- Current report filing (8-K)
October 01 2010 - 3:05PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of
earliest event reported):
October 1, 2010 (October 1,
2010)
EARTHLINK, INC.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
(State of Incorporation)
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001-15605
(Commission File Number)
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58-2511877
(I.R.S. Employer
Identification No.)
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1375 Peachtree St., Atlanta, Georgia 30309
(Address
of principal executive offices) (Zip Code)
(404) 815-0770
(Registrants telephone
number, including area code)
(Former
name, former address and former fiscal year, if changed since last report date)
Check the appropriate box below if
the Form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following provisions:
o
Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
o
Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 1.01 Entry
into a Material Definitive Agreement
On October 1, 2010, EarthLink, Inc.,
a Delaware corporation (EarthLink),
entered into a definitive Agreement and Plan of Merger (the Merger Agreement)
with Egypt Merger Corp., a Delaware corporation and wholly-owned subsidiary of
EarthLink, and ITC^DeltaCom, Inc., a Delaware corporation (ITC^DeltaCom),
to acquire ITC^DeltaCom in an all-cash transaction for $3.00 per share.
The Merger Agreement provides for
EarthLinks acquisition of ITC^DeltaCom by means of a merger (the Merger) of
Egypt Merger Corp. with and into ITC^DeltaCom, with ITC^DeltaCom surviving as a
wholly-owned subsidiary of EarthLink.
The Merger Agreement contains customary representations, warranties,
covenants and conditions.
ITC^DeltaCom has outstanding $325
million aggregate principal amount of 10.5% senior secured notes due 2016 (the Notes). Under the related indenture, following the
consummation of the Merger, ITC^DeltaCom will be required to offer to
repurchase any or all of the Notes at 101% of their principal amount. To the extent the Notes are not repurchased
or repaid, the Notes would remain outstanding as obligations of ITC^DeltaCom
and its subsidiaries following the Merger.
The Merger, which the boards of
directors of both companies have unanimously approved, will be completed upon
the satisfaction of several closing conditions, including receipt of required
regulatory approvals from the U.S. Federal Communications Commission and
certain public utilities commissions and expiration or termination of the
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976. Each partys obligation to
consummate the Merger is subject to certain other conditions, including, among
others, the accuracy of the other partys representations and warranties and
the other partys compliance, in all material respects, with its covenants and
agreements contained in the Merger Agreement.
In addition, EarthLinks obligation to consummate the Merger is also
conditioned on the absence of a material adverse effect related to
ITC^DeltaCom. Subject to the fulfillment
of these closing conditions, the transaction is expected to close in the fourth
quarter of 2010 or the first quarter of 2011.
The Merger Agreement contains
certain termination rights for EarthLink.
Upon termination of the Merger Agreement, under specified circumstances, ITC^DeltaCom
may be required to pay EarthLink a termination fee equal to $8.25 million and reimbursement of
EarthLinks expenses up to $2.5 million.
EarthLink also entered into a
Written Consent and Voting Agreement, dated October 1, 2010 (the Written
Consent and Voting Agreement), with certain affiliates of Welsh, Carson,
Anderson & Stowe and Tennenbaum Capital Partners, LLC (collectively,
the Principal Stockholders), who in the aggregate own approximately 62% of
ITC^DeltaComs outstanding shares of common stock. Pursuant to the Written Consent and Voting
Agreement, the Principal Stockholders executed and delivered an irrevocable
written consent (subject to certain conditions) adopting the Merger Agreement
shortly after the Merger Agreement was executed. As a result, no further stockholder action
will be required to adopt the Merger Agreement or approve the Merger. ITC^DeltaCom will file with the Securities
and Exchange Commission (the SEC) and mail to its stockholders, as promptly
as practicable, an information statement describing the Merger Agreement and
the Merger.
