Exhibit 4.17
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REGISTRATION RIGHTS AGREEMENT
Dated March 11, 1997
between
ICG HOLDINGS, INC.
and
MORGAN STANLEY & CO. INCORPORATED
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into March 11, 1997, between ICG HOLDINGS, INC.,
a Colorado corporation ("Holdings"), and MORGAN STANLEY & CO.
INCORPORATED (the "Placement Agent").
This Agreement is made pursuant to the Placement
Agreement dated March 6, 1997, among Holdings, ICG and the
Placement Agent (the "Placement Agreement"), which provides for
the sale by Holdings and ICG to the Placement Agent of
(i) 100,000 shares of Holdings' 14% Exchangeable Preferred Stock,
which will be mandatorily redeemable in 2008 (the "Shares"), as
set forth in the Second Amended and Restated Articles of
Incorporation of Holdings (the "Amended Articles"), and will be
exchangeable, at the option of Holdings, in whole but not in
part, into Senior Subordinated Exchange Debentures due 2008 (the
"Exchange Debentures") to be issued, if applicable, pursuant to
an Indenture to be dated as of the date of such exchange (the
"Exchange Indenture") and (ii) $176,000,000 million aggregate
principal amount at maturity of 11 5/8% Senior Discount Notes due
2007 of Holdings (the "Notes") issued pursuant to the provisions
of an Indenture to be dated as of the date hereof (the
"Indenture") among Holdings, ICG and Norwest Bank Colorado,
National Association, as trustee. The obligations of Holdings
under the Notes and the Indenture, and under the Exchange
Debentures and the Exchange Indenture when issued, will be
guaranteed by ICG on a senior unsecured basis and a senior
subordinated unsecured basis, respectively, pursuant to the terms
of the Indenture and the Exchange Indenture, respectively. In
order to induce the Placement Agent to enter into the Placement
Agreement, Holdings has agreed to provide to the Placement Agent
and its direct and indirect transferees the registration rights
with respect to the Shares 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.
"Amended Articles"
----------------- shall have the meaning set forth in
the preamble.
"Closing Date"
------------ shall mean the Closing Date as defined
in the Placement Agreement.
"Exchange Debentures"
------------------- shall have the meaning set
forth in the preamble.
"Exchange Indenture"
------------------ shall have the meaning set forth in
the preamble.
"Exchange Offer"
--------------- shall mean the exchange offer by
Holdings of Exchange Shares for Registrable Shares 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 Shares"
--------------- shall mean securities issued by
Holdings containing terms identical to the Shares (except
that such Exchange Shares shall bear no legend and shall be
free from restrictions on transfers), to be offered to
Holders of Shares in exchange for Shares pursuant to the
Exchange Offer.
"Holder"
------ shall mean the Placement Agent, for so long
as it owns any Registrable Shares, and each of its
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Shares under the
Amended Articles; 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)).
"Holdings"
-------- shall have the meaning set forth in the
preamble and shall also include Holdings' successors.
"ICG"
---- shall mean ICG Communications, Inc., a
Delaware corporation and its successors.
"Majority Holders"
---------------- shall mean the Holders of a
majority of the aggregate liquidation preference of
outstanding Registrable Shares; provided that whenever the
-------- consent or approval
of Holders of a specified percentage of Registrable Shares
is required hereunder, Registrable Shares held by Holdings
or any of its affiliates (as such term is defined in Rule
405 under the 1933 Act) (other than the Placement Agent or
subsequent holders of Registrable Shares if such subsequent
holders are deemed to be such affiliates solely by reason of
their holding of such Registrable Shares) 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.
"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 Shares 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 Shares"
------------------ shall mean the Shares, including
any additional Shares paid as dividends; provided, however,
-------- -------
that the Shares shall cease to be Registrable Shares (i)
when a Registration Statement with respect to such Shares
shall have been declared effective under the 1933 Act and
such Shares shall have been disposed of pursuant to such
Registration Statement, (ii) when such Shares 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 Shares shall have ceased to be
outstanding.
"Registration Expenses"
--------------------- shall mean any and all
expenses incident to performance of or compliance by
Holdings 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 Shares or Registrable Shares), (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, if any, (v) the fees and disbursements
of counsel for Holdings 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 (vi) the fees and disbursements
of the independent public accountants of Holdings, 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 Shares by a Holder.
"Registration Statement"
---------------------- shall mean any registration
statement of Holdings that covers any of the Exchange Shares
or Registrable Shares 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 Holdings pursuant to the
provisions of Section 2(b) of this Agreement which covers
all of the Registrable Shares 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 Trust Company.
"Trustee"
------- shall mean the trustee with respect to the
Exchange Debentures under the Exchange Indenture.
"Underwriters"
------------ shall have the meaning set forth in
Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering"
------------------------- -------------------
shall mean a registered offering in which Registrable Shares
are sold to an Underwriter 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, Holdings
shall cause to be filed an Exchange Offer Registration Statement
covering the offer by Holdings to the Holders to exchange all of
the Registrable Shares for Exchange Shares, to have such
Registration Statement declared effective by the SEC and remain
effective until the closing of the Exchange Offer and to
consummate the Exchange Offer on or prior to September 11, 1997.
