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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 6, 1999
ITC/\DELTACOM, INC.
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(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Delaware 0-23253 58-2301135
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
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1791 O.G. Skinner Drive, West Point, GA 31833
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(Address of principal executive offices)
Registrant's telephone number, including area code: (706) 385-8000
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Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
1.1 Form of Underwriting Agreement regarding the offer and sale of common
stock.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
common stock being registered pursuant to the Company's registration
statement on Form S-3, File No. 333-75635.
99.1 Press release issued by ITC/\DeltaCom, Inc. dated April 28, 1999
regarding the private offering of convertible subordinated notes.
99.2 Description of Capital Stock.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ITC/\DELTACOM, INC.
/s/ J. Thomas Mullis
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Name: J. Thomas Mullis
Title: Senior Vice President-
General Counsel and Secretary
Date: May 6, 1999
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EXHIBIT INDEX
Exhibit
Number Exhibit
1.1 Form of Underwriting Agreement regarding the offer and sale of
common stock.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
common stock being registered pursuant to the Company's
registration statement on Form S-3, File No. 333-75635.
99.1 Press release issued by ITC/\DeltaCom, Inc. dated April 28, 1999
regarding the private offering of convertible subordinated notes.
99.2 Description of Capital Stock.
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Exhibit 1.1
[___________] Shares
ITC/\DELTACOM, INC.
Common Stock (par value $.01 per share)
UNDERWRITING AGREEMENT
May [__], 1999
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May [__], 1999
Morgan Stanley & Co. Incorporated
J.C. Bradford & Co.
Credit Suisse First Boston Corporation
First Union Capital Markets Corp.
NationsBanc Montgomery Securities LLC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
ITC/\DeltaCom, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") [________] shares of its Common Stock (par value $.01 per share)
(the "Firm Shares").
The Company also proposes to issue and sell to the several
Underwriters not more than an additional [________] shares of its Common Stock
(par value $.01 per share) (the "Additional Shares") if and to the extent that
you, as managers of the offering, shall have determined to exercise, on behalf
of the Underwriters, the right to purchase such shares of common stock granted
to the Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares". The shares of
Common Stock (par value $.01 per share) of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares, and has filed with, or shall promptly hereafter file with the
Commission, a final prospectus supplement (the "Prospectus Supplement") relating
to the Shares, pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Base Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Base Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Shares
together with the Base Prospectus. As used herein, the terms "Base
Prospectus", "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement", "amendment" and "amend" as used herein shall include all documents
deemed to be
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incorporated by reference in the Prospectus that are filed subsequent to the
date of the Base Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). If the Company
files a registration statement to register a portion of the Shares and relies on
Rule 462(b) for such registration statement to become effective upon filing with
the Commission (the "Rule 462(b) Registration Statement"), then any reference to
the "Registration Statement" shall be deemed to refer to both the registration
statement referred to above and the Rule 462(b) Registration Statement, in each
case as amended from time to time.
Pursuant to a placement agreement dated the date hereof (the
"Placement Agreement"), among the Company and Morgan Stanley & Co. Incorporated,
Credit Suisse First Boston Corporation, First Union Capital Markets Corp. and
NationsBanc Montgomery Securities LLC (the "Placement Agents"), the Company will
issue and sell $ principal amount of [___]% Convertible Subordinated
Notes due 2006 (the "Notes"), which will be convertible into shares of common
stock, par value $.01 per share (the "Common Stock"), of the Company.
1. Representations and Warranties. The Company represents and
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warrants to each of the Underwriters that:
(a) The Registration Statement has become effective, and if the
Company has elected to rely upon Rule 462(b) under the Securities Act, the
Rule 462(b) Registration Statement shall have become effective not later
than the earlier of (i) 10:00 p.m. Eastern time on the date hereof and (ii)
the time confirmations are sent or given, as specified by Rule 462(b) under
the Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or, to the knowledge of the Company, threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain and each such part, as amended or supplemented, if
applicable, will not contain any 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, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
(b) do not apply to statements
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or omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; Schedule 1 to the form of opinion
of Hogan & Hartson L.L.P., attached hereto as Exhibit A, sets forth each
jurisdiction in which the conduct of the Company's business or its
ownership or leasing of property requires the Company to be qualified as a
foreign corporation, other than jurisdictions in which the failure to be
qualified in all such jurisdictions would not, in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; Schedule 2 to the form of opinion of Hogan & Hartson L.L.P.,
attached hereto as Exhibit A, sets forth each jurisdiction in which the
conduct of business of Interstate FiberNet, Inc. ("Interstate FiberNet") or
its ownership or leasing of property requires Interstate FiberNet to be
qualified as a foreign corporation, other than jurisdictions in which the
failure to be qualified in all such jurisdictions would not, in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. Schedule 1 to the form of opinion of J.
