Exhibit 10.1


 


EXECUTION VERSION


 


WRITTEN CONSENT AND VOTING
AGREEMENT


 


WRITTEN
CONSENT AND VOTING AGREEMENT, dated as of October 1, 2010 (this “Agreement”), by and among EarthLink, Inc.,
a Delaware corporation (“Parent”),
Welsh, Carson, Anderson & Stowe VIII, L.P. and WCAS Capital Partners
III, L.P. (collectively, the “WCAS
Stockholders”),
and Special Value Absolute Return Fund, LLC, Special Value Continuation
Partners, LP, and Tennenbaum Opportunities Partners V, LP (collectively, the “TCP Stockholders” and, together with the WCAS Stockholders, each a “Stockholder” and collectively, the “Stockholders”).


 


W
I T N E S S E T H:


 


WHEREAS,
concurrently with the execution of this Agreement, Parent, ITC^DeltaCom, Inc.,
a Delaware corporation (the “Company”),
and Egypt Merger Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent (“Merger Sub”) are
entering into an Agreement and Plan of Merger, dated as of the date hereof (as
amended, supplemented, restated or otherwise modified from time to time, the “Merger Agreement”), pursuant to which,
among other things, each outstanding share of the common stock, par value $0.01
per share, of the Company (the “Company
Common Stock”) will be converted into the right to receive the
Merger Consideration specified therein.


 


WHEREAS,
as of the date hereof, each of the Stockholders is the Beneficial Owner of such
Stockholder’s Existing Shares (as defined herein).


 


WHEREAS,
as a condition and inducement to Parent entering into the Merger Agreement,
Parent has required that each Stockholder agree, and each Stockholder has
agreed, to enter into this Agreement and abide by the covenants and obligations
with respect to such Stockholder’s Covered Shares (as defined herein);


 


WHEREAS,
the Board of Directors of the Company has approved the Merger Agreement and the
transactions contemplated thereby, and has approved the execution and delivery
of this Agreement in connection therewith, understanding that the execution and
delivery of this Agreement by each of the Stockholders is a material inducement
and condition to Parent’s willingness to enter into the Merger Agreement.


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants and agreements herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:


 


ARTICLE I


 


GENERAL


 


1.1           Defined Terms.  The following capitalized terms, as used in
this Agreement, shall have the meanings set forth below. Capitalized and other
defined terms 


 

















 


used but not otherwise defined herein shall have the
meanings ascribed thereto in the Merger Agreement.


 


“Affiliate” means, with respect to any
Person, any other Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with,
such specified Person; provided that the Company shall not be deemed an
Affiliate of any Stockholder; and provided, further, that “portfolio
companies” (as such term is customarily used among private equity investors) of
a Stockholder shall not be deemed an Affiliate of such Stockholder.


 


“Beneficial Ownership” has the meaning
ascribed to such term in Rule 13d-3 under the Securities Exchange Act of
1934, as amended. The terms “Beneficially
Own”, “Beneficially Owned”
and “Beneficial Owner”
shall each have a correlative meaning.


 


“control” (including the terms “controlled by” and “under common control with”), with
respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee or executor, by contract or any
other means.


 


“Covered Shares” of a Stockholder (and
each Stockholder’s “Covered Shares”)
means the specified Stockholder’s Existing Shares, together with any shares of
Company Common Stock or other voting capital stock of the Company and any
shares of the Company Common Stock or other stock of the Company issuable upon
the conversion, exercise or exchange of securities that are as of the relevant
date securities convertible into or exercisable or exchangeable for shares of
Company Common Stock or other voting capital stock of the Company, in each case
that such specified Stockholder has or acquires Beneficial Ownership of on or
after the date hereof.


 


“Encumbrance” means any security
interest, pledge, mortgage, lien (statutory or other), charge, option to
purchase, lease or other right to acquire any interest or any claim,
restriction, covenant, title defect, hypothecation, assignment, deposit
arrangement or other encumbrance of any kind or any preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention agreement).
The term “Encumber” shall
have a correlative meaning.


 


“Existing Shares” of a Stockholder (and
a Stockholder’s “Existing Shares”)  means the shares of Company Common Stock that are
Beneficially Owned by the specified Stockholder as of the date hereof, as set
forth opposite such Stockholder’s name on Schedule 1 hereto.


 


“Expiration Date” shall mean the date
that the Merger Agreement shall terminate in accordance with its terms.


 


“Governance Agreement” means the
Amended and Restated Governance Agreement, dated as of July 26, 2005,
among the Company and the securityholders of the Company party thereto.


 


2

















 


“Permitted Transfer” means a Transfer of
Covered Shares by a Stockholder to an Affiliate of such Stockholder, provided
that, (i) such Affiliate shall remain an Affiliate of such Stockholder at
all times following such Transfer, (ii) prior to the effectiveness of such
Transfer, such transferee executes and delivers to Parent a written agreement,
in form and substance reasonably acceptable to Parent, to assume all of such
Stockholder’s obligations hereunder in respect of the securities subject to
such Transfer and to be bound by the terms of this Agreement, with respect to
the securities subject to such Transfer, to the same extent as such Stockholder
is bound hereunder and to make each of the representations and warranties
hereunder in respect of the securities transferred as such Stockholder shall
have made hereunder.


