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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 17, 1998
REGISTRATION NO. 333-25957
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________
ICG COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-1342022
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
9605 EAST MAROON CIRCLE
ENGLEWOOD, COLORADO 80112
(303) 572-5960
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
INCENTIVE STOCK OPTION PLAN #2
INCENTIVE STOCK OPTION PLAN #3
1994 EMPLOYEE STOCK OPTION PLAN
1996 STOCK OPTION PLAN
ICG COMMUNICATIONS, INC. EMPLOYEE SAVINGS PLAN
ICG COMMUNICATIONS, INC. 401(K) WRAPAROUND DEFERRED COMPENSATION PLAN
(FULL TITLE OF THE PLANS)
__________________
H. DON TEAGUE, ESQ., GENERAL COUNSEL AND SECRETARY
ICG COMMUNICATIONS, INC.
9605 EAST MAROON CIRCLE
P.O. BOX 6742
ENGLEWOOD, COLORADO 80155-6742
(303) 572-5960
(NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
_____________
COPY TO:
LESLIE NICHOLS, ESQ.
SHERMAN & HOWARD L.L.C.
633 17TH STREET, SUITE 3000
DENVER, COLORADO 80202
(303) 297-2900
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended, and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by ICG Communications, Inc. (the
"Registrant" or the "Company") or the ICG Communications, Inc. Employee Savings
Plan (the "Plan") with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated herein by reference:
(a) (1) the Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act; or
(2) the latest prospectus filed pursuant to Rule 424(b) under the
Securities Act that contains audited financial statements for the
Company's latest fiscal year for which such statements have been
filed; and
(3) the latest annual report on Form 11-K for the Plan.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
registrant document referred to in (a) above.
(c) The description of the common stock, $.01 par value, of the
Company contained in a registration statement filed under Section
12 of the Exchange Act, including any amendments or reports filed
for the purpose of updating such description.
All documents filed by the Company or the Plan pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, as amended, subsequent to the date of
this Registration Statement and
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prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part thereof from the date of the filing of such documents
(such documents and the documents enumerated above, being hereinafter referred
to as "Incorporated Documents"); provided, however, that the documents
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enumerated above or subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the
offering made by this Registration Statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in this
Registration Statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides, generally,
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any action, suit or proceeding
(except actions by or in the right of the corporation) by reason of the fact
that such person is or was a director or officer of the corporation against all
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed 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 his conduct
was unlawful. A corporation may similarly indemnify such person for expenses
actually and reasonably incurred by him in connection with the defense or
settlement of any action or suit by or in the right of the corporation, provided
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in the case of
claims, issues and matters as to which such person shall have been adjudged
liable to the corporation, provided that a court shall have determined, upon
application, that, despite the adjudication of liability but in view of all of
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law provides,
generally, that the certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision may not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
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Section 174 of Title 8, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision may eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
Articles Eighth and Tenth of the Company's Certificate of Incorporation
provide as follows:
EIGHTH: A director of the Corporation shall not be personally
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liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived any improper personal
benefit. If the Delaware General Corporation Law is hereafter amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
TENTH: The Corporation shall indemnify any person who was or is a
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party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, or by or in the right of the
Corporation to procure judgment in its favor, by reason of the fact that
he is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, in accordance with and to the full extent permitted by
applicable law. Expenses (including attorneys' fees) incurred in
defending any civil, criminal administrative or investigative action,
suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding as authorized by
the Board of Directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent
to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized in this
section. The indemnification provided by this section shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under these Articles or any agreement or
vote of stockholders or disinterested directors or otherwise, both
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as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Article VIII, Section 8.1 of the Company's Bylaws provide as follows:
Indemnification. The Corporation shall indemnify to the
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fullest extent permitted by law any person made or threatened to be
made a party to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that such person, or a person of whom he or she is the legal
representative, is or was a director, officer, employee or agent of
the Corporation or any predecessor of the Corporation, or serves or
served any other enterprise as a director, officer, employee or
agent at the request of the Corporation or any predecessor of the
Corporation.
