Agreement Concerning Voting Regarding ITC^DeltaCom, Inc. Chapter 11 Restructuring
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This agreement is between ITC^DeltaCom, Inc. and certain holders of its senior and subordinated notes. The parties agree on the basic terms for restructuring the company's debt and equity through a pre-negotiated Chapter 11 bankruptcy plan. The noteholders commit to vote in favor of the plan, provided they receive approved disclosure materials and the plan remains consistent with the agreement. The agreement outlines the parties' representations, warranties, and obligations during the restructuring process.
EX-10.1 3 dex101.txt EXHIBIT 10.1 EXHIBIT 10.1 ------------ AGREEMENT CONCERNING VOTING This Agreement Concerning Voting (as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof, this "Agreement") is entered into by (i) ITC^DeltaCom, Inc. ("ITC^DeltaCom" or the --------- ------------ "Company"), (ii) the undersigned holders (each a "Consenting Senior Noteholder") ------- ---------------------------- of any of the (a) 11% Senior Notes due 2007; (b) 8 7/8% Notes due 2008; (c) 9 3/4% Senior Notes due 2008 (collectively, the "Senior Notes"), and (iii) the ------------ undersigned holders (each a "Consenting Subordinated Noteholder" and together, ---------------------------------- with the Consenting Senior Noteholders, the "Consenting Securityholders") of the -------------------------- Company's 4 1/2% Convertible Subordinated Notes due 2006 (the "Subordinated ------------ Notes" and, together with the Senior Notes, the "Securities") regarding the - ----- ---------- basic terms and conditions of a restructuring of the Company to be accomplished by means of a prenegotiated chapter 11 plan of reorganization of the Company pursuant to chapter 11 of title 11 of the United States Code (the "Bankruptcy ---------- Code"). - ---- In consideration of the premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each Consenting Securityholder (collectively, the "Parties"), intending to be legally ------- bound, agree as follows: 1. Restructuring. The basic terms and conditions of the restructuring of the indebtedness and equity of the Company (the "Restructuring") as agreed among the parties are set forth in the term sheet attached hereto as Exhibit A (the "Term Sheet"), ---------- which is incorporated herein and made a part of this Agreement. 2. Representations and Warranties: Consenting Securityholder and ITC^DeltaCom Agreements. Each of the Consenting Senior Noteholders represents severally and not jointly to ITC^DeltaCom that it is (i) the sole beneficial owner of the principal amount of Senior Notes entered below next to its signature as of the date hereof and/or the investment advisor or manager for the beneficial owners of such Senior Notes, as indicated on the signature pages below, having the power to vote and dispose of such Senior Notes on behalf of such beneficial owners, and (ii) entitled (for its own account or for the account of other persons claiming through it) to all of the rights and economic benefits of such Senior Notes (any of such Senior Notes, the "Relevant Senior Notes"). Each of --------------------- the Consenting Subordinated Noteholders represents severally and not jointly to ITC^DeltaCom that it is (i) the sole beneficial owner of the principal amount of Subordinated Notes entered below next to its signature as of the date hereof and/or the investment advisor or manager for the beneficial owners of such Subordinated Notes, as indicated on the signature pages below, having the power to vote and dispose of such Subordinated Notes on behalf of such beneficial owners, and (ii) entitled (for its own account or for the account of other persons claiming through it) to all of the rights and economic benefits of such Subordinated Notes (any of such Subordinated Notes, the "Relevant -------- Subordinated Notes" and, together with the Relevant Senior Notes, the "Relevant - ------------------ -------- Securities"). - ---------- In addition, each Consenting Securityholder hereby represents and warrants that, as of the date of this Agreement: (i) it has made no prior assignment, sale, participation, grant, conveyance or other transfer of, and has not entered into any other agreement to assign, sell, participate, grant or otherwise transfer, in whole or in part, any portion of its right, title or interests in the Relevant Securities, and it has good title thereto, free and clear of all liens, security interests and other encumbrances of any kind (except to the extent that any of the Relevant Securities are pledged or hypothecated as of the date hereof); (ii) if it is an entity, (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with all requisite power and authority to carry on the business in which it is engaged, to own the properties it owns, to execute this Agreement and to consummate the transactions contemplated hereby; (b) it has full corporate power and authority to execute and deliver and to perform its obligations under this Agreement, and (c) the execution, delivery and performance hereof, and the instruments and documents required to be executed by it in connection herewith have been duly and validly authorized by it and are not in contravention of its organizational documents or any material agreement specifically applicable to it; (iii) it is a sophisticated investor with respect to the transaction described herein with sufficient knowledge and experience in owning and investing in securities similar to the Relevant Securities to evaluate properly the terms and conditions of this Agreement, and it has made its own analysis and decision to enter in this Agreement in reliance upon the representations, warranties and covenants of the other Parties hereto set forth expressly herein; (iv) it is an "accredited investor" within the meaning of Section 2(15) of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder; and (v) no proceeding, litigation or adversary proceeding before any court, arbitrator or administrative or governmental body is pending against it which would adversely affect its ability to enter into this Agreement or to perform its obligations hereunder. ITC^DeltaCom hereby represents and warrants that (i) it is duly organized, validly existing and in good standing under the laws of Delaware, the jurisdiction of its organization with all requisite power and authority to carry on the business in which it is engaged, to own the properties it owns, to execute this Agreement and to consummate the transactions contemplated hereby; (ii) it has full corporate power and authority to execute and deliver and to perform its obligations under this Agreement, and the execution, delivery and performance hereof, and the instruments and documents required to be executed by it in connection herewith (a) have been duly and validly authorized by it and (b) are not in contravention of its organizational documents or any material agreement specifically applicable to it; and (iii) no proceeding, litigation or adversary proceeding before any court, arbitrator or administrative or governmental body is pending against it which would adversely affect its ability to enter into this Agreement or to perform its obligations hereunder. Each of the Consenting Securityholders agrees and covenants severally and not jointly to ITC^DeltaCom that, subject to Sections 2 and 3 hereof and subject to receipt by such Consenting Securityholder of, a disclosure