 


“Person” means any individual,
corporation, limited liability company, limited or general partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity,
or any group comprised of two or more of the foregoing.


 


“Representatives” means the officers,
directors, employees, agents, advisors and Affiliates of a Person.


 


“Subsidiary” means, with respect to any
Person, any corporation or other entity, whether incorporated or
unincorporated, (i) of which such Person or any other Subsidiary of such
Person is a general partner, or (ii) at least a majority of the securities
or other interests of which having by their terms ordinary voting power to
elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other entity is directly or
indirectly owned or controlled by such Person or by any one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries; provided
that the Company shall in no event be deemed a Subsidiary of a Stockholder.


 


“Transfer” means, directly or
indirectly, to sell, transfer, assign, pledge, Encumber, hypothecate or
similarly dispose of (by merger (including by conversion into securities or
other consideration, but excluding the Merger), by tendering into any tender or
exchange offer, by operation of law or otherwise), or to enter into any
contract, option or other arrangement or understanding with respect to the
voting of or sale, transfer, assignment, pledge, Encumbrance, hypothecation or
similar disposition of (by merger, by tendering into any tender or exchange
offer, by testamentary disposition, by operation of law or otherwise).


 


ARTICLE II


 


VOTING


 


2.1           Agreement to Vote.


 


(a)           Each Stockholder hereby
agrees that, immediately following the execution and delivery of this Agreement
and the Merger Agreement, such Stockholder will execute and deliver to the
Company a written consent in the form of Exhibit A hereto (a “Written Consent”).  The Written Consent shall be coupled with an
interest and shall be irrevocable, except as provided in Section 5.1,
below.


 


3

















 


(b)           Each Stockholder hereby
agrees that from and after the date hereof until the Expiration Date, at any
meeting of the stockholders of the Company, however called, including any
adjournment or postponement thereof, and in connection with any action proposed
to be taken by written consent of the stockholders of the Company, such
Stockholder shall, in each case to the fullest extent that the Covered Shares
of such Stockholder are entitled to vote thereon or consent thereto:


 


(i)            appear at each such meeting
or otherwise cause the Covered Shares to be counted as present thereat for
purposes of calculating a quorum; and


 


(ii)           vote (or cause to be voted),
in person or by proxy, or deliver (or cause to be delivered) a written consent
(if then permitted under the Company Certificate) covering, all of such Covered
Shares (a) in favor of the adoption and approval of the Merger Agreement
and approval of the Merger and other transactions contemplated by the Merger
Agreement and any action reasonably requested by the Parent in furtherance of
the foregoing, including, without limiting any of the foregoing obligations, in
favor of any proposal to adjourn or postpone any meeting of the Company
Stockholders at which any of the foregoing matters are submitted for
consideration and vote of the Company Stockholders to a later date if there are
not sufficient votes for approval of such matters on the date on which the
meeting is held to vote upon any of the foregoing matters; and (b) against
any Takeover Proposal and against any other action, agreement or transaction
involving the Company or any of its Subsidiaries that is intended, or would
reasonably be expected to, materially impede, interfere with, delay, postpone
or prevent the consummation of the Merger or the other transactions
contemplated by the Merger Agreement.


 


(c)           Each Stockholder hereby waives,
and agrees not to exercise or assert, any appraisal or similar rights
(including under Section 262 of the Delaware General Corporation Law) in
connection with the Merger.


 


(d)           The obligations of such
Stockholder specified in Section 2.1(a) and (b) shall apply
prior to the Expiration Date whether or not the Merger or any action described
above is recommended by the Board of Directors of the Company (or any committee
thereof).


 


(e)           Notwithstanding anything to
the contrary contained herein, in the event that a vote of the stockholders of
the Company is required in order to effect an amendment to the Merger Agreement
that (i) reduces the amount, changes the form or imposes any material
restrictions or additional conditions on the receipt of the consideration
payable in respect of each share of Company Common Stock in the Merger or (ii) is
otherwise adverse to the holders of Company Common Stock in such capacity (each
such amendment, an “Adverse Amendment”),
the provisions of this Agreement, including this Section 2.1, will not
apply with respect to each Stockholder’s vote of the Covered Shares with
respect to such vote to amend the Merger Agreement.


 


(f)            Nothing in this Agreement,
including this Section 2.1, shall limit or restrict any affiliate or
designee of any Stockholder who serves as a member of the 


 


4

















 


Board of Directors of the Company in acting in his
or her capacity as a director of the Company and exercising his or her
fiduciary duties and responsibilities including, without limitation, taking any
action in compliance with Section 5.4 of the Merger Agreement.


