Exhibit 2
Execution Copy
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June 20,
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2001, is made among ITC/\DeltaCom, Inc., a Delaware corporation (the "Company"),
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ITC Holding Company, Inc., a Delaware corporation (the "Initial Purchaser"),
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SCANA Corporation, a South Carolina corporation ("SCANA"), HBK Master Fund L.P.,
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a Cayman Islands limited partnership ("HBK"), and the other Holders from time to
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time hereunder.
W I T N E S S E T H:
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WHEREAS, in connection with the Investment Agreement, dated as of February
27, 2001, as amended as of May 29, 2001, by and among the Company, the Initial
Purchaser, SCANA and HBK (as amended from time to time, the "Investment
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Agreement"), the Company has agreed, upon the terms and subject to the
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conditions contained therein, to issue and sell (i) shares of multiple series of
the Company's Series B cumulative convertible preferred stock and (ii) warrants
to purchase shares of the Company's common stock; and
WHEREAS, to induce the Initial Purchaser, SCANA, HBK and the other
Purchasers party from time to time to the Investment Agreement to execute and
deliver the Investment Agreement, the Company has agreed to provide the Initial
Purchaser, SCANA, HBK, such other Purchasers and their respective transferees
under the Investment Agreement with certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder,
and applicable state securities laws;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
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shall have the following meanings:
"Affiliate" has the meaning specified in Rule 12b-2 under the Exchange
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Act.
"Blackout Period" has the meaning specified in Section 6(a).
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"Business Day" means a day on which the principal offices of the SEC
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in Washington, D.C. are open to accept filings or, in the case of determining a
date on which any payment is due, any day which shall not be a legal holiday or
a day on which banking institutions in New York City, New York or the State of
Georgia generally are authorized or required by law or other governmental
actions to close.
"Common Stock" means the Company's common stock, par value $.01 per
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share.
"Company" has the meaning specified in the first paragraph of this
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Agreement.
"Conversion Shares" means, collectively, (i) the shares of Common
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Stock issued or issuable upon conversion of the Preferred Shares and (ii) any
securities paid, issued or distributed in respect of any shares of Common Stock
referred to in clause (i) by way of stock dividend or distribution or stock
split or in connection with a combination of shares, recapitalization,
reorganization, merger, consolidation or otherwise.
"Draw Down Closing" means the closing of the issuance and sale of the
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Series B Preferred Stock and the Warrants by the Company on any Draw Down
Closing Date pursuant to the Investment Agreement.
"Draw-Down Shelf Registrable Securities" has the meaning specified in
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Section 4(a)(2).
"Draw-Down Shelf Registration Statement" means a Shelf Registration
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Statement relating to Draw-Down Shelf Registrable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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or any successor federal statute, as the same shall be in effect from time to
time. Reference to a particular section of the Securities Exchange Act of 1934,
as amended, shall include reference to the comparable section, if any, of any
such successor federal statute.
"Excluded Registration" means a registration of Common Stock under the
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Securities Act pursuant to a registration statement filed (i) on Form S-4 or
Form S-8 or any successor forms, (ii) in connection with an exchange offer or an
offering of securities solely to existing stockholders of the Company or
employees of the Company or its subsidiaries or (iii) in connection with an
offering of Common Stock issuable upon the conversion or exercise of other
securities.
"Holder" means each Purchaser and, subject to Section 13, any other
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Person to which a Purchaser has transferred Registrable Securities and which has
agreed to become bound by the provisions of this Agreement in accordance with
Section 13, but only so long as such Purchaser or other Person holds Registrable
Securities.
"Initial Closing Date" means the date on which the Series B Preferred
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Stock and the Warrants are first issued and sold by the Company pursuant to the
Investment Agreement.
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"Initial Purchaser" has the meaning specified in the first paragraph
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of this Agreement.
"Initial Shelf Registrable Securities" has the meaning specified in
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Section 4(a)(1).
"Initial Shelf Registration Statement" means a Shelf Registration
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Statement relating to the Initial Shelf Registrable Securities.
"Initiating Holder" has the meaning specified in Section 3(a).
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"Investment Agreement" has the meaning specified in the recitals to
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this Agreement.
"Losses" has the meaning specified in Section 10(a).
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"Majority of the Registrable Securities" means, as of any date of
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determination with respect to the designated Holders, a majority of the shares
of Common Stock held by such Holders on an as-converted basis, with the Holders
of Preferred Shares and Warrants deemed to be the Holders of the number of
shares of Common Stock into which the Preferred Shares are or would be
convertible or for which the Warrants are or would be exercisable as of such
date of determination.
"NASD" means the National Association of Securities Dealers, Inc.
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"Person" means any individual, corporation, partnership, limited
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liability company, association, trust or other entity or organization, including
a government or a political subdivision or an agency or instrumentality thereof.
"PIK Dividends" means any shares of the Series B Preferred Stock that
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have been issued as dividends on shares of the Series B Preferred Stock.
"Preferred Shares" means the outstanding Series B Preferred Stock,
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including the outstanding PIK Dividends.
"Prospectus" means the prospectus included in any Registration
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Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by any Registration Statement, and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Purchaser" means each of the Initial Purchaser, SCANA and HBK and
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each other Person that becomes a party to the Investment Agreement as a
"Purchaser" thereunder and that agrees in writing to become a Holder under this
Agreement and to be bound by the provisions hereof in accordance with Section
13.
