DEFERRED COMPENSATION AGREEMENT is
made and entered into as of the 31st day of
March, 2000 by and between ICG
COMMUNICATIONS, INC., a Delaware corporation
(the "Company"), and J. SHELBY BRYAN (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Employee is the Chairman of the Board and Chief
Executive Officer of the Company;
WHEREAS, the Company desires to recognize the services the Employee
currently performs and has performed for the Company and the value to the
Company of such services and, in particular, to recognize the Employee's efforts
in the Company's pending private equity financing in the amount of $750,000,000
by affiliates of Hicks Muse Tate & Furst Incorporated, Liberty Media Corporation
and Gleacher Capital Partners (the "Private Equity Transaction");
NOW THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"Commission" shall mean the Securities and Exchange Commission or
any other Governmental Authority at the time administering the Securities Act.
"Common Stock" shall mean shares of the common stock of the Company,
$.01 par value per share.
"Common Stock Equivalent" shall mean one share of Common Stock or
the right to acquire, whether or not such right is immediately exercisable, one
share of Common Stock, whether evidenced by an option, warrant, convertible
security or other instrument or agreement.
"Company" shall have the meaning ascribed to it in the caption to
this Agreement.
"Demand Registration" shall mean a registration under the Securities
Act requested in accordance with Section 4.
"Employee" shall have the meaning ascribed to it in the caption to
this Agreement.
"Governmental Authority" shall mean any domestic or foreign
government or political subdivision thereof, whether on a federal, state or
local level and whether executive, legislative or judicial in nature, including
any agency, authority, board, bureau, commission, court, department or other
instrumentality thereof.
"Other Shares" shall mean at any time those shares of Common Stock
which do not constitute Primary Shares or Shares.
"Person" shall be construed as broadly as possible and shall include
an individual person, a partnership (including a limited liability partnership),
a corporation, an association, a joint stock company, a limited liability
company, a trust, a joint venture, an unincorporated organization and a
Governmental Authority.
"Primary Shares" shall mean, at any time, the authorized but
unissued shares of Common Stock or Common Stock held by the Company in its
treasury.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Shares and, in each case, by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Shares, 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.
"Representative" of a Person shall be construed broadly and shall
include such Person's partners, officers, directors, employees, agents, counsel,
accountants and other representatives.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same may from time to time be in
effect.
"Underwriter" shall mean a securities dealer who purchases any
Shares as principal and not as part of such dealer's market-making activities.
Section 2. Compensation; Payment Terms.
(a) In addition to, and not in lieu of, any and all compensation and
benefit arrangements currently existing or hereinafter entered into between the
Company and the Employee, on January 1, 2001 (the "Delivery Date"), the Company
shall issue the Employee an aggregate amount of 50,000 shares of Common Stock
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(the "Shares"), of the Company; provided, however, that the Shares shall only be
issued to the Employee on the terms hereof after the completion of the Private
Equity Transaction. In the event that the Private Equity Transaction is not
completed for any reason by the Delivery Date, this Agreement shall terminate
and the Company shall have no obligations hereunder. If the Employee's period of
employment is terminated for any reason, the Employee shall be entitled to have
the Company issue the Shares to the Employee or the Employee's designated
beneficiary(ies) in the same manner as set forth above.
(b) Nothing contained herein shall be deemed to exclude the Employee
from any base or supplemental compensation, bonus, pension, insurance, severance
pay or other benefit to which he otherwise might be or might become entitled as
an employee of the Company. The deferred compensation payable under this
Agreement shall not be deemed salary or other compensation to the Employee for
the purpose of computing benefits to which he may be entitled under any
employment, pension, retirement, stock option or other agreement, benefit plan
or arrangement of the Company for the benefit of the Employee or the Company's
employees.
Section 3. Gross-Up Payment.
(a) In the event any amounts paid or payable to the Employee by the
Company contemplated by this Agreement which are the type encompassed within
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), are
subject to the tax imposed by Section 4999 of the Code (or any similar tax that
may hereafter be imposed by the Internal Revenue Service), and/or any comparable
or similar tax imposed by any state or local taxing authority, including,
without limitation, any interest or penalties due thereon (collectively, the
"Excise Tax"), the Company shall pay to the Employee in cash an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Employee after deduction of the Excise Tax on the Gross-Up Payment, as well as
any other taxes (including without limitation Federal, state and local income
taxes) due solely as a result of payment of the Gross-Up Payment, shall be equal
to the full amount of the deferred compensation payments contemplated by this
Agreement.