 


2.2           No Inconsistent Agreements.  Each Stockholder hereby covenants and agrees
that, except for this Agreement and the Written Consent, such Stockholder (a) has
not entered into, and shall not enter into at any time prior to the Expiration
Date, any voting agreement or voting trust with respect to the Covered Shares
of such Stockholder with respect to the matters covered by Section 2.1(b)(ii),
(b) has not granted, and shall not grant at any time prior to the
Expiration Date, a proxy (except pursuant to Section 2.3), consent or
power of attorney with respect to the Covered Shares of such Stockholder with
respect to the matters covered by Section 2.1(b)(ii), and (c) has not
taken and shall not knowingly take any action that would make any
representation or warranty of such Stockholder contained herein untrue or
incorrect in any material respect or have the effect of preventing or disabling
such Stockholder from performing any of its material obligations under this
Agreement. Such Stockholder hereby represents that all proxies or powers of
attorney given by such Stockholder prior to the execution of this Agreement in
respect of the voting of such Stockholder’s Covered Shares with respect to the
matters covered by Section 2.1(b)(ii), if any, are not irrevocable and the
Stockholder hereby revokes (and shall cause to be revoked) any and all previous
proxies or powers of attorney with respect to such Stockholder’s Covered Shares
with respect to the matters covered by Section 2.1(b)(ii).


 


2.3           Proxy.  Each Stockholder hereby irrevocably appoints
as its proxy and attorney-in-fact, Rolla P. Huff, the Chief Executive Officer
of Parent, and Samuel R. DeSimone, Jr., the General Counsel and Secretary
of Parent, and any individual who shall hereafter succeed any such persons, and
any other Person designated in writing by Parent, each of them individually,
with full power of substitution and resubstitution, to vote or execute written
consents with respect to the Covered Shares of such Stockholder in accordance
with Section 2.1(b) prior to the Expiration Date at any annual or
special meetings of stockholders of the Company (or adjournments thereof) at
which any of the matters described in Section 2.1(b) is to be
considered; provided  however, that such Stockholder’s grant of
the proxy contemplated by this Section 2.3 shall be effective if, and only
if, such Stockholder has not delivered to the Secretary of the Company, at least
two Business Days prior to the meeting at which any of the matters described in
Section 2.1(b) is to be considered, a duly executed irrevocable proxy
card directing that the Covered Shares of such Stockholder be voted in
accordance with Section 2.1(b). This proxy, if it becomes effective, is
coupled with an interest, is given as an additional inducement of Parent to
enter into the Merger Agreement and shall be irrevocable prior to the
Expiration Date, at which time any such proxy shall automatically terminate
without any further action by the parties hereto. Each Stockholder (solely in
its capacity as such) shall take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy. Parent
may terminate this proxy with respect to such Stockholder at any time at its
sole election by written notice provided to such Stockholder.


 


5

















 


ARTICLE III


 


REPRESENTATIONS AND WARRANTIES


 


3.1           Representations and
Warranties of Each Stockholder.  Each Stockholder severally, and not jointly,
with respect to itself only, hereby represents and warrants to Parent as
follows:


 


(a)           Authorization; Validity of
Agreement; Necessary Action.  To the extent the Stockholder is not an individual,
such Stockholder is a limited liability company or a limited liability
partnership duly formed or organized, validly existing and in good standing
(with respect to jurisdictions that recognize such concept) under the laws of
its jurisdiction of organization or formation. 
Such Stockholder has the requisite capacity and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and, assuming this Agreement constitutes a valid
and binding obligation of Parent, constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization or similar laws affecting the rights of
creditors generally and the availability of equitable remedies (regardless of
whether such enforceability is considered in a proceeding in equity or at law).


 


(b)           Ownership.  Each Stockholder’s Existing Shares are, and
any additional Covered Shares acquired by such Stockholder from the date hereof
through and on the Expiration Date will be, Beneficially Owned and owned of
record by such Stockholder. Such Stockholder has good and valid title to such
Stockholder’s Existing Shares, free and clear of any Encumbrances other than
pursuant to this Agreement, the Merger Agreement, under applicable federal or
state securities laws or pursuant to any written policies of the Company only
with respect to restrictions upon the trading of securities under applicable
securities laws and the Governance Agreement. As of the date hereof, such
Stockholder’s Existing Shares constitute all of the shares of Company Common
Stock Beneficially Owned or owned of record by such Stockholder. Such
Stockholder has and (except as contemplated by this Agreement) will have at all
times through the Expiration Date the sole power to control the vote and
consent as contemplated herein, sole power of disposition (except as limited by
the Governance Agreement), sole power to issue instructions with respect to the
matters set forth in Article II, and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to all of
such Stockholder’s Existing Shares and with respect to any additional Covered
Shares acquired by such Stockholder from the date hereof through the Expiration
Date.