The Corporation shall pay any expenses reasonably incurred by a
director or officer in defending a civil or criminal action, suit
or proceeding in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be
indemnified by the Corporation under this Article or otherwise. The
Corporation may, by action of its Board of Directors, provide for
the payment of such expenses incurred by employees and agents of
the Corporation as it deems appropriate.
The rights conferred on any person under this Article shall not
be deemed exclusive of any other rights that such person may have
or hereafter acquire under any statute, provision of the
Corporation's Certificate of Incorporation, By-Law, agreement, vote
of stockholders or disinterested directors or otherwise. All rights
to indemnification and to the advancement of expenses under this
Article shall be deemed to be provided by a contract between the
Corporation and the director, officer, employee or agent who serves
in such capacity at any time while these By-Laws and any other
relevant provisions of the Delaware General Corporation Law and any
other applicable law, if any, are in effect. Any repeal or
modification thereof shall not affect any rights or obligations
then existing.
For purposes of this Article, references to "the Corporation"
shall be deemed to include any subsidiary of the Corporation now or
hereafter organized under the laws of the State of Delaware.
The Company has purchased liability insurance policies covering its
directors and officers.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index and Exhibits at the end of this Registration Statement.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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;
(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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment 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.
(3) To remove from 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 purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the
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securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Post-
Effective Amendment No. 1 to a Registration Statement on Form S-8 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Englewood, State of Colorado, on February 16, 1998.
ICG COMMUNICATIONS, INC.
By: /s/ J. Shelby Bryan
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J. Shelby Bryan,
President, Chief Executive Officer
and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. Shelby Bryan and H. Don Teague, and each of
them, his true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
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:
Signature Title Date
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Signature Title Date
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* Chairman of the Board February 16, 1998
- --------------------------- of Directors
William J. Laggett
/s/ J. Shelby Bryan President, Chief Executive February 16, 1998
- --------------------------- Officer and Director
J. Shelby Bryan (Principal Executive Officer)
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* Executive Vice President and February 16, 1998
- --------------------------- Chief Financial Officer
James D. Grenfell (Principal Financial Officer)
* Vice President and February 16, 1998
- --------------------------- Corporate Controller
Richard Bambach (Principal Accounting Officer)
* Director February 16, 1998
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Harry R. Herbst
* Director February 16, 1998
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Stan McLelland
* Director February 16, 1998
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Leontis Teryazos
Director February __, 1998
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Walter Threadgill
*/s/ J. Shelby Bryan
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By J. Shelby Bryan as attorney-in-fact
for each of the persons whose name is
noted with an asterisk (*) above
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
persons who administer the Plan have 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 February 16, 1998.
By: /s/ James D. Grenfell
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James D. Grenfell, Plan Administrator
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EXHIBIT INDEX
EXHIBITS
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5.1 Opinion of Counsel.*
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Counsel (included in Exhibit 5.1).
24 Powers of Attorney (included in signature page of original Registration
Statement and this post-effective amendment to the Registration Statement)
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* previously filed
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Exhibit 23.1
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Consent of Independent Auditors
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The Board of Directors
ICG Communications, Inc.:
We consent to incorporation by reference in post-effective amendment no. 1 to
the registration statement No. 333-25957 on Form S-8 of ICG Communications,
Inc. of our reports relating to the consolidated balance sheets of ICG
Communications, Inc. and subsidiaries as of September 30, 1995 and 1996 and
December 31, 1996, and the related consolidated statements of operations,
stockholders' equity (deficit), and cash flows for each of the years in the
three-year period ended September 30, 1996, and the three-month period ended
December 31, 1996, and the related financial statement schedule, which reports
appear in the December 31, 1996 transition report on Form 10-K of ICG
Communications, Inc.
Our report refers to a change during the year ended September 30, 1996 in the
Company's method of accounting for long-term telecom services contracts.
KPMG Peat Marwick LLP
Denver, Colorado
February 13, 1998