statement and other solicitation materials approved by the Bankruptcy Court in respect of the Restructuring that are consistent with the terms of this Agreement and are not inconsistent with any applicable law (it being recognized that this 2 Agreement shall not constitute an agreement by such Consenting Securityholder to take any step or action that would violate any provision of applicable federal or state securities laws or any other applicable laws, and to the extent any provision hereof shall be construed as constituting such a violation, such provision shall be deemed stricken herefrom and of no force and effect without liability to any of the Parties): (a) in connection with the Company's solicitation of ballots with respect to a plan of reorganization consistent with the terms and conditions of the Term Sheet (the "Plan"), it will, as promptly as ---- practicable following the Bankruptcy Court's approval of a disclosure statement, vote (or, with respect to managed accounts, cause to be voted) its claims (the "Claims") in respect of the Relevant Securities ------ in favor of the Plan (including, without limitation, the releases provided for therein) by delivering its duly executed and completed ballot in favor of the Plan (and the releases provided for therein) and will not change or withdraw (or cause to be changed or withdrawn) such vote(s); provided, that the terms of the Plan are (i) consistent with -------- the terms of the Term Sheet and (ii) otherwise reasonably satisfactory to the beneficial holders or representatives of beneficial holders of at least a majority in principal amount of the Securities held by those members of the Unofficial Committee (as defined in Schedule 1) that have, as of the date of determination, entered into an Agreement Concerning Voting substantially identical to the terms of this Agreement (the "Majority Consenting Securityholders") as to any other material terms of the Plan (to the extent that, in the case of this clause (ii), such terms relate to issues or matters not addressed in the Term Sheet); (b) so long as it is the beneficial owner of, and/or investment advisor or manager with respect to, the Relevant Securities, it will not at any time prior to the termination of this Agreement vote (or cause to be voted) in favor of, or otherwise propose, file, support or encourage, directly or indirectly, any workout, restructuring or plan of reorganization concerning the Company other than the Restructuring; (c) it will not sell, transfer, pledge, hypothecate or assign any of the Relevant Securities or any voting or participation or other interest therein during the term of this Agreement except to a purchaser or other entity who agrees prior to such transfer to be bound by all of the terms of this Agreement with respect to the Relevant Securities being transferred to such purchaser, which agreement shall be confirmed in writing (which writing may include a trade confirmation issued by a broker or dealer, acting as principal or as agent for the purchaser, stating that such agreement is a term of such transfer), in which event ITC^DeltaCom shall be deemed to have acknowledged that each of its respective obligations to the Consenting Securityholders hereunder shall be deemed to constitute obligations in favor of such purchaser, and ITC^DeltaCom shall confirm promptly that acknowledgment in writing if requested; provided, however, that the restrictions in this clause (c) shall no longer be applicable on or after the confirmation of the Plan; and (d) it will not (i) object to, delay, impede or take any other action to interfere, directly or indirectly, with the acceptance or implementation of the Plan including commencing any action to oppose or object to the Plan, or (ii) take any action, directly or indirectly, to create an Agreement Termination Event hereunder. 3 ITC^DeltaCom hereby covenants and agrees to as soon as reasonably practicable (a) commence a chapter 11 case, (b) negotiate in good faith a plan consistent with the terms and conditions of the Term Sheet and satisfactory to the Majority Consenting Securityholders and file such plan and related disclosure statement with the Bankruptcy Court, (c) use its best efforts to pursue confirmation of the plan by all available means under Bankruptcy Code section 1129 and (d) subject to its fiduciary duties, not to propose, file, support, encourage, vote for or engage in discussions with any person or entity concerning any restructuring, workout or plan of reorganization other than the Plan. 3. Termination of Agreement. Each Consenting Securityholders' obligations hereunder shall terminate upon the occurrence of any Agreement Termination Event (as defined below), unless the occurrence of such Agreement Termination Event is waived in writing by the Majority Consenting Securityholders. In the event a Consenting Securityholder believes that an Agreement Termination Event has occurred such Party shall inform the other Parties to this Agreement in writing within 3 Business Days (as defined in Schedule 1). The failure to provide such notice shall not be deemed to waive an Agreement Termination Event. Notwithstanding the occurrence of an Agreement Termination Event, the Company may seek a waiver of such an event and, upon receipt of the requisite amount of waivers (as set forth above), this Agreement shall be in full force and effect as though the waived Agreement Termination Event never occurred. No waiver shall affect any subsequent Agreement Termination Event or impair any right consequent thereon. If any Agreement Termination Event occurs (and has not been waived) at a time when court permission shall be required for a Consenting Securityholder to change or withdraw (or cause to be changed or withdrawn) its vote(s) in favor of the Plan, ITC^DeltaCom and the other Parties to this Agreement shall not, subject to their fiduciary duties if any, in connection therewith, oppose any attempt by such Consenting Securityholder to change or withdraw (or cause to be changed or withdrawn) such vote(s) at such time. For the purposes hereof an "Agreement Termination Event" shall --------------------------- mean any of the following: (a) the filing of a petition under the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware in respect of ITC^DeltaCom shall not have occurred on or before June 28, 2002; (b) the filing of the Plan and a disclosure statement each in a form reasonably acceptable to the Majority Consenting Securityholders in support of the Plan shall not have occurred on or before July 28, 2002; (c) a disclosure statement in support of the Plan in a form reasonably acceptable to the Majority Consenting Securityholders shall not have been approved by the court on or before September 15, 2002; (d) the Plan in a form reasonably acceptable to the Majority Consenting Securityholders shall not have been confirmed by the Bankruptcy Court on or before October 28, 2002; 4 (e) the effective date of the Plan shall not have occurred on or before November 28, 2002; (f) ITC^DeltaCom files a plan or solicits votes on a chapter 11 plan of reorganization of the Company on terms that are not consistent with the terms described on the Term Sheet; (g) ITC^DeltaCom shall have disclaimed publicly in writing its intention to pursue the Restructuring or otherwise breached this Agreement or the Term Sheet; (h) the chapter 11 bankruptcy case(s) of the Company is(are) converted to chapter 7 case(s) and such conversion order is not