 


(c)           No Violation.  The execution and delivery of this Agreement
by such Stockholder do not, and the performance by such Stockholder of its
obligations under this Agreement will not, (i) conflict with or violate
any Law applicable to such Stockholder or by which any of its assets or
properties is bound or any Organizational Documents of such Stockholder, or (ii) conflict
with, result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) 


 


6

















 


under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any
Encumbrance on the properties or assets of such Stockholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Stockholder is a party
or by which such Stockholder and/or any of its assets or properties is bound,
except for any of the foregoing as would not impair the ability of such
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.


 


(d)           Consents and Approvals.  The execution and delivery of this Agreement
by such Stockholder do not, and the performance by such Stockholder of its obligations
under this Agreement and the consummation by it of the transactions
contemplated hereby will not, require such Stockholder to obtain any consent,
approval, authorization or permit of, or to make any filing with or
notification to, any Governmental Authority, other than the filings of any
reports with the SEC.


 


(e)           Absence of Litigation.  As of the date hereof, there is no Action
pending or, to the knowledge of such Stockholder, threatened against or
affecting such Stockholder and/or any of its Affiliates before or by any
Governmental Authority that would reasonably be expected to impair the ability
of such Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.


 


(f)            Finder’s Fees.  No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from Parent, Merger Sub or the
Company in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of such Stockholder.


 


(g)           Reliance by Parent.  Such Stockholder understands and acknowledges
that Parent is entering into the Merger Agreement in reliance upon the
execution and delivery of this Agreement by such Stockholder and the
representations and warranties of such Stockholder contained herein.  Such Stockholder understands and acknowledges
that the Merger Agreement governs the terms of the Merger and the other
transactions contemplated thereby.


 


3.2           Representations and
Warranties of Parent. 
Parent hereby represents and warrants to each Stockholder that it has
the requisite capacity and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by Parent,
constitutes a legal, valid and binding obligation of Parent, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization or similar laws affecting the
rights of creditors generally and the availability of equitable remedies
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).


 


7

















 


ARTICLE IV


 


OTHER COVENANTS


 


4.1           Prohibition on Transfers; Other
Actions.  Until the Expiration Date,
each Stockholder agrees that it shall not (a) Transfer any of such
Stockholder’s Covered Shares, Beneficial Ownership thereof or any other
interest therein unless such Transfer is a Permitted Transfer; or (b) enter
into any agreement, arrangement or understanding with any Person with respect
to any Transfer of such Stockholder’s Covered Shares. Any Transfer in violation
of this provision shall be void ab initio.  Each Stockholder agrees that it shall not
request that the Company or its transfer agent register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of such Stockholder’s Shares and hereby consents to the entry
of stop transfer instructions by the Company of any transfer of such
Stockholder’s Subject Shares (and any other Shares that are beneficially owned
by such Stockholder), unless such transfer is made in compliance with this
Agreement.


 


4.2           Stock Dividends, etc.  In the event of a stock split, stock dividend
or distribution, or any change in the Company Common Stock by reason of any
split-up, reverse stock split, recapitalization, combination, reclassification,
reincorporation, exchange of shares or the like, the terms “Existing Shares”
and “Covered Shares” shall be deemed to refer to and include such shares as
well as all such stock dividends and distributions and any securities into
which or for which any or all of such shares may be changed or exchanged or
which are received in such transaction.


 


4.3           No Solicitation; Support of
Acquisition Proposals.


 


(a)           Except as set forth in this Section 4.3,
each Stockholder shall, and shall direct its respective Affiliates and
Representatives to, cease any discussions or negotiations with any Persons that
may be ongoing as of the date of this Agreement with respect to a Takeover
Proposal.  From the date of this
Agreement until the date the Expiration Date, except as permitted by Section 4.3(b),
each Stockholder agrees that it shall not, and shall not authorize its respective
Affiliates and Representatives to, (i) solicit, initiate or knowingly
facilitate or knowingly encourage (including by way of furnishing non-public
information or providing access to the properties, books, records or personnel
of the Company or any of its Subsidiaries) any inquiries regarding, or the
making of any proposal or offer that constitutes a Takeover Proposal, or (ii) have
any discussions (other than to state that the Stockholder is not permitted to
have discussions) or participate in any negotiations regarding a Takeover
Proposal, or execute or enter into any Contract with respect to a Takeover
Proposal or any proposal that could reasonably be expected to lead to a
Takeover Proposal, or approve or recommend a Takeover Proposal or any proposal
that could reasonably be expected to lead to a Takeover Proposal or any
Contract, letter of intent or agreement in principle with respect to a Takeover
Proposal or any proposal that could reasonably be expected to lead to a
Takeover Proposal.


 


(b)           Notwithstanding anything to
the contrary in this Agreement, at any time the Company is permitted to take
the actions set forth in Section 5.4(b) of the 


 


8

















 


Merger Agreement with respect to a Takeover
Proposal, each Stockholder and its Affiliates and Representatives shall be free
to participate in any discussions or negotiations regarding such Takeover
Proposal with the Person making such Takeover Proposal, provided that such
Stockholder has not breached this Section 4.3.