Thomas Mullis, attached hereto as Exhibit D, sets forth each jurisdiction
in which the conduct of the business of ITC/\DeltaCom Communications, Inc.
("DeltaCom") or its ownership or leasing of property requires DeltaCom to
be qualified as a foreign corporation, other than jurisdictions in which
the failure to be qualified in all such jurisdictions would not, in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. Interstate FiberNet and DeltaCom are the
only active subsidiaries, direct or indirect, of the Company.
(e) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
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(f) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(g) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement and the issuance,
sale and delivery of the Shares will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any material agreement or other material instrument binding upon
the Company or any of its subsidiaries, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Company
or any of its subsidiaries, and no permit, license, consent, approval,
authorization or order of, or filing, declaration or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares. Schedule 2 to the form
of opinion of Hogan & Hartson L.L.P. attached hereto as Exhibit A sets
forth all material agreements and instruments to which the Company or
Interstate FiberNet is a party. Schedule 2 to the form of opinion of J.
Thomas Mullis attached hereto as Exhibit D sets forth all material
agreements and instruments to which DeltaCom is a party.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus. Furthermore, except in each case as described
in the Prospectus, (i) the Company and its subsidiaries have not incurred
any material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business; (ii)
neither the Company nor any of its subsidiaries has purchased any of the
Company's outstanding capital stock, nor declared, paid or otherwise made
any dividend or distribution of any kind on the Company's capital stock;
and (iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries,
taken as a whole.
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(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(l) The Company and each of its subsidiaries (i) have all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and have made all declarations and filings with, all federal,
state, local and other governmental, administrative or regulatory
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use their respective properties and
assets and to conduct their businesses in the manner described in the
Prospectus, except to the extent that the failure to obtain such consents,
authorizations, approvals, orders, certificates and permits or make such
declarations and filings would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and (ii) have not received
any notice of proceedings relating to revocation or modification of any
such consent, authorization, approval, order, certificate or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to result in a material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole, except as described in or contemplated by the Prospectus.
(m) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act or incorporated by reference
into or filed as part of the Rule 462(b) Registration Statement, complied
when so filed in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder.
(n) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(o) The Company and each of its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants, including all such laws and regulations concerning
electromagnetic radio frequency emissions ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of them
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under applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have
a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(q) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(r) The Company and each of its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them which is material to their businesses,
in each case free and clear of all liens, encumbrances and defects, except
such as are described in the Prospectus and such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by them; and any real property
and buildings held under lease by them are held under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
property and buildings by them, in each case except as described in or
contemplated by the Prospectus.
(s) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with their businesses as now operated, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the
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foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole.
(t) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in or contemplated by the
Prospectus, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any of its subsidiaries has been
refused any insurance coverage sought or applied for; and neither the
Company nor any of its subsidiaries has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not materially
and adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole, except as described in or contemplated by the Prospectus.
(v) The historical and pro forma financial statements included in the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related published
rules and regulations.
(w) There are no holders of securities (debt or equity) of the Company
or any of its subsidiaries, or holders of rights, options, or warrants to
obtain securities of the Company or any of its subsidiaries, who have the
right, during the 90 day period after the date of this Agreement to request
the Company to register securities held by them under the Securities Act,
other than holders who have waived such right for the 90 day period after
the date of the initial public offering of the Shares and have waived their
rights with respect to the inclusion of their securities in the
Registration Statement and other than (i) the holders of the Notes and (ii)
the stockholders of AvData Systems, Inc. pursuant to an Agreement and Plan
of Merger, dated April 15, 1999 (the "AvData Merger Agreement"), among the
Company, Interstate FiberNet and AvData Systems, Inc.
(x) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations of
the Company or any of its subsidiaries will be affected by the Year 2000
Problem (that is, any significant risk that computer hardware or software
applications used by the Company and its subsidiaries will not, in the case
of dates or time periods occurring after December 31, 1999,
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function at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000); as a result of such review, (i) the
Company has no reason to believe, and does not believe, that (A) there are
any issues related to the Company's preparedness to address the Year 2000
Problem that are of a character required to be described or referred to in
the Registration Statement or Prospectus which have not been so described
in the Registration Statement or Prospectus and (B) the Year 2000 Problem
will have a material adverse effect on the condition, financial or material
otherwise, or on the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, or result in any material loss or
material interference with the business or operations of the Company and
its subsidiaries, taken as a whole; and (ii) the Company reasonably
believes, after due inquiry, that the suppliers, vendors, customers or
other material third parties used or served by the Company and its
subsidiaries are addressing or will address the Year 2000 Problem in a
timely manner, except to the extent that a failure to address the Year 2000
Problem by any supplier, vendor, customer or other material third party
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company and
its subsidiaries, taken as a whole.
