<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
(Amended to include exhibits)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended September 30, 1996
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
(Commission File Number 1-11965)
ICG COMMUNICATIONS, INC.
(Commission File Number 1-11052)
ICG HOLDINGS (CANADA), INC.
(Commission File Number 33-96540)
ICG HOLDINGS, INC.
(Exact name of Registrants as Specified in their Charters)
Delaware 84-1342022
Canada Not Applicable
Colorado 84-1158866
(State or other jurisdiction of (I.R.S. employer identification
incorporation) number)
9605 East Maroon Circle Not applicable
Englewood, Colorado 80112
1710-1177 West Hastings Street c/o ICG Communications, Inc.
Vancouver, BC V6E 2L3 9605 East Maroon Circle
P.O. Box 6742
Englewood, Colorado 80155-6742
9605 East Maroon Circle Not applicable
Englewood, Colorado 80112
(Address of principal executive (Address of U.S. agent for
offices) service)
Registrants' telephone numbers, including area codes: (303)572-
5960; (800) 650-5960; and (303) 572-5960
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Exchange on Which
Registered
Common Stock, $.01 par value American Stock Exchange
(30,953,330 shares outstanding
on December 10, 1996)
Class A Common Shares, no par Vancouver Stock Exchange
value
(31,795,270 shares outstanding
on December 10, 1996)
Not Applicable Not Applicable
<PAGE>
Securities registered pursuant to Section 12(g) of the Act:
Title of Each Class
Not Applicable
Not Applicable
Not Applicable
Indicate by check mark whether the Registrants: (1) have filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrants were required to
file such reports), and (2) have been subject to such filing
requirements for the past 90 days. Yes No
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of Registrants' knowledge,
in definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
On December 10, 1996, the aggregate market value of ICG
Communications, Inc. Common Stock held by non-affiliates (using
the $19.88 American Stock Exchange closing price on December 10,
1996) was approximately $615,352,200.
On December 10, 1996, the aggregate market value of ICG Holdings
(Canada), Inc. Class A Common Shares held by non-affiliates
(using the US$21.32 Vancouver Stock Exchange closing price on
November 6, 1996, the last day on which a sale was reported) was
approximately $17,713,296.
ICG Holdings (Canada), Inc. owns all of the issued and
outstanding shares of Common Stock of ICG Holdings, Inc.
<PAGE>
EXHIBITS
10.39: Employment Agreement between Fiber Optic
Technologies, Inc. and Mark S. Helwege, dated July
8, 1996.
10.41: Employment Agreement between ICG Satellite Services,
Inc. and Douglas I. Falk, dated August 14, 1996.
10.42: ICG Communications, Inc. 401(k) Wrap Around Deferred
Compensation Plan.
21: Subsidiaries of the Registrant.
23.1: Consent of KPMG Peat Marwick LLP.
27: Financial Data Schedule.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this
report to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: January 31, 1997 ICG COMMUNICATIONS, INC.
By: /s/James D. Grenfell
________________________
James D. Grenfell
Chief Financial Officer
By: /s/Richard Bambach
________________________
Richard Bambach
Corporate Controller
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this
report to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: January 31, 1997 ICG HOLDINGS (CANADA), INC.
By: /s/James D. Grenfell
________________________
James D. Grenfell
Chief Financial Officer
By: /s/Richard Bambach
________________________
Richard Bambach
Corporate Controller
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this
report to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: January 31, 1997 ICG HOLDINGS,INC.
By: /s/James D. Grenfell
________________________
James D. Grenfell
Chief Financial Officer
By: /s/Richard Bambach
________________________
Richard Bambach
Corporate Controller
<PAGE>
-1-
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made this 8th day of July,
1996, by and between Fiber Optic Technologies, Inc., a Colorado corporation
whose address is 6555 South Kenton, Englewood, Colorado 80111 ("Employer" or the
"Company") and Mark Helwege, an individual whose address is 1627 Wood Quail, San
Antonio, Texas 78248 ("Employee").
R E C I T A L S
A. Employer desires to hire and employ Employee as President of Employer,
as provided herein; and
B. Employee desires to be employed by Employer as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
1. Employment. The Company agrees to employ Employee and Employee hereby
agrees to be employed by the Company and/or such of its subsidiary and affiliate
corporations as determined by the Company, on a full-time basis, for the period
and upon the terms and conditions hereinafter set forth.
2. Capacity and Duties. Employee shall be employed as President of
Employer. During his employment, Employee shall perform the duties and bear the
responsibilities commensurate with his position and as directed by the Executive
Committee and the Board of Directors of the Company and shall serve the Company
faithfully and to the best of his ability. In addition, Employee shall be
appointed to the position of Executive Vice President - Network of the Company's
ultimate parent company, namely, IntelCom Group Inc., a Canadian federal
corporation ("IntelCom").
3. Compensation and Benefits.
3.1 The Company shall pay Employee during the Term of this Agreement an
annual base salary, payable semi-monthly in arrears. The annual base salary
shall be One Hundred Sixty Thousand Dollars ($160,000.00).
3.2 In addition to his base salary, the Company,during the Term of this
Agreement, shall pay Employee a performance bonus for each fiscal year of the
Company after the end of the fiscal year, in an exact amount to be determined by
the Board of Directors of the Company. The fiscal 1996 bonus will be pro-rated
based upon the number of full months worked during the 1996 fiscal year. The
target bonus will be forty percent (40%) of Employee's annual base salary. This
bonus may be adjusted, including up to a maximum of eighty percent (80%), based
upon performance and as determined by the Board of Directors of the Company.
<PAGE>
3.3 In addition to salary and bonus payments as provided above, the Company
shall provide Employee during the Term of this Agreement, with the benefits of
such insurance plans,hospitalization plans, stock plans, retirement plans and
other employee fringe benefits (including sick leave, four (4) week vacation
time and membership in the Metropolitan Club in Englewood) as shall be generally
provided to senior executive officers of the Company and for which Employee may
be eligible under the terms and conditions thereof.
3.4 Throughout the Term of this Agreement, the Company shall provide
Employee a monthly car allowance in the amount of $500.00.
3.5 Throughout the Term of this Agreement, the Company shall reimburse
Employee for all reasonable out-of-pocket expenses incurred by Employee in
connection with the business of the Company and in performance of his duties
under this Agreement, upon presentation to the Company by Employee of an
itemized accounting of such expenses with reasonable supporting data.
3.6 The Company will provide to Employee from time to time stock options
under IntelCom's Incentive Stock Option Plan. Subject to the approval of the
Plan Committee, which shall not be unreasonably withheld, Employee initially
will have the option to purchase a total of Fifteen Thousand (15,000) shares,
which shares will vest as to twenty-five percent (25%)of the total on each
twelve (12) month anniversary of the date of granting of the options. The grant
price will be based upon the closing price of the stock on the day of acceptance
of this Agreement by Employee.
3.7 The Company will pay Employee a signing bonus of $20,000.00 ("Signing
Bonus")on the date Employee commences work for the Company.
3.8 The Company will pay Employee all relocation expenses associated with
Employee's relocation from San Antonio, Texas to the Denver, Colorado
metropolitan area. Such expenses, which shall be grossed up one time for taxes
if applicable, shall include, without limitation, family house-hunting trips to
Denver, moving, temporary housing, real estate commissions on the sale of
Employee's current home (not to exceed 8%) and reasonable closing costs on the
purchase of Employee's new home. In addition, the Company will pay Employee a
one-time relocation allowance of $20,000.00 to cover incidentals of moving
("Moving Allowance"). The Moving Allowance will not be grossed up for taxes.