 


(c)           For the purposes of this Section 4.3,
the Company shall be deemed not to be an Affiliate or Subsidiary of any
Stockholder, and any officer, director, employee, agent or advisor of the
Company (in each case, in their capacities as such) shall be deemed not to be a
Representative of any Stockholder.


 


4.4           Notice of Acquisitions.  Each Stockholder agrees to notify Parent as
promptly as practicable (and in any event within 24 hours after receipt)
orally and in writing of the number of any additional shares of Company Common
Stock or other securities of the Company of which such Stockholder acquires
Beneficial Ownership on or after the date hereof.


 


4.5           Disclosure.  Subject to reasonable prior notice and
approval (not to be unreasonably withheld or delayed) of the Stockholders, each
Stockholder hereby authorizes the Company and Parent to publish and disclose in
any announcement or disclosure required by the SEC and in the Information
Statement the Stockholder’s identity and ownership of such Stockholder’s
Covered Shares and the nature of the Stockholder’s obligations under this
Agreement.


 


ARTICLE V


 


MISCELLANEOUS


 


5.1           Termination.  This Agreement shall automatically terminate
and the Written Consent of each of the Stockholders shall be automatically revoked,
in each case without any action on the part of any party hereto, upon the
earliest to occur of (a) the Effective Time; (b) the termination of
the Merger Agreement in accordance with its terms; and (c) the making of
any waiver, amendment or other modification of the Merger Agreement without the
written consent of the Stockholders that is an Adverse Amendment.
Notwithstanding the foregoing, the provisions of this Section 5.1 and of Section 5.2
and Sections 5.4 through 5.12 shall survive any termination of this Agreement
without regard to any temporal limitation. Subject to the last sentence of Section 5.9,
neither the provisions of this Section 5.1 nor the termination of this
Agreement shall relieve any party hereto from any liability to any other party
hereto arising out of or in connection with a breach of this Agreement by such
party incurred prior to such termination.


 


5.2           No Ownership Interest.  Nothing contained in this Agreement shall be
deemed to vest in Parent any direct or indirect ownership or incidence of
ownership of or with respect to such Stockholder’s Covered Shares. All rights
and all ownership and economic benefits of and relating to a Stockholder’s
Covered Shares shall remain vested in and belong to such Stockholder, and
nothing herein shall, or shall be construed to, grant Parent any power, sole or
shared, to direct or control the voting or disposition of any of such Covered
Shares. Without limiting the generality of the previous sentence,


 


9
















 


each Stockholder shall be entitled to receive any
cash dividend paid by the Company with respect to such Stockholder’s Covered
Shares during the term of this Agreement. Nothing in this Agreement shall be
interpreted as obligating any Stockholder to exercise or convert any warrants,
options or convertible securities or otherwise to acquire Company Common Stock.


 


5.3                                 Notices.  Any notice or other communication required or
permitted hereunder shall be shall be deemed to have been duly given and made (a)
if in writing and served by personal delivery upon the party for whom it is
intended; (b) if delivered by facsimile with receipt confirmed; or (c) if
delivered by certified mail, registered mail or courier service, return receipt
received to the party at the address set forth below, to the Persons indicated:


 


If
to Parent, to:


 


EarthLink,
Inc.


1375
Peachtree Street


Atlanta,
Georgia 30309


Attn:
General Counsel


Fax:
(404) 892-7616


 


with
a copy (which shall not constitute notice) to:


 


King
& Spalding LLP


1180
Peachtree Street, N.E.


Atlanta,
GA 30309


Attention:  John D. Capers, Jr. and Michael J. Egan


Facsimile:  (404) 572-5100


 


If
to Welsh, Carson, Anderson & Stowe VIII, L.P. or WCAS Capital Partners III,
L.P., to:


 


c/o
Welsh, Carson, Anderson & Stowe VIII, L.P.


320
Park Avenue, Suite 2500


New
York, NY 10022


	
  Attention:

  	
  Jonathan
  Rather

  
	
  Facsimile:

  	
  (212)
  893-9582

  



 


with
a copy (which shall not constitute notice) to:


 


Kirkland
& Ellis LLP


601
Lexington Avenue


New
York, NY  10022


Attention:  Michael Movsovich


Facsimile:
 (212) 446-6460


 


10

















 


If
to Special Value Absolute Return Fund, LLC, Special Value Continuation
Partners, LP or Tennenbaum Opportunities Partners V, LP, to:


 


Tennenbaum
Capital Partners


2951
28th Street, Suite 1000


Santa Monica, CA 90405


	
  Attention:

  	
  Michael
  Leitner

  
	
   

  	
  Philip
  Tseng

  
	
  Facsimile:

  	
  (310)
  899-4977

  



 


with
a copy (which shall not constitute notice) to:


 


Milbank,
Tweed, Hadley & McCloy LLP


601
S. Figueroa, 30th Floor


Los
Angeles, CA 90017


Attention:  Melainie Mansfield


Facsimile:  (213) 892-4711


 


Such
addresses may be changed, from time to time, by means of a notice given in the
manner provided in this Section 5.3.


