AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 30, 1997
REGISTRATION NO. 333-38823
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ICG COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 4813, 4899 84-1342022
(State of (Primary Standard Industrial (I.R.S. Employer
incorporation) Classification Code Number) Identification Number)
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9605 EAST MAROON CIRCLE
P.O. BOX 6742
ENGLEWOOD, COLORADO 80155-6742
(303) 572-5960
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
-----------------------
H. DON TEAGUE - EXECUTIVE VICE
PRESIDENT, with copies to:
GENERAL COUNSEL AND SECRETARY
ICG COMMUNICATIONS, INC.
9605 E. MAROON CIRCLE LEONARD GUBAR, ESQ.
P.O. BOX 6742 AUDREY A. ROHAN, ESQ.
ENGLEWOOD, COLORADO 80155-6742 REID & PRIEST LLP
(303) 572-5960 40 WEST 57TH STREET
NEW YORK, NEW YORK 10019
(Name, address, including zip code, (212) 603-2000
and telephone number, including area code,
of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration
Statement as determined by market condition and other factors.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the following prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
=============================================================================
PROPOSED
TITLE OF EACH MAXIMUM PROPOSED
CLASS OF OFFERING MAXIMUM
SECURITIES PRICE PER AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE SHARE OR OFFERING REGISTRATION
REGISTERED REGISTERED UNIT(1) PRICE(1) FEE
- ----------------------------------------------------------------------------
Common Stock, 687,221 $22.125 $15,204,764.63 $4,607.50*
$.01 par value
per share
============================================================================
(1) Calculated pursuant to Rule 457(c) under the Securities Act.
* Previously paid by the Registrant.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL
THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY
STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF
1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
=============================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses payable by the
Company in connection with the issuance and distribution of the
securities to be registered, other than underwriting discounts and
commissions. All the amounts shown are estimates, except the SEC
registration fee and Nasdaq National Market listing fee.
SEC Registration Fee $ 4,607.50
Accounting Fees and Expenses 5,000.00*
Legal Fees and Expenses 20,000.00*
Miscellaneous 5,000.00*
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Total $ 34,607.50
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- -------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that the
Company will to the fullest extent permitted by the General
Corporation Law of the State of Delaware (the "GCL"), as amended from
time to time, indemnify all persons whom it may indemnify pursuant
thereto. The Company's By-laws contain a similar provision requiring
indemnification of the Company's directors and officers to the fullest
extent authorized by the GCL. The GCL permits a corporation to
indemnify its directors and officers (among others) against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by them in connection with
any action, suit or proceeding brought (or threatened to be brought)
by third parties, if such directors or officers acted in good faith
and in a manner they reasonably believe to be in or not opposed to the
best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe their conduct
was unlawful. In a derivative action, i.e., one by or in the right of
the Company, indemnification may be made for expenses (including
attorneys' fees) actually and reasonably incurred by directors and
officers in connection with the defense or settlement of such action
if they had acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the Company,
except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged
liable to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses. The GCL
further provides that, to the extent any director or officer has been
successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in this paragraph, or in defense of any
claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith. In addition, the Company's
Certificate of Incorporation contains a provision limiting the
personal liability of the Company's directors for monetary damages for
certain breaches of their fiduciary duty. The Company has
indemnification insurance under which directors and officers are
insured against certain liability that may incur in their capacity as
such.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits: The following exhibits are filed as a part of this
Registration Statement:
Exhibit No.: Description of Exhibits:
------------ ------------------------
1.1: Form of Underwriting Agreement. To be filed as an exhibit to
a report on Form 8-K.
2.1: Plan of Arrangement under Section 192 of the Canada Business
Corporations Act [Incorporated by reference to Exhibit 2.1
to Registration Statement on Form S-4, File No. 333-4226].
4.1: Certificate of Incorporation of ICG Communications, Inc.
dated April 11, 1996 [Incorporated by reference to Exhibit
3.1 to Registration Statement on Form S-4, File No.
333-4226].
<PAGE>
4.2: By-laws of ICG Communications, Inc. [Incorporated by
reference to Exhibit 3.2 to Registration Statement on Form
S-4, File No. 333-4226].
4.3: Note Purchase Agreement, dated September 16, 1993
[Incorporated by reference to Annual Report on Form 20-F for
the year ended September 30, 1993, as filed on March 31,
1994].