4. Term. The initial term of this Agreement shall be for one (1) year,
commencing on August 1, 1996 ("Term") and shall continue thereafter, unless and
until either party shall give at least thirty (30) days notice to the other of
his or its intention to terminate this Agreement. The applicable provisions of
Sections 3.2, 6, 7, 8, 9 and 10 shall remain in full force and effect as
provided and for the time periods specified in such Sections notwithstanding the
termination of this Agreement; all other obligations of either party to the
other under this Agreement shall terminate at the end of the Term.
<PAGE>
5. Termination.
5.1 If Employee dies during the Term of this Agreement, the Company shall
pay his estate the compensation that would otherwise be payable to him for the
remaining term of this Agreement.
5.2 If, during the Term of this Agreement, Employee is prevented from
performing his duties by reason of illness or incapacity for one hundred forty
(140) days in any one hundred eighty (180) day period, the Company may terminate
this Agreement, upon thirty (30) days prior notice thereof to Employee or his
duly appointed legal representative.
5.3 Pursuant to and subject to the provisions of Section 4 hereof, the
Company may terminate this Agreement upon at least thirty (30) days prior notice
to Employee upon the happening of any of the following events:
5.3.1 The sale by the Company of substantially all of its assets to a
single purchaser or associated group of purchasers who are not affiliates of the
Company.
5.3.2 The sale, exchange or other disposition in one transaction of
eighty percent (80%) or more of the outstanding voting stock of the Company to
or with a person, firm or corporation not then an affiliate of the Company.
5.3.3 The merger or consolidation of the Company in a transaction not
involving an affiliate of the Company in which the shareholders of the
Company receive less than fifty percent (50%) of the outstanding voting stock of
the new continuing corporation.
5.3.4 A bona fide decision by the Company to terminate its business
and liquidate its assets (but only if such liquidation is not part of a
plan to carry on the Company's business through its shareholders).
For the purpose of this Agreement, the term "affiliate" means a person, firm or
corporation that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with the Company.
<PAGE>
5.4 Pursuant to and subject to the provisions of Section 4 hereof, the
Company may terminate this Agreement at any time for gross negligence or
non-performance by Employee of any material duties as an executive officer of
the Company which continues for a period of thirty (30) days after written
notice specifying such negligence or non-performance.
5.5 The Company may terminate this Agreement immediately upon the
commission of any theft, fraud, embezzlement or similar crime involving the
commission of any felony, or for a material breach of any obligation of covenant
created by or under this Agreement.
5.6 Employee may terminate this Agreement upon at least thirty (30) days
prior notice to the Company upon the happening of any of the events described in
subsection 5.3 above.
5.7 If this Agreement is terminated by the Company under subsection 5.2,
5.3 or 5.4, or by Employee under subsection 5.6 above, during the Term hereof,
the Company shall continue to pay Employee's monthly base salary and shall
continue to provide Employee with insurance coverage as shall be in force on the
termination date for a period of twelve (12) months following the date of
termination.
6. Covenant Not to Compete.
6.1 During the Term of this Agreement (or, if longer, during the term of
Employee's employment with the Company or any of its affiliates) and for a
period of twelve (12) months after termination of this Agreement (or, if later,
termination of Employee's employment with the Company or any of its affiliates),
Employee shall not, directly or indirectly, own, manage, operate, control, be
employed by, or participate in the ownership, management, operation or control
of a business that is engaged in the same business as the Company within any
area or at any location constituting, during the term of Employee's employment
and/or at the time Employee's employment is terminated, a Relevant Area. For the
purposes of this Section 6, including all subsections of this Section 6, the
business in which the Company is engaged is that business commonly known as the
network integration and services business, and which services the Company
provides, whether or not the Company is authorized to provide and actually
provides such services during the term of Employee's employment ("Services").
The "Relevant Area" shall be defined for the purposes of this Agreement as any
area located within, or within fifty (50) miles of, the legal boundaries or
limits of any city within which the Company or any parent, subsidiary or
affiliate thereof is providing Services, has commenced the acquisition of any
authorizations, rights of way or facilities or has commenced the construction of
facilities for the purpose of providing Services, or the Company has publicly
announced or privately disclosed in writing to Employee that it plans to provide
Services.
6.2 During the Term of this Agreement (or, if longer, during the term of
Employee's employment with the Company or any of its affiliates) and for a
period of twelve (12) months after termination of this Agreement (or, if later,
termination of Employee's employment with the Company or any of its affiliates),
Employee shall not (i) directly or indirectly cause or attempt to cause any
employee of the Company or any of its affiliates to leave the employ of the
Company or any affiliate, (ii) in any way interfere with the relationship
between the Company and any employee or between an affiliate and any employee of
the affiliate, (iii) directly or indirectly hire any employee of the Company or
any affiliate to work for any organization of which Employee is an officer,
director, employee, consultant, independent contractor or owner of an equity or
other financial interest, or (iv) interfere or attempt to interfere with any
transaction in which the Company or any of its affiliates was involved during
the Term of this Agreement or Employee's employment, which ever is longer.
<PAGE>
6.3 Employee agrees that, because of the nature and sensitivity of the
information to which he will be privy and because of the nature and national and
international scope of the Company's business, the restrictions contained in
this Section 6 are fair and reasonable.
7. Confidential Information.
7.1 The relationship between the Company and Employee is one of confidence
and trust. This relationship and the rights granted and duties imposed by this
Section shall continue until a date ten (10) years from the date Employee's
employment is terminated.
7.2 As used in this Agreement (i) "Confidential Information" means
information disclosed to or acquired by Employee about the Company's plans,
products, processes and services including the Services and any Relevant Area,
including information relating to research, development, inventions,
manufacturing, purchasing, accounting, engineering, marketing, merchandising,
selling, pricing and tariffed or contractual terms, customer lists and prospect
lists or other market information, with respect to any of the Company's then
current business activities; and (ii) "Inventions" means any inventions,
discoveries, concepts and ideas, whether patentable or not, including, without
limitation, processes, methods, formulas, and techniques (as well as related
improvements and knowledge) that are based on or related to Confidential
Information, that pertain in any manner to the Company's then currently used
technology, expertise or business and that are made or conceived by Employee,
either solely or jointly with others, and while employed by the Company or
within six (6) months thereafter, whether or not made or conceived during
working hours or with the use of the Company's facilities, materials or
personnel.
7.3 Employee agrees that he shall at no time during the term of his
employment or at any time thereafter disclose any Confidential Information,
Inventions or component thereof to any person, firm or corporation to any extent
or for any reason or purpose or use any Confidential Information or component
thereof for any purpose other than the conduct of the Company's business.
7.4 Any Confidential Information, Invention or component thereof that is
directly or indirectly originated, developed or perfected to any degree by
Employee during the term of his employment by the Company shall be and remain
the sole property of the Company and shall be deemed trade secrets of the
Company.
7.5 Upon termination of Employee's employment pursuant to any of the
provisions herein, Employee or his legal representative shall deliver to the
Company all originals and all duplicates and/or copies of all documents,
records, notebooks, and similar repositories of or containing Confidential
Information or subject matter then in his possession, whether prepared by him or
not.