Holdings 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 September 11, 1997. Holdings 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 Shares validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall
be a period of at least 30 days from the date such notice is
mailed) (the "Exchange Dates");
(iii) that any Registrable Shares not tendered will
remain outstanding and shall accumulate dividends at the
initial rate borne by the Registrable Shares and, other than
Registrable Shares referred to in Section 2(b)(iii) below,
will not retain any rights under this Agreement;
(iv) that Holders electing to have Registrable Shares
exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Shares, 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 its
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 Shares
delivered for exchange and a statement that such Holder is
withdrawing his election to have such Registrable Shares
exchanged.
As soon as practicable after the last Exchange Date,
Holdings shall:
(i) accept for exchange Registrable Shares or portions
thereof tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Transfer
Agent for cancellation all Registrable Shares or portions
thereof so accepted for exchange by Holdings and issue, and
cause the Transfer Agent to promptly authenticate and mail
to each Holder, an Exchange Share equal in principal amount
to the principal amount of the Registrable Shares
surrendered by such Holder.
Holdings 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. Holdings
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
Shares in the Exchange Offer.
(b) In the event that (i) Holdings 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
on or prior to September 11, 1997 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 Shares,
Holdings 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 Holdings, a Shelf Registration
Statement providing for the sale by the Holders of all of the
Registrable Shares and to have such Shelf Registration Statement
declared effective by the SEC. In the event Holdings is required
to file a Shelf Registration Statement solely as a result of the
matters referred to in clause (iii) of the preceding sentence,
Holdings shall file and have declared effective by the SEC both
an Exchange Offer Registration Statement pursuant to Section 2(a)
with respect to all Registrable Shares 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 Shares held by the Placement Agent after
completion of the Exchange Offer. Holdings 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 Shares covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement. Holdings 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 Holdings 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
practicable thereafter. Holdings agrees to furnish to the
Holders of Registrable Shares copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) Holdings 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 Shares 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 Shares 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 Shares
pursuant to such Registration Statement may legally resume. As
provided for in the Amended Articles, in the event the Exchange
Offer is not consummated and the Shelf Registration Statement is
not declared effective on or prior to September 11, 1997,
dividends will accrue, at an annual rate of 0.5% of the
liquidation preference thereof, on the Shares from September 11,
1997, payable in additional Shares quarterly in arrears on each
March 15, June 15, September 15 and December 15, commencing
December 15, 1997; provided that if a Shelf Registration
-------- Statement is required solely as a
result of the matters referred to in clause (iii) of the first
sentence of Section 2(b), such increase in dividends shall be
payable only to the Placement Agent, with respect to Shares held
by it, and only with respect to any period (after September 11,
1997) during which such Shelf Registration Statement is not
effective.
(e) Without limiting the remedies available to the
Placement Agent and the Holders, Holdings acknowledges that any
failure by Holdings 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 Holdings' obligations under Section 2(a) and Section 2(b)
hereof.
3. Registration Procedures.
------------------------
In connection with the obligations of Holdings with
respect to the Registration Statements pursuant to Section 2(a)
and Section 2(b) hereof, Holdings 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 Holdings and (y) shall, in the
case of a Shelf Registration, be available for the sale of
the Registrable Shares 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 Shares or
Exchange Shares;
(c) in the case of a Shelf Registration, furnish to
each Holder of Registrable Shares, to counsel for the
Placement Agent, to counsel for the Holders and to each
Underwriter of an Underwritten Offering of Registrable
Shares, 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 Shares; and Holdings 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 Shares and any such Underwriters in
connection with the offering and sale of the Registrable
Shares 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 Shares under all
applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Shares covered by
a Registration Statement shall reasonably request in
writing, to cooperate with such Holder 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
Shares owned by such Holder; provided, however, that
-------- ------- Holdings
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 Shares, 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 Shares covered
thereby, the representations and warranties of Holdings
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 Holdings receives any notification with
respect to the suspension of the qualification of the
Registrable Shares 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 Holdings 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 Shares, 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 Shares to facilitate
the timely preparation and delivery of certificates
representing Registrable Shares to be sold and not bearing
any restrictive legends and enable such Registrable Shares
to be in such denominations (consistent with the provisions
of the Amended Articles) 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 Shares;
(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 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
Shares, 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. Holdings 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 Holdings
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 its counsel) and make such representatives
of Holdings as shall be reasonably requested by the
Placement Agent or its counsel (and, in the case of a Shelf
Registration Statement, the Holders or its 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 its 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 its 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 its counsel)) which
counsel to Holdings shall advise Holdings, 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 Holdings 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 Shares or Registrable Shares, as
the case may be, not later than the first effective date of
a Registration Statement;
(l) cause the Exchange Indenture to be qualified under
the Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Exchange Shares or
Registrable Shares, as the case may be, cooperate with the
Trustee and the Holders to effect such changes to the
Exchange Indenture as may be required for the Exchange
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 Exchange
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 Shares, 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 Holdings, and cause the officers, directors
and employees of Holdings 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 Shares to be listed on any
securities exchange or any automated quotation system on
which similar securities issued by Holdings are then listed
