Exhibit 10.2
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SUBSCRIPTION AGREEMENT
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THIS SUBSCRIPTION AGREEMENT (this "Agreement") is dated as of
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June 25, 2002, by and among ITC^DeltaCom, Inc., a Delaware corporation with its
principal place of business at 0000 X.X. Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx,
00000 (the "Company"), Xxxxxxxx X. Xxxxxx, III, with a place of business at 0000
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00xx Xxxxxx, Xxxxxx, Xxxxxxx, 00000 (the "Purchaser"), and ITC Holding Company,
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Inc., a Delaware corporation with its principal place of business at 0000 00xx
Xxxxxx, Xxxxxx, Xxxxxxx 00000 ("Holding").
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Recitals
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A. The Company intends to consummate a financial
restructuring pursuant to a pre-negotiated plan of reorganization (the "Plan")
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that will be subject to confirmation pursuant to chapter 11 of title 11 of the
United States Code (the "Chapter 11 Case").
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B. The terms of the Plan as agreed to by the Company and
certain holders of the Company's 11% Senior Notes due 2007, 8[mid dot]% Senior
Notes due 2008, 9 3/4% Senior Notes due 2008 and 4 1/2% Convertible Subordinated
Notes due 2006 (collectively, the "Notes") are set forth in the term sheet
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attached to this Agreement as Appendix 1 (the "Plan Term Sheet") and made a part
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hereof.
C. The Plan requires the Company to raise gross proceeds
of at least $30,000,000 from the issuance and sale of Series A convertible
preferred stock of the reorganized Company (the "Series A Preferred Stock") upon
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the terms described in the Plan Term Sheet.
D. The Company wishes to sell to the Purchaser, and the
Purchaser wishes to purchase from the Company, Series A Preferred Stock for an
aggregate purchase price of $15,000,000 upon the terms and conditions set forth
in this Agreement (the "Investment").
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E. The Purchaser will not make the Investment unless it
receives funding from Holding for such purpose and the other conditions to the
Purchaser's obligations hereunder are satisfied.
F. Holding, which is currently a stockholder of the
Company, is willing to provide such funding to the Purchaser, as described
below, but only if the Investment is conditioned upon certain releases of
Holding and its affiliates referred to herein becoming legally binding as part
of the Plan and only if the Company agrees with Holding to provide to Holding
the additional release referred to herein, and the Company is willing to provide
such additional release in order to obtain the commitment of Holding to fund the
Investment.
G. SCANA Corporation, which is currently a stockholder of
the Company, has agreed in a subscription agreement of even date herewith to
purchase Series A Preferred Stock for an aggregate purchase price of $15,000,000
upon the terms and conditions set forth in such agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
1. Subscription.
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(a) Subject to the terms and conditions of this Agreement,
the Company shall sell to the Purchaser and the Purchaser shall purchase from
the Company, for an aggregate purchase price of $15,000,000, 150,000 shares of
Series A Preferred Stock (the "Preferred Shares") at a stated price of $100 per
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share (such $15,000,000 amount, as adjusted pursuant to this paragraph (a), the
"Committed Amount"). The Committed Amount shall be reduced by $1.00 for every
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$2.00 of gross proceeds received by the Company from the sale of Series A
Preferred Stock in the rights offering described in the Plan Term Sheet. Upon
any adjustment of the Committed Amount, the number of Preferred Shares to be
purchased and sold at the Closing (as defined in paragraph (d) below) shall be
proportionately reduced.
(b) At the Closing, the Company shall issue to the
Purchaser, for no additional consideration, warrants (the "Warrants") to
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purchase shares of the common stock of the reorganized Company (the "New Common
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Stock") constituting 1% of the equity of the reorganized Company as set forth in
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the Plan Term Sheet, provided, however, that if the Committed Amount and the
number of Preferred Shares to be purchased and sold at the Closing shall be
reduced pursuant to paragraph (a) above, the number of Warrants issuable at the
Closing shall be proportionately reduced.
