<PAGE>
As filed with the Securities and Exchange Commission on December 19, 1997
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ITC/\DELTACOM, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 58-2301135
- --------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
206 WEST NINTH STREET
WEST POINT, GEORGIA 31833
(Address of principal executive offices)
ITC/\DeltaCom, Inc. 1997 Stock Option Plan
ITC/\DeltaCom, Inc. Director Stock Option Plan
ITC HOLDING COMPANY, INC. AMENDED AND RESTATED STOCK OPTION PLAN
ITC HOLDING COMPANY, INC. NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plans)
Andrew M. Walker
Chief Executive Officer
ITC/\DELTACOM, INC.
206 West Ninth Street
WEST POINT, GEORGIA 31833
(706) 645-8990
- -------------------------------------------------------------------------------
(Name, address and telephone number, including area code, of agent for service)
Copy to:
RICHARD J. PARRINO, ESQ.
NANCY J. KELLNER, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share (1) offering price (1) registration fee (1)
- -------------------------- --------------- -------------------- -------------------- ---------------------
<S> <C> <C> <C> <C>
COMMON STOCK,
PAR VALUE $.01 2,407,500 (2) $16.375 (3) $22,739,374 $ 6,708
=========================================== ==================== ==================== =====================
COMMON STOCK,
PAR VALUE $.01 240,750 (4) $16.375 (5) $ 2,797,756 $ 826
=========================================== ==================== ==================== =====================
COMMON STOCK,
PAR VALUE $.01 3,342,896 (6) $ 4.341 (7) $14,511,357 $ 4,281
=========================================== ==================== ==================== =====================
COMMON STOCK,
PAR VALUE $.01 197,192 (8) $ 7.477 (9) $ 1,474,479 $ 435
=========================================== ==================== ==================== =====================
TOTAL FEE $12,250
=========================================== ==================== ==================== =====================
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of the registration fee.
<PAGE>
(2) Represents the number of shares of Common Stock that may be purchased upon
exercise of stock options authorized pursuant to the ITC/\DeltaCom, Inc.
1997 Stock Option Plan.
(3) The proposed maximum offering price per share was determined by calculating
the weighted average exercise price of (i) 1,403,739 shares being offered
under outstanding options at a weighted average exercise price of $4.49 and
(ii) 1,003,761 shares being offered at an exercise price of $16.375 based
on the average of the high and low prices per share of the Shares, on
December 17, 1997, as reported on The Nasdaq Stock Market.
(4) Represents the number of shares of Common Stock that may be purchased upon
exercise of stock options authorized pursuant to the ITC/\DeltaCom, Inc.
Director Stock Option Plan.
(5) The proposed maximum offering price per share was determined by calculating
the weighted average exercise price of (i) 96,300 shares being offered
under outstanding options at a weighted average exercise price of $4.49 and
(ii) 144,450 shares being offered at an exercise price of $16.375 based on
the average of the high and low prices per share of the Shares, on December
17, 1997, as reported on The Nasdaq Stock Market.
(6) Represents the number of shares of Common Stock that may be purchased upon
exercise of stock options authorized pursuant to the ITC Holding Company,
Inc. Amended and Restated Stock Option Plan as assumed by the Registrant.
(7) The proposed maximum offering price per share was determined by calculating
the weighted average exercise price of 3,342,896 shares being offered under
outstanding options at a weighted average exercise price of $4.341.
(8) Represents the number of shares of Common Stock that may be purchased upon
exercise of stock options authorized pursuant to the ITC Holding Company,
Inc. Nonemployee Director Stock Option Plan as assumed by the Registrant.
(9) The proposed maximum offering price per share was determined by calculating
the weighted average exercise price of 197,192 shares being offered under
outstanding options at a weighted average exercise price of $7.477.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act"). In accordance
with the instructions to Part I of Form S-8, such documents will not be filed
with the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by ITC/\DeltaCom Inc.