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"Registrable Securities" means, collectively, (i) the Preferred
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Shares, (ii) the Warrants, (iii) the Conversion Shares and (iv) the Warrant
Shares. Securities shall cease to be Registrable Securities in accordance with
Section 2.
"Registration Expenses" means any and all out-of-pocket expenses
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incident to the Company's performance of or compliance with this Agreement,
including, without limitation, (i) all SEC, NASD and securities exchange or
automated quotation system registration and filing fees, (ii) all fees and
expenses of complying with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters in connection
with blue sky qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange or automated quotation system pursuant to Section 7(h), (v) the fees
and disbursements of counsel for the Company and of its independent public
accountants, (vi) the reasonable fees and expenses of any special experts
retained by the Company in connection with the requested registration, (vii) the
reasonable fees and expenses of a single counsel for the Holders designated by
the Holders of a Majority of the Registrable Securities covered by a
Registration Statement which are incurred in connection with the preparation and
review of such Registration Statement, and (viii) out-of-pocket expenses for
underwriters customarily paid by the issuer to the extent provided for in any
underwriting agreement, but excluding (x) underwriting discounts and
commissions, transfer taxes, if any, and documentary stamp taxes, if any, and
(y) any fees or expenses of counsel to the Holders or any Holder, other than the
fees and expenses set forth in clause (vii) above.
"Registration Statement" means any registration statement of the
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Company referred to in Section 3 or 4, including any Prospectus, amendments and
supplements to any such registration statement, including post-effective
amendments, and all exhibits and all material incorporated by reference in any
such registration statement.
"Registration Hold Period" means a Section 7(e) Period or a Section
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7(m) Period.
"Related Securities" means any securities of the Company similar or
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identical to any of the Registrable Securities, including, without limitation,
the Common Stock and all other options, warrants, rights and other securities
convertible into, or exchangeable or exercisable for, Common Stock.
"Requesting Holder" has the meaning specified in Section 3(a).
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"SEC" means the Securities and Exchange Commission.
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"Section 7(e) Period" has the meaning specified in Section 7(e).
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"Section 7(m) Period" has the meaning specified in Section 7(m).
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"Securities Act" means the Securities Act of 1933, as amended, or any
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successor federal statute, as the same shall be in effect from time to time.
Reference to a particular section of the Securities Act of 1933, as amended,
shall include reference to the comparable section, if any, of any such successor
federal statute.
"Series B Preferred Stock" means, collectively, each series of
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preferred stock, par value $.01 per share, of the Company designated by the
Company's Board of Directors as "Series B-[ ] Cumulative Convertible Preferred
Stock" which is issued pursuant to the Investment Agreement and the certificate
of designation for each such series of preferred stock.
"Shelf Registration" means the registration of Registrable Securities
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effected pursuant to Section 4.
"Shelf Registration Statement" means a shelf registration statement of
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the Company filed pursuant to the provisions of Section 4 which covers the
Initial Shelf Registrable Securities, the Draw-Down Shelf Registrable Securities
or the Top-up Shelf Registrable Securities on an appropriate form under Rule 415
of the Securities Act, or any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein. "Shelf
Registration Statement" shall include the Initial Shelf Registration Statement,
each Draw-Down Shelf Registration Statement and each Top-up Shelf Registration
Statement.
"Top-up Shelf Registrable Securities" means, as of any determination
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date, (i) the outstanding PIK Dividends which are then Registrable Securities
and (ii) the Conversion Shares issued or issuable thereon.
"Top-up Shelf Registration Statement" means a Shelf Registration
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Statement relating to Top-up Shelf Registrable Securities.
"Underwritten Offering" means an underwritten offering in which
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securities of the Company are sold to an underwriter for reoffering to the
public.
"Warrant Shares" means, collectively, (i) the shares of Common Stock
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issued or issuable upon exercise of the Warrants and (ii) any securities paid,
issued or distributed in respect of any such shares of Common Stock referred to
in clause (i) by way of stock dividend or distribution or stock split or in
connection with a combination of shares, recapitalization, reorganization,
merger, consolidation or otherwise.
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"Warrants" means the warrants to purchase Common Stock issued and sold
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pursuant to the Investment Agreement and any warrants issued in exchange,
substitution or replacement thereof.
2. Securities Subject to this Agreement. The securities entitled to the
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benefits of this Agreement are the Registrable Securities. For the purposes of
this Agreement, any particular Registrable Securities shall cease to be
Registrable Securities on the date and to the extent that (i) a Registration
Statement covering such Registrable Securities has been declared effective under
the Securities Act and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement, (ii) such Registrable
Securities have been distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act, (iii) such
Registrable Securities have been otherwise issued, transferred or disposed of,
certificates therefor not bearing a legend restricting further transfer shall
have been delivered by the Company and, at such time, subsequent transfer or
disposition of such securities shall not require registration or qualification
of such securities under the Securities Act, (iv) all such Registrable
Securities held by any Holder may be sold by such Holder without any time,
volume or manner limitations pursuant to Rule 144(k) (or any similar provision
then in force) under the Securities Act, or (v) such Registrable Securities have
ceased to be outstanding. Without limiting the generality of the foregoing, (a)
Conversion Shares issued or issuable upon conversion of Preferred Shares shall
cease to be Registrable Securities at the same time as such Preferred Shares
cease to be Registrable Securities (other than solely because such Preferred
Shares have ceased to be outstanding), so long as such Conversion Shares may
then or upon issuance be transferred or disposed of by the holders thereof
without restriction under the Securities Act, and (b) Warrant Shares shall cease
to be Registrable Securities if the offering of the related Warrants has been
registered on a Registration Statement and such Warrant Shares are issued
pursuant to the cashless exercise provisions of such Warrants or the issuance of
such Warrant Shares is effected upon exercise of the related Warrants pursuant
to such Registration Statement, so long as such Warrant Shares may then be
transferred or disposed of by the holders thereof without restriction under the
Securities Act.