4.4: Note Purchase Agreement, dated October 27, 1993
[Incorporated by reference to Annual Report on Form 20-F
for the year ended September 30, 1993, as filed on March
31, 1994].
4.5: Form of Indenture between IntelCom Group Inc. and Bankers
Trust Company for 7% Convertible Subordinated Redeemable
Notes due 1998 [Incorporated by reference to Exhibit 4.3 to
Registration Statement on Form S-1, File No. 33-75636].
4.6: Form of Indenture between IntelCom Group Inc. and Bankers
Trust Company for 7% Simple Interest Convertible
Subordinated Redeemable Notes due 1998 [Incorporated by
reference to Exhibit 4.4 to Registration Statement on Form
S-1, File No. 33-75636].
4.7: Note Purchase Agreement, dated as of July 14, 1995, among
IntelCom Group (U.S.A.), Inc., IntelCom Group Inc., Morgan
Stanley Group Inc. ("MS Group") (the "Initial Purchaser"),
Princes Gate Investors, LP, Acorn Partnership I, LP, PGI
Investments Limited, PGI Sweden AB, and Gregor von Opel
(collectively, together with the Initial Purchaser, the
"Committed Purchasers") and MS Group, as agent for the
Purchasers (as such term is defined therein) [Incorporated
by reference to Exhibit 4.1 to Form 8-K, as filed on August
2, 1995].
4.8: Warrant Agreement, dated as of July 14, 1995, among the
Registrant, the Committed Purchasers, and IntelCom Group
(U.S.A.), Inc., as Warrant Agent [Incorporated by reference
to Exhibit 4.2 to Form 8-K, as filed on August 2, 1995].
4.9: Indenture, dated as of August 8, 1995, among IntelCom Group
(U.S.A.), Inc., IntelCom Group Inc. and Norwest Bank
Colorado, National Association [Incorporated by reference to
Exhibit 4.1 to Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995, as filed on August 10, 1995].
4.10: Warrant Agreement, dated as of August 8, 1995 between
IntelCom Group Inc. and Norwest Bank Colorado, National
Association [Incorporated by reference to Exhibit 4.3 to
Quarterly Report on Form 10-Q for the quarter ended June 30,
1995, as filed on August 10, 1995].
4.11: Warrant Agreement Amendment, dated as of August 8, 1995
among IntelCom Group Inc., Morgan Stanley Group, Inc.,
Princes Gate Investors, L.P., IntelCom Group (U.S.A.),
Inc., and certain subsidiaries of IntelCom Group (U.S.A.),
Inc. [Incorporated by reference to Exhibit 4.4 to Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995, as
filed on August 10, 1995].
4.12: Indenture, dated as of April 30, 1996, among IntelCom
Group (U.S.A.), Inc., IntelCom Group Inc. and Norwest
Bank Colorado, National Association [Incorporated by
reference to Exhibit 4.13 to Registration Statement on
Form S-4, File No. 333-04569].
4.13: Registration Rights Agreement, dated April 30, 1996,
among IntelCom Group (U.S.A.), Inc., IntelCom Group
Inc. and Morgan Stanley & Co. Incorporated
[Incorporated by reference to Exhibit 4.14 to
Registration Statement on Form S-4, File No. 333-04569].
4.14: Indenture, dated as of March 11, 1997, among ICG
Holdings, Inc., ICG Communications, Inc. and Norwest
Bank Colorado, National Association [Incorporated by
reference to Exhibit 4.15 to Registration Statement on
Form S-4, File No. 333-24359].
4.15: Registration Rights Agreement, dated March 11, 1997, among
ICG Holdings, Inc., ICG Communications, Inc. and Morgan
Stanley & Co. Incorporated with respect to the 11 5/8%
Notes [Incorporated by reference to Exhibit 4.16 to
Registration Statement on Form S-4, File No.
333-24359].
<PAGE>
4.16: Registration Rights Agreement, dated March 11, 1997,
among ICG Holdings, Inc. and Morgan Stanley & Co.
Incorporated with respect the 14% Preferred Stock
[Incorporated by reference to Exhibit 4.17 to
Registration Statement on Form S-4, File No. 333-24359].
5.1:* Opinion of Reid & Priest LLP.
23.1: Consent of KPMG Peat Marwick LLP.
23.2:* Consent of Reid & Priest LLP (included in Exhibit 5.1).
