PAGE 1 EXHIBIT 10.2
AMENDMENT, dated as of April 10, 2000 (the "Agreement"), between ICG
Communications, Inc., a Delaware corporation (the "Company"), and the Purchasers
whose signatures appear below (the "Purchasers").
WHEREAS, reference is made to the Preferred Stock and Warrant Purchase
Agreement dated as of February 27, 2000 (the "Purchase Agreement"), by and
between the Company and the Purchasers. Capitalized terms used herein but not
otherwise defined shall be given the meaning ascribed to them in the Purchase
Agreement;
WHEREAS, pursuant to an Assignment of Rights Under Preferred Stock and
Warrant Purchase Agreement dated as of March 8, 2000, HM4 ICG Qualified Fund,
LLC, HM4 ICG Private Fund, LLC, HM PG-IV ICG, LLC, HM 4-SBS ICG Coinvestors,
LLC, and HM 4-EQ ICG Coinvestors became parties to the Purchase Agreement;
WHEREAS, in accordance with Section 8.6 of the Purchase Agreement, the
parties hereto desire to amend the Purchase Agreement as more fully set forth
below in order to reflect (1) the redesignation of the Series A Preferred Stock
into Series A-1 Preferred Stock (as defined below), Series A-2 Preferred Stock
(as defined below) and Series A-3 Preferred Stock (as defined below), (2) the
increase of the initial Liquidation Preference per share of Series A Preferred
Stock from $1,000 to $10,000 per share and the concomitant reduction in the
number of shares of Series A Preferred Stock being issued by the Company and
purchased by the Purchasers and (3) related conforming changes;
NOW, THEREFORE, in consideration of the foregoing, and of the covenants and
agreements contained herein, the parties hereby agree as follows:
1. Amendment of Recitals. The recitals of the Purchase Agreement shall
be amended by deleting the first "Whereas" clause in its entirety and
substituting, in lieu thereof, the following:
"WHEREAS, the Company proposes, subject to the terms and conditions set forth
herein, to issue and sell to the Purchasers 50,000 shares of its 8% Series A-1
Convertible Preferred Stock due 2015, initial liquidation preference $10,000 per
share, par value $0.01 per share (the "Series A-1 Preferred Stock"), 23,000
shares of its 8% Series A-2 Convertible Preferred Stock due 2015, initial
liquidation preference $10,000 per share, par value $0.01 per share (the "Series
A-2 Preferred Stock") and 2,000 shares of its 8% Series A-3 Convertible
Preferred Stock due 2015, initial liquidation preference $10,000 per share, par
value $0.01 per share (the "Series A-3 Preferred Stock" and together with the
Series A-1 Preferred Stock and the Series A-2 Preferred Stock, the "Series A
Preferred Stock");"
PAGE 2
2. Amendment of Definitions. Section (a) of Article I is hereby
amended by inserting or amending, as the case may be, the following definitions:
""Amending Agreement" means the Amendment dated as of April 10, 2000 by and
among the Company and the other parties listed on the signature pages thereof."
""Equity Documents" means this Agreement, the Registration Rights
Agreement, the Certificate of Designation, the Management Rights Agreements, the
Share Exchange Agreement, the Warrants and the Amending Agreement."
""HMTF Issued Series A Preferred Shares" shall mean the shares of Series
A-2 Preferred Stock issued to members of the HMTF Group on the Closing Date
under this Agreement."
""Liberty Issued Series A Preferred Shares" shall mean the shares of Series
A-1 Preferred Stock issued to members of the Liberty Group on the Closing Date
under this Agreement."
""Registration Rights Agreement" means the Registration Rights Agreement
dated as of April 7, 2000, by and among the Company and the Purchasers, in the
form attached hereto as Exhibit C."
""Series A-1 Preferred Stock" has the meaning set forth in the first
recital to this Agreement."
""Series A-2 Preferred Stock" has the meaning set forth in the first
recital to this Agreement."
""Series A-3 Preferred Stock" has the meaning set forth in the first
recital to this Agreement."
3. Amendment of Section 2.1. The Purchase Agreement is hereby amended
by deleting "one thousand dollars ($1,000) per share" in the fifth line of
Section 2.1 and substituting, in lieu thereof, "ten thousand dollars ($10,000)
per share."