<PAGE>
7.6 Employee agrees that the covenants and agreements contained in this
Section 7 are fair and reasonable and that no waiver or modification of this
Section or any covenant or condition set forth herein shall be valid unless set
forth in writing and duly executed by the parties hereto. Employee agrees to
execute such separate and further confidentiality agreements embodying and
enlarging upon the provisions of this Section 7 as the Company may reasonably
request.
8. Injunctive Relief. Upon a material breach or threatened material breach
by Employee of any of the provisions of Sections 6 and 7 of this Agreement, the
Company shall be entitled to an injunction restraining Employee from such
breach. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies for such breach or threatened breach, including
recovery of damages from Employee.
9. No Waiver. A waiver by the Company of a breach of any provision of this
Agreement by Employee shall not operate or be construed as a waiver of any
subsequent or other breach by Employee.
10. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision or portion of
this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such Section in the particular jurisdiction in which
such adjudication is made.
11. Notices. All communications, requests, consents and other notices
provided for in this Agreement shall be in writing and shall be deemed given if
mailed by first class mail, postage prepaid, certified or return receipt
requested to the addresses set forth above, or last known address.
12. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Colorado.
<PAGE>
13. Assignment. The Company may assign its rights and obligations under
this Agreement to any affiliate of the Company or, subject to the provisions of
Section 5.5, to any acquirer of substantially all of the business of the
Company, and all covenants and agreements hereunder shall inure to the benefit
of and be enforceable by or against any such assignee. Neither this Agreement
nor any rights or duties hereunder may be assigned or delegated by Employee.
14. Amendments. No provision of this Agreement shall be altered, amended,
revoked or waived except by an instrument in writing, signed by each party to
this Agreement.
15. Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, heirs, successors and assigns.
16. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties and supersedes all prior understandings, agreements
or representations by or between the parties, whether written or oral, which
relate in any way to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
<PAGE>
MARK HELWEGE
/s/Mark Helwege
- --------------------------------------
FIBER OPTIC TECHNOLOGIES, INC.
By: /s/John D. Field
----------------------------------
Its: Vice President and Director
----------------------------------
AGREED AS TO SECTIONS 2 AND 3.6:
INTELCOM GROUP INC.
By: /s/John D. Field
------------------------------------
Its: Executive Vice President and Secretary
------------------------------------
<PAGE>
-1-
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made this 14th day of August,
1996, by and between ICG Satellite Services, Inc., a Colorado corporation whose
address is 9605 East Maroon Circle, Englewood, Colorado 80112 ("Employer" or the
"Company") and Douglas I. Falk, an individual whose address is 1301 Spring
Street, 27G, Seattle, Washington ("Employee").
R E C I T A L S
A. Employer desires to hire and employ Employee as President of
Employer, as provided herein; and
B. Employee desires to be employed by Employer as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
1. Employment. The Company agrees to employ Employee and Employee hereby
agrees to be employed by the Company and/or such of its subsidiary and affiliate
corporations as determined by the Company, on a full-time basis, for the period
and upon the terms and conditions hereinafter set forth.
2. Capacity and Duties. Employee shall be employed as President of
Employer. During his employment, Employee shall perform the duties and bear the
responsibilities commensurate with his position and as directed by the Executive
Committee and the Board of Directors of the Company and shall serve the Company
faithfully and to the best of his ability. In addition, Employee shall be
appointed to the position of Executive Vice President - Satellite of the
Company's ultimate parent company, namely, ICG Communications, Inc., a Delaware
corporation ("ICG").
3. Compensation and Benefits.
3.1 The Company shall pay Employee during the Term of this Agreement an
annual base salary, payable semi-monthly in arrears. The annual base salary
shall be One Hundred Sixty Thousand Dollars ($160,000.00).
3.2 In addition to his base salary, the Company, during the Term of this
Agreement, shall pay Employee a performance bonus for each fiscal year of the
Company after the end of the fiscal year, in an exact amount to be determined by
the Board of Directors of the Company. The fiscal 1996 bonus will be pro-rated
based upon the number of full months worked during the 1996 fiscal year. The
target bonus will be thirty-five percent (35%) of Employee's annual base salary.
This bonus may be adjusted, including up to a maximum of seventy percent (70%),
based upon performance and as determined by the Board of Directors of the
Company.
<PAGE>
3.3 In addition to salary and bonus payments as provided above,the Company
shall provide Employee during the Term of this Agreement, with the benefits of
such insurance plans, hospitalization plans, stock plans, retirement plans and
other employee fringe benefits (including sick leave, four (4) weeks vacation
time and membership in the Metropolitan Club in Englewood) as shall be generally
provided to senior executive officers of the Company and for which Employee may
be eligible under the terms and conditions thereof.
3.4 Throughout the Term of this Agreement, the Company shall provide
Employee a monthly car allowance in the amount of $500.00.
3.5 Throughout the Term of this Agreement, the Company shall reimburse
Employee for all reasonable out-of-pocket expenses incurred by Employee in
connection with the business of the Company and in performance of his duties
under this Agreement, upon presentation to the Company by Employee of an
itemized accounting of such expenses with reasonable supporting data.
3.6 The Company will provide to Employee from time to time stock options
under ICG's Incentive Stock Option Plan. Subject to the approval of the Plan
Committee, which shall not be unreasonably withheld, Employee initially will
have the option to purchase a total of Fifteen Thousand (15,000) shares, which
shares will vest as to twenty-five percent (25%) of the total on each twelve
(12)month anniversary of the date of granting of the options.
The grant price willbe based upon the closing price of the stock on the day
of acceptance of thisAgreement by Employee.
<PAGE>
3.7 The Company will pay Employee all relocation expenses associated with
Employee's relocation from Seattle, Washington to the Denver, Colorado
metropolitan area. Such expenses, which shall be grossed up one time for taxes
if applicable, shall include, without limitation, family house-hunting trips to
Denver, moving, temporary housing, real estate commissions on the sale of
Employee's current home (not to exceed 8%) and reasonable closing costs on the
purchase of Employee's new home. In addition, the Company will pay Employee a
one-time relocation allowance of $40,000.00 to cover incidentals of moving
("Moving Allowance"). The Moving Allowance will not be grossed up for taxes.
4. Term. The initial term of this Agreement shall be for one (1) year,
commencing on August 14, 1996 ("Term") and shall continue thereafter from
month to month, unless and until either party shall give at least thirty (30)
days notice to the other of his or its intention to terminate this Agreement.
The applicable provisions of Sections 3.2, 6, 7, 8, 9 and 10 shall remain in
full force and effect as provided and for the time periods specified in such
Sections notwithstanding the termination of this Agreement; all other
obligations of either party to the other under this Agreement shall terminate at
the end of the Term.
5. Termination.
5.1 If Employee dies during the Term of this Agreement, the Company shall
pay his estate the compensation that would otherwise be payable to him for the
remaining term of this Agreement.
5.2 If, during the Term of this Agreement, Employee is prevented from
performing his duties by reason of illness or incapacity for one hundred forty
(140) days in any one hundred eighty (180) day period, the Company may terminate
this Agreement, upon thirty (30) days prior notice thereof to Employee or his
duly appointed legal representative.
5.3 Pursuant to and subject to the provisions of Section 4 hereof, the
Company may terminate this Agreement upon at least thirty (30) days prior notice
to Employee upon the happening of any of the following events:
5.3.1 The sale by the Company of substantially all of its assets to a
single purchaser or associated group of purchasers who are not affiliates of the
Company.