2. Agreement to Sell and Purchase. The Company hereby agrees to sell
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to the several Underwriters, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite their names at $[_____] a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to [_________]
Additional Shares at the Purchase Price. Additional Shares may be purchased as
provided in Section 4 hereof solely for the purpose of covering overallotments
made in connection with the offering of the Firm Shares. If any Additional
Shares are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Shares to be purchased as the number of Firm
Shares set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated ("Morgan Stanley"), it will not, for a period
of 90 days after the date of the Prospectus, (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common
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Stock, or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
such shares of Common Stock, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, other than (a) the sale of the Shares to the
Underwriters pursuant to this Agreement, (b) the sale of the Notes to the
Placement Agents pursuant to the Placement Agreement, (c) the issuance of shares
of Common Stock upon conversion of the Notes, (d) the issuance by the Company of
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security, in each case, outstanding on the date hereof and of
which the Underwriters have been advised in writing, (e) the issuance of
additional options to purchase shares of Common Stock pursuant to the Company's
Stock Option Plan or Director Stock Option Plan (as each term is defined in
the Company's Annual Report on Form 10-K, as amended on the date hereof),
(f) transactions relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the public
offering of the Common Stock hereunder or (g) the issuance of shares of Common
Stock pursuant to the AvData Merger Agreement.
3. Terms of Public Offering. The Company is advised by you that the
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Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$[____] a share (the "Public Offering Price") and to certain dealers selected by
you at a price that represents a concession not in excess of $[__] a share (the
"Concession") under the Public Offering Price, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of $[___] a
share, to any Underwriter or to certain other dealers.
4. Payments and Delivery. Payment for the Firm Shares shall be made
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in federal funds or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at the office of Hogan & Hartson L.L.P., 555 Thirteenth Street,
N.W., Washington, D.C. 20004, at 9:00 a.m., New York City time, on May [__],
1999, or at such other time on the same or such other date, not later than
May [___], 1999, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "Closing Date".
Payment for any Additional Shares shall be made in federal funds or
other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at the
office of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W., Washington, D.C.
20004, at 9:00 a.m., New York City time, on such date (which may be the same as
the Closing Date but shall in no event be earlier than the Closing Date nor
later than ten business days after the giving of the notice hereinafter referred
to) as shall be designated in a written notice from you to the Company of your
determination, on behalf of the Underwriters, to purchase a number, specified in
such notice, of Additional Shares, or on such other date, in any event not later
than [______], 1999, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as
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the "Option Closing Date". The notice of the determination to exercise the
option to purchase Additional Shares and of the Option Closing Date may be given
at any time within 30 days after the date of this Agreement.
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of
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the Company and the several obligations of the Underwriters hereunder are
subject to the condition that the Registration Statement shall have become
effective not later than the date hereof.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act, and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement, that, in your judgment, is material and
adverse and makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct in all material
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respects as of the Closing Date and that the Company has complied in all
material respects with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall be
pending before or, to the knowledge of the Company, threatened by the
Commission.
(d) You shall have received on the Closing Date an opinion of Hogan &
Hartson L.L.P., counsel for the Company, dated the Closing Date, in the
form set forth in Exhibit A.
The opinion of Hogan & Hartson L.L.P. shall be rendered to you at the
request of the Company and shall so state therein.
(e) You shall have received on the Closing Date an opinion of Brantley
& Wilkerson, P.C., Alabama communications counsel for the Company, dated
the Closing Date, in the form set forth in Exhibit B.
The opinion of Brantley & Wilkerson, P.C. shall be rendered to you at
the request of the Company and shall so state therein.
(f) You shall have received on the Closing Date an opinion of Stowers,
Hayes, Clark & Roane, Georgia communications counsel for the Company, dated
the Closing Date, in the form set forth in Exhibit C.
The opinion of Stowers, Hayes, Clark & Roane shall be rendered to you
at the request of the Company and shall so state therein.
(g) You shall have received on the Closing Date an opinion of J.
Thomas Mullis, General Counsel of the Company, dated the Closing Date, in
the form set forth in Exhibit D.
The opinion of J. Thomas Mullis shall be rendered to you at the
request of the Company and shall so state therein.
(h) You shall have received on the Closing Date an opinion of Shearman
& Sterling, counsel for the Underwriters, dated the Closing Date, in form
and substance satisfactory to you.
11
<PAGE>
(i) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from Arthur
Andersen LLP, the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus.
(j) The "lock-up" agreements, each substantially in the form of
Exhibit E hereto, between you and certain stockholders, officers and
directors of the Company relating to sales and certain other dispositions
of shares of Common Stock or any securities convertible into or exercisable
or exchangeable for such Common Stock, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date.
(k) The Company shall have complied with the provisions of Section
6(a) hereof with respect to the furnishing of Prospectuses on the business
day next following the date of this Agreement, in such quantities as you
shall have reasonably requested.