(c) At the Closing, the Company shall issue to Xxxxxxxx X.
Xxxxxx, III ("Xxxxxx"), in consideration for the purchase commitment set forth
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in this Agreement, shares of New Common Stock constituting 1% of the equity of
the reorganized Company as set forth in the Plan Term Sheet (such
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shares of New Common Stock, together with the Preferred Shares and the Warrants,
the "Securities").
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(d) The closing of the purchase and sale of the Securities
(the "Closing") shall take place substantially concurrently with the other
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transactions contemplated by the Plan to take place on the effective date of the
Plan (the "Plan Effective Date"), including the cancellation of the Notes and
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the Company's existing equity securities and the issuance of the New Common
Stock.
2. Obligations of Holding. Subject to the terms and
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conditions of this Agreement, Holding shall redeem or purchase from Xxxxxx prior
to the date of the Closing (the "Closing Date") such amount of the capital stock
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of Holding held by Lanier as shall be necessary to enable Xxxxxx to have
immediately available funds at the Closing in an amount equal to the Committed
Amount. The aggregate purchase price of securities Holding shall be obligated to
purchase pursuant to this Agreement, including the purchase price of any
securities that Holding shall become obligated pursuant to Section 5(b) to
purchase from any Holding Assignee (as defined in Section 5(a)), shall not
exceed $15,000,000.
3. Representations and Warranties.
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(a) The Company represents and warrants to the Purchaser
and Holding that (i) the Company has the requisite corporate power and authority
to enter into this Agreement and, upon the satisfaction of the condition set
forth in Section 4(a)(i), will have the requisite corporate power and authority
to consummate the transactions contemplated hereby to be consummated by the
Company, (ii) the execution and delivery of this Agreement by the Company have
been duly authorized by all necessary corporate action of the Company, (iii)
this Agreement has been duly and validly executed and delivered by the Company
and (iv) this Agreement constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as such
enforcement is limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and for limitations
imposed by general principles of equity.
(b) The Purchaser represents and warrants to the Company
and Holding as follows:
(i) The Purchaser has sufficient knowledge and experience
in financial and business matters and information relating to the
business, operations, financial condition and prospects of the Company
to evaluate the merits and risks of an investment in the Securities and
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in the New Common Stock issuable upon conversion of the Series A
Preferred Stock and exercise of the Warrants (the Securities and such
New Common Stock together, the "Investment Securities"). The Purchaser
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is an accredited investor (an "Accredited Investor") within the meaning
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of Rule 501(a) of Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act"). The Purchaser will acquire the
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Investment Securities solely for the Purchaser's own account and for
investment and not with a view to, or for sale in connection with, the
distribution of the Investment Securities. The Purchaser understands
that the Investment Securities have not been and will not be registered
under the Securities Act or any applicable state securities laws and
that the Securities may be resold, pledged, hypothecated, transferred
or otherwise disposed of only if registered under the Securities Act
and applicable state securities laws or if an exemption from such
registration requirements is available.
(ii) The Purchaser has the capacity to enter into this
Agreement and to consummate the transactions contemplated hereby to be
consummated by the Purchaser. The Purchaser has as of the date hereof,
or upon the sale of capital stock or other securities to Holding as
provided in this Agreement will have, sufficient immediately available
funds to purchase the Preferred Shares to be purchased by the Purchaser
and sold hereunder. The Purchaser has duly executed and delivered this
Agreement. This Agreement constitutes a valid and binding agreement of
the Purchaser enforceable against the Purchaser in accordance with its
terms, except as such enforcement is limited by bankruptcy, insolvency
and other similar laws affecting the enforcement of creditors' rights
generally and for limitations imposed by general principles of equity.
There exists no contractual or other legal restriction that would limit
the ability of the Purchaser to fulfill the Purchaser's obligations
under this Agreement. Holding and Xxxxxx have agreed on the price and
other terms on which any such redemption or purchase of capital stock
held by Xxxxxx would be consummated.