5.3.2 The sale, exchange or other disposition in one transaction of
eighty percent (80%) or more of the outstanding voting stock of the Company to
or with a person, firm or corporation not then an affiliate of the Company.
5.3.3 The merger or consolidation of the Company in a transaction not
involving an affiliate of the Company in which the shareholders of the Company
receive less than fifty percent (50%)of the outstanding voting stock of the new
continuing corporation.
5.3.4 A bona fide decision by the Company to terminate its business
and liquidate its assets (but only if such liquidation is not part of a
plan to carry on the Company's business through its shareholders).
For the purpose of this Agreement, the term "affiliate" means a person,
firm or corporation that directly or indirectly, through one or more
intermediaries,
controls, is controlled by, or is under common control with the Company.
5.4 Pursuant to and subject to the provisions of Section 4 hereof, the
Company may terminate this Agreement at any time for gross negligence or
non-performance by Employee of any material duties as an executive officer of
the Company which continues for a period of thirty (30) days after written
notice specifying such negligence or non-performance.
5.5 The Company may terminate this Agreement immediately upon the
commission of any theft, fraud, embezzlement or similar crime involving the
commission of any felony, or for a material breach of any obligation of covenant
created by or under this Agreement.
5.6 Employee may terminate this Agreement upon at least thirty (30) days
prior notice to the Company upon the happening of any of the events described in
subsection 5.3 above.
<PAGE>
5.7 If this Agreement is terminated by the Company under subsection 5.2,
5.3 or 5.4, or by Employee under subsection 5.6 above, during the Term hereof,
the Company shall continue to pay Employee's monthly base salary and shall
continue to provide Employee with insurance coverage as shall be in force on the
termination date for a period of twelve (12) months following the date of
termination.
6. Covenant Not to Compete.
6.1 During the Term of this Agreement (or, if longer, during the term of
Employee's employment with the Company or any of its affiliates) and for a
period of twelve (12) months after termination of this Agreement (or, if later,
termination of Employee's employment with the Company or any of its affiliates),
Employee shall not, directly or indirectly, own, manage, operate, control, be
employed by, or participate in the ownership, management, operation or control
of a business that is engaged in the same business as the Company within any
area or at any location constituting, during the term of Employee's employment
and/or at the time Employee's employment is terminated, a Relevant Area. For the
purposes of this Section 6, including all subsections of this Section 6, the
business in which the Company is engaged is that business commonly known as the
satellite communications, maritime communications and VSAT businesses, and which
services the Company provides, whether or not the Company is authorized to
provide and actually provides such services during the term of Employee's
employment ("Services"). The "Relevant Area" shall be defined for the purposes
of this Agreement as any area located within, or within fifty (50) miles of, the
legal boundaries or limits of any city within which the Company or any parent,
subsidiary or affiliate thereof is providing Services, has commenced the
acquisition of any authorizations, rights of way or facilities or has commenced
the construction of facilities for the purpose of providing Services, or the
Company has publicly announced or privately disclosed in writing to Employee
that it plans to provide Services.
6.2 During the Term of this Agreement (or, if longer, during the term of
Employee's employment with the Company or any of its affiliates) and for a
period of twelve (12) months after termination of this Agreement (or, if later,
termination of Employee's employment with the Company or any of its affiliates),
Employee shall not (i) directly or indirectly cause or attempt to cause any
employee of the Company or any of its affiliates to leave the employ of the
Company or any affiliate, (ii) in any way interfere with the relationship
between the Company and any employee or between an affiliate and any employee of
the affiliate, (iii) directly or indirectly hire any employee of the Company or
any affiliate to work for any organization of which Employee is an officer,
director, employee, consultant, independent contractor or owner of an equity or
other financial interest, or (iv) interfere or attempt to interfere with any
transaction in which the Company or any of its affiliates was involved during
the Term of this Agreement or Employee's employment, which ever is longer.
6.3 Employee agrees that, because of the nature and sensitivity of the
information to which he will be privy and because of the nature and national and
international scope of the Company's business, the restrictions contained in
this Section 6 are fair and reasonable.
<PAGE>
7.Confidential Information.
7.1 The relationship between the Company and Employee is one of confidence
and trust. This relationship and the rights granted and duties imposed by this
Section shall continue until a date ten (10) years from the date Employee's
employment is terminated.
7.2 As used in this Agreement (i) "Confidential Information" means
information disclosed to or acquired by Employee about the Company's plans,
products, processes and services including the Services and any Relevant Area,
including information relating to research, development, inventions,
manufacturing, purchasing, accounting, engineering, marketing, merchandising,
selling, pricing and tariffed or contractual terms, customer lists and prospect
lists or other market information, with respect to any of the Company's then
current business activities; and (ii) "Inventions" means any inventions,
discoveries, concepts and ideas, whether patentable or not, including, without
limitation, processes, methods, formulas, and techniques (as well as related
improvements and knowledge) that are based on or related to Confidential
Information, that pertain in any manner to the Company's then currently used
technology, expertise or business and that are made or conceived by Employee,
either solely or jointly with others, and while employed by the Company or
within six (6) months thereafter, whether or not made or conceived during
working hours or with the use of the Company's facilities, materials or
personnel.
7.3 Employee agrees that he shall at no time during the term of his
employment or at any time thereafter disclose any Confidential Information,
Inventions or component thereof to any person, firm or corporation to any extent
or for any reason or purpose or use any Confidential Information or component
thereof for any purpose other than the conduct of the Company's business.
7.4 Any Confidential Information, Invention or component thereof that is
directly or indirectly originated, developed or perfected to any degree by
Employee during the term of his employment by the Company shall be and remain
the sole property of the Company and shall be deemed trade secrets of the
Company.
7.5 Upon termination of Employee's employment pursuant to any of the
provisions herein, Employee or his legal representative shall deliver to the
Company all originals and all duplicates and/or copies of all documents,
records, notebooks, and similar repositories of or containing Confidential
Information or subject matter then in his possession, whether prepared by him or
not.
7.6 Employee agrees that the covenants and agreements contained in this
Section 7 are fair and reasonable and that no waiver or modification of this
Section or any covenant or condition set forth herein shall be valid unless set
forth in writing and duly executed by the parties hereto. Employee agrees to
execute such separate and further confidentiality agreements embodying and
enlarging upon the provisions of this Section 7 as the Company may reasonably
request.
<PAGE>
8. Injunctive Relief. Upon a material breach or threatened material breach
by Employee of any of the provisions of Sections 6 and 7 of this Agreement, the
Company shall be entitled to an injunction restraining Employee from such
breach. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies for such breach or threatened breach, including
recovery of damages from Employee.
9. No Waiver. A waiver by the Company of a breach of any provision of this
Agreement by Employee shall not operate or be construed as a waiver of any
subsequent or other breach by Employee.
10. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision or portion of
this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such Section in the particular jurisdiction in which
such adjudication is made.
11. Notices. All communications, requests, consents and other notices
provided for in this Agreement shall be in writing and shall be deemed given if
mailed by first class mail, postage prepaid, certified or return receipt
requested to the addresses set forth above, or last known address.
12. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance
with the laws of the State of Colorado.
