Exhibit
10.18.2
AMENDMENT NO. 1
TO EMPLOYMENT
AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT (this “Amendment”) is made as of the
20 th day of December 2005 by and between
ITC^DeltaCom Inc., a Delaware corporation (“Employer”
or the “Company”), and Richard E. Fish, Jr.
(“Employee”).
RECITALS
WHEREAS, the Company and the
Employee are parties to an Employment Agreement, dated as of
February 21, 2005 (the “Agreement”);
and
WHEREAS, the parties wish to amend
certain provisions of the Agreement as set forth herein;
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein, the parties
agree as follows:
1. Amendment to
Section 5 . Section 5 of the Agreement is hereby
amended by deleting existing Sections 5(a) and 5(b) in their
entirety and by substituting in lieu thereof new Sections 5(a)
and 5(b), which shall read in their entirety as follows:
(a) Restricted Stock .
Employee has played a critical role in the Company’s
restructuring of its capital structure consummated on
March 29, 2005 and July 26, 2005 (the “Debt
Restructuring”). To induce Employee to accept employment with
the Company, the Company has agreed that, promptly following
consummation of the Debt Restructuring, Employee shall receive a
grant of restricted shares (the “Restricted Shares”)
representing one and one-quarter percent (1.25%) of each class
or series of equity securities of the Company (each such class or
series, a “Class”) outstanding immediately following
the completion of the Debt Restructuring and after giving effect to
such grant and to any other similar grant (a “Parallel
Inducement Grant”) to any other officer of the Company,
calculated on a Fully Diluted Basis, as determined in good faith by
the Board or an authorized committee thereof. For purposes of this
Section 5(a), a Class of Restricted Shares shall include
common stock, each class or series of preferred stock, and each
class or series of warrants to purchase preferred stock, but only
if such class or series of warrants is in-the-money as of the date
of determination. To the extent reasonably practicable, any grant
of common stock or preferred stock shall be made in the form of
restricted stock units issued pursuant to the ITC^DeltaCom, Inc.
Executive Stock Incentive Plan and evidenced by stock unit
agreements thereunder. The Company also has agreed that, if the
Debt Restructuring is accomplished in more than one transaction,
Employee shall be entitled to receive a grant of Restricted Shares
of each new Class, if any, authorized and issued in connection
with, and outstanding immediately following the consummation of,
such subsequent transaction
promptly following such consummation
so that, immediately following such consummation and after giving
effect to such grant and any Parallel Inducement Grant, the
Restricted Shares of such new Class granted to Employee shall equal
five percent (5%) of such new Class on a Fully Diluted Basis,
as determined in good faith by the Board or an authorized committee
thereof. For purposes of this Section 5(a), “Fully
Diluted Basis” shall mean, with respect to shares of each
Class as of the date of determination, the sum of (x) the
number of shares of such Class outstanding as of such date of
determination plus (y) the number of shares of such Class
issuable as of such date of determination upon the exercise,
conversion or exchange of all then-outstanding options, stock
units, indebtedness or other rights (other than preferred stock or
warrants exercisable, convertible or exchangeable for or into such
Class that are separately granted to Employee hereunder)
exercisable for or convertible or exchangeable into, directly or
indirectly, shares of such Class, whether at the time of issuance
or upon the passage of time or upon the occurrence of vesting or
other future event, provided that such options, stock units,
indebtedness or other rights are in-the-money as of such date of
determination, but excluding the number of shares of such Class, if
any, issuable as of such date of determination in payment of
accrued and unpaid dividends on such Class. Exhibit A to
this Amendment sets forth each Class of Restricted Shares and the
number of Restricted Shares of each such Class granted to Employee
in satisfaction of the foregoing requirements of this
Section 5(a). The Company and Employee agree that if the
holders of any Class shall agree in any subsequent tran