(c) Holding represents and warrants to the Company and the
Purchaser that (i) Holding has the requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated hereby
to be consummated by Holding, (ii) the execution and delivery of this Agreement
by Holding and the consummation by Holding of the transactions contemplated
hereby have been duly authorized by all necessary corporate action of Holding,
(iii) this Agreement has been duly and validly executed and delivered by
Holding, (iv) this Agreement constitutes a valid and binding
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agreement of Holding enforceable against Holding in accordance with its terms,
except as such enforcement is limited by bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally and for
limitations imposed by general principles of equity, (v) there exists no
contractual or other legal restriction (including, without limitation, any
restriction under the General Corporation Law of the State of Delaware) that
would limit Holding's ability to fulfill its obligations under this Agreement
(including, without limitation, Holding's redemption and purchase obligations
under Sections 2 and 5(b)), (vi) Holding has sufficient funds to pay the
purchase price for all of the capital stock that it may become obligated to
redeem or purchase pursuant to Sections 2 and 5(b) and (vii) Holding and Xxxxxx
have agreed on the price and other terms on which any such redemption or
purchase of capital stock held by Xxxxxx would be consummated.
4. Conditions to Obligations of the Company, the Purchaser
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and Holding.
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(a) The obligations of the Company, the Purchaser and
Holding to consummate the transactions contemplated by this Agreement are
subject to the satisfaction or waiver at or prior to the Closing Date of the
following conditions:
(i) the Plan shall have been confirmed by the
United States Bankruptcy Court for the District of Delaware on
substantially the terms set forth in the Plan Term Sheet, and
an unstayed order by such Bankruptcy Court approving the
transactions contemplated by the Plan shall have been entered,
on or before December 31, 2002;
(ii) the other transactions contemplated by the Plan
to occur on the Plan Effective Date (including, without
limitation, the cancellation of the Notes and the Company's
existing equity securities and the issuance of the New Common
Stock) shall have been consummated substantially concurrently
with the Investment on substantially the terms set forth in
the Plan Term Sheet;
(iii) on the Plan Effective Date, the holders of
Notes representing at least 51% of the principal amount of all
outstanding Notes (including Appaloosa Management L.P. and its
affiliates that beneficially own or control Notes) shall be
legally bound by a release in substantially the form attached
to this Agreement as Appendix 2;
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(iv) on the Plan Effective Date, the Company shall
be legally bound by a release in substantially the form
attached to this Agreement as Appendix 3;
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(v) the Series A Preferred Stock to be purchased
and sold at the Closing shall have substantially the same
terms, powers, preferences and rights as those set forth in
the Plan Term Sheet and such other terms, powers, preferences
and rights as are customary for similar securities;
(vi) the Warrants to be issued at the Closing shall
have substantially the same terms as those set forth in the
Plan Term Sheet and such other terms as are customary for
substantially similar securities;
(vii) the Company, the Purchaser and Holding shall
have executed and delivered such other documents as are
customary for transactions such as the Investment, including,
without limitation, a purchase agreement (the "Purchase
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Agreement") containing customary representations, warranties,
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covenants (including, without limitation, covenants of the
Company providing for securities registration rights with
respect to the Investment Securities) and closing conditions
(including, without limitation, as a condition to the
Purchaser's obligation to close, the absence of a material
adverse change affecting the Company, with customary
exceptions relating to the filing and continuation of the
Chapter 11 Case);
(viii) no preliminary or permanent injunction or other
order by any governmental entity which prevents the
consummation of the transactions contemplated by this
Agreement shall have been issued and remain in effect;
(ix) no statute, rule, regulation or other law shall
have been enacted by any governmental entity which would
prevent or make illegal the consummation of the transactions
contemplated by this Agreement; and
(x) all necessary or required consents, orders,
approvals or authorizations of, notifications or submissions
to, filings with, licenses or permits from, or exemptions or
waivers by, any governmental entity, stock exchange or other
person shall have been made or obtained, except where the
failure by a party to make or obtain any of the foregoing
would not have a material adverse effect on such party's
ability to perform its obligations under this Agreement;
provided that any failure by
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the Company to obtain any necessary or required consents from
any party to lawsuits or other proceedings which challenge the
Company's rights to use its network easements, rights-of-way,
franchises or licenses shall not be deemed a failure to
satisfy this condition with respect to the Company's
obligations.