4. Amendment of Section 5.2.
(a) The Purchase Agreement is hereby amended by deleting Section 5.2(a)
in its entirety and substituting, in lieu thereof, the following:
" For so long as the members of the HMTF Group in the aggregate own any
combination of shares of Common Stock and Series A-2 Preferred Stock
representing an amount of Common Stock (on an as-converted basis) that, taken
together, equals at least 4,107,143 shares of Common Stock (as adjusted for any
stock dividends, splits and combinations and similar events affecting the Common
Stock from time to time), the holders of a majority of the then outstanding HMTF
Shares shall have the right to designate one
PAGE 3
person for election to the Company's Board of Directors or, if greater, such
number of persons (rounded up to the next whole number) equal to 10% of the then
authorized number of members of the Company's Board of Directors (each such
person an "HMTF Director"); provided, however, that the right to designate an
HMTF Director under this Section 5.2 shall be suspended at any time that the
holders of the Series A-2 Preferred Stock have the right to elect a person to
the Board of Directors under the terms of the Series A-2 Preferred Stock set
forth in the Certificate of Designation. In the event the holders of a majority
of the then outstanding HMTF Shares are entitled under this Section 5.2 to
designate an HMTF Director for election to the Company's Board of Directors and
so designate an HMTF Director, they shall so notify the Company in writing and
the Company shall use its best efforts (a) to cause the size of the Board of
Directors to be increased by one and the vacancy created thereby to be filled by
electing an HMTF Director and (b) in connection with the meeting of stockholders
of the Company next following such election, to cause an HMTF Director to be
nominated for election as a director by the stockholders and to cause the HMTF
Director to be so elected. If the holders of a majority of the then outstanding
HMTF Shares are entitled under this Section 5.2 to designate an HMTF Director
for election to the Company's Board of Directors and a vacancy shall exist in
the office of an HMTF Director, the holders of a majority of the then
outstanding HMTF Shares shall be entitled to designate a successor and the Board
of Directors shall use its best efforts to (x) elect such successor and (y) in
connection with the meeting of stockholders of the Company next following such
election, cause such successor to be nominated for election as director by the
stockholders and to be elected."
(b) The Purchase Agreement is hereby amended by deleting Section
5.2(b)(i) in its entirety and substituting, in lieu thereof, the following:
" For so long as the members of the Liberty Group in the aggregate own any
combination of shares of Common Stock and Series A-1 Preferred Stock
representing an amount of Common Stock (on an as-converted basis) that, taken
together, equals at least 2,687,571 shares of Common Stock (as adjusted for any
stock dividends, splits and combinations and similar events affecting the Common
Stock from time to time), the members of the Liberty Group, voting together as a
single class by a plurality of the votes cast or by the written consent of a
majority in interest of such members, shall have a right to designate one person
for election to the Company's Board of Directors or, if greater, such number of
persons (rounded up to the next whole number) equal to 10% of the then
authorized number of members of the Company's Board
PAGE 4
of Directors (each such person a "Liberty Director"); provided, however, that
the right to designate a Liberty Director under this Section 5.2 shall be
suspended at any time that the holders of the Series A-1 Preferred Stock have
the right to elect a person to the Board of Directors under the terms of the
Series A-1 Preferred Stock set forth in the Certificate of Designation. In the
event the members of the Liberty Group are entitled under this Section 5.2 to
designate the Liberty Director for election to the Company's Board of Directors
and elect to so designate a Liberty Director, they shall so notify the Company
in writing and the Company shall use its best efforts (a) to cause the size of
the Board of Directors to be increased by one and the vacancy created thereby to
be filled by electing a Liberty Director and (b) in connection with the meeting
of stockholders of the Company next following such election, to cause a Liberty
Director to be nominated for election as director by the stockholders and to
cause the Liberty Director to be so elected. If the members of the Liberty Group
are entitled under this Section 5.2 to designate a Liberty Director for election
to the Company's Board of Directors and a vacancy shall exist in the office of a
Liberty Director, the members of the Liberty Group, voting together as a single
class by a plurality of the votes cast or by the written consent of a majority
in interest of such members, shall be entitled to designate a successor and the
Board of Directors shall use its best efforts to (x) elect such successor and
(y) in connection with the meeting of stockholders of the Company next following
such election, cause such successor to be nominated for election as director by
the stockholders and to be elected."
