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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
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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 quotation
system or other securities market on which securities of Parent are
then traded, no party shall issue any other press release or make
any other public statement or public announcement regarding this
Agreement or the transactions contemplated thereby, or the
circumstances relating to the execution hereof, without the prior
written consent, which shall not be unreasonably withheld,
conditioned or delayed, of (i) Parent, if such press release is to
be issued or such public statement or public announcement is to be
made by the Company or any Principal NTC Stockholder or (ii) by the
Company, if such press release is to be issued or such public
statement or public announcement is to be made by Parent or Merger
Co.
7. Confidentiality
Agreement . The Company and Parent hereby acknowledge and agree
that the Confidentiality Agreement shall remain unaltered and
continue in full force and effect in accordance with its terms
notwithstanding the execution and delivery of this Agreement or the
termination of the Merger Agreement.
8. Representations of the
Parties . Each party hereto represents and warrants to each
other party that it has all the requisite power and authority to
execute, deliver and perform its obligations under this Agreement;
that it has taken all necessary actions to authorize such
execution, delivery and performance; that such execution, delivery
and
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performance does not violate or conflict
with any law applicable to such party, with any provision of any
organizational document of such party, or any order, judgment or
decree of any court or other agency or governmental instrumentality
applicable to such party; and that this Agreement constitutes the
legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms, except as such
enforcement is limited by bankruptcy, insolvency and other similar
laws affecting
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