(l) The Shares shall have been approved for quotation on the Nasdaq
National Market by the National Association of Securities Dealers, Inc.
(the "NASD").
(m) Interstate FiberNet, Inc., NationsBank, N.A. and a majority of
the lenders party to the First Amended and Restated Credit Agreement
dated as of February 24, 1998 and as amended as of February 10, 1999 shall
have entered into an amendment thereto, substantially in the form set
forth in Exhibit F.
(n) You shall have received such other documents and certificates as
you or your counsel may request.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares and other matters related to the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the
------------------------
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish to you, without charge, [six] signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto)
12
<PAGE>
and, during the period mentioned in paragraph (c) below, as many copies of
the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as you
may reasonably request. In the case of the Prospectus, to furnish copies of
the Prospectus in New York City, prior to 10:00 a.m., on the business day
next following the date of this Agreement, in such quantities as you
reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and to file no such proposed amendment or supplement to which
you reasonably object and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with any
review of the offering of the Shares by the NASD.
(e) If the Company elects to rely on Rule 462(b) under the Securities
Act, the Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) under the Securities Act no later
than the earlier of (i) 10:00 p.m. Eastern time on the date hereof and (ii)
the time confirmations are sent or given, as specified by Rule 462(b)(2)
under the Securities Act, and shall pay the applicable fees in accordance
with Rule 111 under the Securities Act.
13
<PAGE>
(f) To make generally available to the Company's security holders and
to you, as soon as practicable but not later than 60 days after the end of
the twelve-month period beginning on the first day of the Company's first
quarter immediately succeeding the Company's fiscal quarter during which
the effective date of the Registration Statement occurs, an earnings
statement of the Company covering such twelve-month period that satisfies
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(g) To use the net proceeds received by the Company from the sale of
the Shares hereunder in the manner specified in the Prospectus under the
caption "Use of Proceeds".
(h) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the registration
and delivery of the Shares under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the quantities hereinabove specified, (ii)
all costs and expenses related to the transfer and delivery of the Shares
to the Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or legal investment
memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the qualification of
the Shares for offer and sale under state securities laws as provided in
Section 6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) all filing fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of
the offering of the Shares by the NASD, (v) all costs and expenses
incidental to quoting the Shares on the Nasdaq National Market, (vi) the
cost of printing certificates representing the Shares, (vii) the costs and
charges of any transfer agent, registrar or depositary, (viii) the costs
and expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expense of the
representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show, and
(ix) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made in
14
<PAGE>
this Section. It is understood, however, that except as provided in this
Section, Section 7 and the last paragraph of Section 9 below, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. Indemnity and Contribution. (a) The Company agrees to indemnify
--------------------------
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or is under common control with, or is controlled by, such Underwriter,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by any
Underwriter or any such controlling or affiliated person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of the
Prospectus and any amendment or supplement thereto, in the light of the
circumstances under which they were made), except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein; provided, however, that the foregoing
-------- -------
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or any other person indemnified pursuant to
this paragraph (a)) to the extent that any such losses, claims, damages or
liabilities result from the fact that such Underwriter sold securities to a
person to whom there was not sent or given by or on behalf of such Underwriter
(if required by law so to have been delivered) a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) at or prior to the written confirmation of the sale of the
Shares to such person, and if the losses, claims, damages or liabilities result
from an untrue statement or alleged untrue statement or an omission or alleged
omission contained in such preliminary prospectus that was corrected in the
Prospectus (as so amended or supplemented), unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly
15
<PAGE>
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 7, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Morgan Stanley in the case of parties
indemnified pursuant to paragraph (a) of this Section 7 and by the Company in
the case of parties indemnified pursuant to paragraph (b) of this Section 7.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 60
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
16
<PAGE>
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
---
rata allocation (even if the Underwriters were treated as one entity for such
- ----
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. 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 remedies provided
for in this Section 7 are not exclusive and shall not
17
<PAGE>
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
8. Termination. This Agreement shall be subject to termination by
-----------
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the NASD, the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event makes it,
in your judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
--------------------------------------
become effective upon the later of (x) execution and delivery hereof by the
parties hereto and (y) release of notification of the effectiveness of the
Registration Statement by the Commission.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such
nondefaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
--------
number of Shares that any Underwriter has agreed to purchase pursuant to Section
2 be increased pursuant to this Section 9 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date or the Option
18
<PAGE>
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Shares and the aggregate number of Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Shares to be purchased on such date, and arrangements satisfactory to you and
the Company for the purchase of such Shares are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date or the Option
Closing Date, as the case may be, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by the laws of
--------------
the State of New York.
19
<PAGE>
12. Headings. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
ITC/\DELTACOM, INC.