(b) The obligations of the Company to consummate the
transactions contemplated by this Agreement are subject to the satisfaction or
waiver at or prior to the Closing Date of the additional condition that Holding
shall have executed and delivered to the Company a release, reasonably
satisfactory to the Company in form, scope and substance, pursuant to which the
Company and its officers, directors, employees and affiliates will be released
from any and all claims or liabilities, including, without limitation, any and
all claims or liabilities arising under or in connection with actions taken or
omitted to be taken by the Company under the Investment Agreement dated as of
February 27, 2001, as amended as of May 29, 2001, among the Company, Holding,
SCANA Corporation and HBK Master Fund L.P. (the "Investment Agreement").
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(c) The obligations of the Purchaser and Holding to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction or waiver at or prior to the Closing Date of the additional
condition that the Company shall have executed and delivered to Holding a
release, reasonably satisfactory to Holding in form, scope and substance,
pursuant to which Holding and its officers, directors, employees and affiliates
will be released from any and all claims or liabilities, including, without
limitation, any and all claims or liabilities arising under or in connection
with actions taken or omitted to be taken by Holding under the Investment
Agreement.
(d) The obligations of the Purchaser to consummate the
transactions contemplated by this Agreement are subject to the satisfaction or
waiver at or prior to the Closing Date of the additional condition that Holding
shall have complied with its obligations pursuant to Sections 2 and 5(b).
5. Assignment of Purchase Commitment.
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(a) Until the 35th day following the date of this
Agreement, Xxxxxx may assign all or any portion of his commitment to purchase
the Preferred Shares at the Closing and his related obligations to a limited
number of persons (each, an "Assignee") who are Qualified Investors (as defined
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in this Section 5(a)). Within such 35-day period, Xxxxxx and each Assignee shall
enter into, and shall become bound by, the Purchase Agreement. As a condition to
the effectiveness of any assignment by Xxxxxx
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pursuant to this Section 5(a), the Assignee shall execute a counterpart
signature page to this Agreement. By so executing a counterpart signature page
to this Agreement, each Assignee shall be deemed a "Purchaser" bound by this
Agreement (including all of the terms, conditions and covenants of this
Agreement that are applicable to the Purchaser and to Investment Securities held
by the Purchaser) and to have made all of the representations and warranties set
forth in Section 3(b); provided that no Assignee shall be entitled to receive
any portion of the New Common Stock referred to in Section 1(c) or shall have
the right of assignment granted to Xxxxxx pursuant to this Section 5(a). Each
Purchaser shall be obligated hereunder to purchase such Purchaser's pro rata
portion of the Preferred Shares based on the amount of the purchase commitment
assigned by Xxxxxx to such Purchaser. An assignment by Xxxxxx pursuant to this
Section 5(a) shall not relieve him of any of his obligations as Purchaser under
this Agreement, including, without limitation, his obligation to purchase the
Committed Amount as provided in Section 1(a) if and to the extent that any
Assignee fails to make such Assignee's Investment as required pursuant to this
Agreement. The obligations of each Purchaser under this Agreement shall be
several and not joint with the obligations of any other Purchaser, and, subject
to the obligations of Xxxxxx pursuant to the next preceding sentence, no
Purchaser shall be responsible in any way for the performance of the obligations
of any other Purchaser. Without limiting the generality of the foregoing, no
purchase of Preferred Shares by any Purchaser hereunder shall be a condition
precedent to the obligation of any other Purchaser to purchase Preferred Shares
hereunder. For purposes of this Section 5(a), a "Qualified Investor" is a
person that (i) certifies to the Company, and provides the Company with such
information as the Company may require to enable it to form a reasonable belief,
that such person is an Accredited Investor and (ii) had a preexisting
substantive relationship with the Company prior to the date such person becomes
an Assignee, whether as a result of such person's position or affiliation with
the Company or with Holding, or such person's service as a financial adviser to
the Company, or is otherwise determined to be qualified in the reasonable
discretion of the Company.