 


5.4                                 Interpretation;
Definitions.  The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa. References herein
to a specific Section shall refer to Sections of this Agreement unless
otherwise specified. Whenever the words “include,” “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without
limitation.” References herein to any gender shall include each other gender.
References herein to any Person shall include such Person’s heirs, executors,
personal representatives, administrators, successors and assigns; provided,
however, that nothing contained in this Section 5.4 is intended to authorize
any assignment or transfer not otherwise permitted by this Agreement. With
respect to the determination of any period of time, the word “from” means “from
and including” and the words “to” and “until” each means “to but excluding.”
The headings contained in this Agreement are intended solely for convenience
and shall not affect the rights of the parties to this Agreement. If the last
day for the giving of any notice or the performance of any act required or
permitted under this Agreement is a day that is not a Business Day, then the
time for the giving of such notice or the performance of such action shall be
extended to the next succeeding Business Day. References herein to any Law
shall be deemed to refer to such Law as amended, modified, codified, reenacted,
supplemented or superseded in whole or in part and in effect from time to time,
and also to all rules and regulations promulgated thereunder. References herein
to any Contract mean such Contract as amended, supplemented or modified
(including any waiver thereto) in accordance with the terms thereof. The
parties have participated jointly in negotiating and drafting this
Agreement.  If an ambiguity or a question
of intent or interpretation arises, this Agreement shall be construed as if
drafted 


 


11

















 


jointly by the parties, and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.


 


5.5                                 Counterparts.  This Agreement may be executed in any number
of counterparts, as if the signature(s) to each counterpart were upon a single
instrument, and all such counterparts together shall together constitute the
same agreement.  Facsimile signatures or
signatures received as a .pdf attachment to electronic mail shall be treated as
original signatures for all purposes of this Agreement. This Agreement shall
become effective when, and only when, each party shall have received a
counterpart signed by all of the other parties.


 


5.6                                 Entire
Agreement.  This
Agreement and, to the extent referenced herein, the Merger Agreement, together
with the several agreements and other documents and instruments referred to
herein or therein or attached hereto or thereto, contain all of the terms,
conditions and representations and warranties agreed to by the parties relating
to the subject matter of this Agreement and supersede all prior or
contemporaneous agreements, negotiations, correspondence, undertakings, understandings,
representations and warranties, both written and oral, among the parties to
this Agreement with respect to the subject matter of this Agreement.  No representation, warranty, inducement,
promise, understanding or condition not set forth in this Agreement has been
made or relied upon by any of the parties to this Agreement.


 


5.7                                 Governing Law;
Consent to Jurisdiction; Waiver of Jury Trial.


 


(a)                                  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE, WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES THEREOF.


 


(b)                                 Exclusive
Jurisdiction.  Each party
to this Agreement (i) irrevocably and unconditionally submits to the personal
jurisdiction of the federal courts of the United States of America located in
the State of Delaware and the state courts of the State of Delaware, (ii) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (iii) agrees that any actions
or proceedings arising in connection with this Agreement or the transactions
contemplated by this Agreement shall be brought, tried and determined only in
the Court of Chancery of the State of Delaware (or, only if said Court of
Chancery declines to accept jurisdiction over a particular matter, any state or
federal court within the State of Delaware), (iv) waives any claim of improper
venue or any claim that those courts are an inconvenient forum and (v) agrees
that it will not bring any action relating to this Agreement or the
transactions contemplated hereunder in any court other than as specified in
clause (iii) of this Section 5.7.  The
parties to this Agreement agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
5.3 or in such other manner as may be permitted by applicable Law, shall be
valid and sufficient service thereof.


 


(c)                                  Waiver of Jury
Trial.  EACH PARTY ACKNOWLEDGES AND
AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS 


 


12

















 


AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LEGAL ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY TO THIS AGREEMENT CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED
AND UNDERSTANDS THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS
WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 5.7.


 


5.8                                 Amendment;
Waiver.  This Agreement may not be
amended except by an instrument in writing signed by Parent and each Stockholder.
Each party may waive any right of such party hereunder by an instrument in
writing signed by such party and delivered to the other parties.


 


5.9                                 Remedies.


 


The
parties to this Agreement agree that irreparable damage would occur if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. 
It is accordingly agreed that the parties to this Agreement shall be
entitled to an injunction or injunctions to prevent breaches or threatened
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the Court of Chancery of the State of Delaware or other
court as specified in Section 5.7, this being in addition to any other remedy
at law or in equity.  Notwithstanding
anything in this agreement to the contrary, in no event shall (i) any of the
WCAS Stockholders be liable for a breach of this Agreement by any of the TCP
Stockholders and (ii) any of the TCP Stockholders be liable for a breach of
this Agreement by any of the WCAS Stockholders.


 


5.10                           Severability.  The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions of this
Agreement.  If any provision of this
Agreement, or the application of that provision to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted for that provision in order to carry out, so far
as may be valid and enforceable, the intent and purpose of the invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of that provision to other Persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of that provision, or
the application of that provision, in any other jurisdiction.  Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a reasonably acceptable manner
so that the transactions 


 


13

















 


contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.