(b) Nothing in this Section 3 shall be construed to require the Company
to pay any amounts due by the Employee in respect of Federal, state and local
income taxes on the deferred compensation payments contemplated by this
Agreement (other than the Excise Tax and the other taxes, interest and penalties
if any, described in Section 3(a)).
(c) The Gross-Up payment shall be made promptly upon the Company's
receipt of notice from the Employee and his tax advisor, which advisor shall be
selected by the Employee and reasonably satisfactory to the Company, of the
reasonable determination that the Excise Tax is due and payable as a result of
the deferred compensation payments contemplated by this Agreement.
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Section 4. Demand Registration on Form S-3.
(a) The Employee may make up to one (1) written request for a Demand
Registration of all or any part of the Shares. Any request for a Demand
Registration will specify the aggregate number of Shares proposed to be sold and
will also specify the intended method of disposition thereof. A registration
will not count as a Demand Registration until it has become effective. Should a
Demand Registration not become effective due to the inability of the Employee to
reach agreement with the Underwriters for the proposed sale on price or other
customary terms for such transaction, then such Demand Registration shall be
deemed to have been effected (provided that (i) if the Demand Registration does
not become effective because a material adverse change has occurred, or is
reasonably likely to occur, in the condition (financial or otherwise), business,
assets or results of operations of the Company and its subsidiaries taken as a
whole subsequent to the date of the written request made by the Employee, (ii)
if the Company withdraws the Demand Registration for any reason or preempts the
request for the Demand Registration or (iii) if, after the Demand Registration
has become effective, an offering of Shares pursuant to a registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other Governmental Authority or court, then the Demand
Registration shall not be deemed to have been effected and will not count as a
Demand Registration.
(b) If the Employee so elects, the offering of such Shares pursuant to
such Demand Registration shall be in the form of a "firm commitment"
underwritten offering. The Employee shall have the right to select the managing
Underwriters and any additional investment bankers and managers to be used in
connection with any offering under this Section 4, subject to the Company's
approval, which approval shall not be unreasonably withheld.
(c) Securities to be sold for the account of any Person (including the
Company) other than the Employee shall not be included in a Demand Registration
if the managing Underwriter or Underwriters shall advise the Company and the
Employee in writing that the inclusion of such securities will materially and
adversely affect the price of the offering (a "Material Adverse Effect").
Furthermore, in the event the managing Underwriter or Underwriters shall advise
the Company or the Employee that even after exclusion of all securities of other
Persons (including the Company) pursuant to the immediately preceding sentence,
the number of Shares proposed to be included in such Demand Registration by the
Employee is sufficiently large to cause a Material Adverse Effect, the Shares to
be included in such Demand Registration shall equal the number of shares which
the Company and the Employee are so advised can be sold in such offering without
a Material Adverse Effect.
(d) If the Company shall be requested by the Employee (the "Request")
to effect a registration under the Securities Act of Shares in accordance with
this Section 4, then the Company shall promptly give written notice of such
proposed registration to the Employee and shall offer to include the Shares in
such proposed registration. The Request shall specify the number of Shares
proposed to be included in such registration. The Company shall promptly use its
best efforts to effect such registration of the Shares which the Company has
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been so requested to register on Form S-3, if such form is available.
Section 5. Piggyback Registration.
(a) If the Company at any time proposes fo r any reason to register
Primary Shares or Other Shares under the Securities Act (other than on Form S-4
or Form S-8 promulgated under the Securities Act or any successor forms
thereto), it shall promptly give written notice to the Employee of its intention
to register the Primary Shares or Other Shares and, upon the written request,
given within 20 days after delivery of any such notice by the Company, of such
Employee to include in such registration Shares (which request shall specify the
number of Shares proposed to be included in such registration), the Company
shall use its best efforts to cause all such Shares to be included in such
registration on the same terms and conditions as the securities otherwise being
sold in such registration, provided, however, that if the managing Underwriter
advises the Company that the inclusion of all the Shares or Other Shares
proposed to be included in such registration would interfere with the successful
marketing (including pricing) of Primary Shares proposed to be registered by the
Company, then the numberof Primary Shares, Other Shares and Shares proposed to
be included in such registration shall be included in the following order:
(i) first, the Primary Shares; and
(ii) second, the Shares and the Other Shares, pro rata.