(b) Subject to the terms and conditions of this Agreement,
Holding shall redeem or purchase from each stockholder of Holding that is an
Assignee (a "Holding Assignee") prior to the Closing Date, upon the written
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request of such Holding Assignee, such amount of the capital stock or other
securities of Holding held by such Holding Assignee as shall be necessary to
provide such Holding Assignee with immediately available funds at the Closing in
an amount sufficient to enable the Holding Assignee to pay the purchase price of
the portion of the purchase commitment assigned by Xxxxxx to such Holding
Assignee pursuant to Section 5(a).
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6. Covenants.
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(a) At any time or from time to time after the date of this
Agreement, each party agrees to execute and deliver any further instruments or
documents and to take, or cause to be taken, and to do, or cause to be done, and
to assist and cooperate with each other party in doing, all things necessary,
proper, desirable or advisable to evidence or effectuate the consummation of the
transactions contemplated by this Agreement and otherwise to carry out the
intent of the parties hereunder.
(b) If the Purchaser obtains from the Company or any of its
authorized representatives any confidential information, the Purchaser (i) shall
treat all such confidential information as confidential, (ii) shall use such
confidential information only for the purposes contemplated in this Agreement
and (iii) shall not disclose such confidential information to any third party
except to such officers, employees, counsel, accountants and other authorized
representatives of the Purchaser who need to know such confidential information
for the purpose of effectuating the transactions contemplated by this Agreement
and who have been informed of and have agreed to protect the confidential nature
of such confidential information. For purposes of this Section 6(b),
"confidential information" means information relating to the Company's business,
intellectual property and processes, operations, strategies, liquidity and
financial condition, reorganization terms, pricing policies, markets, customers,
distribution, sales, marketing and production and future business plans and any
other information of a "confidential" nature, specifically including any
information that is identified orally or in writing by the Company to be
confidential, or that the Purchaser should reasonably understand under the
circumstances to be confidential, provided that confidential information shall
not include any such information which (i) was in the public domain on the date
hereof or subsequently comes into the public domain other than through the fault
or negligence of the Purchaser, (ii) was lawfully obtained by the Purchaser from
a third party without breach of this Agreement and otherwise not in violation of
the Company's rights, (iii) was known to the Purchaser at the time of disclosure
of such confidential information to the Purchaser by the Company, provided that
the Purchaser was not, at such time, subject to any confidentiality obligation
with respect thereto, or (iv) was independently developed by the Purchaser
without making use of any confidential information.