stayed or vacated within 10 days of entry; (i) there occurs any material change in the terms or feasibility of the Restructuring that materially and adversely affects the holders of the Securities not previously consented to by the Majority Consenting Securityholders (including, without limitation, the equity investment of $30 million contemplated by the Term Sheet not being committed in writing in a form satisfactory to the Majority Consenting Securityholders); (j) the entry of an order dismissing the Company's chapter 11 case(s) which order is not stayed or vacated within 10 days; (k) ITC^DeltaCom shall have filed any motion or pleading, or otherwise shall have brought any action or proceeding challenging or objecting to the Relevant Securities or any claims of the Consenting Securityholders with respect thereto, or otherwise seeking any recovery from, or injunctive relief against, a Consenting Securityholder relating to such holder's Relevant Securities (other than with respect to actual or alleged breaches of this Agreement or any confidentiality agreement with the Company by such Consenting Securityholder); or (l) an examiner with enlarged powers relating to the operation of the Company's business (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code, or a trustee under Section 1104 of the Bankruptcy Code, shall have been appointed in the Company's Chapter 11 bankruptcy case(s), and such order is not stayed or vacated within 10 days of entry. The Consenting Securityholders shall have no liability to ITC^DeltaCom or each other in respect of any termination of this Agreement in accordance with the terms hereof. 4. Conditions. In addition to the provisions of paragraph 3 above with respect to the Agreement Termination Events, the respective obligations of each Consenting Securityholder and ITC^DeltaCom consummate each of the transactions contemplated by the Restructuring are also subject to the satisfaction of each of the following conditions: 5 (a) negotiation, preparation and execution of mutually satisfactory definitive transaction agreements and other documents incorporating the terms and conditions of each of the transactions contemplated by the Restructuring set forth herein and such other terms and conditions as the Parties may reasonably require; and (b) all authorizations, consents and regulatory approval required, if any, in connection with the consummation of the transactions contemplated by the Restructuring and the continuation of ITC^DeltaCom businesses as currently constituted shall have been obtained. 5. Several and Not Joint. Notwithstanding anything herein to the contrary, or any document or instrument executed and delivered in connection herewith, the Parties hereto agree that the representations, warranties, obligations, liabilities and indemnities of each Consenting Securityholder hereunder shall be several and not joint, and no Consenting Securityholder shall have any liability hereunder for any breach by any other Consenting Securityholder of any obligation of such set forth herein. 6. Publicity. This Agreement and each of the transactions contemplated by the Restructuring shall be kept confidential until the Parties agree upon the language and timing of a press release to be issued by ITC^DeltaCom. 7. Further Acquisition of Securities. This Agreement shall in no way be construed to preclude the Consenting Securityholders from acquiring additional Securities. However, any such additional Securities so acquired shall automatically be deemed to be Relevant Securities and to be subject to all of the terms of this Agreement. This Agreement shall in no way be construed to preclude the Consenting Securityholders from acquiring any other securities of ITC^DeltaCom. However, the Consenting Securityholders agree that subject to their receipt of solicitation materials in respect of the Plan that are consistent with the Term Sheet and with the terms of this Agreement and are not inconsistent with any applicable law, they will vote (or cause to be voted) any such additional securities in favor of the Plan, and not change or withdraw (or cause to be changed or withdrawn) such vote(s), for so long as this Agreement remains in effect. 8. Amendments. This Agreement may not be modified, amended or supplemented except in writing signed by each of the Parties. 9. Impact of Appointment to Creditors' Committee. Notwithstanding anything herein to the contrary, in the event that any Consenting Securityholder is appointed to and serves on a committee of creditors in the Company's chapter 11 cases, the terms of this Agreement shall not be construed so as to limit such Consenting 6 Securityholder's exercise in its sole discretion of its fiduciary duties to any person arising from its serving on that committee of creditors, and any such exercise in the sole discretion of such Consenting Securityholder of such fiduciary duties arising from its serving on that committee of creditors shall not be deemed to constitute a breach of the terms of this Agreement (but the fact of such service on such committee shall not otherwise affect the continuing validity or enforceability of this Agreement). The foregoing shall not modify or limit the obligations of Consenting Securityholders to vote their individual holdings of Securities and take the other actions required under this Agreement. 10. Governing Law; Jurisdiction; Service of Process. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to any conflicts of law provision which would require the application of the law of any other jurisdiction. By its execution and delivery of this Agreement, each of the Parties hereby irrevocably and unconditionally agrees for itself that any legal action, suit or proceeding against it with respect to any matter under or arising out of or in connection with this Agreement or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding, may be brought in any Federal or State court in the Borough of Manhattan, the City of New York, for that purpose only, and, by execution and delivery of this Agreement, each of the Parties hereby irrevocably accepts and submits itself to the nonexclusive jurisdiction of each such court, generally and unconditionally, with respect to any such action, suit or proceeding. Notwithstanding the foregoing consent to New York jurisdiction, upon the commencement of the Company's chapter 11 cases, the Parties agree that the United States Bankruptcy Court for the District of Delaware shall have exclusive jurisdiction of all matters arising out of or in connection with this Agreement, and that they shall not seek to enforce any such agreements in any other court. In the event any such action, suit or proceeding is commenced, the Parties hereby agree and consent that service of process may be made, and personal jurisdiction over any Party hereto in any such action, suit or proceeding may be obtained, by service of a copy of the summons, complaint and other pleadings required to commence such action, suit or proceeding upon the Party at the address of such Party set forth in Section 18 hereof, unless another address has been designated by such Party in a notice given to the other Parties in accordance with Section 18 hereof. 11. Specific Performance. It is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach of this Agreement by any Party (other than a breach of Section 12 hereof) and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy of any such breach. 