13. Assignment. The Company may assign its rights and obligations under this
Agreement to any affiliate of the Company or, subject to the provisions of
Section 5.5, to any acquirer of substantially all of the business of the
Company, and all covenants and agreements hereunder shall inure to the benefit
of and be enforceable by or against any such assignee. Neither this Agreement
nor any rights or duties hereunder may be assigned or delegated by Employee.
14. Amendments. No provision of this Agreement shall be altered, amended,
revoked or waived except by an instrument in writing, signed by each party to
this Agreement.
15. Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, heirs, successors and assigns.
16. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
<PAGE>
17. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties and supersedes all prior understandings, agreements
or representations by or between the parties, whether written or oral, which
relate in any way to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
DOUGLAS I. FALK
/s/Douglas I.Falk
- --------------------------------------
ICG SATELLITE SERVICES, INC.
By: /s/John D. Field
----------------------------------
Its: Vice President and Director
----------------------------------
AGREED AS TO SECTIONS 2 AND 3.6:
ICG COMMUNICATIONS, INC.
By: /s/John D. Field
-----------------------------------
Its: Executive Vice President and Secretary
-----------------------------------
<PAGE>
ICG COMMUNICATIONS, INC.
401(k) WRAPAROUND DEFERRED COMPENSATION PLAN
Effective as of October 1, 1996
<PAGE>
TABLE OF CONTENTS
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . 4
II - PARTICIPATION AND CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 5
2.01 Eligibility for Participation . . . . . . . . . . . . . . . . 5
2.02 Termination of Participation . . . . . . . . . . . . . . . . . 5
2.03 Amount of Participant Contribution . . . . . . . . . . . . . 5
2.04 Amount of Company Contribution . . . . . . . . . . . . . . . 6
2.05 Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.06 Transfers to 401(k) Plan . . . . . . . . . . . . . . . . . . . 6
III - VESTING AND DISTRIBUTION OF BENEFITS . . . . . . . . . . . . . . . 8
3.01 Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.02 Distribution of Benefits . . . . . . . . . . . . . . . . . . . 8
3.03 Forfeitures . . . . . . . . . . . . . . . . . . . . . . . . . . 9
IV - FUNDING, INVESTMENT AND VALUATION OF ACCOUNTS . . . . . . . . . . . 10
4.01 Plan Accounts Are Unfunded and May Be Held in Trust . . . . . .10
4.02 Account Investment . . . . . . . . . . . . . . . . . . . . . .10
4.03 Investment Funds . . . . . . . . . . . . . . . . . . . . . . . 10
4.04 Individual Records . . . . . . . . . . . . . . . . . . . . . . 11
4.05 Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
V - ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.01 Modification and Amendment . . . . . . . . . . . . . . . . . . 12
5.02 Termination and Discontinuance . . . . . . . . . . . . . . . . 12
5.03 Special Provisions Upon Change of Control . . . . . . . . . . 12
5.04 Administration and Interpretation . . . . . . . . . . . . . . . 12
5.05 No Contract of Employment . . . . . . . . . . . . . . . . . . . 12
5.06 Facility of Payment . . . . . . . . . . . . . . . . . . . . . 13
5.07 Withholding and Tax Consequences . . . . . . . . . . . . . . . 13
5.08 Nonalienation . . . . . . . . . . . . . . . . . . . . . . . . 13
5.09 Construction . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.10 Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . 13
5.11 Unfunded Plan . . . . . . . . . . . . . . . . . . . . . . . . .13
5.12 Prior Agreements Superseded . . . . . . . . . . . . . . . . . .13
<PAGE>
INTELCOM GROUP (USA), INC.
DEFERRED COMPENSATION PLAN
INTRODUCTION
This ICG Communications, Inc. 401(k) Wraparound Deferred Compensation
Plan (the "Plan") has been approved and adopted by the Board of Directors of ICG
Communications, Inc. (the "Company") to be effective as of October 1, 1996. The
Company has adopted this unfunded deferred compensation plan primarily for the
purpose of providing benefits to a select group of management or highly
compensated employees, and to permit such employees to participate in the ICG
Communications, Inc. 401(k) Profit Sharing Plan (the "401(k) Plan") to the
fullest extent permitted under law.
<PAGE>
ARTICLE I
DEFINITIONS
1.01 Definitions.The following terms when capitalized herein shall have the
meanings assigned below.
Account. The bookkeeping account established and maintained under the Plan
for each Participant to reflect amounts credited under the Plan for the
benefit of each Participant, and any earnings or losses thereon.
Board. The Board of Directors of ICG Communications, Inc.
Change in Control. A "change in control" shall be deemed to have occurred
if any person (including any individual, firm, partnership, or other
entity) together with all "Affiliates" and "Associates" (as such terms are
defined under Rule 12b-2 of the General Rules and Regulations promulgated
under the Securities Exchange Act of 1934) of such person, but excluding:
(i) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any subsidiary of the Company,
(ii) a corporation owned, directly or indirectly, by the stockholders of
the company in substantially the same proportions as their ownership
of the Company,
(iii)the company or any subsidiary of the Company, or
(iv) a Participant together with all Affiliates and Associates of the
Participant,
is or becomes the Beneficial Owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934), directly or indirectly, securities of the
Company representing 40% or more of the combined voting power of the
Company's then outstanding securities.
Code. The Internal Revenue Code of 1986, as amended from time to time.
Committee. The Deferred Compensation Committee responsible for the
administration of the Plan, which Committee will be appointed by the Board
from time to time.
Company. ICG Communications, Inc., and any entity which is a member of a
controlled group of corporations or a controlled group of trades or
businesses with ICG Communications, Inc. under the provisions of Code
Section 414(b) or (c) and which is designated by the Committee as a
participating employer under this Plan, and any successor by merger,
consolidation, sale of assets or otherwise.
Company Contribution. The amount contributed by the Company pursuant to
Article II.
Compensation. A Participant's compensation as defined in the 401(k) Plan,
which (as of the Effective Date) defines Compensation as the amounts paid
to the Participant as wages, as reported on Form W-2 for the year (which
includes bonuses, commissions, and overtime pay), excluding any relocation
expense reimbursements and any P.S. 58 costs includable in income, plus any
elective deferrals made to the 401(k) plan and to any cafeteria plan under
Code Section 125. However, for purposes of this Plan, the limitations of
Code Section 401(a)(17) will not apply (so that Compensation will not be
limited to $150,000) and a Participant's total Compensation will be
considered for purposes of this Plan.
Deferral Election. The election made by an Eligible Employee under which
the Eligible Employee elects to participate in this Plan and to defer a
portion of the Eligible Employee's Compensation for contribution to the
Plan.
Designated Beneficiary. The beneficiary designated by the Participant to
receive the Participant's benefit under the 401(k) Plan in the event of the
Participant's death, which Designated Beneficiary also will receive the
Participant's benefit under this Plan in the event of the Participant's
death.
Effective Date. October 1, 1996.
Eligible Employee. Any employee of the Company who (i) is eligible to
participate in the 401(k) Plan under the terms of the 401(k) Plan, and (ii)
is a member of the management or highly compensated group of employees of
the Company under ERISA Sections 201(2), 301(a)(3), and 401(a)(1), as
determined by the Committee, in its discretion.
ERISA. The Employee Retirement Income Security Act of 1974, as amended.
401(k) Plan. The ICG Communications, Inc. 401(k) Profit Sharing Plan, as
amended from time to time.
Investment Fund. The separate funds in which amounts allocable to
Participants and held in the Trust may be invested in accordance with
Article IV.