(the "Company" or the "Registrant") with the Commission are hereby incorporated
herein by reference.
(a) The Registrant's final prospectus dated October 23, 1997 as filed
with the Commission pursuant to Rule 424(b) of the Securities Act, which
contains audited financial statements for the fiscal year ended December 31,
1996;
(b) All reports filed with the Commission pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since December
31, 1996; and
(c) the description of the Registrant's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Registrant's Registration
Statement on Form 8-A (No. 0-23253) filed pursuant to the Exchange Act, together
with all amendments and reports filed for the purpose of updating that
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
In addition, any statement contained in a document incorporated or
deemed to be incorporated by reference into this Registration Statement will be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in this Registration Statement or any
other subsequently filed document which also is or is deemed to be incorporated
into this Registration Statement modifies or supersedes that statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (The Common Stock is registered under Section 12 of
the Exchange Act.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Anthony S. Harrington, a partner of Hogan & Hartson L.L.P., counsel to
the Registrant, is beneficial owner of 79,872 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation, subject to the provisions of
the General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"). Under Section 145 of the Delaware Corporation Law, a corporation may
indemnify its directors, officers, employees and agents and its former
directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorneys' fees), as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The Delaware
Corporation Law provides, however, that such person must have acted in good
faith and in a manner such person reasonably believed to be in (or not opposed
to) the best interests of the corporation and, in the case of a criminal action,
such person must have had no reasonable cause to believe his or her conduct was
unlawful. In addition, the Delaware Corporation Law does not permit
indemnification in an action or suit by or in the right of the corporation where
such person has been adjudged liable to the corporation, unless, and only to the
extent that, a court determines that such person fairly and reasonably is
entitled to indemnification for costs the court deems proper in light of
liability adjudication. Indemnification is mandatory to the extent a claim,
issue or matter has been successfully defended.
The Company's Certificate of Incorporation contains provisions that
provide that no director of the Company shall be liable for breach of fiduciary
duty as a director except for (i) any breach of the directors' duty of loyalty
to the Company or its stockholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law; (iii)
liability under Section 174 of the Delaware Corporation Law; or (iv) any
transaction from which the director derived an improper personal benefit. Under
the Bylaws of the Company, the Company is required to advance expenses incurred
by an officer or director in defending or participating in any action which such
director or officer is made a party to or is threatened to be made a party to by
reason of such person's serving or having served as an officer or director if
the director or officer undertakes to repay such amount if it is determined that
the director or officer is not entitled to indemnification.
In addition, the Company has entered into indemnity agreements with
each of its directors and certain of its officers pursuant to which the Company
has agreed to indemnify its directors and such officers as permitted by the
Delaware Corporation Law.
<PAGE>
The Company also has obtained directors and officers liability insurance against
certain liabilities, including liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
There are filed with the Registration Statement the following
exhibits:
4.1 Certificate of Incorporation of ITC/\DeltaCom, Inc. (filed as
Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (No. 333-36683), and incorporated herein by reference).
4.2 Amended and Restated Bylaws of ITC/\DeltaCom, Inc. (filed as
Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1 (No. 333-36683), and incorporated herein by reference).
4.3 ITC/\DeltaCom, Inc. 1997 Stock Option Plan (filed as Exhibit
10.88 to the Registrant's Registration Statement on Form S-1 (No.
333-36683), and incorporated herein by reference).
4.4 ITC/\DeltaCom, Inc. Director Stock Option Plan (filed as Exhibit
10.89 to the Registrant's Registration Statement on Form S-1 (No.
333-36683), and incorporated herein by reference).
4.5 ITC Holding Company, Inc. Amended and Restated Stock Option Plan
(filed as Exhibit 10.90 to the Registrant's Registration
Statement on Form S-1 (No. 333-36683), and incorporated herein by
reference).
4.6 ITC Holding Company, Inc. Nonemployee Director Stock Option Plan
(filed as Exhibit 10.91 to the Registrant's Registration
Statement on Form S-1 (No. 333-36683), and incorporated herein by
reference).