By______________________________
Name:
Title:
Accepted as of the date hereof
MORGAN STANLEY & CO. INCORPORATED
J.C. BRADFORD & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
FIRST UNION CAPITAL MARKETS CORP.
NATIONSBANC MONTGOMERY SECURITIES LLC
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto.
By Morgan Stanley & Co. Incorporated
By__________________________
Name:
Title:
20
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
<S> <C>
Morgan Stanley & Co. Incorporated ________
J.C. Bradford & Co. ________
Credit Suisse First Boston Corporation ________
First Union Capital Markets Corp. ________
NationsBanc Montgomery Securities LLC ________
Total Firm Shares...............................
=========
</TABLE>
<PAGE>
EXHIBIT A
[Intentionally Omitted]
<PAGE>
EXHIBIT B
[Intentionally Omitted]
<PAGE>
EXHIBIT C
[Intentionally Omitted]
<PAGE>
EXHIBIT D
[Intentionally Omitted]
<PAGE>
EXHIBIT E
May__, 1999
Morgan Stanley & Co. Incorporated
J.C. Bradford & Co.
Credit Suisse First Boston Corporation
First Union Capital Markets Corp.
NationsBanc Montgomery Securities LLC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
First Union Capital Markets Corp.
NationsBanc Montgomery Securities LLC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
The undersigned understands that ITCUDeltaCom, Inc., a Delaware
corporation (the "Company"), proposes to enter into (1) an underwriting
agreement (the "Underwriting Agreement") with Morgan Stanley & Co. Incorporated
("Morgan Stanley"), J.C. Bradford & Co., Credit Suisse First Boston Corporation,
First Union Capital Markets Corp. and NationsBanc Montgomery Securities LLC, as
representatives of the several underwriters (the "Underwriters") named in
Schedule I thereto, providing for the public offering (the "Public Offering") of
shares of the Company's Common Stock (par value $.01 per share) (the "Common
Stock") and (2) a placement agreement (the "Placement Agreement") with Morgan
Stanley, Credit Suisse First Boston Corporation, First Union Capital Markets
Corp. and NationsBanc Montgomery Securities LLC (the "Placement Agents"),
providing for the private placement (the "Private Placement") of the Company's
[____]% Convertible Subordinated Notes due 2006 (the "Notes").
<PAGE>
To induce the Underwriters that may participate in the Public Offering
and the Placement Agents that may participate in the Private Placement to
continue their efforts in connection with the Public Offering and Private
Placement, respectively, and for other good and valuable considerations receipt
of which is hereby acknowledged, the undersigned hereby agrees that, without the
prior written consent of Morgan Stanley on behalf of the Underwriters and the
Placement Agents, it will not, during the period commencing on the date hereof
and ending 90 days after the date of the final prospectus relating to the Public
Offering (the "Prospectus") and the final offering memorandum relating to the
Private Placement (the "Memorandum"), (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (2) enter into any swap or other arrangement that transfer to another, in
whole or in part, any of the economic consequences of ownership of Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or other securities, in cash or otherwise.
The foregoing sentence shall not apply to (a) transactions relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the Public Offering and the Private Placement, (b) transfers of
Common Stock to the Company, (c) a pledge, grant of security interest or other
encumbrance effected in a bona fide transaction with an unrelated and
unaffiliated pledgee, under a written pledge agreement that provides that the
pledgee shall hold the Common Stock subject to the terms of this Agreement and,
as a condition precedent to such pledge, security interest or other encumbrance,
shall be required to execute and deliver this Agreement and (d) any transfer (i)
to a trust for the benefit of such transferor or such transferor's spouse or
lineal descendants or (ii) by gift, will or intestate succession to such
transferor's spouse or lineal descendants, provided, in each case, that, as a
condition precedent to such transfer, the transferee of any such transfer, or
the trustee or legal guardian on behalf of any such transferee, duly executes
and delivers this Agreement. In addition, the undersigned agrees that, without
the prior written consent of Morgan Stanley on behalf of the Underwriters and
the Placement Agents, it will not, during the period commencing on the date
hereof and ending 90 days after the date of the Prospectus and Memorandum, make
any demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
2
<PAGE>
Whether or not the Public Offering or the Private Placement actually
occurs depends on a number of factors, including market conditions. Any Public
Offering or Private Placement will only be made pursuant to an Underwriting
Agreement and Placement Agreement, respectively, the terms of which are subject
to negotiation between the Company and the Underwriters or the Placement Agents,
as the case may be.
Very truly yours,
--------------------------------
(Signature)
--------------------------------
(Print Name)
--------------------------------
(Address)
Accepted as of the date
first set forth above:
Morgan Stanley & Co. Incorporated
By:
----------------------------------
<PAGE>
EXHIBIT F
[Intentionally Omitted]
<PAGE>
Exhibit 5.1
[HOGAN AND HARTSON L.L.P. LETTERHEAD]
May 6, 1999
Board of Directors
ITC/\DeltaCom, Inc.