(c) The Purchase Agreement is hereby amended by deleting Section
5.2(b)(ii) in its entirety and substituting, in lieu thereof, the following:
" For so long as the members of the Liberty Group own any combination of shares
of Common Stock and Series A-1 Preferred Shares representing an amount of Common
Stock (on an as-converted basis) that, taken together, equals 8,928,571 shares
of Common Stock (as adjusted for any stock dividends, splits and combinations
and similar events affecting the Common Stock from time to time), the members of
the Liberty Group, voting together as a single class by a plurality of the votes
cast or by the written consent of a majority in interest of such members, shall
have a right, in addition to the rights set forth in clause (i) above, to
designate one additional person for election to the Company's Board of Directors
or, if greater, such number of additional persons (rounded up to the next whole
number) equal to 10% of the then authorized number of members of the Company's
Board of Directors (each such person an "Additional Liberty Director");
provided, however, that the right to designate an Additional
PAGE 5
Liberty Director under this Section 5.2 shall be suspended at any time that the
holders of the Series A-1 Preferred Stock have the right to elect a person to
the Board of Directors under the terms of the Series A-1 Preferred Stock set
forth in the Certificate of Designation. In the event the members of the
Liberty Group are entitled under this Section 5.2 to designate an Additional
Liberty Director for election to the Company's Board of Directors and elect to
so designate an Additional Liberty Director, they shall so notify the Company in
writing and the Company shall use its best efforts (a) to cause the size of the
Board of Directors to be increased by one and the vacancy created thereby to be
filled by electing an Additional Liberty Director and (b) in connection with the
meeting of stockholders of the Company next following such election, to cause an
Additional Liberty Director to be nominated for election as director by the
stockholders and to cause an Additional Liberty Director to be so elected. If
the members of the Liberty Group are entitled under this Section 5.2 to
designate an Additional Liberty Director for election to the Company's Board of
Directors and a vacancy shall exist in the office of an Additional Liberty
Director, the members of the Liberty Group, voting together as a single class by
a plurality of the votes cast or by the written consent of a majority in
interest of such members, shall be entitled to designate a successor and the
Board of Directors shall use its best efforts to (x) elect such successor and
(y) in connection with the meeting of stockholders of the Company next following
such election, cause such successor to be nominated for election as director by
the stockholders and to be elected."
5. Amendment of Section 5.16. Section 5.16 of the Purchase Agreement is
hereby amended by deleting the third sentence in it entirety and substituting,
in lieu thereof, the following sentence:
" This proportional purchase right shall not apply to shares issued pursuant to
the Share Exchange Agreement, any rights or obligations referenced on Schedule
3.2, any shares of capital stock issued by the Company in lieu of any fees
payable in connection with the Transaction to the Company's financial advisors,
any shares issued pursuant to any stock option plan or arrangement or employee
benefit plan or arrangement existing as of the date hereof or hereafter approved
by the Board of Directors of the Company or the shares of Common Stock issued
from time to time upon conversion of the Series A Preferred Stock or upon
exercise of the Warrants."
6. Amendment of Schedule I. Schedule I to the Purchase Agreement is
hereby amended by deleting it in its entirety and substituting, in lieu thereof,
Schedule I attached hereto.
PAGE 6
7. No Other Waivers. Except as expressly provided in this Agreement,
each of the terms and provisions of the Purchase Agreement shall remain in full
force and effect in accordance with its terms.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
9. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York (without giving effect to
principles of conflicts of law).
10. Headings. The headings used herein are for convenience of
reference only and shall not affect the construction of, nor shall they be taken
in consideration in interpreting, this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Amendment as of the date first written above.
ICG COMMUNICATIONS, INC.
By:/s/ H. ▇▇▇ ▇▇▇▇▇▇
Name: H. ▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
HMTF BRIDGE ICG, LLC
HM4 ICG QUALIFIED FUND, LLC
HM4 ICG PRIVATE FUND, LLC
HM PG-IV ICG, LLC
HM 4-SBS ICG COINVESTORS, LLC
HM 4-EQ ICG COINVESTORS, LLC
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
LIBERTY MEDIA CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
GLEACHER/ICG INVESTORS, LLC
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Member
SCHEDULE I
Series of Number
Purchasers. . . . . . . . . . Preferred of Preferred Number of Purchase Price
Stock Shares Warrants of the Shares
Liberty Media Corporation . . Series A-1 50,000 6,666,667 $ 500,000,000
HMTF Bridge ICG, LLC. . . . . Series A-2 11,500 1,533,334 $ 115,000,000
HM4 ICG Qualified Fund, LLC . Series A-2 10,464 1,395,253 $ 104,644,000
HM4 ICG Private Fund, LLC . . Series A-2 74 9,885 $ 741,000
HM PG-IV ICG, LLC . . . . . . Series A-2 557 74,281 $ 5,571,000
HM 4-SBS ICG Coinvestors, LLC Series A-2 251 33,412 $ 2,506,000
HM 4-EQ ICG Coinvestors, LLC. Series A-2 154 20,502 $ 1,538,000
Gleacher/ICG Investors LLC. . Series A-3 2,000 266,666 $ 20,000,000
