-----------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated February 12, 1998
between
ICG SERVICES, INC.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
-----------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into February 12, 1998, between ICG SERVICES,
INC., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& CO. INCORPORATED (the "Placement Agent").
This Agreement is made pursuant to the Placement
Agreement dated February 9, 1998, among the Company, NETCOM On-
Line Communication Services, Inc. and the Placement Agent (the
"Placement Agreement"), which provides for the sale by the
Company to the Placement Agent of an aggregate of $490,000,000
principal amount at maturity of the Company's 10% Senior Discount
Notes due 2008 (the "Securities"). In order to induce the
Placement Agent to enter into the Placement Agreement, the
Company has agreed to provide to the Placement Agent and its
direct and indirect transferees 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.
-----------
As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as
--------
amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of
--------
1934, as amended from time to time.
"Accreted Value" shall have the meaning set forth in
--------------
the Indenture.
"Closing Date" shall mean the Closing Date as defined
------------
in the Placement Agreement.
"Company" shall have the meaning set forth in the
-------
preamble to this Agreement and shall also include the
Company's successors.
"Exchange Offer" shall mean the exchange offer by the
--------------
Company of Exchange Securities for Registrable Securities
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration
---------------------------
under the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an
-------------------------------------
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form) and all amendments
and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by
-------------------
the Company under the Indenture containing terms identical
to the Securities (except that (i) interest thereon shall
accrue from the last date on which interest was paid on the
Securities or, if no such interest has been paid, from
February 15, 2003 and (ii) the Exchange Securities will not
provide for an increase in the rate of interest and will not
contain terms with respect to transfer restrictions) and to
be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer.
"Holder" shall mean the Placement Agent, for so long as
------
it owns any Registrable Securities, and each of its
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the
Indenture; provided that, for purposes of Sections 4 and 5
--------
of this Agreement, the term "Holder" shall include
Participating Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the
---------
Securities to be dated as of the Closing Date between the
Company and Norwest Bank Colorado, National Association,
trustee, and as the same may be amended from time to time in
accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority
----------------
of the aggregate principal amount of outstanding Registrable
Securities; provided that, whenever the consent or approval
of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities
held by the Company or any of its affiliates (as such term
is defined in Rule 405 under the ▇▇▇▇ ▇▇▇) (other than the
Placement Agent 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.
"Person" shall mean an individual, partnership,
------
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Placement Agent" shall have the meaning set forth in
---------------
the preamble to this Agreement.
"Placement Agreement" shall have the meaning set forth
-------------------
in the preamble.
"Prospectus" shall mean the prospectus included in a
----------
Registration Statement, including any preliminary
prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, 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;
----------------------
provided, however, that the Securities shall cease to be
-------- -------
Registrable Securities (i) when a 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 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
---------------------
incident to performance of or compliance by the Company 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
Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any
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, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable
securities laws, (vi) the fees and disbursements of the
Trustee and its counsel, (vii) the fees and disbursements of
counsel for the Company and, in the case of a Shelf
Registration Statement, 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 Agent) and (viii) the fees and
disbursements of the independent public accountants of the
Company, 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 and
underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration
----------------------
statement of the Company that covers any of the Exchange
Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and
supplements to any 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.
"SEC" shall mean the Securities and Exchange
---
Commission.
"Shelf Registration" shall mean a registration effected
------------------
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
----------------------------
registration statement of the Company pursuant to the
provisions of Section 2(b) of this Agreement which covers
all of the Registrable Securities (but no other securities
unless approved by the Holders whose Registrable Securities
are covered by such Shelf Registration Statement) 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.
"Trustee" shall mean the trustee with respect to the
-------
Securities under the Indenture.
"Underwritten Registration" or "Underwritten Offering"
------------------------- ---------------------
shall mean a registration in which Registrable Securities
are sold to an Underwriter (as hereinafter defined) for
reoffering to the public.