1791 O.G. Skinner Drive
West Point, GA 31833
Gentlemen:
We are acting as counsel to ITC/\DeltaCom, Inc., a Delaware
corporation (the "Company"), in connection with its registration statement on
Form S-3, as amended (SEC File No. 333-75635) (the "Registration Statement"),
previously declared effective by the Securities and Exchange Commission (the
"SEC"), relating to the proposed public offering of up to $300,000,000 in
aggregate amount of one or more series of the Company's securities which may be
offered and sold by the Company from time to time as set forth in the prospectus
which forms a part of the Registration Statement (the "Prospectus"), and as to
be set forth in one or more supplements to the Prospectus (each, a "Prospectus
Supplement"). This opinion letter is rendered in connection with the proposed
public offering (the "Offering") of up to 6,037,500 shares of the Company's
common stock, par value $.01 (the "Shares"), as described in the preliminary
Prospectus Supplement dated April 28, 1999 and filed with the SEC pursuant to
Rule 424(b) under the Securities Act of 1933, as amended. This opinion letter is
furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection
with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. The Registration Statement.
2. The Amended and Restated Certificate of Incorporation of the Company,
(the "Certificate of Incorporation") as certified by the Secretary of
State of the State of Delaware on April 29, 1999 and by the Secretary
of the Company on the date hereof as then being complete, accurate
and in effect.
3. The Amended and Restated Bylaws of the Company (the "Bylaws"), as
certified by the Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
<PAGE>
4. The form of Underwriting Agreement among the Company and Morgan
Stanley & Co. Incorporated, J.C. Bradford & Co., Credit Suisse First
Boston Corporation, First Union Capital Markets Corporation, and
NationsBanc Montgomery Securities LLC, as representatives of the
underwriters thereunder (the "Underwriting Agreement").
5. Resolutions of the Board of Directors of the Company adopted at a
meeting held on March 25, 1999, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in effect,
relating to the preparation, execution and filing of the Registration
Statement and related matters.
6. Resolutions of the Board of Directors of the Company adopted at a
meeting held on April 27, 1999 as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in effect,
relating to the offer, issuance and sale of the Shares and
arrangements in connection therewith.
In our examination of the aforesaid 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, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, 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 following (i) final action of the Board of Directors of the Company
(or a duly appointed pricing committee thereof) approving the price of the
Shares, (ii) execution and delivery by the Company of the Underwriting
Agreement, (iii) the filing with the SEC, pursuant to Rule 424(b) of the
Securities Act of 1933, as amended, a final Prospectus Supplement relating to
the Offering, (iv) issuance of the Shares pursuant to the terms of the
Underwriting Agreement and (v) receipt by the Company of the consideration for
the Shares specified in the resolutions of the Board of Directors (or a duly
appointed pricing committee thereof), the Shares will be validly issued, fully
paid and nonassessable under the General Corporation Law of the State of
Delaware.
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 a Current Report
on Form 8-K on the date of this opinion letter, which Form 8-K will be
incorporated by reference into the Registration Statement. This opinion letter
should not be quoted in whole or in part or otherwise be referred to, nor filed
with or furnished to any governmental agency or other person or entity, without
the prior written consent of this firm.
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We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the Prospectus Supplement relating to the Offering.
In giving this consent, we do not thereby admit that we are an "expert" within
the meaning of the Securities Act.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
HOGAN & HARTSON L.L.P.
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<PAGE>
Exhibit 99.1
News Release
April 28, 1998
FOR IMMEDIATE RELEASE
Douglas A. Shumate
Senior Vice President
Chief Financial Officer
706-385-8189
ITC/\DeltaCom, Inc. Undertakes Private Debt Offering
West Point, Georgia (April 28, 1999)--ITC/\DeltaCom, Inc. (NASDAQ/NMS: ITCD)
announced today that it intends to commence a private offering of $100 million
aggregate principal amount of Convertible Subordinated Notes due 2006 (the
"Notes").
The Company intends to use the net proceeds from the private offering primarily
to accelerate expansion of the Company's fiber optic network, and to purchase
additional switching equipment, related electronics and inventory and other
network assets.
Concurrently with the Notes offering, the Company is undertaking a registered
public offering of 6,037,500 shares of Common Stock, including up to 787,500 to
cover over-allotments, if any. The private Notes offering and the public Common
Stock offering are not dependent on one another.
The Notes to be offered will not be registered under the Securities Act of 1933
or any state securities laws and may not be offered or sold in the United States
unless registered, except pursuant to an exemption from the registration
requirements of the Securities Act of 1933 and applicable state securities laws.