5.1 Opinion of Hogan & Hartson L.L.P. with respect to the legality of
the Common Stock registered hereby.
23.1 Consent of Arthur Andersen L.L.P.
23.2 Consent of Martin Stuedeman & Associates, P.C.
23.3 Consent of Deloitte & Touche LLP.
23.4 Consent of Hogan & Hartson L.L.P. (contained in its opinion filed
as Exhibit 5.1 to this Registration Statement).
<PAGE>
24 Power of Attorney (included in the signature page to this
Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement;
and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act, that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the
<PAGE>
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than for the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Point, Georgia, on this 18th day of December,
1997.
ITC/\DELTACOM, INC.
By /s/ ANDREW M. WALKER
-----------------------
Andrew M. Walker
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Campbell B. Lanier, III, Andrew M. Walker
and Douglas A. Shumate, jointly and severally, each in his own capacity, his
true and lawful attorneys-in-fact, with full power of substitution, for him and
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, with full power and
authority to do so and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact of any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities indicated below, on this 18th day of December, 1997.
Signature Title
--------- -----
/s/ CAMPBELL B. LANIER, III Chairman, Director
- -----------------------------
Campbell B. Lanier, III
/s/ ANDREW M. WALKER Chief Executive Officer and
- ----------------------------- Director (Principal executive officer)
Andrew M. Walker
/s/ DOUGLAS A. SHUMATE Senior Vice President and Chief
- ----------------------------- Financial Officer (Principal financial
Douglas A. Shumate officer and principal accounting officer)
<PAGE>
/s/ DONALD W. BURTON Director
- -----------------------------
Donald W. Burton
/s/ MALCOLM C. DAVENPORT Director
- -----------------------------
Malcolm C. Davenport
/s/ ROBERT A. DOLSON Director
- -----------------------------
Robert A. Dolson
/s/ O. GENE GABBARD Director
- -----------------------------
O. Gene Gabbard
/s/ WILLIAM T. PARR Director
- -----------------------------
William T. Parr
/s/ WILLIAM H. SCOTT, III Director
- -----------------------------
William H. Scott, III
/s/ WILLIAM B. TIMMERMAN Director
- -----------------------------
William B. Timmerman
<PAGE>
[Hogan & Hartson L.L.P. Letterhead]
December 19, 1997
Board of Directors
ITC/\DeltaCom, Inc.
206 West Ninth Street
West Point, Georgia 31833
Members of the Board of Directors:
This firm has acted as counsel to ITC/\DeltaCom, Inc. (the
"Company"), a Delaware corporation, in connection with its registration,
pursuant to a registration statement on Form S-8 filed on or about the date
hereof (the "Registration Statement"), of 6,188,338 shares of common stock, par
value $.01 per share, of the Company (the "Shares"), issuable upon the exercise
of options granted under the ITC/\DeltaCom, Inc. 1997 Stock Option Plan, as
amended; the ITC/\DeltaCom, Inc. Director Stock Option Plan, as amended; the ITC
Holding Company, Inc. Amended and Restated Stock Option Plan; and the ITC
Holding Company, Inc. Nonemployee Director Stock Option Plan (collectively, the
"Option Plans"). This letter is furnished to you pursuant to the requirements
of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection
with such registration.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Option Plans, as certified by the Secretary of the
Company on the date hereof as then being complete, accurate and in
effect.
3. The Certificate of Incorporation of the Company, as certified by
the Secretary of State of the State of Delaware on October 24,
1997 and by the Secretary of the
<PAGE>
Board of Directors
December 19, 1997
Page 2
Company on the date hereof as then being complete, accurate and in
effect.
4. The Amended and Restated Bylaws of the Company, as certified by
the Secretary of the Company on the date hereof as then being
complete, accurate and in effect.