3. Piggy-Back Registration Rights.
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(a) Whenever the Company shall propose to file a registration
statement under the Securities Act relating to the public offering of Common
Stock (other than in connection with an Excluded Registration) for the Company's
own account or for the account of any holder of Common Stock who holds
registration rights as of the date hereof (the "Initiating Holder") and on a
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form and in a manner that would permit registration of Registrable Securities
for sale to the public under the Securities Act, the Company shall (i) give
written notice at least 15 Business Days prior to the filing thereof to each
Holder of Registrable Securities then
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outstanding, specifying the approximate date on which the Company proposes to
file such registration statement and advising such Holder of its right to have
any or all of the Registrable Securities then held by such Holder included among
the securities to be covered thereby and (ii) at the written request of any such
Holder given to the Company within 15 days after such Holder's receipt of
written notice from the Company, include among the securities covered by such
registration statement the number of Registrable Securities which such Holder (a
"Requesting Holder") shall have requested be so included (subject, however, to
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reduction in accordance with paragraph (b) of this Section 3).
(b) Each Holder of Registrable Securities wishing to participate in an
offering pursuant to Section 3(a) may include Registrable Securities in any
Registration Statement relating to such offering to the extent that the
inclusion of such Registrable Securities shall not reduce the number of shares
of Common Stock to be offered and sold by the Company or any Initiating Holder
pursuant thereto. If the lead managing underwriter for an Underwritten Offering
pursuant to Section 3(a) determines that marketing factors require a limitation
on the number of Registrable Securities to be offered and sold by Requesting
Holders in such offering, there shall be included in such offering only that
number of Registrable Securities, if any, that such lead managing underwriter
reasonably believes will not jeopardize the success of the offering of all of
the shares of Common Stock that the Company wishes to sell for its own account
or that the Initiating Holder desires to sell for its own account, as the case
may be. In such event, the securities to be included in such offering shall
consist of (i) first, the securities the Company or the Initiating Holder, as
the case may be, proposes to sell, and (ii) second, the number, if any, of
Registrable Securities requested to be included in such registration that, in
the opinion of such lead managing underwriter can be sold without jeopardizing
the success of the offering of all of the securities that the Company or the
Initiating Holder, as the case may be, wishes to sell for its own account, such
amount to be allocated on a pro rata basis among the Holders of Registrable
Securities who have requested that their securities be so included based on the
number of Registrable Securities that each Holder thereof has requested to be so
included.
(c) Nothing in this Section 3 shall create any liability on the part
of the Company to the Holders of Registrable Securities if the Company for any
reason should decide not to file a registration statement proposed to be filed
under Section 3(a) or to withdraw such registration statement subsequent to its
filing, regardless of any action whatsoever that a Holder may have taken,
whether as a result of the issuance by the Company of any notice hereunder or
otherwise.
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4. Shelf Registration Statements.
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(a) Initial and Draw-Down Shelf Registration Statements.
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(1) The Company shall file the Initial Shelf Registration Statement
with the SEC not later than (x) 180 days following the Initial Closing Date or
(y) such later date not later than December 31, 2001 as the Initial Purchaser
shall designate in a written notice to the Company delivered within 150 days
following the Initial Closing Date. The Company shall use its reasonable best
efforts to cause the Initial Shelf Registration Statement to be declared
effective by the SEC as soon as reasonably practicable after the filing date of
the Initial Shelf Registration Statement. The Initial Shelf Registration
Statement shall register the offering of the Registrable Securities that are
outstanding immediately prior to the filing date of the Initial Shelf
Registration Statement (collectively, the "Initial Shelf Registrable
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Securities"). The Company shall promptly notify the applicable Holders of the
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date and time of declaration of effectiveness of the Initial Shelf Registration
Statement.
(2) The Company shall file a Draw-Down Shelf Registration Statement
with the SEC not later than 30 days following each Draw Down Closing that takes
place after the effective date of the Initial Shelf Registration Statement, and
shall use its reasonable best efforts to cause such Draw-Down Shelf Registration
Statement to be declared effective by the SEC as soon as reasonably practicable
thereafter. Each Draw-Down Shelf Registration Statement shall register the
offering of the Registrable Securities that are outstanding immediately prior to
the filing date of such Draw-Down Shelf Registration Statement and that have not
been registered pursuant to any previous Registration Statement (collectively,
the "Draw-Down Shelf Registrable Securities"). The Company shall promptly
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notify the applicable Holders of the date and time of declaration of
effectiveness of each Draw-Down Shelf Registration Statement.
(b) Top-up Shelf Registration Statements.