(c) Holding hereby acknowledges to the Company that it
supports the terms of the Plan as set forth in the Plan Term Sheet. Holding
agrees that, for so long as it is the beneficial owner of Notes, common stock of
the Company or Series B-1 or Series B-2 Cumulative Convertible Preferred
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Stock of the Company (collectively, the "Holding Securities"), it (i) shall
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vote, or shall cause its subsidiaries that own Holding Securities of record to
vote, its claims in respect of the Holding Securities in favor of the Plan
(provided that the terms of the Plan are substantially the same as the terms of
the Plan Term Sheet) and (ii) shall not object to, delay, impede or take any
other action to interfere, directly or indirectly, with the acceptance or
implementation of the Plan, including commencing any action to oppose or object
to the Plan. The provisions of this Section 6(c) shall not in any way limit or
condition the right of Holding or any of its subsidiaries to sell, transfer or
otherwise dispose of (a "transfer") any or all of the Holding Securities at any
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time or to any person (a "Transferee") in the sole and absolute discretion of
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Holding or any such subsidiary; provided, however, that, if and to the extent
that Holding or any such subsidiary transfers any of the Holding Securities
before the date of confirmation of the Plan, Holding shall use its reasonable
best efforts to obtain, or to cause such subsidiary to obtain, the agreement of
the Transferee prior to the effectiveness of such transfer to be bound by the
terms of this Section 6(c) with respect to the Holding Securities being
transferred to the Transferee. Such agreement of the Transferee shall be
confirmed in a writing, which may include a trade confirmation issued by a
broker or dealer, acting as principal or as agent for the Transferee, stating
that such agreement is a term of such transfer.
(d) Xxxxxx hereby acknowledges to the Company that he
supports the terms of the Plan as set forth in the Plan Term Sheet. Xxxxxx
agrees that, for so long as he is the beneficial owner of Notes, preferred stock
of the Company or common stock of the Company (collectively, the "Xxxxxx
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Securities"), he (i) shall vote his claims in respect of the Xxxxxx Securities
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in favor of the Plan (provided that the terms of the Plan are substantially the
same as the terms of the Plan Term Sheet) and (ii) shall not object to, delay,
impede or take any other action to interfere, directly or indirectly, with the
acceptance or implementation of the Plan, including commencing any action to
oppose or object to the Plan. Xxxxxx shall not sell, transfer or otherwise
dispose of (a "transfer") any of the Xxxxxx Securities before the date of
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confirmation of the Plan except to a person (a "Transferee") who agrees prior to
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the effectiveness of the transfer to be bound by the terms of this Section 6(d)
with respect to the Xxxxxx Securities being transferred to the Transferee. Such
agreement of the Transferee shall be confirmed in a writing, which may include a
trade confirmation issued by a broker or dealer, acting as principal or as agent
for the Transferee, stating that such agreement is a term of such transfer.
(e) Xxxxxx and each Assignee, if any, shall enter into the
same Purchase Agreement with the Company and Holding and, in all dealings with
the Company and Holding hereunder and in connection with
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the negotiation, preparation, execution, delivery and performance of the
Purchase Agreement and the other agreements and instruments contemplated hereby
and thereby, shall be represented by a single law firm designed by Xxxxxx
("Purchaser Counsel"). On the Plan Effective Date, the Company shall pay, in an
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amount not to exceed $150,000, the reasonable fees and expenses of Purchaser
Counsel and all other costs and expenses incurred by Xxxxxx and any other
Purchasers hereunder and in connection with the negotiation, preparation,
execution, delivery and performance of the Purchase Agreement. In addition, on
the Plan Effective Date, the Company shall pay, in an amount not to exceed
$40,000, the reasonable fees and expenses of Holding's counsel and all other
costs and expenses incurred by Holding hereunder and in connection with the
negotiation, preparation, execution, delivery and performance of the Purchase
Agreement.
7. Miscellaneous Provisions.
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(a) The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
without the written consent thereto of the Company, the Purchaser and Holding;
provided that if any Assignee shall be a Purchaser under this Agreement, any
such amendment, modification or supplement, or consent to any such waiver or
departure from the provisions of this Agreement, shall require the written
consent of Purchasers that have subscribed for a majority of the Preferred
Shares to be purchased and sold hereunder.
(b) Except as set forth in Section 5, neither this
Agreement nor any rights which may accrue to any party hereunder may be
transferred or assigned without the prior written consent of each non-assigning
party.
