Exhibit
10.19.2
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 James P. O’Brien
(“Employee”).
RECITALS
WHEREAS, the Company and the
Employee are parties to an Employment Agreement, dated as of
February 28, 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 percent (1%) 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 transact