12. Fees and Expenses. If any Party brings an action against any other Party based upon a breach by the other Party of its obligations under this Agreement, the prevailing Party shall be entitled to all reasonable expenses incurred, including reasonable attorneys' fees and expenses. 7 13. Survival. Notwithstanding the sale of Relevant Securities in accordance with Section 2(c) hereof or the termination of a Consenting Securityholder's obligations hereunder in accordance with Section 3 hereof, the agreements and obligations of ITC^Deltacom in Sections 10-13 hereof shall survive such termination and shall continue in full force and effect for the benefit of the Consenting Securityholders in accordance with the terms hereof. 14. Headings. The headings of the Sections, paragraphs and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof. 15. Binding Agreement; Successors and Assigns. This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, assigns, heirs, executors, administrators and representatives. The agreements, representations and obligations of the Consenting Securityholders under this Agreement are several and not joint in all respects. 16. Prior Negotiations. This Agreement and the Term Sheet supersede all prior negotiations with respect to the subject matter hereof. 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement. 18. Notices. All demands, notices, requests, consents, and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered by courier service, messenger, or telecopy at, or on the fifth day after deposited in the mails, by certified or registered mail, postage prepaid - return receipt requested, to the following addresses, or such other addresses as may be furnished hereafter by notice in writing, to the following Parties: (a) if to ITC^Deltacom, to: 1791 O.G. Skinner Drive West Point, GA 31833 Telecopy: 706 ###-###-#### with a copy to: Latham & Watkins 885 Third Avenue, Suite 1000 8 New York, New York 10022 Attention: Martin Flics, Esq. Telecopy: (212) 751-4864 (b) if to any Consenting Senior Noteholder, to: such Consenting Senior Noteholder at the address shown for such holder on the applicable signature page hereto, to the attention of the person who has signed this Agreement on behalf of such holder with a copy to: Fried Frank Harris Shriver & Jacobson One New York Plaza New York, NY 10004 Attention: George B. South, Esq. Telecopy: (212) 859-8583 (c) if to any Consenting Subordinated Noteholder, to: such Consenting Subordinated Noteholder at the address shown for such holder on the applicable signature page hereto, to the attention of the person who has signed this Agreement on behalf of such holder. with a copy to: Fried Frank Harris Shriver & Jacobson One New York Plaza New York, NY 10004 Attention: George B. South, Esq. Telecopy: (212) 859-8583 19. Further Assurances. Each of the Parties hereto agrees to execute and deliver, or to cause to be executed and delivered, all such instruments, and to take all such action as the other Parties may 9 reasonably request in order to effectuate the intent and purposes of, and to carry out the terms of, this Agreement. [Remainder of page is blank; next page is signature page] 10 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date set forth below. Dated: June __, 2002 ITC^DELTACOM, INC. 1791 O.G. Skinner Drive West Point, GA 31833 Telecopy: 706 ###-###-#### By: __________________________________ Name: Title: 11 CONSENTING SENIOR NOTEHOLDERS: - ----------------------------- [PARTY NAME] Address: City: Telecopy: 11% Senior Notes Due 2007 By:__________________________________ Principal Amount $___________ Name: 8?% Senior Notes due 2008 Title: Principal Amount $___________ [ ] beneficial owner 9 3/4% Senior Notes Due 2008 [ ] investment advisor or manager Principal Amount $___________ 12 CONSENTING SUBORDINATED NOTEHOLDER [PARTY NAME] Address: City: Telecopy: Principal amount: $_____________ By:__________________________________ Name: Title: [ ] beneficial owner [ ] investment advisor or manager 13 Exhibit 10.1 (Continued) ----------------------- Exhibit A --------- abcd STRICTLY PRIVATE AND CONFIDENTIAL Discussion Materials ITC^DeltaCom, Inc. Term Sheet For Discussion Purposes Only 6/25/02 This Proposed Summary of Terms and Conditions (this "Term Sheet") sets forth the terms and conditions of the financial restructuring of ITC^DeltaCom, Inc. ("ITC"). This Term Sheet and the information contained herein is for discussion purposes only, is non-binding, and is provided without prejudice to any and all rights, claims, interests and defenses of the unofficial committee of noteholders of ITC (the "Committee") and shall be governed in all respects by Rule 408 of the Federal Rules of Evidence and any and all similar and applicable rules and statutory provisions governing the non-admissibility of settlement discussions. - -------------------------------------------------------------------------------- Contents - --------------------------------------------------------------------------------
abcd - -------------------------------------------------------------------------------- New Convertible Preferred Investment Term Sheet - -------------------------------------------------------------------------------- SECTION 1 - -------------------------------------------------------------------------------- Proposed Term Sheet--New Convertible Preferred Term Sheet
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================================================================================ 3 Proposed Term Sheet -- Warrants For Discussion Purposes Only - ----------------------------------------------------------------------------------------------------------------------------------
4 Transaction Overview - -------------------------------------------------------------------------------- SECTION 2 - -------------------------------------------------------------------------------- 5 Transaction Overview Reorganization Plan (For Discussion Purposes Only)
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================================================================================ 9 Transaction Overview (Chapter 11 Plan)
10 Pro Forma Capitalization and Recovery Analysis - -------------------------------------------------------------------------------- SECTION 3 ================================================================================ 11 Pro Forma Capitalization -- US$30 Million Investment
12 Recovery Analysis - US$30 Million Investment - --------------------------------------------------------------------------------