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(1) On or before March 31 of each year, beginning on March 31,
2003, the Company shall file a Top-up Shelf Registration Statement with the SEC
registering the offering of all Top-up Shelf Registrable Securities that are
outstanding immediately prior to such filing date and that have not been
registered pursuant to any previous Registration Statement, and shall use its
reasonable best efforts to cause such Top-up Shelf Registration Statement to be
declared effective by the SEC as soon as reasonably practicable thereafter. The
Company shall promptly notify the applicable Holders of the date and time of
declaration of effectiveness of each Top-up Shelf Registration Statement.
(2) The holders of a majority of the then outstanding Top-up
Shelf Registrable Securities that have not been registered pursuant to any
previous
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Registration Statement shall have the right to make one request, in writing, at
any date beginning after January 1, 2002, for the Company to file a Top-up Shelf
Registration Statement with the SEC registering the offering of some or all of
the then outstanding Top-up Shelf Registrable Securities that have not been
registered pursuant to any previous Registration Statement. The Company shall
file such Top-up Shelf Registration Statement with the SEC not later than 30
Business Days following its receipt of such request and shall use its reasonable
best efforts to cause such Top-up Registration Statement to be declared
effective by the SEC as soon as reasonably practicable thereafter. Within ten
Business Days following receipt of such request, the Company shall give written
notice to each Holder of such Top-up Shelf Registrable Securities then
outstanding, specifying the approximate date on which the Company proposes to
file such Top-up Shelf Registration Statement and advising such Holder of its
right to have any or all of such Top-up Shelf Registrable Securities then held
by such Holder included among the securities to be covered thereby. At the
written request of any such Holder given to the Company within 15 Business Days
after such Holder's receipt of written notice from the Company, the Company
shall include among the securities covered by such registration statement the
number of such Top-up Shelf Registrable Securities which such Holder shall have
requested be so included.
5. Selection of Underwriters. In connection with any Underwritten
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Offering pursuant to a Shelf Registration Statement, the Company shall have the
right to select a lead managing underwriter or underwriters to administer such
offering, which lead managing underwriter or underwriters shall be reasonably
satisfactory to the Holders holding a Majority of the Registrable Securities to
be included in such Registration Statement; provided, however, that the Holders
holding a Majority of the Registrable Securities to be included in such
Registration Statement shall have the right to select a co-managing underwriter
or underwriters for such offering, which co-managing underwriter or underwriters
shall be reasonably satisfactory to the Company.
6. Blackout Periods; Holdback.
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(a) If the Company determines that the registration and distribution
of Registrable Securities (i) would materially impede, delay, interfere with or
otherwise adversely affect any pending financing, registration of securities,
acquisition, corporate reorganization or other significant transaction involving
the Company or (ii) would require disclosure of non-public material information
that the Company has a bona fide business purpose for preserving as
confidential, as determined by the Company's Board of Directors in good faith,
the Company shall promptly give the Holders notice of such determination and
shall be entitled to postpone the filing or effectiveness of a Registration
Statement, or to suspend the use of an effective Registration Statement, for the
shortest period of time reasonably required, but in any event not to exceed 90
days with respect to matters
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covered by clause (i) above, and not to exceed 30 days with respect to matters
covered by clause (ii) above (each such period, a "Blackout Period"); provided
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that a Blackout Period pursuant to clause (i) above with respect to a
registration of securities proposed by the Company may, at the election of the
Company, commence on the date that is up to 30 days prior to the date the
Company in good faith estimates will be the date of filing of such registration
and end no later than the earlier of (x) the date (following the effective date)
specified in the form of underwriting agreement relating to such registration
during which the Company shall be prohibited from selling, offering or otherwise
disposing of Common Stock and (y) the 90th day after the commencement of such
Blackout Period; provided further, that the Company shall not be entitled to
obtain deferrals under this Section 6(a) for more than an aggregate of 90 days
in any 12-month period. The Company shall promptly notify each Holder of the
expiration or earlier termination of a Blackout Period.
(b) If requested by the managing underwriter of any offering of
securities of the Company registered under the Securities Act, each Holder shall
not, and shall use commercially reasonable efforts to ensure that its Affiliates
do not, directly or indirectly, sell, offer, pledge, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, warrant or right to purchase, or otherwise dispose of or transfer,
or enter into any swap or other agreement or any arrangement that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
in, any Registrable Securities or Related Securities held by such Holder or such
Holder's Affiliates during the 90 days following the effective date of a
registration statement of the Company filed under the Securities Act, except for
Registrable Securities included in such registration. If requested, each Holder
shall enter, and shall use commercially reasonable efforts to ensure that all
Affiliates of such Holder holding Registrable Securities or Related Securities
enter, into a lock-up agreement with the applicable underwriters that is
consistent with the agreement in the preceding sentence.
(c) Notwithstanding any provision of Section 6(a) or 6(b), the
cumulative period of any deferrals pursuant to Section 6(a) and of any holdback
pursuant to Section 6(b) shall not exceed, in the aggregate, 90 days in any 12-
month period.