Notwithstanding the foregoing, ITC^DeltaCom
may, subject to the terms and conditions set forth in the Merger Agreement,
provide information to a third party that makes an unsolicited acquisition
proposal during the 15-day period after the date of the Merger Agreement and
may engage in discussions and negotiations with such third-party until the
expiration of 30 days after the date of the Merger Agreement. Under certain circumstances, including
payment of a termination fee equal to $8.25 million and reimbursement of
EarthLinks expenses up to $2.5 million, ITC^DeltaCom is permitted to
terminate the Merger Agreement to enter into a definitive agreement with a
third party. The Written Consent and Voting Agreement terminates, and the
Principal Stockholders written consent will be automatically revoked, upon the
earlier of (i) the effectiveness of the Merger, (ii) the termination
of the Merger Agreement in accordance with its terms and (iii) an
amendment or waiver of the Merger Agreement adverse to the Principal
Stockholders that is effected without their written consent.
A copy of the Merger Agreement is
attached hereto as Exhibit 2.1 and is incorporated by reference
herein. The description of the Merger
Agreement set forth in this Item 1.01 is not complete and is qualified in its
entirety by reference to the full text of the Merger Agreement set forth on Exhibit 2.1. The representations and warranties of the
parties in the Merger Agreement have been made solely for the benefit of the
other parties to the Merger Agreement, and were not intended to be and should
not be relied upon by stockholders of EarthLink or ITC^DeltaCom; should not be
treated as categorical statements of fact, but rather as a way of allocating
risk between the parties; have in some cases been qualified by disclosures that
were made to the other party in connection with the negotiation of the Merger
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Agreement, which disclosures are not
necessarily reflected in such agreement; may apply standards of materiality in
a way that is different from what may be material to investors; and were made
only as of the date of the Merger Agreement or such other date or dates as may
be specified in the Merger Agreement and are subject to more recent
developments.
The foregoing description of the
Written Consent and Voting Agreement is not complete and is qualified in its
entirety by reference to the full text of the Written Consent and Voting
Agreement, which is filed as Exhibit 10.1 hereto and is incorporated by
reference herein.
A copy of the related joint press
release issued by EarthLink and ITC^DeltaCom on October 1, 2010 is being
furnished as Exhibit 99.1 to this Current Report on Form 8-K and
incorporated herein by reference.
Additional
Information
This
communication is being made in respect of the proposed Merger involving
ITC^DeltaCom and
EarthLink. In connection with the
proposed Merger, ITC^DeltaCom will prepare the information statement for its stockholders describing
the proposed Merger. ITC^DeltaCom and EarthLink will be filing other documents
with the SEC as well. Investors are
urged to read the information statement regarding the proposed Merger and any
other relevant documents carefully in their entirety when they become available
because they will contain important information about the proposed Merger. You may obtain copies of all documents filed
with the SEC regarding this transaction, free of charge, at the SECs website,
http://www.sec.gov. You may also obtain these documents, free of charge, from
EarthLinks website, http://www.earthlink.net, under the tab About Us, then
under the tab Investor Relations and then under the tab SEC Filings. You
may also obtain these documents, free of charge, from ITC^DeltaComs website, http://www.deltacom.com, under
the heading Investors and then under the tab ITC^DeltaCom SEC Filings.
Item 9.01
Financial Statements and Exhibits
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(d)
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Exhibits
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Exhibit No.
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Description
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2.1
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Agreement and Plan of Merger, dated as of October 1,
2010, by and among EarthLink, Inc., Egypt Merger Corp. and
ITC^DeltaCom, Inc.
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10.1
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Written Consent and Voting Agreement, dated as of
October 1, 2010.
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99.1
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Joint press release issued by EarthLink, Inc. and
ITC^DeltaCom, Inc., dated as of October 1, 2010.
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SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, the Registrant has duly caused this report to
be signed on its behalf by the undersigned duly authorized.
Date: October 1, 2010
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EARTHLINK, INC.
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By:
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/s/ Bradley A. Ferguson
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Bradley A. Ferguson
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Chief Financial Officer
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EXHIBIT INDEX
Exhibit No.
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Description
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2.1
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Agreement and Plan of Merger, dated as of October 1,
2010, by and among EarthLink, Inc., Egypt Merger Corp. and
ITC^DeltaCom, Inc.
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10.1
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Written Consent and Voting Agreement, dated as of
October 1, 2010.
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99.1
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Joint press release issued by EarthLink, Inc. and
ITC^DeltaCom, Inc., dated as of October 1, 2010.
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