2. Registration Under the 1933 Act.
-------------------------------
(a) To the extent not prohibited by any applicable law
or applicable interpretation of the Staff of the SEC, the Company
shall use its best efforts to cause to be filed an Exchange Offer
Registration Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Securities for
Exchange Securities and to have such Registration Statement
declared effective by the SEC and remain effective until the
closing of the Exchange Offer. The Company shall commence the
Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared effective by the SEC and use its best
efforts to have the Exchange Offer consummated on or prior to
August 12, 1998. The Company shall commence the Exchange Offer
by mailing the related exchange offer Prospectus and accompanying
documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall
be a period of at least 20 business days from the date such
notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered
will remain outstanding and continue to accrete in value
(until February 15, 2003 and thereafter will accrue
interest) but will not retain any rights under this
Agreement;
(iv) that Holders electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Security, together
with the enclosed letters of transmittal, to the institution
and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice prior to the close
of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last
Exchange Date, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of
New York) specified in the notice a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is
withdrawing his election to have such Securities exchanged.
As soon as practicable after the last Exchange Date,
the Company shall:
(i) accept for exchange Registrable Securities or
portions thereof tendered and not validly withdrawn pursuant
to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee
for cancellation all Registrable Securities or portions
thereof so accepted for exchange by the Company and issue,
and cause the Trustee to promptly authenticate and mail to
each Holder, an Exchange Security equal in principal amount
to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company shall use its best efforts to complete the Exchange
Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable
laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate applicable law or any
applicable interpretation of the Staff of the SEC. The Company
shall inform the Placement Agent of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Placement
Agent shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
(b) In the event that (i) the Company determines that
the Exchange Offer Registration provided for in Section 2(a)
above is not available or may not be consummated as soon as
practicable after the last Exchange Date because it would violate
applicable law or the applicable interpretations of the Staff of
the SEC, (ii) the Exchange Offer is not for any other reason
consummated by August 12, 1998 or (iii) in the opinion of counsel
for the Placement Agent a Registration Statement must be filed
and a Prospectus must be delivered by the Placement Agent in
connection with any offering or sale of Registrable Securities,
the Company shall use its best efforts to cause to be filed as
soon as practicable after such determination, date or notice of
such opinion of counsel is given to the Company, as the case may
be, a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities and to have such
Shelf Registration Statement declared effective by the SEC. In
the event the Company is required to file a Shelf Registration
Statement solely as a result of the matters referred to in clause
(iii) of the preceding sentence, the Company shall use its best
efforts to file and have declared effective by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a)
with respect to all Registrable Securities and a Shelf
Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by the
Placement Agent after completion of the Exchange Offer. The
Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective until the period
referred to in Rule 144(k) or until all of the Registrable
Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement. The Company
further agrees to supplement or amend the Shelf Registration
Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company 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.
The Company agrees 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.
(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or
Section 2(b). 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.
(d) An Exchange Offer Registration Statement pursuant
to Section 2(a) hereof or a Shelf Registration Statement pursuant
to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC;
provided, however, that, 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 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 Registration Statement may legally resume. As
provided for in the Indenture, in the event the Exchange Offer is
not consummated and the Shelf Registration Statement is not
declared effective on or prior to August 12, 1998, interest (in
addition to the accrual of original issue discount during the
period ending February 15, 2003 and in addition to the interest
otherwise due on the Securities after such date) will accrue, at
an annual rate of .5% of Accreted Value on the preceding
semiannual payment date, on the Securities from August 12, 1998,
payable in cash semiannually in arrears on each February 15 and
August 15, commencing February 15, 1999, until the Exchange Offer
is consummated or the Shelf Registration Statement is declared
effective; provided that, if a Shelf Registration Statement is
--------
required solely by the matters referred to in clause (iii) of the
first sentence of Section 2(b), such increase in interest rate
shall be payable only to the Placement Agent, with respect to
Securities held by it, and only with respect to any period (from
August 12, 1998) during which such Shelf Registration Statement
is not effective.
(e) Without limiting the remedies available to the
Placement Agent and the Holders, the Company acknowledges that
any failure by the Company to comply with its obligations under
Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Placement Agent 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 Agent or any
Holder may obtain such relief as may be required to specifically
enforce the Company's obligations under Section 2(a) and
Section 2(b) hereof.