13 Exhibit 10.1 (Continued) ------------------------ FORM OF ------- EXECUTIVE EMPLOYMENT AND RETENTION AGREEMENT -------------------------------------------- THIS EXECUTIVE EMPLOYMENT AND RETENTION AGREEMENT (this "Agreement") is dated as of __, 2002 [date of court order approving Agreement], by and between ITC/\DeltaCom, Inc., a Delaware corporation with its principal place of business at 1791 O.G. Skinner Drive, West Point, Georgia, 31833 (the "Company"), and __________________________________ (the "Executive"), with a residence at ___________________________________________________. Recitals A. The Executive is currently employed as [title] of the Company. B. The Company intends to file a petition with the United States District Court for the District of Delaware (the "Bankruptcy Court") on June __, 2002 (the "Filing Date") for reorganization under Chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). C. The Board of Directors of the Company (the "Board") has determined that it is in the best interests of the Company and its stockholders to assure that the Company will benefit from the continued services of the Executive during the pendency of the proceedings under the Bankruptcy Code to which the Company will be subject (the "Reorganization Proceedings") and following the Bankruptcy Court's confirmation of a plan of reorganization (the "Plan of Reorganization") with respect to the Company. D. The Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by the Reorganization Proceedings and to encourage the Executive's full attention and dedication to the Company during the Reorganization Proceedings and following confirmation of the Plan of Reorganization, and to provide the Executive with compensation and benefits arrangements which ensure that the compensation and benefits expectations of the Executive will be satisfied and which are competitive with those of other corporations. E. In order to accomplish the foregoing objectives, the Board has caused the Company to enter into this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto agree as follows: 1. Employment Period. The Company hereby agrees to continue ----------------- the Executive in its employ, and the Executive hereby agrees to remain in the employ of the Company subject to the terms and conditions of this Agreement, commencing on the date of this Agreement (the "Effective Date") and ending on the third anniversary of the Effective Date, unless sooner terminated in -------------- accordance with the provisions of Section 4. The three-year period described in the immediately preceding sentence shall hereinafter be referred to as the "Initial Term." On the first anniversary of the Effective Date, and on each ------------ subsequent anniversary of the Effective Date (each anniversary of the Effective Date, a "Renewal Date"), the term of this Agreement shall automatically be ------------ extended for successive one-year periods (each such one-year period, an "Extension Period") unless either the Company or the Executive provides written ---------------- notice to the other party not later than 60 days before the applicable Renewal Date of the notifying party's intention to terminate this Agreement at the end of the Initial Term or the current Extension Period, as the case may be. The Initial Term and any applicable Extension Periods are hereinafter referred to collectively as the "Employment Period." ----------------- 2. Position and Duties. ------------------- 2.1 Position. During the Employment Period, (i) the -------- Executive's position (including status, offices, titles and reporting requirements), authority, duties and responsibilities shall be at least commensurate in all material respects with the most significant of those held, exercised and assigned at any time during the period commencing on January 1, 2002 and ending on the date immediately preceding the Filing Date (the "Pre-Filing Period") and (ii) the Executive's services shall be performed at the location where the Executive was employed immediately preceding the Filing Date or any office or location less than 35 miles from such location. 2.2 Duties. During the Employment Period, and excluding any ------ periods of vacation and sick leave to which the Executive is entitled, the Executive agrees to devote all attention and time during normal business hours to the business and affairs of the Company necessary and appropriate to discharge the responsibilities assigned to the Executive hereunder and, to the extent necessary and appropriate to discharge such responsibilities, to use the Executive's reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period, it shall not be a violation of this Agreement for the Executive to (i) serve on corporate, civic or charitable boards or committees, (ii) deliver lectures, fulfill speaking engagements or teach at educational institutions and 2 (iii) manage personal investments, so long as such activities do not interfere with the performance of the Executive's responsibilities as an employee of the Company in accordance with this Agreement. To the extent that any such activities have been conducted by the Executive and disclosed to the Board prior to the date of this Agreement, the continued conduct of such activities, or the conduct of activities similar in nature and scope thereto, thereafter shall not be deemed to interfere with the performance of the Executive's responsibilities to the Company. 3. Compensation. ------------ 3.1 Base Salary. During the Employment Period, the Company ----------- shall pay the Executive a minimum base salary per annum equal to the Executive's annual base salary in effect for fiscal 2002 immediately before the Filing Date (the "Base Salary"), which shall be payable in accordance with the Company's ----------- payroll procedure in effect or as hereinafter amended from time to time, but not less frequently than monthly. During the Employment Period, the Base Salary shall be reviewed at least annually and, except as expressly provided in Section 4.5, shall not be decreased. Any increase in the Base Salary shall not serve to limit or reduce any other obligation to the Executive under this Agreement. The Base Salary shall not be reduced after any such increase, and the term "Base Salary" as used in this Agreement shall refer to the Base Salary as so increased. 3.2 Annual Bonus. In addition to the Base Salary, the ------------ Executive shall be provided, for each fiscal year ending during the Employment Period, a bonus opportunity in cash and stock-based incentives at least equal to the Executive's maximum bonus opportunity in effect for fiscal 2002 immediately before the Filing Date (the "Annual Bonus"). Unless the Executive shall elect to ------------ defer the receipt of such Annual Bonus, each such Annual Bonus shall be paid no later than the end of the third month of the fiscal year next following the fiscal year for which the Annual Bonus is awarded, or on such other basis as the Company and the Executive may agree. 3.3 Benefits. -------- (a) Savings and Retirement Plans. During the Employment Period, the Executive shall be entitled to participate in all savings and retirement plans, practices, policies and programs applicable generally to other peer executives of the Company and its subsidiaries, but in no event shall such plans, practices, policies and programs provide the Executive with savings opportunities and retirement benefit opportunities, in each case, less favorable, in the aggregate, than the most favorable of those provided by the Company and its subsidiaries for the Executive under such plans, practices, policies and programs as in effect at any time during the Pre-Filing Period or, if more favorable to the Executive, those provided 3 generally at any time after the Filing Date to other peer executives of the Company and its subsidiaries. (b) Welfare Benefit Plans. During the Employment Period, the Executive and/or the Executive's family, as the case may be, shall be eligible to participate in and shall receive all benefits under welfare benefit plans, practices, policies and programs provided by the Company and its subsidiaries (including, without limitation, medical, prescription, dental, disability, employee life, group life, accidental death and travel accident insurance plans and programs) to the extent applicable generally to other peer executives of the Company and its subsidiaries, but in no