23.3: Consent of Connecticut Research [Incorporated by reference
to Annual Report on Form 10-K for the year ended September
30, 1994, as filed on December 27, 1994].
24.1: Power of Attorney with respect to ICG Communications, Inc.
(included on the signature page hereto).
(b) Financial Statement Schedules:
All schedules are omitted because they are either not applicable
or the required information is included in the consolidated
financial statements or notes thereto.
- ---------------
* Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment
of this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the Common Stock offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the Offering.
(4) That, for the purpose of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
<PAGE>
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item
15 (other than the provisions relating to insurance), or otherwise,
the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy
expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Englewood,
State of Colorado on October 30, 1997.
ICG Communications, Inc.
By: *
------------------------
J. Shelby Bryan
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
* Chairman of the Board October 30, 1997
- ------------------------ of Directors
William J. Laggett
* President, Chief Executive October 30, 1997
- ------------------------ Officer and Director
J. Shelby Bryan (Principal Executive
Officer)
* Executive Vice President October 30, 1997
- ------------------------ and Chief Financial
James D. Grenfell Officer (Principal
Financial Officer)
* Vice President and October 30, 1997
- ------------------------ Corporate Controller
Richard Bambach (Principal Accounting
Officer)
* Director October 30, 1997
- ------------------------
Harry R. Herbst
* Director October 30, 1997
- ------------------------
Stan McLelland
* Director October 30, 1997
- ------------------------
Kathryn Proffitt
* Director October 30, 1997
- ------------------------
Leontis Teryazos
* /s/ H. Don Teague October 30, 1997
------------------------
H. Don Teague,
as Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit No.: Description of Exhibits:
------------ ------------------------
1.1: Form of Underwriting Agreement. To be filed as an exhibit to
a report on Form 8-K.
2.1: Plan of Arrangement under Section 192 of the Canada Business
Corporations Act [Incorporated by reference to Exhibit 2.1
to Registration Statement on Form S-4, File No. 333-4226].
4.1: Certificate of Incorporation of ICG Communications, Inc.
dated April 11, 1996 [Incorporated by reference to Exhibit
3.1 to Registration Statement on Form S-4, File No.
333-4226].
4.2: By-laws of ICG Communications, Inc. [Incorporated by
reference to Exhibit 3.2 to Registration Statement on Form
S-4, File No. 333-4226].
4.3: Note Purchase Agreement, dated September 16, 1993
[Incorporated by reference to Annual Report on Form 20-F for
the year ended September 30, 1993, as filed on March 31,
1994].
4.4: Note Purchase Agreement, dated October 27, 1993
[Incorporated by reference to Annual Report on Form 20-F
for the year ended September 30, 1993, as filed on March
31, 1994].
4.5: Form of Indenture between IntelCom Group Inc. and Bankers
Trust Company for 7% Convertible Subordinated Redeemable
Notes due 1998 [Incorporated by reference to Exhibit 4.3 to
Registration Statement on Form S-1, File No. 33-75636].
4.6: Form of Indenture between IntelCom Group Inc. and Bankers
Trust Company for 7% Simple Interest Convertible
Subordinated Redeemable Notes due 1998 [Incorporated by
reference to Exhibit 4.4 to Registration Statement on Form
S-1, File No. 33-75636].
4.7: Note Purchase Agreement, dated as of July 14, 1995, among
IntelCom Group (U.S.A.), Inc., IntelCom Group Inc., Morgan
Stanley Group Inc. ("MS Group") (the "Initial Purchaser"),
Princes Gate Investors, LP, Acorn Partnership I, LP, PGI
Investments Limited, PGI Sweden AB, and Gregor von Opel
(collectively, together with the Initial Purchaser, the
"Committed Purchasers") and MS Group, as agent for the
Purchasers (as such term is defined therein) [Incorporated
by reference to Exhibit 4.1 to Form 8-K, as filed on August
2, 1995].
4.8: Warrant Agreement, dated as of July 14, 1995, among the
Registrant, the Committed Purchasers, and IntelCom Group
(U.S.A.), Inc., as Warrant Agent [Incorporated by reference
to Exhibit 4.2 to Form 8-K, as filed on August 2, 1995].
4.9: Indenture, dated as of August 8, 1995, among IntelCom Group
(U.S.A.), Inc., IntelCom Group Inc. and Norwest Bank
Colorado, National Association [Incorporated by reference to
Exhibit 4.1 to Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995, as filed on August 10, 1995].