3. Registration Procedures.
-----------------------
In connection with the obligations of the Company with
respect to the Registration Statements pursuant to Section 2(a)
and Section 2(b) hereof, the Company shall as expeditiously as
possible:
(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the 1933 Act, which
form (x) shall be selected by the Company and (y) shall, in
the case of a Shelf Registration, 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 its best efforts to cause such
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 each Registration Statement as
may be necessary to keep such 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 or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities, to counsel for the
Placement Agent, 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 the Company consents 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 its best efforts to register or qualify, by
the time the applicable Registration Statement is declared
effective by the SEC, the Registrable Securities under all
applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement shall reasonably request
in writing, 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 the
-------- -------
Company shall not 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) in the case of a Shelf Registration, notify each
Holder of Registrable Securities, counsel for the Holders
and counsel for the Placement Agent promptly and, if
requested by any such Holder or counsel, confirm such advice
in writing (i) when a 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 Registration Statement and Prospectus or
for additional information after the 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 Registration Statement or the
initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and
the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company
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 the Company receives 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 Registration Statement or the related
Prospectus untrue in any material respect or which requires
the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not
misleading and (vi) of any determination by the Company that
a post-effective amendment to a Registration Statement would
be appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment and
provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities, without charge, at
least one conformed copy of each Registration Statement and
any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, 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 Indenture) 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) in the case of a Shelf Registration, upon the
occurrence of any event contemplated by Section 3(e)(v)
hereof, use its best efforts to prepare and file with the
SEC a supplement or post-effective amendment to a
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. The Company agrees 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 the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) within a reasonable time prior to the filing of
any Registration Statement, any Prospectus, any amendment to
a Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide
copies of such document to the Placement Agent and its
counsel (and, in the case of a Shelf Registration Statement,
the Holders and their counsel) and make such of the
representatives of the Company as shall be reasonably
requested by the Placement Agent or its counsel (and, in the
case of a Shelf Registration Statement, the Holders or their
counsel) available for discussion of such document, and
shall not at any time file or make any amendment to the
Registration Statement, any Prospectus or any amendment of
or supplement to a Registration Statement or a Prospectus or
any document which is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the
Placement Agent and its counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall
not have previously been advised and furnished a copy or to
which the Placement Agent or its counsel (and, in the case
of a Shelf Registration Statement, 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 Agent and its counsel (and, in
the case of a Shelf Registration Statement, the Holders and
their counsel)) which counsel to the Company shall advise
the Company, in the form of a written legal opinion, is
required in order to comply with applicable law; the
Placement Agent agrees that, if it receives timely notice
and drafts under this clause (j), it will not take actions
or make objections pursuant to this clause (j) such that the
Company is unable to comply with its obligations under
Section 2(a);
(k) obtain a CUSIP number and, if applicable, a CINS
number, for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective
date of a Registration Statement;
(l) cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Exchange Securities
or Registrable Securities, as the case may be, cooperate
with the Trustee and the Holders to effect such changes to
the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and
execute, and use its best efforts to cause the Trustee to
execute, all documents as may be required to effect such
changes and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make
available for inspection by a representative of the Holders
of the Registrable Securities, any Underwriter participating
in any disposition pursuant to such 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 the Company, and cause the respective
officers, directors and employees of the Company to supply
all information reasonably requested by any such
representative, Underwriter, attorney or accountant in
connection with a Shelf Registration Statement;
(n) in the case of a Shelf Registration, use its best
efforts to cause all Registrable Securities to be listed on
any securities exchange or any automated quotation system on
which similar securities issued by the Company are then
listed if requested by the Majority Holders, to the extent
such Registrable Securities satisfy applicable listing
requirements;
(o) use its best efforts to cause the Exchange
Securities or Registrable Securities, as the case may be, to
be rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule 436(g)(2)
under the ▇▇▇▇ ▇▇▇);
(p) if reasonably requested by any Holder of
Registrable Securities covered by a 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 the Company has received notification of the matters
to be incorporated in such filing; and
(q) in the case of a Shelf Registration, 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 the Company and
its subsidiaries, the 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 the Company
(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 the Company (and, if applicable, any other
certified public accountant of any subsidiary of the
Company, or of any business acquired by the Company for
which financial statements and financial data are or are
required to be included in the 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
in principal amount 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 the Company made
pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in an underwriting
agreement.
In the case of a Shelf Registration Statement, the
Company may require each Holder of Registrable Securities to
furnish to the Company such information regarding the Holder and
the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company
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 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 the Company, such Holder will
deliver to the Company (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 the
Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the
Company shall extend the period during which the 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. Participation of Broker-Dealers in Exchange Offer.
-------------------------------------------------
(a) The Staff of the SEC has taken the position that
any broker-dealer that receives Exchange Securities for its own
account in the Exchange Offer in exchange for Securities that
were acquired by such broker-dealer as a result of market-making
or other trading activities (a "Participating Broker-Dealer"),
may be deemed to be an "underwriter" within the meaning of the
1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange
Securities.
