<PAGE>
FORM 8-A/A
AMENDMENT NO. 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ITC/\DeltaCom, Inc.
-------------------
(Exact name of registrant as specified in its charter)
Delaware 58-2301135
-------------------------------------- ---------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
1791 O.G. Skinner Drive, West Point, Georgia 31833
-------------------------------------------- ---------------
(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [_]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates:
(if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
None.
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share
-------------------------------------------------------------------------------
(Title of class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
As of the date of this amendment, ITC/\DeltaCom's authorized capital stock
consists of 200,000,000 shares of common stock, par value $.01 per share, and
5,000,000 shares of preferred stock, par value $.01 per share. We have
designated 1,750,000 shares of the preferred stock as our Series A Convertible
Preferred Stock, which we refer to as our Series A Preferred Stock. Other than
the Series A Preferred Stock, we have not designated any series of preferred
stock as of the date of this amendment. From time to time, we may amend our
certificate of incorporation to increase our authorized capital stock available
for issuance for purposes our board of directors may determine to be in the best
interests of ITC/\DeltaCom and our stockholders. These purposes could include
offerings of shares for cash and in acquisitions of other businesses, the
declaration of stock splits and stock dividends, and other general corporate
purposes.
The following summary description of our common stock and related matters
is not complete and is subject to the provisions of the ITC/\DeltaCom
certificate of incorporation and bylaws and the provisions of applicable law.
Copies of our certificate of incorporation and bylaws have been filed or
incorporated by reference as exhibits to this registration statement on Form
8-A.
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, to
attend the special and annual meetings of our stockholders and to cast one vote
for each outstanding share of common stock held upon any matter, including 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,
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 out of
-2-
<PAGE>
legally available funds. We have never paid cash dividends on the common stock.
The indentures under which we have issued some of our publicly traded notes and
our senior secured credit facility contain restrictions on our ability to pay
dividends.
No Preemptive or Conversion Rights. 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.
Special Redemption Provisions. The certificate of incorporation empowers
our board of directors to redeem any of our outstanding capital stock to the
extent necessary to prevent the loss, or secure the reinstatement, of any
license from any governmental agency which is conditioned upon the holder of our
capital stock possessing prescribed qualifications. The redemption price of the
shares to be redeemed will be a price determined by the board of directors,
which price will be at least equal to:
. the fair market value of the shares 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 the date fixed for redemption.
A "Disqualified Holder" is any holder of shares of stock of ITC/\DeltaCom whose
holding of that stock may result in the loss, 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. The
Telecommunications Act also states that these parties may not own more than 25%
of the parent of a common carrier licensee if the Federal Communications
Commission determines that the public interest would be served by prohibiting
such ownership, but the FCC has established presumptions in favor of allowing
substantial foreign ownership by such investors if the investors are based in
World Trade Organization member countries. In addition, the FCC's rules under
some conditions may limit the size of investments by foreign telecommunications
carriers in U.S. international carriers.
Quotation of the Common Stock. The common stock is quoted on The Nasdaq
National Market under the symbol "ITCD."
Transfer Agent and Registrar. The transfer agent and registrar for our
common stock is American Stock Transfer & Trust Company.
Anti-Takeover Effect of Our Charter and Bylaw Provisions
The ITC/\DeltaCom certificate of incorporation and bylaws contain
provisions that could make it more difficult to consummate an acquisition of
ITC/\DeltaCom by means of a tender offer, a proxy contest or otherwise.
Classified Board of Directors. The certificate of incorporation and bylaws
provide that our board of directors will be divided into three classes of
directors, with the classes as nearly equal in number as possible. As a result,
approximately one-third of the board of directors will be elected each year.
The classification of the board of directors will make it more difficult for an
acquiror or for other stockholders to change the composition of the board of
directors. The certificate of incorporation provides that, subject to any
rights of holders of preferred stock to elect additional directors under
specified circumstances, the number of directors will be fixed by the board of
directors. The bylaws provide that the number of directors will be not fewer
than five nor more than 15 and will be fixed from time to time within these
limits by a resolution adopted by the board of directors. The certificate of
incorporation and bylaws further provide that, subject to any special rights of
holders of any class or series of capital stock entitled to elect one or more
directors, any vacancies created other than by resignation and newly created
directorships will be filled only by the affirmative vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any vacancies resulting from the resignation of one or more members of
the board of directors will be filled by a majority of the directors then in
office, including those directors who have resigned.
Removal of Directors. The certificate of incorporation provides that any
director of ITC/\DeltaCom generally may be removed from the board of directors
before expiration of the director's term in office only for cause. The proposal
to remove a director must be approved by the affirmative vote of the holders of
not less than 66 2/3% of the total number of votes of the outstanding shares of
our capital stock entitled to vote generally in the election of directors,
voting together as a single class. Notice of the proposal to remove a director
must be contained in the notice of the meeting of stockholders at which the
proposal will be considered.
