supplement, waiver or consents
to any departure from the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications
-------
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or
any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to ICG and
Funding by means of a notice given in accordance with the
provisions of this Section 5(c), which address initially is, with
respect to the Placement Agents, the address set forth in the
Placement Agreement; and (ii) if to ICG or Funding, initially at
ICG's or Funding's addresses set forth in the Placement Agreement
and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 5(c).
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five business days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the
next business day if timely delivered to an air courier
guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall
----------------------
inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including,
without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein
--------
shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms
of the Placement Agreement. If any transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall
be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such person shall
be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and
such person shall be entitled to receive the benefits hereof.
The Placement Agents (solely in their capacity as Placement
Agents) shall have no liability or obligation to ICG or Funding
with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(e) Purchases and Sales of Securities. ICG and
---------------------------------
Funding shall not, and shall use their best efforts to cause
their affiliates (as defined in Rule 405 under the 0000 Xxx) not
to, purchase and then resell or otherwise transfer any
Securities.
(f) Third Party Beneficiary. The Holders shall be
-----------------------
third party beneficiaries to the agreements made hereunder
between ICG and Funding, on the one hand, and the Placement
Agents, on the other hand, and each Holder shall have the right
to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed
------------
manually or by facsimile in any number of counterparts, each of
which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Each of ICG and Funding
agrees to submit to the jurisdiction of any federal or state
court located in the City of New York in any suit, action or
proceeding with respect to this Agreement and for actions brought
under the U.S. federal or state securities laws brought in any
such court.
(j) Severability. In the event that any one or more
------------
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
ICG COMMUNICATIONS, INC.
By /s/ J. Xxxxxx Xxxxx
-------------------------------
Name: J. Xxxxxx Xxxxx
Title: President and Chief
Executive Officer
ICG FUNDING, LLC
By ICG Communications, Inc.,
its Manager
By /s/ J. Xxxxxx Xxxxx
-------------------------------
Name: J. Xxxxxx Xxxxx
Title: President and Chief
Executive Officer
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
DEUTSCHE XXXXXX XXXXXXXX INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