7. Registration Procedures. In connection with the registration
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obligations of the Company under Sections 3 and 4, the Company shall:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate, and which
form shall be available for the sale of the Registrable Securities in accordance
with the
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intended methods of distribution thereof, and use reasonable best efforts to
cause such Registration Statement to become and remain effective;
(b) prepare and file with the SEC amendments and post-effective
amendments to such Registration Statement and such amendments and supplements to
the Prospectus used in connection therewith as may be necessary to maintain the
effectiveness of such registration or as may be required by the rules,
regulations or instructions applicable to the registration form utilized by the
Company or by the Securities Act or rules and regulations thereunder necessary
to keep such Registration Statement effective (i) in the case of an Underwritten
Offering, until each underwriter has completed the distribution of all
securities purchased by it, and (ii) in the case of any other registration,
until the Registrable Securities covered thereby cease to be Registrable
Securities, and cause the Prospectus as so amended and supplemented to be filed
pursuant to Rule 424 under the Securities Act, and otherwise use reasonable best
efforts to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement until such
time as is specified in clause (i) or (ii) above, as the case may be;
(c) furnish to each Holder of such Registrable Securities such number
of copies of such Registration Statement and of each amendment and post-
effective amendment thereto, any Prospectus or Prospectus supplement and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities by such Holder (the Company hereby
consenting to the use (subject to the limitations set forth in Section 8(b)) of
the Prospectus or any amendment or supplement thereto in connection with such
disposition);
(d) use reasonable best efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as each Holder shall
reasonably request, and to do any and all other acts and things which may be
reasonably necessary to enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder, except that
the Company shall not be required for any such purpose to qualify generally to
do business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 7(d), it would not be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(e) notify each Holder of any such Registrable Securities covered by
such Registration Statement, at any time when a Prospectus relating thereto is
required to be delivered under the Securities Act within the applicable period
referred to in Section 7(b), that the Company has become aware that the
Prospectus included in such Registration Statement, as then in effect, includes
an untrue
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statement of the material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing (the period during which the Holders
are required in such case pursuant to Section 8(b) to refrain from effecting
public sales or distributions of Registrable Securities being referred to as a
"Section 7(e) Period"), and prepare and furnish to such Holder, as soon as
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reasonably practicable, a reasonable number of copies of an amendment to such
Registration Statement or supplement to such related Prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such Prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
then existing;
(f) notify each Holder of Registrable Securities covered by such
Registration Statement at any time,
(i) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the Registration Statement
or such post-effective amendment has become effective;
(ii) of the issuance by the SEC of any stop order of which the
Company is aware suspending the effectiveness of the Registration Statement
or any order preventing the use of a related Prospectus, or the initiation
of any proceedings for such purposes; and
(iii) of the receipt of the Company of any written notification
of the suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation of any proceeding for such
purpose;
(g) make available to its stockholders an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act, provided
that the Company shall be deemed to have complied with this Section 7(g) if it
has complied with Rule 158 under the Securities Act;
(h) use reasonable best efforts (i) to cause all Conversion Shares
and Warrant Shares covered by such Registration Statement to be listed on any
securities exchange or automated quotation system on which the Common Stock is
then listed, if such Conversion Shares and Warrant Shares are not already so
listed and if such listing is then permitted under the rules of such exchange or
automated quotation system, (ii) to provide a transfer agent and registrar for
Registrable Securities covered by such Registration Statement no later than the
effective date of such Registration Statement and (iii) prepare and file with
the SEC, within the time period specified by Section 12(g) of the Exchange Act,
a Registration
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Statement on Form 8-A registering the Preferred Shares and the Warrants if such
filing is required pursuant to Section 12(g) of the Exchange Act;
(i) if the registration involves an Underwritten Offering, enter into
a customary underwriting agreement and in connection therewith:
(i) make such representations and warranties to the
underwriters in form, substance and scope as are customarily made by
issuers to underwriters in comparable Underwritten Offerings;
(ii) use reasonable best efforts to obtain opinions of counsel
to the Company (in form, scope and substance reasonably satisfactory to the
managing underwriters), addressed to the underwriters, and covering the
matters customarily covered in opinions requested in comparable
Underwritten Offerings;
(iii) use reasonable best efforts to obtain "cold comfort"
letters and bring-downs thereof from the Company's independent certified
public accountants addressed to the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters by independent accountants in connection with
Underwritten Offerings; and
(iv) deliver such documents and certificates as may be
reasonably requested by the managing underwriters to evidence compliance
with any customary conditions contained in the underwriting agreement;
(j) cooperate with the Holders of Registrable Securities covered by
such Registration Statement and the managing underwriter or underwriters or
agents, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing the securities
to be sold under such Registration Statement, and enable such securities to be
in such denominations and registered in such names as the managing underwriter
or underwriters or agents, if any, or such Holders may request;
(k) if reasonably requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold in connection with
an Underwritten Offering, incorporate in a Prospectus supplement or post-
effective amendment to the Registration Statement such information as the
managing underwriters and the Holders of a Majority of the Registrable
Securities being sold agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including, without
limitation, information with respect to the principal amount of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and any other terms of the Underwritten Offering
of the Registrable Securities to be sold in such offering
-13-
and make all required filings of such Prospectus supplement or post-effective
amendment as promptly as practicable upon being notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(l) if reasonably requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold in an Underwritten
Offering, cause appropriate representatives of the Company to participate in any
"road shows" or similar marketing activities;
(m) in the event of the issuance of any stop order of which the
Company is aware suspending the effectiveness of the Registration Statement, or
of any order suspending or preventing the use of any related Prospectus or
suspending the qualification of any Registrable Securities included in the
Registration Statement for sale in any jurisdiction, use reasonable best efforts
promptly to obtain the withdrawal of such stop order or other order, and the
period for which the Registration Statement shall be kept effective shall be
extended by a number of days equal to the number of days between the issuance
and withdrawal of any stop order or other order (a "Section 7(m) Period"); and
-------------------
(n) disclose in each Registration Statement that, pursuant to Rule 416
under the Securities Act, such Registration Statement shall register the
offering of an indeterminate number of shares of Common Stock which may become
issuable pursuant to the antidilution provisions of the Preferred Shares and the
Warrants.