event shall such plans, practices, policies and programs provide the Executive with benefits which are less favorable, in the aggregate, than the most favorable of such plans, practices, policies and programs in effect for the Executive at any time during the Pre-Filing Period or, if more favorable to the Executive, those provided generally at any time after the Filing Date to other peer executives of the Company and its subsidiaries. (c) Expenses. During the Employment Period, the Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance with the policies, practices and procedures of the Company. (d) Fringe Benefits. During the Employment Period, the Executive shall be entitled to fringe benefits, including, without limitation, tax and financial planning services, payment of club dues, expenses of attendance by the Executive and his spouse at industry conferences, use of an automobile, and payment of related expenses, in accordance with the most favorable plans, practices, programs and policies of the Company and its subsidiaries in effect for the Executive at any time during the Pre-Filing Period or, if more favorable to the Executive, as in effect generally at any time after the Filing Date with respect to other peer executives of the Company and its subsidiaries. (e) Vacation. During the Employment Period, the Executive shall be entitled to [vacation in accordance with the Company's policy in effect from time to time] [for the Chief Executive Officer only: at least four weeks of paid vacation per calendar year]. The Executive shall have the right to accrue and carry forward unused vacation. 4. Termination of Employment. ------------------------- 4.1 Termination Upon Death or Disability. The Executive's employment shall terminate automatically upon the Executive's death during the Employment Period. If by virtue of ill health or other 4 disability, the Executive is unable during the Employment Period to perform substantially and continuously the duties assigned to him for a period in excess of six consecutive months or six non-consecutive months out of any consecutive twelve-month period ("Disability"), the Company shall have the right, on not less than 30 days notice, to terminate the employment of the Executive upon notice in writing to the Executive, provided that, within 30 days after his receipt of such notice, the Executive shall not have resumed full-time performance of the Executive's duties. 4.2 Termination by the Company for Cause. At any time during the Employment Period after the occurrence of an event constituting Cause (as defined below in this Section 4.2), the Company may terminate the Executive's employment hereunder in accordance with the procedures described below in this Section 4.2. For purposes of this Agreement, "Cause" shall mean: (i) the willful and continued failure of the Executive to perform substantially the Executive's duties with the Company or one of its subsidiaries (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to the Executive by the Board which specifically identifies the manner in which the Board believes that the Executive has not substantially performed the Executive's duties; (ii) conviction of the Executive of, or a plea by the Executive of nolo contendere to, a felony or to --------------- any criminal violation involving dishonesty, fraud or breach of trust; or (iii) willful misconduct by the Executive which is injurious to the Company or any of its subsidiaries. For purposes of this Section 4.2, no act or failure to act, on the part of the Executive, shall be considered "willful" unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive's action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than two-thirds of the entire membership of the Board (not including the Chief Executive Officer of the Company) at a meeting of the Board called and held for such purpose (after reasonable notice of such 5 purpose is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive has engaged in the conduct described in subparagraph (i) (ii) or (iii) above, and specifying the particulars thereof in detail. If the Executive is a member of the Board, the Executive shall recuse himself or herself from the deliberations and vote of the Board with respect to such matter. 4.3 Other Termination by the Company. Notwithstanding anything contained herein to the contrary (including, without limitation, the provisions of Section 1), the Company may terminate the Executive's employment for any reason, or for no reason, at any time during the Employment Period upon written notice of termination. In the event of such termination, the Company shall notify the Executive of the date of termination, which date may be at any time up to and including six months following the date of written notice of termination. The Executive shall continue to perform his duties hereunder through the date of termination determined by the Company. 4.4 Other Termination by the Executive. Notwithstanding anything contained herein to the contrary (including, without limitation, the provisions of Section 1), the Executive may terminate the Executive's employment hereunder for any reason, or for no reason, at any time during the Employment Period upon written notice given not less than 90 days prior to the date of termination of employment. 4.5 Termination for Good Reason. At any time during the Employment Period, the Executive's employment may be terminated by the Executive for, and within 60 days following the occurrence of an event that constitutes, Good Reason (as defined below in this Section 4.5). For purposes of this Agreement, "Good Reason" shall mean any of the following: (i) the assignment to the Executive of any duties inconsistent in any material respect with the Executive's position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 2, or any other action by the Company which results in a material diminution in such position, authority, duties or responsibilities; provided, however, that if the Board determines in good faith that some such material inconsistency or diminution in position, authority, duties or responsibilities of the Executive is in the best interest of the Company, the Executive agrees to negotiate in good faith with the Company the terms of any related modification of the Executive's duties or other action by the Company; 6 (ii) any failure by the Company to comply with any of the provisions of this Agreement (including, without limitation, Section 3), other than (I) an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive or (II) a failure in connection with action by the Company that reduces the then-current compensation or employee benefits of the Company's senior management generally in connection with a financial restructuring or other Company-wide plan to materially reduce the costs of operations of the Company and its subsidiaries or materially improve the financial condition of the Company and its subsidiaries; provided that the Executive's Base Salary and Annual Bonus may not be reduced by more than 10% in the aggregate during the Employment Period; or (iii) any purported termination by the Company of the Executive's employment otherwise than as expressly permitted by this Agreement. 