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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 1998
REGISTRATION NO. 333-39737
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ON
FORM S-8
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 84-1342022
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
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)
NETCOM ON-LINE COMMUNICATION SERVICES, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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H. DON TEAGUE, 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)
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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
Note: The document(s) containing the employee benefit plan information
required by Item 1 of this Form and the statement of availability of registrant
information and other information required by Item 2 of this Form will be sent
or given to participants as specified by Rule 428(b)(1) under the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with Rule 428(a) and
the requirements of Part I of Form S-8, such documents are not being filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. The Registrant shall maintain a file of such
documents in accordance with the provisions of Rule 428(a)(2) under the
Securities Act. Upon request, the Registrant shall furnish to the Commission or
its staff a copy or copies of all the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
On December 17, 1997, the Commission declared effective under the
Securities Act a Registration Statement on Form S-4 (Reg. No. 333-39737) (the
"Form S-4 Registration Statement") of the Company, which registered the offer
and sale of up to 11,866,388 shares of Common Stock, par value $.01 per share,
of the Company (the "Common Stock") in connection with the transactions (the
"Merger") contemplated by an Agreement and Plan of Merger, dated as of October
12, 1997, as amended (the "Merger Agreement"), by and among the Company, ICG
Acquisition, Inc., a Delaware corporation and NETCOM On-Line Communication
Services, Inc., a Delaware corporation ("NETCOM"). Pursuant to the Merger
Agreement stock options ("Stock Options") granted by NETCOM pursuant to its
Amended and Restated 1993 Stock Option Plan (the "Plan") were converted into and
became rights with respect to the Common Stock and the Company assumed each
Stock Option in accordance with its terms; provided that such Stock Options are
exercisable solely for Common Stock following the Merger. The shares covered by
the Form S-4 Registration Statement included up to 1,586,683 shares of Common
Stock issuable upon exercise of the Stock Options outstanding as of November 30,
1997. This Post-Effective Amendment to Form S-4 Registration Statement on Form
S-8 Registration Statement (this "Registration Statement") covers the shares of
Common Stock issuable upon exercise of the Stock Options and 80,972 additional
shares underlying Stock Options that were issued pursuant to the Plan between
November 30, 1997, 1997 and the effective time of the Merger.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by ICG Communications, Inc. (the "Registrant"
or the "Company") with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated herein by reference:
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(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.
(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 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 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,
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that the documents 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.
All of the securities being registered are registered under Section 12 of
the Exchange Act.
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
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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
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 liable to the
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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 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
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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 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 fullest
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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,
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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.
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 by
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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) and each filing of the annual report of the Plan 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 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-4 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 January 22, 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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* Chairman of the Board January 22, 1998
- - --------------------------- of Directors
William J. Laggett
* President, Chief Executive January 22, 1998
- - --------------------------- Officer and Director
J. Shelby Bryan (Principal Executive Officer)
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* Executive Vice President and January 22, 1998
- - --------------------------- Chief Financial Officer
James D. Grenfell (Principal Financial Officer)
* Vice President and January 22, 1998
- - --------------------------- Corporate Controller
Richard D. Bambach (Principal Accounting Officer)
Director January __, 1998
- - ----------------------------
Harry R. Herbst
* Director January 22, 1998
- - ---------------------------
Stan McLelland
* Director January 22, 1998
- - ---------------------------
Leontis Teryazos
Director January __, 1998
- - ----------------------------
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
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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)
24 Powers of Attorney (included in signature page of this
Registration Statement)
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Exhibit 5.1
January 22, 1998
ICG Communications, Inc.
9605 East Maroon Circle
P.O. Box 6742
Englewood, Colorado 80155-6742
Attn: William J. Laggett, Chairman of the Board
Dear Mr. Laggett:
We have acted as special counsel for ICG Communications, Inc. (the "Company") in
connection with the preparation, execution and filing of a this Post-Effective
Amendment No. 1 to a Registration Statement on Form S-4 on Form S-8 under the
Securities Act of 1933 (Registration No. 333-39737) relating to the registration
of 1,667,655 shares of ICG Communications, Inc. Common Stock, $.01 par value per
share ("Common Stock"), that may be purchased pursuant to options granted under
the NETCOM On-Line Communication Services, Inc. Amended and Restated 1993 Stock
Option Plan (the "Plan").
In connection with the opinion expressed below, we have made such factual
inquiries and have examined or caused to be examined such questions of law as we
have considered necessary or appropriate for the purpose of such opinion. On
the basis of such inquiries or examinations, it is our opinion that any newly
issued shares of Common Stock purchased from the Company pursuant to the Plan,
when paid for as contemplated by the Plan, will be duly authorized, validly
issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above.
Very truly yours,
Sherman & Howard L.L.C.
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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 the incorporation by reference of our reports included herein.
Our reports refer to a change in the method of accounting for long-term telecom
services contracts during the year ended September 30, 1996.
KPMG Peat Marwick LLP
Denver, Colorado
January 22, 1998