(c) All notices, demands, requests, consents or other
communications to be given or delivered under or by reason of the provisions of
this Agreement shall be in writing and shall be deemed to have been given when
(i) delivered personally to the recipient, (ii) telecopied to the recipient
(with hard copy sent to the recipient by reputable overnight courier service
(charges prepaid) that same day) if telecopied before 5:00 p.m. New York City
time on a business day, and otherwise on the next business day, or (iii) one
business day after being sent to the recipient by reputable overnight courier
service (charges prepaid). Such notices, demands, requests, consents and other
communications shall be sent to the parties at the following addresses:
(i) if to the Company:
ITC^DeltaCom, Inc.
1791 X.X. Xxxxxxx Xxxxx
00
Xxxx Xxxxx, Xxxxxxx, 00000
Attention: General Counsel
Telecopy no.: (000) 000-0000
(ii) if to Xxxxxxxx X. Xxxxxx, III, to his attention at:
c/o ITC Holding Company, Inc.
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Telecopy no.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxx
X. Xxxx Xxxxxxx
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Telecopy no.: (000) 000-0000
(iii) if to Holding:
ITC Holding Company, Inc.
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopy no.: (000) 000-0000
or to such other address or to the attention of such other person as the
receiving party has specified by prior written notice to the sending party.
Notices, demands, requests, consents or other communications required or desired
to be delivered to any Assignee having rights or obligations pursuant to this
Agreement shall be addressed to such Assignee at the address and/or to the
attention of such person as such Assignee shall designate by written notice to
the Company.
(d) This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware applicable to contracts executed and to be performed wholly within such
state.
(e) Any process against any party in, or in connection
with, any suit, action or proceeding arising out of or relating to this
Agreement or
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the transactions contemplated hereby, may be served personally or by certified
mail pursuant to the notice provision set forth in Section 7(c) with the same
effect as though served on it personally. Each party hereby irrevocably submits
in any suit, action or proceeding arising out of or relating to this Agreement
or any of the transactions contemplated hereby to the exclusive jurisdiction and
venue of the federal and state courts of the State of Delaware and irrevocably
waives any and all objections to exclusive jurisdiction and review of venue that
any such party may have under the laws of the State of Delaware or the United
States. Without limiting the other remedies, this Agreement shall be enforceable
by specific performance. Each party hereby irrevocably designates RL&F Service
Corp. (the "Process Agent"), with offices at the date hereof at One Xxxxxx
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Square, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, as its designee, appointee
and agent to receive, for and on its behalf, service of process in the State of
Delaware in any legal action or proceedings by the parties hereto with respect
to this Agreement and the transactions contemplated hereby, and such service
shall be deemed complete upon delivery thereof to the Process Agent, provided
that in the case of any such service upon the Process Agent, the party effecting
such service shall also deliver a copy thereof to the other parties in
accordance with the notice provision set forth in Section 7(c). Each party shall
take all such action as may be necessary to continue such appointment in full
force and effect or to appoint another agent, who will thereafter be referred to
herein as the "Process Agent," so that each such party shall at all times have
an agent for service for the foregoing purposes in the State of Delaware.
(f) The Company, the Purchaser and Holding hereby waive any
right they may have to a trial by jury in respect of any suit, action or
proceeding directly or indirectly arising out of, under or in connection with
this Agreement.
(g) The descriptive headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provision of this Agreement. The parties to
this Agreement have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
(h) Whenever required by the context, any pronoun used in
this Agreement shall include the corresponding masculine, feminine or
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neuter forms, and the singular forms of nouns, pronouns and verbs shall include
the plural, and vice versa.
(i) This Agreement, including Xxxxxxxx 0, Xxxxxxxx 2 and
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Appendix 3 hereto, contains the entire agreement of the parties with respect to
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the subject matter of this Agreement, and no party shall be liable or bound to
any other party in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein.
(j) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument.
(k) Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid or
unenforceable in any respect, such invalidity or unenforceability shall not
render invalid or unenforceable any other provision of this Agreement.