 


5.11                           Successors and
Assigns; Third Party Beneficiaries.  This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their permitted successors
and assigns.  Except in connection with a
Permitted Transfer, no party to this Agreement may assign or delegate, by
operation of law or otherwise, all or any portion of its rights or obligations
under this Agreement without the prior written consent of the other parties to
this Agreement, which any such party may withhold in its absolute
discretion.  Any purported assignment
without such prior written consents shall be void. The Company shall be an
express third party beneficiary of the first sentence of Section 2.1(a) of this
Agreement.  This Agreement is not
intended to and does not confer upon any Person other than the parties hereto
and, solely with respect to the first sentence of Section 2.1(a), the Company,
any rights or remedies under this Agreement.


 


5.12                           Action by
Stockholder Capacity Only. 
Parent acknowledges that each Stockholder has entered into this
Agreement solely in its capacity as the record and/or beneficial owner of such
Stockholder’s Covered Shares (and not in any other capacity, including without
limitation, any capacity as a director or officer of the Company). Nothing
herein shall limit or affect any actions taken by such Stockholder or its
Affiliate or designee, or require such Stockholder or its Affiliate or designee
to take any action, in each case, in its or his capacity as a director or
officer of the Company, and any actions taken, or failure to take any actions,
by it or him in such capacity as a director or officer of the Company shall not
be deemed to constitute a breach of this Agreement.


 


[Remainder of this page intentionally
left blank]


 


14

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
(where applicable, by their respective officers or other authorized Person
thereunto duly authorized) as of the date first written above.


 


 


	
   

  	
  WELSH,
  CARSON, ANDERSON &

  
	
   

  	
   

  	
  STOWE
  VIII, L.P.

  
	
   

  	
  By:

  	
  WCAS
  VIII Associates LLC

  
	
   

  	
  Its:

  	
  General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Rather

  
	
   

  	
   

  	
  Name:  Jonathan Rather

  
	
   

  	
   

  	
  Title:  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WCAS
  CAPITAL PARTNERS III, L.P.

  
	
   

  	
  By:

  	
  WCAS
  CP III Associates L.L.C.

  
	
   

  	
  Its:

  	
  General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Rather

  
	
   

  	
   

  	
  Name:
   Jonathan Rather

  
	
   

  	
   

  	
  Title:
   Managing Member

  



 


 


[Signatures continued on next page]


 


 


[Signature Page to the
Written Consent and Voting Agreement]


 

















 


	
   

  	
  SPECIAL
  VALUE ABSOLUTE RETURN

  
	
   

  	
   

  	
  FUND,
  LLC

  
	
   

  	
  By:

  	
  Tennenbaum
  Capital Partners, LLC

  
	
   

  	
  Its:

  	
  Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Leitner

  
	
   

  	
   

  	
  Name:
   Michael Leitner

  
	
   

  	
   

  	
  Title:
   Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL
  VALUE CONTINUTATION 

  
	
   

  	
   

  	
  PARTNERS,
  LP

  
	
   

  	
  By:

  	
  Tennenbaum
  Capital Partners, LLC

  
	
   

  	
  Its:

  	
  Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Leitner

  
	
   

  	
   

  	
  Name:  Michael Leitner

  
	
   

  	
   

  	
  Title:
   Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENNENBAUM
  OPPORTUNITIES 

  
	
   

  	
   

  	
  PARTNERS
  V, LP

  
	
   

  	
  By:

  	
  Tennenbaum
  Capital Partners, LLC

  
	
   

  	
  Its:

  	
  Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Leitner

  
	
   

  	
   

  	
  Name:
   Michael Leitner

  
	
   

  	
   

  	
  Title:
   Managing Partner

  



 


 


[Signatures continued on next page]


 


 


[Signature Page to the
Written Consent and Voting Agreement]


 

















 


	
   

  	
  EARTHLINK,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Rolla P. Huff

  
	
   

  	
   

  	
  Name:  Rolla P. Huff

  
	
   

  	
   

  	
  Title:  Chief Executive Officer

  



 


 


[Signature Page to the
Written Consent and Voting Agreement]


 
















 


SCHEDULE 1


 


OWNERSHIP OF EXISTING SHARES


 


	
  Beneficial
  Owner

  	
   

  	
  Class

  	
   

  	
  Existing Shares

  
	
  Welsh,
  Carson, Anderson & Stowe VIII, L.P.

  	
   

  	
  Common
  Stock

  	
   

  	
  35,203,323

  
	
  WCAS
  Capital Partners III, L.P.

  	
   

  	
  Common
  Stock

  	
   

  	
  4,127,611

  
	
  Special
  Value Absolute Return Fund, LLC

  	
   

  	
  Common
  Stock

  	
   

  	
  623,647

  
	
  Special
  Value Continuation Partners, LP

  	
   

  	
  Common
  Stock

  	
   

  	
  10,890,069

  
	
  Tennenbaum
  Opportunities Partners V, LP

  	
   

  	
  Common
  Stock

  	
   

  	
  1,120,569

  



 

















 


EXHIBIT A


 


WRITTEN CONSENT OF STOCKHOLDERS


OF


ITC^DELTACOM, INC.