ITC/\DeltaCom, Inc., headquartered in West Point, Georgia, provides integrated
telecommunications services to mid-sized and major regional businesses in the
southern United States, and is a leading regional provider of wholesale long-
haul services to other communications companies. The Company's business
communication services include local exchange service, long distance, enhanced
data, Internet, operator services, and the sale and maintenance of customer
premise equipment. The Company operates 24 branch locations in eight states, and
its 10-state, approximately 7,800 mile fiber optic network reaches over 80
points of presence. The Company has interconnection agreements with BellSouth,
Southwestern Bell, GTE, and Sprint for resale and access to unbundled network
elements, and is a certified Competitive Local Exchange Carrier (CLEC) in
Arkansas, Texas, and all nine BellSouth states. ITC/\DeltaCom can be found on
the Internet at www.itcdeltacom.com.
Copyright (C) 1999. ITC/\DeltaCom, Inc. All rights reserved.
<PAGE>
Exhibit 99.2
DESCRIPTION OF CAPITAL STOCK
The following description sets forth the general terms of ITC/\DeltaCom's
capital stock. This description does not purport to be complete and is subject
to and qualified in its entirety by reference to our certificate of
incorporation and our bylaws, each of which will be made available upon request.
Authorized and Outstanding Capital Stock
Our certificate of incorporation provides that we have authority to issue
90,000,000 shares of our common stock, par value $.01 per share. At March 15,
1999, there were 51,553,197 shares of our common stock issued and outstanding.
Our certificate of incorporation authorizes our Board of Directors from
time to time and without further stockholder action to provide for the issuance
of up to 5,000,000 shares of preferred stock in one or more series, of which
1,750,000 shares have been designated as Series A Convertible Preferred Stock,
and to fix the relative rights and preferences of the shares, including voting
powers, dividend rights, liquidation preferences, redemption rights and
conversion privileges. As of the date hereof, our Board of Directors has not
provided for the issuance of any series of preferred stock, other than the
Series A Preferred Stock, and there are no agreements or understandings for the
issuance of any other series of preferred stock. See "Series A Preferred
Stock." At March 15, 1999, there were 1,480,771 shares of our Series A
Preferred Stock issued and outstanding.
Because of its broad discretion with respect to the creation and issuance
of preferred stock without stockholder approval, our Board of Directors could
adversely affect the voting power of the holders of our common stock and, by
issuing shares of preferred stock with certain voting, conversion and/or
redemption rights, could discourage any attempt to obtain control of
ITC/\DeltaCom.
Common Stock
Voting Rights. Each holder of shares of our common stock is entitled to
attend all special and annual meetings of our stockholders. In addition, each
holder is entitled, together with the holders of all other classes of stock
entitled to attend the special and annual meetings of our stockholders, to cast
one vote for each outstanding share of common stock held upon any matter or
thing, including, without limitation, the election of one or more directors,
properly considered and acted upon by the stockholders.
Liquidation Rights. The holders of our common stock and the holders of any
class or series of stock entitled to participate with the holders of our common
stock as to the distribution of assets in the event of any dissolution,
liquidation, or winding up of ITC/\DeltaCom, whether voluntary or involuntary,
<PAGE>
will become entitled to participate in the distribution of any assets of
ITC/\DeltaCom remaining after ITC/\DeltaCom has paid, or provided for the
payment of, all of its debts and liabilities and after ITC/\DeltaCom has paid,
or set aside for payment, to the holders of any class of stock having preference
over the common stock in the event of dissolution, liquidation or winding up,
the full preferential amounts, if any, to which they are entitled.
Dividends. Dividends may be paid on the common stock and on any class or
series of stock entitled to participate with the common stock as to dividends on
an equal per-share basis, but only when and as declared by our Board of
Directors. ITC/\DeltaCom has never paid cash dividends, and the terms of the
indentures pursuant to which our senior notes have been issued and our revolving
credit facility restrict the payment of dividends in the future.
No holder of our common stock has any preemptive right to subscribe for any
of our securities, nor does any holder of our common stock have conversion
rights. The rights, privileges, preferences and priorities of holders of our
common stock are subject to, and may be adversely affected by, the rights of the
holders of our Series A Preferred Stock and shares of any series of Preferred
Stock which we may designate and issue in the future. See "Description of
Preferred Stock."
Some Important Charter and Statutory Provisions
Our certificate of incorporation provides for the division of our Board of
Directors into three classes of directors, each serving staggered, three-year
terms. The certificate further provides that any alteration, amendment or
repeal of certain sections of the certificate relating to the election and
classification of the Board of Directors, indemnification and the vote
requirements for such amendments to the certificate requires the approval of the
holders of at least two-thirds of the shares entitled to vote thereon. These
provisions may have the effect of deterring hostile takeovers or delaying
changes in control or management of ITC/\DeltaCom.