5. Obligations of the Company Upon Termination. ------------------------------------------- 5.1 Termination Without Cause or With Good Reason. If (i) the Company shall terminate the Executive's employment other than pursuant to Section 4.1 (upon death or Disability) or Section 4.2 (for Cause) or (ii) the Executive shall terminate employment for Good Reason: (i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the date of termination the aggregate of the following amounts: (A) the sum of (1) the Executive's annual Base Salary through the date of termination to the extent not theretofore paid, (2) the product of (x) the higher of (I) the highest Annual Bonus (annualized in the case of any partial year) paid to the Executive with respect to any of the three fiscal years preceding the fiscal year in which the date of termination occurs (excluding therefrom the value of stock-based incentives) and (II) the Executive's annual target bonus opportunity in cash in effect for fiscal 2002 immediately before the Filing Date (such higher amount of (I) and (II) being referred to as the "Highest Annual Bonus"), and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the date of termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (3) are hereinafter referred to as the "Accrued Obligations"); and 7 (B) the amount equal to the product of (1) [three, for the Chief Executive Officer and President][two, for Senior Vice Presidents and (2) the sum of (x) the Executive's annual Base Salary as in effect at the date of termination and (y) the Highest Annual Bonus; (ii) [until the Executive's 65th birthday, for the Chief Executive Officer and President] [for three years after the Executive's date of termination, for Senior Vice Presidents], or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue medical, prescription, dental and life insurance benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 3.3(b) (but excluding disability benefits) if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliates and their families, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. If the participation by the Executive or the Executive's family in any such plan, program, practice or policy is not permissible or practicable, the Company shall arrange to provide the Executive or the Executive's family with substantially similar benefits, or, where the provision of such substantially similar benefits is not permissible or practicable, with a lump sum cash payment of equal value in lieu thereof. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the date of termination and to have retired on the last day of such period; (iii) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its subsidiaries (such other amounts and benefits are hereinafter referred to as the "Other Benefits"); and 8 (iv) a percentage of each "Tranche" (as defined below) of all stock options, stock appreciation rights, awards of restricted stock and restricted stock units, and other equity-based awards (each, an "Award") granted to the Executive and then outstanding under stock option, stock incentive, deferred compensation and other equity-based plans, programs, contracts or arrangements of the Company and its subsidiaries which is unvested and unexercisable shall vest and, if applicable, become exercisable, with such percentage to be determined by multiplying the number of shares of stock subject to such Tranche by a fraction, the numerator of which shall be the number of days that have elapsed since the commencement of the vesting period applicable to such Tranche and the denominator of which shall be the total number of days in the vesting period applicable to such Tranche; provided, however, that, if the numerator of such fraction is 182 or less, the numerator of such fraction shall be deemed to be zero. For purposes of this Section 5.1(iv), "Tranche" shall mean, as applicable, (i) any Award with a single-year, time-based vesting schedule or (ii) any portion of an Award with an annual time-based vesting schedule applicable to such portion. 5.2 Termination Upon Death. If the Executive's employment is terminated by reason of the Executive's death during the Employment Period, as provided in Section 4.1, this Agreement shall terminate without further obligations to the Executive's legal representatives under this Agreement, other than for payment of the Accrued Obligations and the timely payment or provision of the Other Benefits. The Accrued Obligations shall be paid to the Executive's estate or beneficiary, as applicable, in a lump sum in cash within 30 days after the date of termination. With respect to the provision of the Other Benefits, the term "Other Benefits" as used in this Section 5.2 shall include, without limitation, and the Executive's estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits provided by the Company and its subsidiaries to the estates and beneficiaries of peer executives of the Company and its subsidiaries under such plans, programs, practices and policies relating to death benefits, if any, as in effect with respect to other peer executives and their beneficiaries at any time during the Pre-Filing Period or, if more favorable to the Executive's estate and/or the Executive's beneficiaries, as in effect on the date of the Executive's death with respect to other peer executives of the Company and its subsidiaries and their beneficiaries. 9 5.3 Termination Upon Disability. If the Executive's employment is terminated by reason of the Executive's Disability during the Employment Period, as provided in Section 4.1, this Agreement shall terminate without further obligations to the Executive, other than for payment of the Accrued Obligations and the timely payment or provision of the Other Benefits. The Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days after the date of termination. With respect to the provision of Other Benefits, the term "Other Benefits" as used in this Section 5.3 shall include, and the Executive shall be entitled after the occurrence of any condition constituting a Disability to receive, disability and other benefits at least equal to the most favorable of those benefits generally provided by the Company and its subsidiaries to disabled executives and/or their families in accordance with such plans, programs, practices and policies relating to disability, if any, as in effect generally with respect to other peer executives and their families at any time during the Pre-Filing Period or, if more favorable to the Executive and/or the Executive's family, as in effect at any time thereafter generally with respect to other peer executives of the Company and its subsidiaries and their families. 5.4 Termination for Cause. If the Executive's employment shall be terminated for Cause during the Employment Period, as provided in Section 4.2, this Agreement shall terminate without further obligations to the Executive, other than the obligation to pay to the Executive (i) his Base Salary through the date of termination, (ii) the amount of any compensation previously deferred by the Executive and (iii) the Other Benefits, in each case to the extent theretofore unpaid. 5.5 Termination Other Than for Good Reason. If the Executive voluntarily terminates employment during the Employment Period (other than for Good Reason), as provided in Section 4.4, this Agreement shall terminate without further obligations to the Executive, other than the obligation to pay to the Executive (i) his Base Salary through the date of termination, (ii) the amount of any compensation previously deferred by the Executive and (iii) the Other Benefits, in each case to the extent theretofore unpaid. The foregoing amounts shall be paid to the Executive in a lump sum in cash within 30 days after the date of termination. 