Participant. Each Eligible Employee of the Company who elects to
participate in this Plan pursuant to Article II.
Participant Contribution. The amount of Compensation a Participant elects
to defer under the provisions of Article II.
Plan. The ICG Communications, Inc. 401(k) Wraparound Deferred Compensation
Plan, as set forth herein, as amended from time to time.
Plan Year. The twelve-month period ending on December 31 of each year,
except that the first Plan Year will be a short Plan Year commencing on the
Effective Date and ending on the first December 31 following the Effective
Date.
Trust. The Deferred Compensation Trust in which amounts deferred under this
Plan, and any earnings thereon, are held, as provided in Article V and the
Deferred Compensation Trust Agreement.
Trustee. The trustee or trustees of the Trust.
Valuation Date. The last day of each calendar quarter of each Plan Year,
and such other dates as the Committee determines necessary or appropriate
to value the Accounts of Participants.
1.02 Other Terms. Except where the context clearly indicates otherwise, any term
used in this Plan which is not defined in this Article and which term is
defined in the 401(k) Plan will have the meaning set forth in the 401(k)
Plan.
<PAGE>
ARTICLE I
PARTICIPATION AND CONTRIBUTIONS
2.01 Eligibility for Participation. Each Eligible Employee shall be eligible to
participate in the Plan. The Committee shall determine the employees who
satisfy the requirements to be an Eligible Employee for each Plan Year who
are to be considered Eligible Employees under the Plan. Participation in
the Plan by Eligible Employees is completely voluntary. An Eligible
Employee must complete and sign a Deferral Election and file such Deferral
Election with the Committee to participate in the Plan.
2.02 Termination of Participation. Participation in the Plan shall terminate on
the earliest of the date on which a Participant ceases to be an Eligible
Employee, the date on which a Participant terminates employment with the
Company, or the date on which the Plan terminates.
2.03 Amount of Participant Contribution.
A Participant may, within 30 days after the Eligible Employee first is
eligible for participation in the Plan, or during the 30-day period
prior to any January 1 thereafter, elect to defer any whole percentage
of the Participant's Compensation to the Plan. An election must be
made prior to the beginning of the period during which the
Compensation is earned and for which amounts are contributed. A
Participant may not amend or discontinue Participant Contributions for
a Plan Year once a Deferral Election for this Plan is filed with the
Committee. The restrictions on the timing of the Eligible Employee's
Deferral Elections under this Section will not be interpreted to
restrict changes to the Eligible Employee's elections under the 401(k)
Plan, which shall be made consistent with the terms of the 401(k)
Plan.
The maximum Participant Contribution a Participant may contribute to
the Plan for any Plan Year shall be 100% of the Participant's
Compensation for the Plan year. As of each Valuation Date, each
Participant's Account shall be credited with an amount equal to the
Participant Contributions, if any, for the period beginning on the
immediately preceding Valuation Date and ending on the current
Valuation Date.
A Participant may not make contributions to the Plan during any period
for which Participant Contributions must be suspended in accordance
with Treasury Regulation 1.401(k)-1(d)(2)(iv)(B)(4), which requires
suspension of contributions as a condition of the Participant's
receipt of a hardship withdrawal from any plan of the Company,
including the 401(k) Plan.
Notwithstanding any other provision of this Plan, a Participant's
participation in the Plan shall terminate upon the effective date of
any Department of Labor regulation or release in
<PAGE>
which the term "a select group of management or highly compensated
employees" is defined or clarified to exclude such Participant from
participation in this Plan, or upon the Committee's determination, in
its discretion, that sufficient authority exists to determine that
such Participant does not fall within such select group of management
or highly compensated employees. In such event, in the discretion of
the Committee, the Accounts of such ineligible Participants may be
distributed in lump sum as soon as administratively practicable
following the Committee's determination that the Participant's
participation should cease. 2.04 Amount of Company Contribution As of
each Valuation Date, each
Participant's Account shall be credited with an amount contributed by
the Company which will equal the amount of the contribution, if any,
that would have been made by the Company as of such day on behalf of
the Participant under Item D(2) of the 401(k) Plan based upon such
Participant's Participant Contribution if the Participant Contribution
had been made to the 401(k) Plan, without regard to any limitation
imposed by Code Section 401(k) or 402(g), but with regard to the
limitations on Company Contributions set forth in the 401(k) Plan
(including the maximum Company Contribution of 6% of a participant's
Compensation). It is the intent of this Section 2.04 that the Company
make matching contributions to this Plan on behalf of Participant
Contributions to this Plan in the same manner as provided under the
401(k) Plan with respect to 401(k) deferrals, but allowing the Company
matching contribution on Participant Contributions of up to 6% of
Compensation (disregarding any limitations on elective deferrals under
the 401(k) Plan and disregarding the Code Section 401(a)(17) limit on
compensation), taking into account both this Plan and the 401(k) Plan.
The maximum Company Contribution under both this Plan and the 401(k)
Plan will be limited to the first 6% of Compensation contributed by
the Participant.
2.05 Adjustments. Participant Contributions and Company Contributions shall
increase or decrease during the Plan Year based upon the amount of a
Participant's Compensation actually paid during the Plan Year, including
adjustments to such Compensation.
2.06 Transfers to 401(k) Plan.
As soon as administratively practicable following the end of each Plan
Year, but no later than March 15 of the following Plan Year, the
Company will ensure that preliminary actual deferral percentage
testing and actual contribution percentage testing under the 401(k)
Plan have been completed in order to determine the maximum amount of
elective deferral contributions that could be made to the 401(k) Plan
for each Participant for such Plan Year, consistent with Section
402(g) and the limitations of Section 401(k).
Upon determination of the maximum amount described in Section 2.06(a),
the Company shall transfer (or, if applicable, shall direct the
Trustee to transfer) directly to the 401(k) Plan for the benefit of
each Participant an amount equal to the sum of:
<PAGE>
(i) the lesser of:
(A) such maximum amount for each such Participant; or
(B) the sum of the Participant Contributions made in accordance
with Section 2.03 and allocated to the Participant's Account
for such Plan Year; plus
(ii) Company Contributions, if any, allocated in accordance with
Section 2.04 to the Participant's Account for such Plan Year, and
attributable to the Participant Contributions transferred to the
401(k) Plan under Paragraph (i) above.
C. The amounts so transferred to the 401(k) Plan for the benefit of
the Participant will be treated as a contribution to the 401(k)
Plan and will be allocated on behalf of each Participant under
the 401(k) Plan as of the last day of the Plan Year in which
those amounts would have been received by the Participant as
wages, but for the deferral elections under the Plan and the
401(k) Plan, and the application of this Section. Transfers of
Participant Contributions shall be allocated to each
Participant's salary deferral account under the 401(k) Plan.
Transfers of Company Contributions shall be allocated to each
Participant's employer matching contribution account as if such
contribution had been made directly to the 401(k) Plan.
D. The amount to be transferred to the 401(k) Plan in accordance
with Section 2.06(b) shall continue to be credited with deemed
investment experience in accordance with Section 4.03 until the
date of such transfer. Any amounts attributable to such
investment experience shall remain in the Plan.
<PAGE>
ARTICLE III
VESTING AND DISTRIBUTION OF BENEFITS
3.01 Vesting. A Participant shall be vested in his or her Account as follows:
with respect to Participant Contributions credited pursuant to Section
2.03 (and earnings thereon), the Participant shall at all times be
fully 100% vested;
with respect to Company Contributions credited pursuant to Section
2.04 (and earnings thereon), the Participant shall be vested to the
same extent the Participant is vested in his or her Company matching
contributions under Item C(5) of the 401(k) Plan.
Notwithstanding any provision of this Plan to the contrary, in the
event of a Change in Control, all Participants shall become fully
vested in the benefits provided under this Plan.
3.02 Distribution of Benefits.
Termination of Employment. Distribution of a Participant's vested
Account will commence within an administratively reasonable period of
time after the last day of the Plan Year in which the Participant
terminates employment with the Company. Distribution will be made in
substantially equal annual installments over a ten-year period;
provided, however, that a Participant may, upon first becoming
eligible to participate in this Plan, elect to receive his or her
vested Account under this Plan in one lump sum distribution which will
be paid within an administratively reasonable period of time after the
last day of the Plan Year in which the Participant terminates
employment with the Company. Any lump sum distribution elected by the
Participant will be equal to the balance credited to the Participant's
Account as of the Valuation Date immediately preceding such
distribution. To the extent the Account is paid in installment
payments, amounts remaining in the Plan (and, if applicable, in the
Trust) will continue to be credited with earnings, and such earnings
will be distributed with each subsequent installment distribution.
Payment of benefits under this Section shall be a complete discharge
of the Company's obligation under the Plan with respect to that
Participant. Notwithstanding the above, upon the request of a
Participant whose Account is in the process of an installment
distribution, the Committee, in its sole discretion and without any
obligation to do so, may accelerate the payment of all or any portion
of such Participant's vested Account.
Death of Participant. Upon the death of a Participant while employed
with the Company, the Participant's Designated Beneficiary shall be
paid the vested balance credited to the Participant's Account under
this Plan. Distribution to the Designated Beneficiary will commence
within an administratively reasonable period of time after the last
day of the Plan Year in which the Participant dies. Distribution will
be made in substantially equal annual installments over a ten-year
period; provided, however, that a Participant may, upon
<PAGE>
first becoming eligible to participate in this Plan, elect that his or
her Designated Beneficiary will receive the Participant's vested
Account under this Plan in one lump sum distribution which will be
paid within an administratively reasonable period of time after the
last day of the Plan Year in which the Participant dies. Any lump sum
distribution elected by the Participant will be equal to the balance
credited to the Participant's Account as of the Valuation Date
immediately preceding such distribution. To the extent the Account is
paid in installment payments to the Designated Beneficiary, amounts
remaining in the Plan (and, if applicable, in the Trust) will continue
to be credited with earnings, and such earnings will be distributed
with each subsequent installment distribution. Payment of benefits
under this Section shall be a complete discharge of the Company's
obligation under the Plan with respect to that Participant and the
Designated Beneficiary. Notwithstanding the above, upon the request of
the Designated Beneficiary of a Participant whose Account is in the
process of an installment distribution, the Committee, in its sole
discretion and without any obligation to do so, may accelerate the
payment of all or any portion of such vested Account. If a Participant
dies while his or her Account is being distributed under Section
3.02(a) above, the Participant's Designated Beneficiary shall be paid
the remaining installment distributions owing as of the Participant's
death.
3.03 Forfeitures. Upon termination of a Participant's employment with the
Company, any unvested portion of his Account shall be forfeited and any
amounts attributable thereto that are held in the Plan (or, if applicable,
the Trust) shall be used first to pay any administrative expenses of the
Plan (and, if applicable, administrative expenses of the Trust), and then
to reduce the Company's contribution obligation under Section 2.04.
<PAGE>
ARTICLE IV
FUNDING, INVESTMENT, AND VALUATION OF ACCOUNTS
4.01 Plan Accounts Are Unfunded And May Be Held in Trust.
All amounts payable in accordance with this Plan shall constitute a
contractual general unsecured obligation of the Company. Such amounts,
as well as any administrative costs relating to the Plan, shall be
paid out of the general assets of the Company, to the extent not paid
from the assets of the Trust established pursuant to Section 4.01(b)
below.
The Company, in its discretion, may establish a grantor trust for the
benefit of Participants under the Plan. The assets placed in the Trust
shall be comprised of all or any portion of amounts in Accounts and
shall be held separate and apart from other Company funds, and shall
be used exclusively for the purposes set forth in the Plan and Trust,
subject to the following conditions:
(i) the creation of the Trust shall not cause the Plan to be other
than "unfunded" for purposes of Title I of the Employee
Retirement Income Security Act of 1974;
(ii) the Company shall be treated as "grantor" of the Trust; and
(iii)the Trust agreement shall provide that its assets may be used
upon the insolvency of the Company to satisfy claims of the
Company's general creditors, and that the rights of such general
creditors are enforceable by them under federal and state law.
In the event that a Trust is established pursuant to Section 4.01(b),
the amounts contributed in the form of Participant Contributions and
Company Contributions will be transferred by the Company to such
Trust, as directed by the Committee.
4.02 Account Investment. Each Participant may direct the investment of the
amounts allocable to the Participant's Account under the Plan which are
held in the Trust into one or more of the Investment Funds offered by the
Committee.
4.03 Investment Funds. The Committee may designate one or more Investment Funds
for the investment of Participant's Accounts. It is the intention of this
Section that the Investment Funds for this Plan will be the same investment
funds offered under the 401(k) Plan. The Committee may change the
designation of Investment Funds from time to time, in its sole discretion.
The Committee may direct that one or more Investment Funds be comprised of
equity securities, common stock or other obligations of the Company. The
Committee will determine, from time to time and consistent with the
investment direction provisions of the 401(k) Plan, the manner in which
Participants may provide investment instructions for their Accounts under
the Plan.
4.04 Individual Records. The Committee shall maintain, or cause to be
maintained, records showing the individual balances of each Participant's
Account and the amounts allocable to each Participant under this Plan (and,
if applicable, under the Trust); provided, however, the Committee may
delegate this responsibility to the Trustee or another administrator. At
least once a year, each Participant shall be furnished with a statement
setting forth the balance credited to his or her Account under the Plan
(and, if applicable, under the Trust).
4.05 Valuations.
On each Valuation Date each Participant's Account shall be allocated
its proportionate share of the increase or decrease (including
earnings) in the fair market value of that portion of any Investment
Fund which is allocable to the Participant's Account, as well as any
expenses paid from the assets of the Trust. Any portion of the Trust
allocable to a Participant's Account which is not invested in an
Investment Fund shall not be credited with any earnings.
Immediately after any gain or loss or earnings are allocated to a
Participant's Account under the Trust in accordance with Section
4.05(a), an equal amount of gain or loss or earnings shall be credited
to the Participant's Account under the Plan.
<PAGE>
ARTICLE V
ADMINISTRATION
5.01 Modification and Amendment. The Board of Directors of the Company reserves
the right to modify, amend in whole or in part, discontinue benefit accrual
under, or terminate the Plan at any time. However, no modification or
amendment shall be made to Section 3.01(c) or 6.03 and no modification,
discontinuance, amendment or termination shall adversely affect the right
of any Participant to receive the benefits accrued and the vested balance
to the credit of such Participant's Account as of the date of such
modification, discontinuance, amendment, or termination, as adjusted to
reflect changes in the value of the Investment Funds in which the amount in
the Trust allocable to the Participant's Account is invested as of the date
of such modification, discontinuance, amendment, or termination.
5.02 Termination and Discontinuance. If the Company terminates the Plan, or
discontinues benefit accruals thereunder, Participants shall continue to
vest in their accrued benefits and their Accounts in accordance with
Section 3.01 and Accounts under the Plan shall be paid in the manner and at
the times indicated in Article III, unless the Board of Directors shall
determine in its sole and absolute discretion that Participants shall be
fully vested in their Accounts, in which case Accounts under the Plan shall
become 100% vested upon such determination.
5.03 Special Provisions Upon Change of Control. Notwithstanding the provisions
of Section 6.01 and Section 6.02, upon the occurrence of a Change in
Control and at all times thereafter, the Board of Directors of the Company
shall not discontinue, terminate, suspend or amend the Plan, in whole or in
part, in any manner that would adversely affect the right of any
Participant to receive the benefits otherwise provided under the Plan as of
the effective date of such action by the Board of Directors.
5.04 Administration and Interpretation. Full power and authority to construe,
interpret and administer the Plan shall be vested in the Committee. Any
interpretation of the Plan by the Committee or any administrative act by
the Committee shall be final and binding on all Participants. The Committee
shall, from time to time, establish rules and regulations for the
administration of the Plan and the transaction of its business and shall
maintain or cause to be maintained all records which it shall deem
necessary for purposes of the Plan.
5.05 No Contract of Employment. The establishment of the Plan (and the
establishment of any Trust) shall not be construed as conferring any legal
rights upon any person for a continuation of employment, nor shall it
interfere with the rights of the Company to discharge any employee and to
treat such employee without regard to the effect which such treatment might
have upon such employee as a Participant in the Plan.
<PAGE>
5.06 Facility of Payment. In the event that the Committee shall find that a
Participant is unable to care for his or her affairs because of illness or
accident, the Committee may direct that any benefit payment due to such
Participant, unless a claim shall have been made therefor by a duly
appointed legal representative, be paid to such Participant's spouse,
child, or other blood relative, or to a person with whom such Participant
resides, and any such payment so made shall be a complete discharge of the
liabilities of the Company and the Plan and the Trust therefor.
5.07 Withholding and Tax Consequences. The Company and the Trustee shall have
the right to deduct from each payment to be made under the Plan and the
Trust any required withholding or other taxes. In the event the Internal
Revenue Service determines that the value of all or any portion of the
benefits accrued under this Plan are taxable to Participants in any year
prior to the year of actual distribution, the Committee may authorize
distribution of a portion of a Participant's Accounts in an amount
sufficient to satisfy such tax liability. The Company shall not be
responsible for the ordinary income taxes attributable to distributions
from the Plan.
5.08 Nonalienation. Subject to any applicable law, no benefit under the Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any attempt to do so shall
be void, nor shall any such benefit be in any manner liable for or subject
to garnishment, attachment, execution of levy, or liability for or subject
to the debts, contracts, liabilities, engagements or torts of a
Participant.
5.09 Construction. The Plan shall be construed, regulated and administered under
the laws of the State of Colorado. When used herein the masculine pronoun
shall include the feminine pronoun, and the singular shall include the
plural, where appropriate.
5.10 Claims Procedure. Any Participant, beneficiary, or his duly authorized
representative may file a claim for a Plan benefit to which the claimant
believes that he or she is entitled. Such a claim must be in writing and
delivered or mailed to the Committee. The Committee shall have full
discretion to deny or grant a claim in whole or in part.
5.11 Unfunded Plan. The Company will not be required to fund its obligations
under this Plan in any manner, whether by purchase of insurance or
endowment contracts, or contributions to a trust fund, or deposits in an
escrow account, or otherwise; and if the Company does choose to do so, then
the Participant will not have any right or interest in such contract,
trust, or account but may look only to the Company's unsecured promise to
pay in accordance with the provisions of this Plan. Nothing contained in
this Plan will be deemed to create a trust of any kind or to create any
fiduciary relationship.
5.12 Prior Agreements Superseded. The deferred compensation plan for the
Participants set forth in this Plan replaces and supersedes any and all
prior deferred compensation agreements between the Company and any
Participant.
<PAGE>
IN WITNESS WHEREOF, ICG Communications, Inc. has approved this
Plan effective October 1, 1996.
ICG COMMUNICATIONS, INC.
By: /s/John D. Field
Title: Executive Vice President
Date: October 22, 1996
<PAGE>
EXHIBIT 21
Subsidiaries of the Registrant
State of Doing Business
Name of Subsidiary Incorporation As
- ------------------------------------------------------------------------
Bay Area Teleport, Inc. Delaware --
Conticomm, Inc. Colorado --
Fiber Optic Technologies of Oregon, Inc. Oregon --
Fiber Optic Technologies, Inc. Colorado --
Grupo IntelCom de Mexico S.A. de C.V. Mexico --
ICG Access Services - Southeast, Inc.
(formerly known as PrivaCom, Inc.) Delaware --
ICG Enhanced Services, Inc. Colorado --
ICG Holdings, Inc.
(formerly known as IntelCom Group
(U.S.A.), Inc.)
ICG Holdings-Canada, Inc. Colorado --
(formerly known as IntelCom Group Federal --
Inc.) Canadian
ICG Investments, Inc. Colorado --
ICG Fiber Optic Technologies, Inc.
(formerly known as ICG Network
Services, Inc.) Colorado FOT DataCom
ICG Ohio LINX, Inc. Ohio --
ICG Satellite Services, Inc.
(formerly known as Commden Ltd. &
as ICG Wireless Services, Inc.) Colorado --
ICG Telecom Canada, Inc. Federal --
Canadian
ICG Telecom Group, Inc.
(formerly known as the ICG Access
Services, Inc.) Colorado --
ICG Telecom of San Diego, L.P. California --
ICG Telecom Services, Inc. Colorado --
IntelCom Red, S.A. de C.V. Mexico --
Maritime Cellular Telecommunications
Network, Inc. Delaware --
Maritime Tele-Network, Inc. Delaware --
Nova-Net Communications, Inc. Colorado --
Phoenix Fiber Access, Inc. Arizona ICG Access
Services
PTI Harbor Bay, Inc. Washington --
TDIJV, Inc Colorado --
Teleport Denver Ltd. Colorado --
TransAmerican Cable, Inc. Kentucky MidAmerican
Cable
UpSouth Corporation Georgia --
Zycom Corporation Alberta, --
Canada
Zycom Corporation Texas --
Zycom Network Services, Inc. Texas --
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors
ICG Communications, Inc.:
We consent to incorporation by reference in the registration statement Nos.
33-96660 and 333-08729 on Form S-3 of IntelCom Group Inc. and No. 33-14127 on
Form S-8 of ICG Communications, Inc. of our reports dated November 18, 1996,
relating to the consolidated balance sheets of ICG Communications, Inc. and
subsidiaries as of September 30, 1995 and 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
related financial statement schedule, which reports appear in the September 30,
1996 Annual Report on Form 10-K of ICG Communications, Inc.
As explained in note 2 to the consolidated financial statements, during fiscal
1996, the Company changed its method of accounting for long-term telecom
services contracts.
KPMG Peat Marwick LLP
Denver, Colorado
December 17, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
(THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF ICG COMMUNICATIONS, INC. AS OF AND FOR
THE YEAR ENDED SEPTEMBER 30, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS)
</LEGEND>
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<NAME> ICG HOLDINGS (CANADA),INC.
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