Section 6. Preparation and Filing.
(a) If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its best efforts to effect the registration
of any Shares, the Company shall, as expeditiously as practicable:
(i) use its best efforts to cause a Registration Statement
that registers such Shares to become and remain effective for a period of
120 days or until all of such Shares have been disposed of (if earlier);
(ii) furnish, at least five business days before filing a
Registration Statement that registers such Shares, a Prospectus relating
thereto and any amendments or supplements relating to such Registration
Statement or Prospectus, to counsel for the Employee copies of all such
documents proposed to be filed (it being understood that such five
business-day period need not apply to successive drafts of the same document
proposed to be filed so long as such successive drafts are supplied to such
counsel in advance of the proposed filing by a period of time that is
customary and reasonable under the circumstances);
(iii)prepare and file with the Commission such amendments and
supplements to such Registration Statement and Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective
for the lesser of a period of 120 days or until all of such Shares have been
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disposed of (if earlier) and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of such Shares;
(iv) notify counsel for the Employee in writing (A) of any
comments by the Commission with respect to such Registration Statement or
Prospectus, or any request by the Commission for the amending or
supplementing thereof or for additional information with respect thereto,
(B) of the issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement or Prospectus or any amendment
or supplement thereto or the initiation of any proceedings for that purpose
and (C) of the receipt by the Company of any notification with respect to
the suspension of the qualification of such Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purposes;
(v) use its best efforts to register or qualify such Shares
under such other securities or blue sky laws of such jurisdictions as any
seller of Shares reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable such seller
of Shares to consummate the disposition in such jurisdictions of the Shares
owned by such seller; provided, however, that the Company will not be
required to qualify generally to do business, subject itself to general
taxation or consent to general service of process in any jurisdiction where
it would not otherwise be required to do so but for this clause (v);
(vi) furnish to each seller of such Shares such number
of copies of a summary Prospectus or other Prospectus, including a
preliminary Prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such seller of Shares may
reasonably request in order to facilitate the public sale or other
disposition of such Shares;
(vii) use its best efforts to cause such Shares to be
registered with or approved by such other Governmental Authorities as may be
necessary by virtue of the business and operations of the Company to enable
the seller or sellers thereof to consummate the disposition of such Shares;
(viii)notify on a timely basis each seller of such Shares
at any time when a Prospectus relating to such Shares is required to be
delivered under the Securities Act within the appropriate period mentioned
in clause (i) of this Section 6(a) of the happening of any event as a result
of which the Prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing and, at the request of such seller, prepare and furnish to such
seller a reasonable number of copies of a supplement to or an amendment of
such Prospectus as may be necessary so that, as thereafter delivered to
the offerees of such shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
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misleading in light of the circumstances then existing;
(ix) make available for inspection by any seller of such
Shares, any Underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other agent retained
by any such seller or Underwriter (collectively, the "Inspectors"), all
pertinent financial, business and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"), as
shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all information (together with the Records, the
"Information") reasonably requested by any such Inspector in connection
with such Registration Statement (and any of the Information which the
Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (A) the disclosure of such Information is necessary to
avoid or correct a misstatement or omission in the Registration Statement,
(B) the release of such Information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (C) such Information has
been made generally available to the public, and (D) the seller of Shares
agrees that it will, upon learning that disclosure of such Information is
sought in a court of competent jurisdiction, give notice to the Company
and allow the Company, at the Company's expense, to undertake appropriate
action to prevent disclosure of the Information deemed confidential);
(x) use its best efforts to obtain from its independent
certified public accountants a "cold comfort" letter in customary form and
covering such matters of the type customarily covered by cold comfort
letters;
(xi) use its best efforts to obtain, from its counsel, an
opinion or opinions in customary form (which shall also be addressed to the
sellers of Shares in such registration);
(xii) provide a transfer agent and registrar (which may be
the same entity and which may be the Company) for such Shares;
(xiii) issue to any Underwriter to which any seller of Shares
may sell Shares in such offering certificates evidencing such Shares;
(xiv) list such Shares on any national securities exchange on
which any shares of the Common Stock are listed or, if the Common Stock is
not listed on a national securities exchange, use its best efforts to
qualify such Shares for inclusion on the automated quotation system of the
National Association of Securities Dealers, Inc. (the "NASD"), National
Market System ("NMS"), or such other national securities exchange as the
holder of such Shares shall request;
(xv) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission; and
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(xvi) use its best efforts to take all other steps necessary
to effect the registration of such Shares contemplated hereby.