(l) Holding's obligations set forth in this Agreement
(including, without limitation, Holding's redemption and purchase obligations
under Sections 2 and 5(b)) are for the benefit of, and may be directly enforced
by, Xxxxxx, each Holding Assignee and/or the Company.
(m) This Agreement, the agreements referred to herein, and
each other agreement or instrument entered into in connection herewith or
therewith or contemplated hereby or thereby, and any amendments hereto or
thereto, to the extent signed and delivered by means of a facsimile machine,
shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract, and each such party forever waives any such defense.
(n) This Agreement shall be binding upon each party hereto
and such party's heirs, executors, administrators, successors and permitted
assigns. Without limiting the generality of the foregoing, this Agreement shall
survive the death or disability of Xxxxxx and each other Purchaser that is a
natural person.
14
[signature page follows]
15
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first above written.
Company:
ITC^DELTACOM, INC.
By: /s/ J. Xxxxxx Xxxxxx
------------------------------------
Name: J. Xxxxxx Xxxxxx
----------------------------------
Title: Senior Vice President-Legal and
---------------------------------
Regulatory
----------
Purchaser:
/s/ Xxxxxxxx X. Xxxxxx, III
---------------------------------------
Xxxxxxxx X. Xxxxxx, III
Holding:
ITC HOLDING COMPANY, INC.
By: /s/ Dabsey X. Xxxx
------------------------------------
Name: Dabsey X. Xxxx
----------------------------------
Title: VP/Controller
---------------------------------
16
APPENDIX 1
----------
[ITC^DeltaCom, Inc. Term Sheet is filed as part of Exhibit 10.1 to this
Current Report on Form 8-K]
A-1
APPENDIX 2
----------
(b) Releases by Holders of Claims. On the Effective Date,
each holder of Notes that [has consented or has been otherwise determined to be
bound] [manner of binding Noteholders to be determined] in consideration for the
obligations of ITC Holding Company, Inc. and SCANA Corporation under the
Subscription Agreements will be deemed to release, waive and discharge all
claims, causes of action and liabilities (other than the rights of such holder
of Notes to enforce the Subscription Agreements), whether liquidated or
unliquidated, fixed or contingent, matured or unmatured, known or unknown,
foreseen or unforeseen, then existing or thereafter arising, in law, equity or
otherwise that are based on any act or omission, transaction, event or other
occurrence taking place on or prior to the Effective Date in any way relating to
the Debtor (including, without limitation, any claims or causes or action
arising under or in connection with actions taken or omitted to be taken by ITC
Holding Company, Inc. or SCANA Corporation under the Investment Agreement),
against the current and former officers and directors of the Debtor and against
ITC Holding Company, Inc., SCANA Corporation and their respective officers,
directors, employees and affiliates.
A-2
APPENDIX 3
----------
(a) Releases by the Debtor. As of the Effective Date, for
good and valuable consideration, the Debtor, in its individual capacity and as
debtor in possession, and the Reorganized Debtor will be deemed to release,
waive and discharge all claims and causes of action and liabilities (other than
the rights of the Debtor or the Reorganized Debtor to enforce the Subscription
Agreements, the Plan and the contracts, instruments, releases, indentures and
other agreements or documents delivered thereunder) whether liquidated or
unliquidated, fixed or contingent, matured or unmatured, known or unknown,
foreseen or unforeseen, then existing or thereafter arising, in law, equity or
otherwise that are based on any act, omission, transaction, event or other
occurrence taking place on or prior to the Effective Date in any way relating to
the Debtor (including, without limitation, any claims or causes or action
arising under or in connection with actions taken or omitted to be taken by ITC
Holding Company, Inc. or SCANA Corporation under the Investment Agreement) that
could have been asserted by or on behalf of the Debtor or its Estate or the
Reorganized Debtor against ITC Holding Company, Inc., SCANA Corporation or their
respective officers, directors, employees and affiliates.
The foregoing release will also be given to the current and
former officers and directors of the Debtor.
A-3
