Exhibit 10
TERMINATION
AGREEMENT
This TERMINATION AGREEMENT, dated as
of February 28, 2005 (this “ Agreement ”), is
entered into by and among ITC^DeltaCom, Inc., a Delaware
corporation (“ Parent ”), Starlight Florida Co.,
a Delaware corporation and wholly owned subsidiary of Parent
(“ Merger Co. ”), NT Corporation, a Delaware
corporation (the “ Company ”), each of the
stockholders of the Company identified on the signature pages
hereto under the heading “Principal NTC Stockholders”
(each, a “ Principal NTC Stockholder ” and,
collectively, the “ Principal NTC Stockholders
”), and Network Telephone Corporation, a Delaware
corporation.
WHEREAS, Parent, Merger Co., the
Company and the Principal NTC Stockholders have entered into an
Agreement and Plan of Merger, dated as of September 8, 2004 (the
“ Merger Agreement ”);
WHEREAS, Parent, the Company and
Network Telephone Corporation have entered into a Credit Transfer
Agreement, dated as of August 24, 2004 (the “ Credit
Transfer Agreement ”);
WHEREAS, Parent, Florida Digital
Network, Inc. (“ FDN ”) and certain other
parties have entered into an Agreement and Plan of Merger, dated as
of September 8, 2004 (the “ FDN Merger Agreement
”); and
WHEREAS, Parent, Merger Co., the
Company and the Principal NTC Stockholders mutually desire to
terminate the Merger Agreement on the terms set forth
herein;
NOW, THEREFORE, in consideration of
the foregoing and the covenants and agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Definitions . Each of the
following terms is defined for purposes of this Agreement as
follows:
“
Affiliate ” has the meaning set forth in Rule 12b-2
under the Exchange Act.
“
Controlled Affiliate ” with respect to any Person
means any Affiliate of such Person that is controlled by such
Person.
“
Exchange Act ” means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
“
Person ” means a natural person, a corporation, a
limited liability company, a partnership, an association, a trust
or any other entity or organization, including a government or
political subdivision or any agency or instrumentality
thereof.
“
Principal Parent Stockholders ” means, collectively,
Welsh, Carson, Anderson & Stowe VIII, L.P., WCAS Capital
Partners III, L.P. and their respective Affiliates.
2. Payment Under Credit Transfer
Agreement .
(a) Parent,
the Company and Network Telephone Corporation hereby agree that,
notwithstanding any contrary provision of the Credit Transfer
Agreement, the amount of $1,000,000 payable thereunder by
Parent’s subsidiaries to the Company or any subsidiaries of
the Company (the “ Credit Amount ”) shall be
discharged by Parent’s subsidiaries granting to the Company
and Network Telephone Corporation $1,300,000 of service credits,
applied on a dollar-for-dollar basis, for telecommunications or
related services provided by Parent’s subsidiaries to the
Company and its subsidiaries before or after the date hereof
pursuant to, and at prices not higher than those set forth in, the
applicable service agreements in effect on the date hereof
(collectively, the “ Service Agreements ”). Of
the $1,300,000 in service credits referred to above, there shall be
deemed paid as of the date hereof the amount indicated in
Exhibit A attached hereto, which represents the total amount
owed by the Company and its subsidiaries to Parent’s
subsidiaries as of the date set forth on said exhibit for each item
for telecommunications and other services, excluding only CABS
amounts, provided by Parent’s subsidiaries pursuant to the
Service Agreements. The Service Agreements shall remain in effect
until the first anniversary of the date hereof. The making of the
payments in the form of service credits as provided above shall
constitute full discharge and satisfaction of payment of the Credit
Amount, and none of the Company, Network Telephone Corporation or
any other Person shall have any right to any other payment with
respect to the Credit Amount.
(b)
Effective as of the date of this Agreement, and without any further
action by Parent, the Company or Network Telephone Corporation, the
Credit Transfer Agreement shall terminate and have no further force
or effect.
3. Termination . Effective as
of the date of this Agreement, Parent, Merger Co., the Company and
the Principal NTC Stockholders hereby absolutely, irrevocably and
unconditionally mutually consent to terminate, and hereby
absolutely, irrevocably and unconditionally do terminate, the
Merger Agreement pursuant to Section 11.01(a) of the Merger
Agreement. As a result of such termination, the Merger Agreement
(including, without limitation, Section 11.02 thereof) is void and
of no effect.
4. Effect of Termination .
Notwithstanding anything to the contrary contained in the Merger
Agreement, none of the parties hereto nor any of their respective
subsidiaries, officers, directors, shareholders, partners,
employees, agents, representatives or Affiliates (including,
without limitation, with respect to Parent and Merger Co., the
Principal Parent Stockholders), nor any other Person, shall have
any liability or obligation under the Merger Agreement, including,
without limitation, under any clause of Section 11.02 of the Merger
Agreement or under any other provision of the Merger Agreement
which, by its terms, or otherwise, may otherwise survive or
continue in effect following the termination or expiration of the
Merger Agreement.
5. Releases . Effective as of
the date of this Agreement, each of Parent, Merger Co., the
Company, and each Principal NTC Stockholder, for itself and each of
its parents, subsidiaries, predecessors, divisions, committees,
shareholders, partners, Affiliates (including, without limitation,
with respect to Parent and Merger Co., the Principal Parent
Stockholders), successors and assigns and their respective present
and former officers, directors, shareholders, agents, employees,
representatives and Affiliates, hereby absolutely, irrevocably
and
2
unconditionally releases and forever discharges
(i) each other party hereto and (ii) each of such other
party’s parents, subsidiaries, predecessors, divisions,
committees, shareholders, partners, Affiliates (including, without
limitation, with respect to Parent and Merger Co., the Principal
Parent Stockholders), successors and assigns and their respective
present and former officers, directors, shareholders, partners,
agents, employees, representatives and Affiliates (such released
Persons referred to in clauses (i) and (ii) collectively, the
“ Released Persons ”) of and from all actions,
causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages
judgments, extents, executions, claims and demands whatsoever,
known or unknown, matured or unmatured, contingent or fixed, which
each ever had, now has or hereafter can, shall, or may have for,
upon, or by reason of any matter, cause or thing whatsoever
relating to or arising out of or in any way related to the Merger
Agreement, other than any matter, cause or thing relating to or
arising out of or related to this Agreement or the Confidentiality
Agreement, dated as of June 3, 2004, between the Company and Parent
(the “ Confidentiality Agreement ”). The
foregoing release shall not apply to any actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages judgments,
extents, executions, claims and demands whatsoever, known or
unknown, matured or unmatured, contingent or fixed, among or
between the Released Persons now or hereafter existing relating to
the provision of telecommunications and related services by or
between Parent and its subsidiaries, on the one hand, and the
Company and its subsidiaries, on the other hand.
6. Publicity and Disclosure .
Parent shall file a Current Report on Form 8-K with the Securities
and Exchange Commission, which shall describe this Agreement and
the transactions contemplated hereby substantially in the form
attached hereto as Exhibit B . Except as required by law
(including, without limitation, federal securities laws and the
rules and regulations thereunder) or, for so long as securities of
Parent are listed on the Nasdaq National Market System or SmallCap
Market System of the Nasdaq Stock Market, Inc., the Nasdaq
Marketplace Rules, or the rules and regulations of any other
principal securities exchange, interdealer quotati