5. Resolutions of the Board of Directors of the Company adopted on
March 24, 1997, September 26, 1997 and October 16, 1997, as
certified by the Secretary of the Company on the date hereof as
then being complete, accurate and in effect.
6. Resolutions of the sole stockholder of the Company adopted on or
about May 29, 1997, as certified by the Secretary of the Company
on the date hereof as then being complete, accurate and in effect.
We have not, except as specifically identified above, made any
independent review or investigation of factual or other matters, including the
organization, existence, good standing, assets, business or affairs of the
Company or its subsidiaries. In our examination of the aforesaid certificates,
records, and documents, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity, accuracy and completeness
of all documents submitted to us as originals, and the authenticity, accuracy
and completeness and conformity with the original documents of all documents
submitted to us as certified, telecopied, photostatic, or reproduced copies. We
have assumed the authenticity and accuracy of the foregoing certifications of
corporate officers, on which we are relying, and have made no independent
investigations thereof. This opinion is given in the context of the foregoing.
This opinion letter is based as to matters of law solely on the
General Corporation Law of the State of Delaware. We express no opinion herein
as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to, and limited by the foregoing, we are of the
opinion that the Shares, when issued and delivered in the manner and on the
terms contemplated in the Registration Statement and the Option Plans (with the
<PAGE>
Board of Directors
December 19, 1997
Page 3
Company having received the consideration therefor, the form of which is in
accordance with applicable law), will be validly issued, fully paid and non-
assessable by the Company.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this letter, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report on the
financial statements of ITC/\DeltaCom, Inc. as of June 30, 1997 and for the
period from inception (March 24, 1997) to June 30, 1997 dated July 31, 1997
(except with respect to Note 5, as to which the date is October 20, 1997); our
report on the combined financial statements of ITC/\DeltaCom, Inc., Interstate
FiberNet, Inc. (formerly ITC Transmission Systems, Inc.), ITC Transmission
Systems II, Inc., Gulf States Transmission Systems, Inc., Eastern Telecom, Inc.,
d.b.a. InterQuest, and DeltaCom, Inc. (reorganized as ITC/\DeltaCom, Inc.) as of
December 31, 1995 and 1996 and for each of the three years in the period ended
December 31, 1996 dated March 27, 1997 (except with respect to Note 16, as to
which the date is October 20, 1997); our report on the statements of operations,
stockholders' equity, and cash flows of DeltaCom, Inc. for the year ended
December 31, 1995 dated March 27, 1997; and our report on the financial
statements of Gulf States FiberNet as of December 31, 1995 and 1996 and for the
period from inception (August 17, 1994) through December 31, 1994 and for the
two years in the period ended December 31, 1996, dated March 27, 1997 (except
with respect to the Debt Refinancing, Parent's Reorganization of Subsidiaries,
and ITC/\DeltaCom Debt Offering discussion in Note 8, as to which the date is
July 25, 1997), all included in Amendment No. 3 to ITC/\DeltaCom, Inc.'s
Registration Statement on Form S-1 (File No. 333-36683), and to all references
to our Firm included in or made a part of this Registration Statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
December 19, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated March
19, 1997 on the statements of operations, stockholders' equity and cash flows of
DeltaCom, Inc. for the year ended December 31, 1994 included in Amendment No. 3
to ITC/\DeltaCom, Inc.'s Registration Statement on Form S-1 (File No. 333-36683)
and to all references to our Firm included in or made a part of this
Registration Statement.
MARTIN STUEDEMAN & ASSOCIATES, P.C.
Birmingham, Alabama
December 19, 1997
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
ITC/\DeltaCom, Inc. on Form S-8 of our report dated May 23, 1997 relating to
the financial statements of Georgia Fiber (a business unit of SCANA
Communications, Inc.), appearing in Registration Statement No. 333-36683 of
ITC/\DeltaCom, Inc. on Form S-1.
DELOITTE & TOUCHE LLP
Columbia, South Carolina
December 19, 1997