(b) each holder of Shares that sells Shares pursuant to a
registration under this Agreement agrees that during such time as such seller
may be engaged in a distribution of the Shares, such seller shall comply with
Regulation M promulgated under the Exchange Act and pursuant thereto it shall,
among other things: (i) not engage in any stabilization activity in connection
with the Common Stock of the Company in contravention of such rules; (ii)
distribute the Shares under the Registration Statement solely in the manner
described in the Registration Statement; and (iii) cease distribution of such
Shares pursuant to such Registration Statement upon receipt of written notice
from the Company that the prospectus covering the Shares contains any untrue
statement of a material fact or omits a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Section 7. Registration Expenses.
All reasonable expenses incurred by the Company, including, without
limitation, all registration and filing fees (including all expenses incident to
filing with the NASD), fees and expense of complying with securities and blue
sky laws, printing expenses, fees and expenses of the Company's counsel and
accountants and reasonable fees and expenses of counsel for the Employee, shall
be paid by the Company.
Section 8. Indemnification.
(a) In connection with any registration of any Shares under the
Securities Act pursuant to this Agreement, the Company shall enter into such
reasonable customary indemnification agreements that indemnify and hold harmless
the seller of such Shares, each Underwriter, broker or any other Person acting
on behalf of such seller, each other Person, if any, who controls any of the
foregoing Persons within the meaning of the Securities Act and each
Representative of any of the foregoing Persons, against any losses, claims,
damages or liabilities, joint or several, to which any of the foregoing Persons
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement under which such Shares
were registered, any preliminary Prospectus or final Prospectus contained
therein, any amendment or supplement thereto or any document incident to
registration or qualification of any Shares, or arise out of or are based upon
the 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,
with respect to any Prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading, or any
violation by the Company of the Securities Act or state securities or blue sky
laws applicable to the Company and relating to action or inaction required of
the Company in connection with such registration or qualification under such
state securities or blue sky laws, and the Company shall promptly reimburse such
seller, such Underwriter, such broker, such controlling Person or such
Representatives for any reasonable legal or other expenses incurred by any of
8
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable to
any such Person to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in said Registration Statement,
preliminary Prospectus, amendment, supplement or document incident to
registration or qualification of any Shares in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by such Person, or a Person duly acting on their behalf, specifically
for use in the preparation thereof; provided further, however, that the
foregoing indemnity agreement is subject to the condition that, insofar as it
relates to any untrue statement, allegedly untrue statement, omission or alleged
omission made in any preliminary Prospectus but eliminated or remedied in the
final Prospectus (filed pursuant to Rule 424 of the Securities Act), such
indemnity agreement shall not inure to the benefit of any indemnified party
from whom the Person asserting any loss, claim, damage, liability or expense
purchased the Shares which are the subject thereof, if a copy of such final
Prospectus had been timely made available to such indemnified party and such
final Prospectus was not delivered to such Person with or prior to the written
confirmation of the sale of such Registrable Shares to such Person.