5.6 Other Plans, Agreements or Arrangements. --------------------------------------- The severance pay and severance benefits provided for in this Section 5 shall not duplicate, and shall be offset by, any other severance pay or severance benefits to which the Executive may be entitled under any plan, agreement or arrangement of the Company or any of its subsidiaries and, to the extent permitted by applicable law, shall be offset by any severance benefits to which the Executive may be entitled under applicable law. 10 6. Non-Exclusivity of Rights. Subject to Section 5.6, nothing in this Agreement shall prevent or limit the Executive's continuing or future participation in any plan, program, policy or practice provided by the Company or any of its subsidiaries and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its subsidiaries. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice or program of, or any contract or agreement with, the Company or any of its subsidiaries at or subsequent to the date of termination of employment shall be payable in accordance with such plan, policy, practice or program or contract or agreement, except as expressly modified by this Agreement. 7. Full Settlement. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not the Executive obtains other employment. The Company shall pay as incurred, to the fullest extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive concerning the amount of any payment pursuant to this Agreement), plus in each case interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended. 8. Execution of Release. As a condition to the Company's obligation to pay any form of severance to the Executive upon the termination of the Executive's employment with the Company, the Executive shall, at the time of such termination, execute and deliver to the Company (and shall fail to revoke within such time periods as may be established by law) a full and unconditional release in favor of the Company and its affiliates of all obligations other than those set forth in this Agreement, in form and substance reasonably satisfactory to the Company. 9. Other Provisions. ---------------- 9.1 Severability. If it is determined that any of the provisions of this Agreement are invalid or unenforceable, the remainder of the provisions of this Agreement shall not thereby be affected and shall be given full effect, without regard to the invalid portions. 11 9.2 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, sent by facsimile transmission or sent by certified, registered or express mail, postage prepaid, as follows: (i) If to the Company, to: ITC/\DeltaCom, Inc. 1791 O.G. Skinner Drive West Point, Georgia 31833 Attn: Corporate Counsel Telecopy no.: (256) 382-3936 (ii) If to the Executive, to the address of the Executive first above written and to such facsimile transmission number as the Executive shall designate in writing to the Company. Either party may by notice in accordance with this Section 9.2 to the other party designate another address or person for receipt by such person of notices and communications hereunder. Notice and communications shall be effective when actually received by the addressee. 9.3 Entire Agreement. This Agreement contains the entire agreement between the parties (including all affiliates of the Company) with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto. 9.4 Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of either party in exercising any right, power or privilege hereunder (including, without limitation, the right of the Executive to terminate employment for Good Reason) shall operate as a waiver thereof, nor shall any waiver on the part of either party of such right, power or privilege or any single or partial exercise of any such right, power or privilege preclude any other further exercise thereof or the exercise of any other such right, power or privilege. 12 9.5 Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made to be performed entirely within the State of Delaware, without giving effect to the principles of conflicts of law thereunder. 9.6 Jurisdiction. The Company and the Executive each irrevocably (i) consent and submit to the jurisdiction of any Delaware state court or federal court located in the State of Delaware with respect to any suit, action or proceeding relating to this Agreement; (ii) waive, to the fullest extent permitted by law, any objection which such party may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum; (iii) waive the right to object that any such court does not have jurisdiction over such party; (iv) consent to the service of process in any such suit, action or proceeding by the mailing of copies of such process to such party by certified mail, return receipt requested, at such party's address indicated in this Agreement or at such other address of which the other party shall have received notice; and (v) agree not to bring any action relating to this Agreement in any court other than a Delaware state court or federal court located in the State of Delaware. Nothing in this Section 9.6 shall affect the right of either party to serve process in any other manner permitted by law. 9.7 Assignment. This Agreement, and the Executive's ---------- rights and obligations hereunder, may not be assigned by the Executive other than by will or the laws of descent and distribution. 9.8 Tax Withholding. The Company may withhold from any amounts payable under this Agreement such federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation. 9.9 Binding Effect; Successors. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, heirs, executors and legal representatives. If any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company and its subsidiaries may be deemed not to have assumed this Agreement by operation of law, the Company shall require such successor to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, the term "Company" shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise. 13 9.10 Counterparts; Delivery by Facsimile. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which counterparts together shall constitute one and the same instrument. Each counterpart may consist of two copies hereof, each signed by one of the parties hereto. The transmission of an executed counterpart of this Agreement by facsimile transmission shall constitute due and sufficient delivery thereof for all purposes. 9.11 Headings. The headings in this Agreement are for -------- reference only and shall not affect the interpretation of this Agreement. IN WITNESS WHEREOF, the Executive has heretofore set the Executive's hand and, pursuant to the authorization of its Board of Directors, the Company has caused these presents to be executed in its name on its behalf, all as of the day and year first above written. ITC/\DELTACOM, INC. By --------------------------------- EXECUTIVE --------------------------------- Acknowledgement and Agreement ITC/\DeltaCom Communications, Inc., a wholly owned subsidiary of the Company, hereby acknowledges that prior to the date hereof it has made payment to the Executive of compensation and benefits in connection with the Executive's employment by the Company and hereby agrees that, to the extent not made by the Company, it shall make all payments of compensation and benefits to the Executive provided in this Agreement from and after the date hereof. ITC/\DELTACOM COMMUNICATIONS, INC. By --------------------------------- 14
