EXHIBIT 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
March 19, 2007 (this “ Agreement ”),
by and among Integra Telecom Holdings, Inc., an Oregon corporation
(“ Parent ”), Eschelon Telecom, Inc., a
Delaware corporation, and the stockholders of the Company
identified on the signature pages hereto (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, ITH Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of Parent
(“ Merger Sub ”), and the Company 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, Merger Sub will
merge with and into the Company (the “ Merger
”) and each outstanding share of the common stock, par value
$0.01 per share, of the Company (the “ Common
Stock ”) will be converted into the right to receive
the merger consideration specified therein.
WHEREAS, as of the date hereof, the
Stockholders are the record and beneficial owner, in the aggregate,
of such number of outstanding shares of Common Stock as set forth
on Exhibit A hereto, representing such percentage of the
total number of shares of Common Stock of the Company as set forth
on Exhibit A hereto, all of which such shares the
Stockholders control the right to vote.
WHEREAS, as a material inducement to
Parent entering into the Merger Agreement, Parent has required that
the Stockholders agree, and the Stockholders have agreed, to enter
into this Agreement and abide by the covenants and obligations with
respect to the Covered Shares (as hereinafter defined) set forth
herein.
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
VOTING
1.1. Agreement to Vote . Each
of the Stockholders hereby irrevocably and unconditionally agrees
that during the term of this Agreement, at the Company
stockholders’ meeting and at any other meeting of the
stockholders of the Company, however called, including any
adjournment or postponement thereof, and in connection with any
written consent of the stockholders of the Company, the
Stockholders shall, in each case to the fullest extent that such
matters are submitted for the vote or written consent of the
Stockholders and that the Common Stock set forth opposite the name
of such Stockholder on Exhibit A hereto, and any other
voting securities of the Company, whether issued before or after
the date of this Agreement, which such Stockholder purchases or
with respect to which such Stockholder otherwise acquires record or
beneficial ownership after the date of this Agreement (such shares
of Common Stock and such other voting securities of such
Stockholder, the “ Covered Shares ”) are
entitled to vote thereon or consent thereto:
(a) appear at each such meeting or
otherwise cause the Covered Shares as to which the Stockholders
control the right to vote to be counted as present thereat for
purposes of calculating a quorum; and
(b) vote (or cause to be voted), in
person or by proxy, or deliver (or cause to be delivered) a written
consent covering, all of the Covered Shares as to which the
Stockholders control the right to vote (i) in favor of the
adoption of the Merger Agreement and any other transactions
contemplated by the Merger Agreement; (ii) against any action
or agreement submitted for the vote or written consent of
stockholders that is in opposition to, or competitive or materially
inconsistent with, the Merger or that would result in a breach of
any covenant, representation or warranty or any other obligation or
agreement of the Company contained in the Merger Agreement, or of
the Stockholders contained in this Agreement; and
(iii) against any Takeover Proposal (as defined in the Merger
Agreement) and against any other action, agreement or transaction
submitted for the
vote or written consent of
stockholders that would reasonably be expected to impede, interfere
with, delay, postpone, discourage, frustrate the purposes of or
adversely affect the Merger or the other transactions specifically
contemplated by the Merger Agreement or this Agreement or the
performance by the Company of its obligations under the Merger
Agreement or by the Stockholders of their obligations under this
Agreement.
1.2. Conduct of Stockholders
. Until this Agreement is terminated, the Stockholders hereby
covenant and agree that, except for this Agreement, the
Stockholders (a) will not sell or otherwise transfer any of its
Covered Shares or any economic, voting or other direct or indirect
interest therein, (b) will not enter into any voting agreement
or voting trust, or grant a proxy, consent or power of attorney
with respect to the Covered Shares and (c) will not at any meeting
of the stockholders of the Company, vote (or cause to be voted) the
Covered Shares for (x) any merger agreement or merger,
consolidation, combination, sale of substantial assets,
reorganization or recapitalization of or by the Company or any of
its subsidiaries, except in connection with the Merger, or (y) any
amendment of the Company’s certificate of incorporation or
bylaws or other proposal or transaction involving the Company or
any of its subsidiaries (except in connection with the Merger), for
the purpose of impeding, frustrating, preventing or nullifying the
Merger Agreement, the Merger or any of the other transactions
contemplated by the Merger Agreement.
ARTICLE II
REPRESENTATIONS AND
WARRANTIES
2.1. Representations and
Warranties of the Stockholders . Each Stockholder hereby
represents and warrants to Parent as follows:
(a)
such Stockholder has the legal capacity, power and authority to
enter into and deliver this Agreement and perform its obligations
under this Agreement and, such Stockholder’s execution and
delivery of this Agreement and performance of its obligations
hereunder have been duly and validly authorized by any necessary
corporate or similar proceedings on the part of such
Stockholder;
(b)
this Agreement is binding on such Stockholder and enforceable in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting the
enforcement of creditors’ rights generally or by general
equitable principles relating to enforceability;
(c)
the execution and delivery of this Agreement and the performance by
such Stockholder of its obligations hereunder do not require the
authorization, consent, approval, license, exemption or other
action by, or filing with, any third party or governmental
authority, do not violate applicable law or conflict with or result
in a breach of any of such Stockholder’s organizational
documents or contractual obligations;
(d)
such Stockholder is the beneficial owner of all the Covered Shares
that are set forth next to such Stockholder’s name on
Exhibit A hereto and tha