(b) In connection with any registration of Shares under the Securities
Act pursuant to this Agreement, each seller of Shares shall enter into such
reasonable customary indemnification agreements that indemnify and hold harmless
(in the same manner and to the same extent as set forth in paragraph (a) of this
Section 8) the Company, each Underwriter or broker involved in such offering,
each other seller of Shares under such Registration Statement, each Person who
controls any of the foregoing Persons within the meaning of the Securities Act
and any Representative of the foregoing Persons with respect to any statement or
omission from such Registration Statement, any preliminary Prospectus or final
Prospectus contained therein, any amendment or supplement thereto or any
document incident to registration or qualification of any Shares, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company or such Underwriter through an instrument
duly executed by such seller or a Person duly acting on their behalf
specifically for use in connection with the preparation of such Registration
Statement, preliminary Prospectus, final Prospectus, amendment or supplement;
provided, however, that the maximum amount of liability in respect of such
indemnification shall be limited, in the case of each seller of Shares, to an
amount equal to the net proceeds actually received by such seller from the sale
of Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 8, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action (provided however, that an indemnified
party's failure to give such notice in a timely manner shall only relieve the
indemnification obligations of an indemnifying party to the extent such
indemnifying party is prejudiced by such failure). In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
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counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that if any indemnified
party shall have reasonably concluded that there may be one or more legal or
equitable defenses available to such indemnified party which are in addition to
or conflict with those available to the indemnifying party, or that such claim
or litigation involves or could have an effect upon matters beyond the scope of
the indemnity agreement provided in this Section 8, the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party and such indemnifying party shall reimburse such indemnified
party and any Person controlling such indemnified party for that portion of the
fees and expenses of any one lead counsel (plus appropriate special and local
counsel) retained by the indemnified party which are reasonably related to the
matters covered by the indemnity agreement provided in this Section 8.
(d) If the indemnification provided for in this Section 8 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage or liability referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other hand in connection with the
statements or omissions which resulted in such loss, claim, damage or liability
as well as any other relevant equitable considerations; provided, however, that
the maximum amount of liability in respect of such contribution shall be
limited, in the case of each seller of Shares, to an amount equal to the net
proceeds actually received by such seller from the sale of Shares effected
pursuant to such registration. The relative fault of the indemnifying party and
of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party and will survive transfer of the
Shares.
Section 9. Rule 144.
The Company covenants that it will file any reports required to be
filed by it under the Securities Act and the Exchange Act and that it will take
such further action as the Employee may reasonably request to the extent
required from time to time to enable the Employee to sell the Shares without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
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Commission. Upon the request of the Employee, the Company will deliver to the
Employee a written statement as to whether it has complied with such reporting
requirements.
Section 10. Termination of Registration Rights.
The registration rights provided for under this Agreement shall
terminate and be of no further force or effect following the third anniversary
of the issuance of the Shares.
Section 11. Binding Agreement: Successors and Assigns.
This Agreement and the obligations hereunder shall be binding upon
and inure to the benefit of the Company, and its successors and assigns, and the
Employee and his heirs, executors, administrators and legal representatives. The
Company shall have the right to assign this Agreement to any corporation or
other person or entity that acquires all or substantially all of the assets of
the Company. For purposes of this Agreement, the "Company" shall include any
corporation or other entity which is the surviving or continuing entity in
respect of any merger, consolidation or form of business combination in which
the Company ceases to exists.
Section 12. Notice.
For purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given by a party to the other party via facsimile transmission or when
mailed by United States registered mail, return receipt requested, postage
prepaid and addressed, to the fax number or address, as the case may be, set
forth under such party's name on the signature page of this Agreement.
Section 13. Miscellaneous.
No provision of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in a writing signed
by the Employee and the Company. No waiver by either party hereto at any time of
any breach by the other party hereto of, or of compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
Section 14. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware.
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Section 15. Severability.
If any provision of this Agreement is held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provisions
hereto. If any provision of this Agreement is held invalid or unenforceable
because the fulfillment of such provision would involve exceeding the limit of
validity prescribed by law, then upon such a determination, the obligation to be
fulfilled shall be reduced to the limit of validity prescribed by law. If the
provision of the Agreement which is found to be invalid or unenforceable cannot
be modified so as to be enforceable under existing laws, this Agreement shall be
construed and enforced as if such provision had not been included herein.
Section 16. Counterparts.
This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first written above.
ICG COMMUNICATIONS, INC.
By: /s/ William J. Laggett
---------------------------------
Name: William J. Laggett
Title: Vice Chairman of the Board
Address: c/o ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Fax: 303-414-5502
/s/ J. Shelby Bryan
----------------------------
J. SHELBY BRYAN
Address: __________________
__________________
Fax: ___-____-______