No Stockholder Action by Written Consent. The certificate of incorporation
and bylaws provide that, subject to the rights of any holders of preferred stock
to act by written consent instead of a meeting, stockholder action may be taken
only at an annual meeting or special meeting of stockholders and may not be
taken by written consent instead of a meeting, unless such consent is unanimous.
Failure to satisfy any of the requirements for a stockholder meeting could
delay, prevent or invalidate stockholder action.
Special Meeting of Stockholders. The certificate of incorporation and
bylaws provide that special meetings of stockholders may only be called by our
chairman of the board or by a majority of our directors in office, although less
than a quorum.
Stockholder Advance Notice Procedure for Director Nominations. The bylaws
establish an advance notice procedure for stockholders to make nominations of
candidates for election as directors. The board of directors acts as a
nominating committee for selecting candidates to stand for election as
directors. Under our bylaws, other candidates may also be nominated by any
stockholder, provided each such other nomination is submitted in writing and
received by the Secretary of ITC/\DeltaCom at the principal executive offices of
ITC/\DeltaCom not less than 60 days before the annual meeting or, in the event
less than 75 days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, received not later than the close of
business on the 15th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. The notice must
include the following information: (1) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (a) the name,
age, business address and residence address of such person, (b) the principal
occupation or employment of such person, (c) the class and number of shares of
our capital stock which are beneficially owned by such person and (d) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for the election of directors, or is otherwise
required, by Regulation 14A under the Securities Exchange Act of 1934, including
such person's written consent to be named in the proxy statement as a nominee
and to serve as a director if elected; and (2) as to the stockholder giving the
notice, (a) the name and address of the stockholder as they appear on our books
and (b) the class and number of shares of our capital stock which are
beneficially owned by the stockholder.
Amendment of Our Charter. The certificate of incorporation provides that a
proposal to amend or repeal, or adopt any provision inconsistent with the intent
or purpose of, the following provisions of the certificate of incorporation must
be approved by the affirmative vote of the holders of not less than 66 2/3% of
the total number of votes of the outstanding shares of our capital stock
entitled to vote generally in the election of directors, voting together as a
single class:
. the provisions relating to the classification of our board of
directors, removal of directors, changes in the authorized number of
directors, filling of vacancies in the board of directors, election of
directors by holders of preferred stock, and the limitation of
liability of directors;
. the provision prohibiting stockholder action by written consent
instead of a meeting, unless the consent is unanimous;
. the provision specifying the persons that may call a special meeting
of stockholders; and
. the provision requiring the supermajority vote of stockholders to
amend our certificate of incorporation concerning the foregoing
matters.
Notice of any such proposed amendment, repeal or adoption must be contained in
the notice of the meeting of stockholders at which the proposal will be
considered.
Amendment of Our Bylaws. The certificate of incorporation and bylaws
provide that, in order for stockholders to amend or repeal any provision of the
bylaws, the proposal for amendment or repeal must be approved by the affirmative
vote of the holders of not less than 66 2/3% of the total number of votes of the
outstanding shares of our capital stock entitled to vote generally in the
election of directors, voting together as a single class.
Section 203 of the Delaware General Corporation Law
ITC/\DeltaCom is subject to section 203 of the Delaware General Corporation
Law, which, with specified exceptions, prohibits a Delaware corporation from
engaging in any "business combination" with any "interested stockholder" for a
period of three years following the time that the stockholder became an
interested stockholder unless:
. before that time, the board of directors of the corporation approved
either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
. upon completion of the transaction which resulted in the stockholder
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 outstanding those shares owned by persons who are
directors and also officers and by
-3-
<PAGE>
employee stock plans in which employee participants do not have the
right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer; or
. at or after that time, the business combination is approved by the board
of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at
least 66% of the outstanding voting stock which is not owned by the
interested stockholder.
Section 203 defines "business combination" to include the following:
. any merger or consolidation of the corporation with the interested
stockholder;
. any sale, transfer, pledge or other disposition of 10% or more of the
assets of the corporation involving the interested stockholder;
. subject to specified exceptions, any transaction that results in the
issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
. any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock of any class or series
of the corporation beneficially owned by the interested stockholder; or
. any receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
In general, section 203 defines an "interested stockholder" as any entity or
person beneficially owning 15% or more of the outstanding voting stock of the
corporation and any entity or person affiliated with or controlling or
controlled by that entity or person.
The application of section 203 may make it difficult and expensive for a
third party to pursue a takeover attempt we approve even if a change in control
of ITC/\DeltaCom would be beneficial to the interests of our stockholders.