4.10: Warrant Agreement, dated as of August 8, 1995 between
IntelCom Group Inc. and Norwest Bank Colorado, National
Association [Incorporated by reference to Exhibit 4.3 to
Quarterly Report on Form 10-Q for the quarter ended June 30,
1995, as filed on August 10, 1995].
4.11: Warrant Agreement Amendment, dated as of August 8, 1995
among IntelCom Group Inc., Morgan Stanley Group, Inc.,
Princes Gate Investors, L.P., IntelCom Group (U.S.A.),
Inc., and certain subsidiaries of IntelCom Group (U.S.A.),
Inc. [Incorporated by reference to Exhibit 4.4 to Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995, as
filed on August 10, 1995].
4.12: Indenture, dated as of April 30, 1996, among IntelCom
Group (U.S.A.), Inc., IntelCom Group Inc. and Norwest
Bank Colorado, National Association [Incorporated by
reference to Exhibit 4.13 to Registration Statement on
Form S-4, File No. 333-04569].
4.13: Registration Rights Agreement, dated April 30, 1996,
among IntelCom Group (U.S.A.), Inc., IntelCom Group
Inc. and Morgan Stanley & Co. Incorporated
[Incorporated by reference to Exhibit 4.14 to
Registration Statement on Form S-4, File No. 333-04569].
4.14: Indenture, dated as of March 11, 1997, among ICG
Holdings, Inc., ICG Communications, Inc. and Norwest
Bank Colorado, National Association [Incorporated by
reference to Exhibit 4.15 to Registration Statement on
Form S-4, File No. 333-24359].
4.15: Registration Rights Agreement, dated March 11, 1997, among
ICG Holdings, Inc., ICG Communications, Inc. and Morgan
Stanley & Co. Incorporated with respect to the 11 5/8%
Notes [Incorporated by reference to Exhibit 4.16 to
Registration Statement on Form S-4, File No.
333-24359].
4.16: Registration Rights Agreement, dated March 11, 1997,
among ICG Holdings, Inc. and Morgan Stanley & Co.
Incorporated with respect the 14% Preferred Stock
[Incorporated by reference to Exhibit 4.17 to
Registration Statement on Form S-4, File No. 333-24359].
5.1:* Opinion of Reid & Priest LLP.
23.1: Consent of KPMG Peat Marwick LLP.
23.2:* Consent of Reid & Priest LLP (included in Exhibit 5.1).
23.3: Consent of Connecticut Research [Incorporated by reference
to Annual Report on Form 10-K for the year ended September
30, 1994, as filed on December 27, 1994].
24.1: Power of Attorney with respect to ICG Communications, Inc.
(included on the signature page hereto).
--------------
* Filed herewith.
REID & PRIEST LLP
40 West 57th Street
New York, NY 10019-4097
Telephone 212 603-2000
Fax 212 603-2001
New York, New York
October 30, 1997
ICG Communications, Inc.
9605 E. Maroon Circle
P.O. Box 6742
Englewood, Colorado 80112-6742
Re: ICG Communications, Inc.;
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to ICG Communications, Inc., a
Delaware corporation (the "Registrant"), in connection with the
preparation and filing with the Securities and Exchange
Commission (the "Commission") of the above-captioned Registration
Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), relating to the
resale by the holders named therein (the "Selling Shareholders")
of up to an aggregate of 687,221 shares of common stock, $.01 par
value per share, of the Registrant (the "Shares").
In connection therewith, we have examined the
Certificate of Incorporation and the By-Laws of the Registrant,
resolutions of the Board of Directors of the Registrant and the
Registration Statement. We also have made such inquiries and
have examined originals or copies of other instruments as we have
deemed necessary or appropriate for the purpose of this opinion.
For purposes of such examination, we have assumed the genuineness
of all signatures on and the authenticity of all documents
submitted to us as originals, and the conformity to the originals
of all documents submitted to us as certified or photostatic
copies.
Based upon the foregoing, we are of the opinion that
the Shares are duly authorized, validly issued, fully paid and
non-assessable shares of common stock of the Registrant.
We hereby consent to the filing of this opinion as
Exhibit 5.1 to the Registration Statement and to the reference
therein to our firm under the caption "Legal Matters." In giving
the foregoing consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission
promulgated thereunder.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