 


The undersigned, being stockholders of ITC^DeltaCom, Inc., a Delaware
corporation (the “Company”), acting pursuant to Section 228 of the
Delaware General Corporation Law (“DGCL”), hereby adopt the following
recitals and resolution by written consent in lieu of a meeting:


 


WHEREAS, there has been submitted to the undersigned
stockholders of the Company an Agreement and Plan of Merger (the “Merger
Agreement”) by and among EarthLink, Inc., a Delaware corporation, Egypt
Merger Corp., a Delaware corporation, and the Company, which Merger Agreement
provides for the merger of Merger Sub with and into the Company, with the
Company as the surviving corporation after such merger (the “Merger”);


 


WHEREAS, pursuant to the terms and conditions of the Merger
Agreement, the stockholders of the Company (the “Stockholders”) will be
entitled to receive the Merger Consideration (as defined in the Merger
Agreement) for each share of common stock of the Company held by them at the
effective time of the Merger;


 


WHEREAS, the board of directors of the Company has approved
the Merger Agreement and the Merger and has resolved to recommend that the
Stockholders adopt the Merger Agreement; and


 


WHEREAS, the affirmative vote in favor of the adoption of
the Merger Agreement by a majority of the votes entitled to be cast thereon by
the stockholders of the Company is required pursuant to Section 251 of the
DGCL.


 


NOW, THEREFORE, BE IT RESOLVED, that the undersigned
stockholders, in their capacity as stockholders of the Company, hereby adopt
the Merger Agreement and approve the transactions contemplated by the Merger
Agreement, including, without limitation, the Merger; and


 


FURTHER RESOLVED, that the Merger Agreement and the Merger
be, and hereby are, consented to, approved and adopted in all respects without
a meeting, without prior notice and without a vote; and


 


FURTHER RESOLVED, that this written consent may be signed in
one or more counterparts, each of which shall be deemed an original, and all of
which shall constitute one instrument and that this written consent shall be
filed with the minutes of the proceedings of the stockholders of the Company.


 


19

















 


This written consent is coupled with an interest and is irrevocable,
except to the extent provided in Section 5.1 of the Written Consent and Voting
Agreement entered into on October 1, 2010 by and among Parent and the
Stockholders.


 


*  
*   *   *   *


 


20

















 


IN WITNESS WHEREOF, each of the undersigned
has executed this written consent on the date set forth below.


 


 


	
   

  	
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
  WELSH,
  CARSON, ANDERSON & 

  
	
   

  	
   

  	
  STOWE
  VIII, L.P.

  
	
   

  	
  By:

  	
  WCAS
  VIII Associates LLC

  
	
   

  	
  Its:

  	
  General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Rather

  
	
   

  	
   

  	
  Name:
   Jonathan Rather

  
	
   

  	
   

  	
  Title:
   Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  DATED:
  October 1, 2010

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WCAS
  CAPITAL PARTNERS III, L.P.

  
	
   

  	
  By:

  	
  WCAS
  CP III Associates L.L.C.

  
	
   

  	
  Its:

  	
  General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Rather

  
	
   

  	
   

  	
  Name:
   Jonathan Rather

  
	
   

  	
   

  	
  Title:  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  DATED:
  October 1, 2010

  



 


 


[Signatures continue on next
page]


 


 


[Signature page to written
consent of the stockholders]


 

















 


	
   

  	
  SPECIAL
  VALUE ABSOLUTE RETURN 

  
	
   

  	
   

  	
  FUND,
  LLC

  
	
   

  	
  By:

  	
  Tennenbaum
  Capital Partners, LLC

  
	
   

  	
  Its:

  	
  Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Leitner

  
	
   

  	
   

  	
  Name:
   Michael Leitner

  
	
   

  	
   

  	
  Title:
   Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  DATED:
  October 1, 2010

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPECIAL
  VALUE CONTINUTATION 

  
	
   

  	
   

  	
  PARTNERS,
  LP

  
	
   

  	
  By:

  	
  Tennenbaum
  Capital Partners, LLC

  
	
   

  	
  Its:

  	
  Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Leitner

  
	
   

  	
   

  	
  Name:
   Michael Leitner

  
	
   

  	
   

  	
  Title:
   Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  DATED:
  October 1, 2010

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENNENBAUM
  OPPORTUNITIES 

  
	
   

  	
   

  	
  PARTNERS
  V, LP

  
	
   

  	
  By:

  	
  Tennenbaum
  Capital Partners, LLC

  
	
   

  	
  Its:

  	
  Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Leitner

  
	
   

  	
   

  	
  Name:
   Michael Leitner

  
	
   

  	
   

  	
  Title:
   Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  DATED:
  October 1, 2010

  



 


 


[Signature page to written
consent of the stockholders]