8. Agreements of Holders.
---------------------
(a) As a condition to the Company's obligation under this Agreement to
cause Registrable Securities of any Holder to be included in a Registration
Statement, such Holder shall timely provide the Company with all of the
information required to be provided in the Registration Statement with respect
to such Holder pursuant to Items 507 and 508 of Regulation S-K under the
Securities Act or as otherwise may reasonably be required by the Company in
connection with the Registration Statement.
(b) Each Holder shall comply with the prospectus delivery requirements
of the Securities Act in connection with the offer and sale of Registrable
Securities made by such Holder pursuant to any Registration Statement. Upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 7(e) or Section 7(m), each Holder of Registrable Securities
shall forthwith discontinue the disposition of Registrable Securities pursuant
to the Prospectus or Registration Statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 7(e) or the withdrawal of any stop order or
other order referred to in Section 7(m), and, if so directed by the Company,
-14-
shall deliver to the Company all copies, other than permanent files copies then
in such Holder's possession, of the Prospectus covering such Registrable
Securities at the time of receipt of such notice.
(c) To the extent required by the Securities Act or rules or
regulations thereunder, as reasonably determined by the Company, a Holder shall
consent to disclosure in any Registration Statement to the effect that such
Holder is or may be deemed to be an underwriter for purposes of the Securities
Act in connection with the offering of Registrable Securities of such Holder
included in such Registration Statement.
(d) Each Holder shall comply, and shall cause its Affiliates to
comply, with Regulation M under the Exchange Act in connection with the offer
and sale of Registrable Securities made by such Holder pursuant to any
Registration Statement. Each Holder shall use its commercially reasonable
efforts to provide the Company with such information about such Holder's offer
and sale of Registrable Securities pursuant to any Registration Statement as the
Company shall reasonably require to enable the Company and its Affiliates to
comply with Regulation M under the Exchange Act in connection with any such
offer and sale.
9. Registration Expenses. The Company shall pay all Registration Expenses
---------------------
in connection with all registrations pursuant to this Agreement. In connection
with all such registrations, each Holder shall pay all underwriting discounts
and commissions, all transfer taxes, if any, all documentary stamp taxes, if
any, relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Registration Statement, and all fees and expenses of counsel to
such Holder except as provided in clause (vii) of the definition of Registration
Expenses.
10. Indemnification; Contribution.
-----------------------------
(a) The Company shall indemnify and hold harmless each Holder of
Registrable Securities and each Person, if any, who controls such Holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) against all losses, claims, damages, liabilities and expenses (including
reasonable attorneys' fees, disbursements and expenses, as incurred)
(collectively, "Losses") incurred by such party pursuant to any actual or
------
threatened action, suit, proceeding or investigation arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in, or
any omission or alleged omission of a material fact required to be stated in,
the Registration Statement, Prospectus or preliminary Prospectus or any
amendment or supplement to any of the foregoing or necessary to make the
statements therein (in the case of a Prospectus or a preliminary Prospectus, in
the light of the circumstances then existing) not misleading, except in each
case insofar as such statements or omissions arise out of
-15-
or are based upon (i) any such untrue statement or alleged untrue statement or
omission or alleged omission made in reliance on and in conformity with
information with respect to such Holder furnished in writing to the Company by
such Holder or its counsel expressly for use therein, (ii) the use of any
Prospectus after such time as the obligation of the Company to keep effective
the Registration Statement of which such Prospectus forms a part has expired or
(iii) the use of any Prospectus after such time as the Company has advised the
Holders that the filing of an amendment or supplement thereto is required,
except such Prospectus as so amended or supplemented. Notwithstanding the
foregoing provisions of this Section 10(a), the Company shall not be liable to
any Holder or to any Person who controls such Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) under the
indemnity agreement in this Section 10(a) for any Losses that arise out of or
are based upon any of the matters specified in clause (ii) or (iii) of the
immediately preceding sentence or that arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Prospectus if either (i) (A) such Holder failed to send or deliver a copy of
the Prospectus with or prior to the delivery of written confirmation of the sale
of Registrable Securities by such Holder to the Person asserting the claim from
which such Losses arise and (B) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission, or
(ii) (x) such untrue statement or alleged untrue statement or omission or
alleged omission is corrected in an amendment or supplement to the Prospectus
and (y) having previously been furnished by or on behalf of the Company with
copies of the Prospectus as so amended or supplemented, such Holder thereafter
fails to deliver such Prospectus, as so amended or supplemented, with or prior
to the delivery of written confirmation of the sale of Registrable Securities by
such Holder to the Person asserting the claim from which such Losses arise.