if requested by the Majority Holders, to the extent such
Registrable Shares satisfy applicable listing requirements;
(o) use its best efforts to cause the Exchange Shares
or Registrable Shares, 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 1933
Act);
(p) if reasonably requested by any Holder of
Registrable Shares 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 Holdings 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 Shares being sold)
in order to expedite or facilitate the disposition of such
Registrable Shares 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 Shares
with respect to the business of Holdings 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 Holdings
(which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the Holders and such
Underwriters and its counsel) addressed to each selling
Holder and Underwriter of Registrable Shares, covering the
matters customarily covered in opinions requested in
underwritten offerings, (iii) obtain "cold comfort" letters
from the independent certified public accountants of
Holdings (and, if applicable, any other certified public
accountant of any business acquired by Holdings 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 Shares,
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 Shares being sold or the Underwriters,
and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the
representations and warranties of Holdings 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, Holdings
may require each Holder of Registrable Shares to furnish to
Holdings such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Shares as
Holdings 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 Holdings of
the happening of any event of the kind described in Section
3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Shares 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 Holdings, such Holder will deliver
to Holdings (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 Shares current at the
time of receipt of such notice. If Holdings shall give any such
notice to suspend the disposition of Registrable Shares pursuant
to a Registration Statement, Holdings 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 Shares covered by a Shelf
Registration Statement who desire to do so may sell such
Registrable Shares 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 Shares 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 Shares for its own
account in the Exchange Offer in exchange for Shares 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 Shares.
Holdings 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 Shares,
without naming the Participating Broker-Dealers or specifying the
amount of Exchange Shares 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 Shares 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, Holdings 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
Shares by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above; provided
--------
that:
(i) Holdings 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 Holdings 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 Holdings by the Placement
Agent or with the reasonable request in writing to Holdings
by one or more broker-dealers who certify to the Placement
Agent and Holdings 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 of this
Agreement to an Exchange Offer Registration, Holdings 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
Holdings or any Holder with respect to any request that it may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
--------------------------------
(a) Holdings 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 Shares or
Registrable Shares 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 Holdings 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 Holdings 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, Holdings 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
1934 Act) 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 Holdings, the Placement Agent and the
other selling Holders, and each of their directors, officers who
sign the Registration Statement and each Person, if any, who
controls Holdings, 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 Holdings to the Placement Agent and the Holders,
but only with reference to information relating to such Holder
furnished to Holdings 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 Section 20 of
the 1934 Act, (b) the fees and expenses of more than one separate
firm (in addition to any local counsel) for Holdings, its
directors, its officers who sign the Registration Statement and
each Person, if any, who controls Holdings 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 Holdings. 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 Holdings 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 Holdings 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' obligations to
contribute pursuant to this Section 5(d) are several in
proportion to the principal amount of Registrable Shares of such
Holder that were registered pursuant to a Registration Statement.
(e) Holdings 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 contribute any amount in excess of the amount by
which the total price at which Registrable Shares 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 1933 Act) 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.
(f) Survival.
--------- 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 Holdings,
its officers or directors or any Person controlling Holdings,
(iii) acceptance of any of the Exchange Shares and (iv) any sale
of Registrable Shares pursuant to a Shelf Registration Statement.
6. Miscellaneous.
--------------
(a) No Inconsistent Agreements.
-------------------------- Holdings 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 Shares 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 Holdings' 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
Holdings has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding
Registrable Shares 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 Shares 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 Holdings 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 Placement
Agreement; (ii) if to Holdings, initially at 9605 East Maroon
Circle, P.O. Box 6742, Englewood, Colorado 80155-6742 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 Transfer Agent, at 40 Wall Street, 46th
Floor, New York, New York 10005.
(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 Shares in violation of the terms of the Placement
Agreement. If any transferee of any Holder shall acquire
Registrable Shares, in any manner, whether by operation of law or
otherwise, such Registrable Shares shall be held subject to all
of the terms of this Agreement, and by taking and holding such
Registrable Shares 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 (solely in its
capacity as Placement Agent) shall have no liability or
obligation to Holdings 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 Shares.
------------------------------ Holdings shall
not, and shall use its best efforts to cause its affiliates (as
defined in Rule 405 under the 1933 Act) not to, purchase and then
resell or otherwise transfer any Shares.
(f) Third Party Beneficiary.
----------------------- The Holders shall be
third party beneficiaries to the agreements made hereunder
between Holdings, 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, 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.
----------------------------------------- The
laws of the State of New York applicable to contracts to be
performed entirely in that state shall govern this Agreement.
Holdings 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 HOLDINGS, INC.
By /s/ James D. Grenfell
-------------------------
Name: James D. Grenfell
Title: Executive Vice
President, Chief
Financial Officer
and Treasurer
Confirmed and accepted as of
the date first above written:
MORGAN STANLEY & CO.
INCORPORATED
By /s/ James B. Avery
------------------------------
Name: James B. Avery
Title: Vice President