The Company understands that it is the Staff's position
that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Securities,
without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligation under the 1933 Act in connection
with resales of Exchange Securities for their own accounts, so
long as the Prospectus otherwise meets the requirements of the
1933 Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, the Company agrees that the
provisions of this Agreement as they relate to a Shelf
Registration shall also apply to an Exchange Offer Registration
to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Placement Agent or by one or
more Participating Broker-Dealers, in each case as provided in
clause (ii) below, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-
Dealers consistent with the positions of the Staff recited in
Section 4(a) above; provided that:
--------
(i) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated
by Section 3(i) of this Agreement, for a period exceeding 60
days after the last Exchange Date (as such period may be
extended pursuant to the penultimate paragraph of Section 3
of this Agreement) and Participating Broker-Dealers shall
not be authorized by the Company to deliver and shall not
deliver such Prospectus after such period in connection with
the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an
Exchange Offer Registration, to the extent not required by
the positions of the Staff of the SEC or the 1933 Act and
the rules and regulations thereunder, will be in conformity
with the reasonable request to the Company by the Placement
Agent or with the reasonable request in writing to the
Company by one or more broker-dealers who certify to the
Placement Agent and the Company in writing that they
anticipate that they will be Participating Broker-Dealers;
and provided further that, in connection with such
-------- -------
application of the Shelf Registration procedures set forth
in Section 3 to an Exchange Offer Registration, the Company
shall be obligated (x) to deal only with one entity
representing the Participating Broker-Dealers, which shall
be the Placement Agent unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one
counsel representing the Participating Broker-Dealers, which
shall be counsel to the Placement Agent unless such counsel
elects not to so act and (z) to cause to be delivered only
one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the last Exchange Date
and with respect to each subsequent amendment or supplement,
if any, effected during the period specified in clause (i)
above.
(c) The Placement Agent shall have no liability to the
Company or any Holder with respect to any request that it may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless
the Placement Agent, each Holder and each Person, if any, who
controls the 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, the
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 the 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 Registration Statement (or
any amendment thereto) pursuant to which Exchange Securities or
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 the
Company 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 the Placement Agent or any Holder furnished to the
Company in writing by the Placement Agent or any selling Holder
expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3 of this Agreement, the Company
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 ▇▇▇▇ ▇▇▇) to the same extent as provided
above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Placement Agent and
the other selling Holders, and each of their respective
directors, officers who sign the Registration Statement and each
Person, if any, who controls the Company, the 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 the Company to the Placement
Agent and the Holders, but only with reference to information
relating to such Holder furnished to the Company in writing by
such Holder expressly for use in any 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 Agent
and all Persons, if any, who control the Placement Agent within
the meaning of either Section 15 of the 1933 Act or ▇▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇, (▇) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company 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 Agent and Persons who control the
Placement Agent, such firm shall be designated in writing by the
Placement Agent. 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 the Company. 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 the Company 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 the Company 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
5(d) are several in proportion to the respective principal amount
of Registrable Securities of such Holder that were registered
pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section
5 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 5, no Holder shall be required to
indemnify or 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 ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this
Section 5 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.
The indemnity and contribution provisions contained in
this Section 5 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 Agent,
any Holder or any Person controlling the Placement Agent or any
Holder, or by or on behalf of the Company, its officers or
directors or any Person controlling the Company, (iii) acceptance
of any of the Exchange Securities and (iv) any sale of
Registrable Securities pursuant to a Shelf Registration
Statement.
6. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not
--------------------------
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 the Company'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 the
Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding
Registrable 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 5 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 the Company
by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to
the Placement Agent, the address set forth in the Indenture, and
(ii) if to the Company, initially at the Company's address set
forth in the Indenture and thereafter at such other address,
notice of which is given in accordance with the provisions of
this Section 6(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.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the person
giving the same to the Trustee, at the address specified in the
Indenture.
(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 Agent (in its capacity as Placement Agent) shall
have no liability or obligation to the Company 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. The Company
---------------------------------
shall not, and shall use its best efforts to cause its affiliates
(as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) not to, purchase and
then resell or otherwise transfer any Notes.
(f) Third Party Beneficiary. The Holders shall be
-----------------------
third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Placement Agent, 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 and by the
parties hereto in separate 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. The Company 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 SERVICES, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: H. ▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice
President, General
Counsel and Secretary
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal