-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SzTeELpe9Hm6snFx9beDljYdOJ0KIRTnGBTt6FuoI/+sILtF4JDBgHmrysqa0VQY /JGGkIiFQ6j7bhHgecsKTg== 0000786343-97-000005.txt : 19970220 0000786343-97-000005.hdr.sgml : 19970220 ACCESSION NUMBER: 0000786343-97-000005 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 19960930 FILED AS OF DATE: 19970203 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTELCOM GROUP INC CENTRAL INDEX KEY: 0000786343 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 841128866 STATE OF INCORPORATION: A0 FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-11052 FILM NUMBER: 97516663 BUSINESS ADDRESS: STREET 1: C/O INTELCOM GROUP (USA) INC STREET 2: 9605 EAST MAROON CIRCLE CITY: ENGLEWOOD STATE: CO ZIP: 80112 BUSINESS PHONE: 3035725960 MAIL ADDRESS: STREET 1: C/O INTELCOM GROUP (USA) INC STREET 2: PO BOX 6742 CITY: ENGLEWOOD STATE: CO ZIP: 80112 FORMER COMPANY: FORMER CONFORMED NAME: INTERTEL COMMUNICATIONS INC DATE OF NAME CHANGE: 19930107 10-K/A 1 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 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. 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. 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 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 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 EX-10 2 -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. 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. 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. 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. 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. 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. 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. 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 ------------------------------------ EX-10 3 -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. 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. 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. 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. 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. 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. 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 ----------------------------------- EX-10 4 ICG COMMUNICATIONS, INC. 401(k) WRAPAROUND DEFERRED COMPENSATION PLAN Effective as of October 1, 1996 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 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. 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. 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 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: (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. 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 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. 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. 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. 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. 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 EX-21 5 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 -- EX-23 6 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 EX-27 7
5 (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) 0000786343 ICG HOLDINGS (CANADA),INC. 1,000 12-MOS SEP-30-1996 OCT-01-1995 SEP-30-1996 451082 6832 43344 2509 3206 506327 383435 47298 939351 60163 739827 0 153318 275355 (294943) 939351 0 169094 0 135253 0 8685 85714 (185785) 5131 (180654) 0 0 (3453) (184107) (6.83) 0
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