(b) In connection with any Registration Statement filed pursuant
hereto, each Holder of Registrable Securities to be covered thereby shall,
jointly and severally with all other Holders that are Affiliates of such Holder
(and, otherwise, severally and not jointly with any other Holders), indemnify
and hold harmless the Company, its directors and officers, and each Person, if
any, who controls the Company (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and all other Holders against
all Losses incurred by such party pursuant to any actual or threatened action,
suit, proceeding or investigation arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in, or any omission or
alleged omission of a material fact required to be stated in, the Registration
Statement, Prospectus or preliminary Prospectus or any amendment or supplement
to any of the foregoing or necessary to make the statements therein (in case of
a Prospectus or preliminary Prospectus, in the light of the circumstances then
existing) not misleading, but only to the extent that any such untrue statement
or omission is made in reliance on and in conformity with information with
respect to such Holder furnished in writing to the Company by
-16-
such Holder or its counsel specifically for use therein; provided, however, that
the liability of each Holder hereunder shall be limited to the proportion of any
such Losses that is equal to the proportion that the net proceeds from the sale
of Registrable Securities sold by such Holder under such Registration Statement
bears to the total net proceeds from the sale of all securities sold thereunder,
but not in any event to exceed the net proceeds received by such Holder from the
sale of Registrable Securities covered by such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give
prompt written notice to the indemnifying party after the receipt by such
indemnified party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which such
indemnified party may claim indemnification or contribution pursuant to this
Agreement, provided that failure to give such notification shall not affect the
obligations of the indemnifying party pursuant to this Section 10 except to the
extent the indemnifying party shall have been actually prejudiced as a result of
such failure. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation, unless in the reasonable judgment of any
indemnified party, based on the written opinion of counsel, a conflict of
interest is likely to exist between the indemnifying party and such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall not be liable for the fees and expenses
of (i) more than one counsel for all Holders of Registrable Securities who are
indemnified parties, selected by the Holders of a Majority of the Registrable
Securities who are indemnified parties (which selection shall be reasonably
satisfactory to the Company), (ii) more than one counsel for the underwriters or
(iii) more than one counsel for the Company, in each case in connection with any
one action or separate but similar or related actions. An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party, based on the written opinion of
counsel, a conflict of interest is likely to exist between an indemnified party
and any other of such indemnified parties with respect to such claim, in which
event the indemnifying party shall be obligated to pay the fees and expenses of
such additional counsel, provided that the indemnifying party shall not be
liable for the
-17-
fees and expenses of (i) more than one counsel for all Holders of Registrable
Securities who are indemnified parties, selected by the Holders of a Majority of
the Registrable Securities who are indemnified parties (which selection shall be
reasonably satisfactory to the Company), (ii) more than one counsel for the
underwriters or (iii) more than one counsel for the Company, in each case in
connection with any one action or separate but similar or related actions. No
indemnifying party, in defense of any such action, suit, proceeding or
investigation, shall, except with the consent of each indemnified party, consent
to the entry of any judgment or entry into any settlement which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such action,
suit, proceeding or investigation to the extent such liability is covered by the
indemnity obligations set forth in this Section 10. No indemnified party shall
consent to entry of any judgment or entry into any settlement without the
consent of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in
this Section 10 is unavailable to an indemnified party hereunder in respect to
any Losses, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions which resulted in such Losses,
as well as any other relevant equitable considerations; provided, however, that
the liability of each Holder hereunder shall be limited to the proportion of any
such Losses that is equal to the proportion that the net proceeds from the sale
of Registrable Securities sold by such Holder under a Registration Statement
bears to the total net proceeds from the sale of all securities sold thereunder,
but not in any event to exceed the net proceeds received by such Holder from the
sale of Registrable Securities covered by such Registration Statement. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the Losses referred to above shall be deemed to include,
subject to the limitations set forth in Section 10(c), any legal or other fees
and expenses reasonably incurred by such indemnified party in connection with
any investigation or proceeding. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The parties agree that it would not be just and
equitable if contribution pursuant to this Section 10(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the consideration referred to in this Section 10(d). If indemnification
is
-18-
available under this Section 10, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Section 10(a) or 10(b), as the
case may be, without regard to the relative fault of such indemnifying parties
or indemnified party or any other equitable consideration provided for in this
Section 10(d).
(e) The provisions of this Section 10 shall be in addition to any
liability which any indemnifying party may have to any indemnified party and
shall survive the termination of this Agreement.
11. Participation in Underwritten Offerings. No Holder of Registrable
---------------------------------------
Securities may participate in any Underwritten Offering pursuant to this
Agreement unless such Holder (i) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Company and (ii) completes and executes all questionnaires, powers of
attorney, custody agreements, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
12. Reports Under the Exchange Act. For so long as any Registrable
------------------------------
Securities remain outstanding, the Company shall use reasonable best efforts to
file with the SEC in a timely manner all reports required to be filed by the
Company pursuant to Section 13 or 15(d) of the Exchange Act and shall furnish to
any Holder, promptly upon request by such Holder, a written statement by the
Company as to whether it has complied with the current public information
requirements of Rule 144(c) under the Securities Act.