-4-
<PAGE>
Preferred Stock
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 the shares of any series of
preferred stock which we may designate and issue in the future. 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, and to fix the relative rights and
preferences of the shares, including voting powers, dividend rights, liquidation
preferences, redemption rights and conversion privileges. We have designated
1,750,000 shares of the preferred stock as our Series A Convertible Preferred
Stock. As of the date of this amendment, 1,480,771 shares of the Series A
Preferred Stock are issued and outstanding. Other than the Series A Preferred
Stock, we have not designated any series of preferred stock as of the date of
this amendment.
Our board of directors has broad discretion with respect to the creation
and issuance of preferred stock without stockholder approval. By authorizing the
issuance of shares of preferred stock with certain voting, conversion or
redemption rights, the board of directors could adversely affect the voting
power of the holders of our common stock and could discourage any attempt to
obtain control of ITC/\DeltaCom.
-5-
<PAGE>
The following is a summary description of the principal terms of the Series
A preferred stock.
Conversion rights. Holders of our 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. The
number of shares of common stock into which each share of Series A Preferred
Stock is convertible was adjusted on September 4, 1998 to reflect a two-for-one
split of our common stock completed on that date.
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 declared and unpaid dividends, before any payment or distribution of
assets to holders of our common stock or any other series or classes of stock
ranking junior to the Series A Preferred Stock. After the Series A Preferred
Stock distribution and any distribution to holders of shares of any other class
or series of stock having preference over the common stock have received the
full preferential amounts to which they are entitled, holders of our common
stock and holders of any other class or series of stock entitled to participate
with the common stock in the event of any liquidation, dissolution or winding up
of ITC/\DeltaCom will be entitled to an equivalent distribution of $7.40 per
share, plus any declared and unpaid dividends, out of the remaining assets of
ITC/\DeltaCom legally available for distribution. Holders of the Series A
Preferred Stock will then be entitled to share ratably in the distribution of
any remaining assets of ITC/\DeltaCom with the holders of our common stock and
holders of any other class or series of stock entitled to participate with the
common stock in the event of any liquidation, dissolution or winding up of
ITC/\DeltaCom. In this distribution, holders of the Series A Preferred Stock
will be 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 legally
available funds, 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, unless dividends are also paid on the
Series A Preferred Stock in an amount per share equal to the dividends payable
on the number of shares of our common stock into which one share of the Series A
Preferred Stock is then convertible.
-6-
<PAGE>
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 and except as
otherwise from time to time required by law, holders of Series A Preferred Stock
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, creation or issuance, or any increase in the
authorized or issued amount, of any class or series 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 or of the holder thereof.
Director Liability and Indemnification of Directors and Officers
The Delaware General Corporation Law provides that a corporation may
eliminate or limit the personal liability of each director of the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director
except for liability for any breach of the director's duty of loyalty to the
corporation or its stockholders, for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, in respect of
unlawful dividend payments or stock redemptions or repurchases, and for any
transaction from which the director derives an improper personal benefit. Our
certificate of incorporation provides for the elimination and limitation of the
personal liability of directors for monetary damages as permitted by the
Delaware General Corporation Law. The effect of this provision is to eliminate
the rights of ITC/\DeltaCom and its stockholders' through stockholder derivative
suits on behalf of ITC/\DeltaCom to recover monetary damages against a director
for breach of the fiduciary duty of care as a director, including breaches
resulting from negligent or grossly negligent behavior, except in the situations
described above. The provision does not limit or eliminate the rights of
ITC/\DeltaCom or any stockholder to seek non-monetary relief such as injunction
or recission upon breach of a director's duty of care. This provision is
consistent with section 102(b)(7) of the Delaware General Corporation Law, which
is designed, among other things, to encourage qualified individuals to serve as
directors of Delaware corporations.
Our bylaws provide that, to the fullest extent permitted by the Delaware
General Corporation Law, as amended from time to time, ITC/\DeltaCom will
indemnify, and advance expenses to, each of its currently acting and former
directors and officers.
Item 2. Exhibits.
1. Restated Certificate of Incorporation of the Registrant. Filed
herewith.
2. Amended and Restated Bylaws of the Registrant. Filed as Exhibit 3.1
to the Registrant's Registration Statement on Form S-1, as amended
(Commission File No. 333-36683), and incorporated herein by reference.
3. Specimen stock certificate for the Common Stock of the Registrant.
Filed as Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1, as amended (Commission File No. 333-36683), and incorporated
herein by reference.
-7-
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
ITC/\DeltaCom, Inc.
By: /s/ J. Thomas Mullis
_________________________________
J. Thomas Mullis
Senior Vice President
Date: June 27, 2000
-8-