ITC/\DeltaCom is subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, the statute prohibits a publicly held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless:
. prior to that date, the board of directors approved either the business
combination or the transaction that resulted in the stockholder becoming an
interested stockholder;
. upon consummation of the transaction that resulted in that person becoming
an interested stockholder, the interested stockholder owned at least 85% of
the voting stock of the corporation outstanding at the time the transaction
commenced, excluding, for purposes of determining the number of shares
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outstanding, shares owned by certain directors or certain employee stock
plans; or
. on or after the date the stockholder became an interested stockholder, the
business combination is approved by the board of directors and authorized
by the affirmative vote, and not by the written consent, of at least two-
thirds of the outstanding voting stock, excluding the stock owned by the
interested stockholder.
A "business combination" includes a merger, asset sale, or other transaction
resulting in a financial benefit to the interested stockholder. An "interested
stockholder" is a person who, other than the corporation and any direct or
indirect majority-owned subsidiary of the corporation, together with affiliates
and associates, owns or, as an affiliate or associate, within three years prior,
did own, 15% or more of the corporation's outstanding voting stock.
The certificate of incorporation empowers our Board of Directors to redeem
any of ITC/\DeltaCom's outstanding capital stock, at a price determined by the
Board, which price shall be at least equal to the lesser of:
. the fair market value as determined in accordance with the certificate of
incorporation; or
. in the case of a "Disqualified Holder," the lesser of fair market value or
such holder's purchase price (if the stock was purchased within one year
of such redemption) to the extent necessary to prevent the loss or secure
the reinstatement of any license, operating authority or franchise from any
governmental agency.
A "Disqualified Holder" is any holder of shares of stock of ITC/\DeltaCom whose
holding of that stock may result in the loss of, or the failure to secure the
reinstatement of, any license or franchise from any governmental agency held by
ITC/\DeltaCom or any of its subsidiaries to conduct any portion of the business
of ITC/\DeltaCom or any of its subsidiaries. Under the Telecommunications Act
of 1996, non-U.S. citizens or their representatives, foreign governments or
their representatives, or corporations organized under the laws of a foreign
country may not own, in the aggregate, more than 20% of a common carrier
licensee or more than 25% of the parent of a common carrier licensee if the
FCC determines that the public interest would be served by prohibiting such
ownership. Additionally, the FCC's rules may under certain conditions limit
the size of investments by foreign telecommunications carriers in U.S.
international carriers.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company.
Listing
Our common stock is quoted on the Nasdaq National Market.
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<PAGE>
Series A Preferred Stock
Conversion rights. Holders of Series A Preferred Stock have the right, at
any time after March 14, 2002, to convert each share of Series A Preferred Stock
into one share of our common stock, subject to adjustment for stock splits,
stock dividends, recapitalizations and other specified events.
Liquidation rights. In the event of any dissolution, liquidation or
winding up of ITC/\DeltaCom, whether voluntary or involuntary, holders of Series
A Preferred Stock will be entitled to receive a distribution of $7.40 per share,
plus any dividends declared and unpaid, prior to any payment or distribution of
assets to holders of our common stock. Holders of our common stock will then be
entitled to any equivalent distribution of $7.40 per share, plus any dividends
declared and unpaid, prior to any payment or distribution of assets to holders
of our common stock. Holders of Series A Preferred Stock and our common stock
will be entitled to share ratably in the distribution of any remaining assets of
ITC/\DeltaCom, with holders of Series A Preferred Stock entitled to receive an
amount equal to the distribution made in respect of the number of shares of
common stock into which the Series A Preferred Stock is then convertible.
Dividend rights. The holders of Series A Preferred Stock are entitled to
receive, when, as and if declared by our Board of Directors out of funds legally
available therefor, dividends in an amount per share of Series A Preferred Stock
equal to the dividends payable on the number of shares of common stock into
which one share of Series A Preferred Stock is then convertible. So long as any
shares of Series A Preferred Stock are outstanding, no dividends may be declared
or paid on any class or series of capital stock ranking on a parity with the
Series A Preferred Stock as to dividends.
No redemption rights. The Series A Preferred Stock is not subject to
mandatory or optional redemption.
Voting rights. Except as set forth in the following sentence, holders of
Series A Preferred have no voting rights. The affirmative vote of holders of at
least two-thirds of the shares of Series A Preferred Stock outstanding is
necessary for:
. the authorization or issuance of any class of stock ranking prior to the
Series A Preferred Stock as to dividends or the distribution of assets upon
dissolution, liquidation or winding up of ITC/\DeltaCom;
. an increase in the authorized or issued amount of Series A Preferred Stock;
or
. the amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any provision of the certificate of incorporation that would
affect any right, preference or voting power of the Series A Preferred
Stock.
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