13. Assignment of Registration Rights. The right to cause the Company to
---------------------------------
register Registrable Securities pursuant to Section 3 may be assigned (but only
with all related obligations hereunder) by any Purchaser in connection with a
transfer to any transferee of the Registrable Securities permitted under the
Investment Agreement and the terms of the Preferred Shares and the Warrants who,
after such transfer, holds at least 5% of the then-outstanding Registrable
Securities, provided that such assignment of rights under this Agreement shall
be effective only if (i) immediately thereafter the further disposition of such
securities by such transferee is restricted under the Securities Act and (ii)
such transferee agrees in writing to become a Holder under this Agreement and to
be bound by the provisions hereof. The right to cause the Company to register
Registrable Securities pursuant to Section 4 may be assigned (but only with all
related obligations hereunder) by any Purchaser in connection with a transfer to
any transferee of the Registrable Securities permitted under the Investment
Agreement and the terms of the Preferred Shares and the Warrants, provided that
such assignment of rights under this Agreement shall be effective only if (i)
immediately thereafter the further disposition of such securities by such
transferee is restricted under the Securities Act and (ii) such transferee
agrees in writing to become a Holder under this
-19-
Agreement and to be bound by the provisions hereof. If a Holder transfers
Registrable Securities in connection with the immediately preceding sentence,
the Company agrees promptly to amend any Shelf Registration Statement or to file
a supplement to the Prospectus included therein to disclose that any transferee
referred to in such sentence is a Holder of Registrable Securities.
14. Binding Effect; Benefit. This Agreement shall inure to the benefit of
-----------------------
and be binding upon the parties hereto, any Holder and any successor, permitted
assign, heir and legal representative thereof; provided, however, that, except
as provided in Section 13, this Agreement and the provisions of this Agreement
that are for the benefit of the Holders shall not be assignable by any Holder,
and any such purported assignment shall be null and void. Except to the extent
provided in Section 10, nothing in this Agreement, expressed or implied, is
intended to confer on any Person other than the parties hereto, the Holders and
their respective successors, permitted assigns, heirs and legal representatives
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
15. Amendments and Waivers. 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, unless the Company has obtained the written consent thereto of Holders of
a Majority of the Registrable Securities; provided that if any such amendment,
modification, supplement, waiver or consent would adversely affect any Holder of
Registrable Securities relative to any Holder or Holders of Registrable
Securities voting in favor of such amendment, modification, supplement, waiver
or consent, such amendment, modification, supplement, waiver or consent shall
also require the written consent of such Holder or Holders, as the case may be,
of a Majority of the Registrable Securities held by all Holders so adversely
affected. Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders of Registrable Securities may be given by
Holders of at least a Majority of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; provided that the provisions of
this sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence. Each Holder of
Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by any
such amendment, modification, supplement, waiver or consent effected pursuant to
this Section 15, whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
-20-
16. Notices. All notices and other communications given or made pursuant
-------
hereto, unless otherwise specified, shall be in writing and shall be deemed to
be effectively given as follows: (i) upon personal delivery to the party to be
notified; (ii) when sent by facsimile, if sent during normal business hours of
the recipient and if not, then on the next Business Day; (iii) five days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid; or (iv) two days after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the parties hereto at the
respective addresses set forth below, or as notified by such party from time to
time at least ten days prior to the effectiveness of such notice:
If to the Company:
ITC/\DeltaCom, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
If to the Initial Purchaser:
ITC Holding Company, Inc.
0000 00/xx/ Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
If to SCANA:
SCANA Corporation
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Fax: (000) 000-0000
If to HBK:
HBK Master Fund L.P.
c/c HBK Investments L.P.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
-21-
Any other Person who becomes a Holder shall provide its address and
facsimile transmission number to the Company, which shall promptly provide such
information to each other Holder.
17. Headings. The headings contained in this Agreement are for
--------
convenience only and shall not affect the meaning or interpretation of this
Agreement.
18. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
19. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ITS
PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES
WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
20. Termination. This Agreement shall terminate with respect to any
-----------
Holder when such Holder no longer holds any Registrable Securities, except for
any liabilities or obligations under Sections 9 and 10, which shall remain in
effect in accordance with their terms. No termination of any provision of this
Agreement shall relieve any party of any liability for any breach of such
provision occurring prior to such termination.
21. Entire Agreement. This Agreement is intended by the parties to be a
----------------
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Securities. Except as provided in the Investment Agreement and in the
instruments authorizing or evidencing the Preferred Shares and the Warrants,
there are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein, with respect to the registration rights
granted by the Company with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and undertakings among the parties
with respect to such registration rights. No party hereto shall have any rights,
duties or obligations other than those specifically set forth in this Agreement.
22. Specific Performance. Without limiting the rights of each party
--------------------
hereto to pursue all other legal and equitable rights available to such party
for any other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them,
-22-
respectively, to the extent permitted by applicable law, shall be entitled to
specific performance, injunctive relief or other equitable remedies in the event
of any such failure.
23. Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the parties
shall negotiate in good faith with a view to the substitution therefor of a
suitable and equitable solution in order to carry out, so far as may be valid
and enforceable, the intent and purpose of such invalid provision, provided,
however, that the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained herein shall not
be in any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
[Signature page follows]
-23-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth in the first paragraph hereof.
ITC/\DELTACOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President-
Chief Financial Officer
ITC HOLDING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
Senior Vice President-
Chief Financial Officer
SCANA CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Controller
HBK MASTER FUND L.P.
By: HBK Investments L.P.,
Investment Manager
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
---------------------------
Title: Authorized Signatory
-24-
