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Exhibit
10.1
VOTING
AGREEMENT
THIS VOTING AGREEMENT (this
“ Agreement ”) is entered into as of
December 18, 2007, by and among PAETEC Holding Corp., a
Delaware corporation (“ Buyer ”), and the
stockholders of Seller identified on the signature pages hereto
(collectively, the “ Seller Stockholder
”).
WHEREAS, Buyer, Seller and PS
Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Buyer (“ Merger Sub ”), entered
into an Agreement and Plan of Merger, dated as of
September 17, 2007, as amended by Amendment No.1 to Agreement
and Plan of Merger, dated as of the date of this Agreement (the
“ Amendment ” and such agreement, as amended,
the “ Merger Agreement ”), pursuant to which,
and subject to the terms and conditions of which, Merger Sub will
merge with and into Seller and each share of common stock, par
value $0.01 per share, of Seller (the “ Seller Common
Stock ”) will be converted into the right to receive 1.30
shares of common stock, par value $0.01 per share, of Buyer (such
transaction, the “ Merger ”). Capitalized terms
used herein without being defined have the same meanings given to
such terms in the Merger Agreement;
WHEREAS, the Seller
Stockholder beneficially owns, and has sole voting power or
(together with one or more affiliates controlled by the Seller
Stockholder) shared voting power with respect to, the outstanding
shares of Seller Common Stock identified as being held by the
Seller Stockholder on Exhibit A hereto (such shares of
Seller Common Stock, together with any voting securities of Seller
issued or exchanged with respect to such shares of Seller Common
Stock upon any recapitalization, reclassification, merger,
consolidation, spin-off, partial or complete liquidation, stock
dividend, split-up or combination of the securities of Seller or
any other change in Seller’s capital structure, the “
Covered Shares ”); and
WHEREAS, in connection with
the execution of the Amendment, the Buyer has requested that the
Seller Stockholder and certain other holders of Seller Common Stock
execute and deliver this Agreement;
NOW, THEREFORE, in
consideration of the premises, the mutual covenants and agreements
contained herein and other good and valuable consideration, the
receipt of which are hereby acknowledged, the Seller Stockholder,
Buyer and Seller hereby agree as follows:
1.
Cooperation by Seller Stockholder . Unless and until this
Agreement shall be terminated pursuant to paragraph 4, the Seller
Stockholder agrees that, solely in such Seller Stockholder’s
capacity as a stockholder of Seller: (a) at the Seller
Stockholders Meeting to be held pursuant to Section 5.1(d) of
the Merger Agreement, the Seller Stockholder shall cause all
Covered Shares which are outstanding and beneficially owned by
Seller Stockholder on the record date of the Seller Stockholders
Meeting (the “ Eligible Shares ”) to be counted
as present thereat for the purpose of establishing a quorum and
voted in person or by proxy in favor of the adoption of the Merger
Agreement and
approval of the transactions
contemplated thereby, including the Merger; (b) the Seller
Stockholder shall not take, or permit its representatives to take,
actions inconsistent with its obligations under this Agreement; and
(c) the Seller Stockholder agrees that each of Arunas A.
Chesonis, Keith M. Wilson and Charles E. Sieving, in his capacity
as an officer of Buyer, shall act, and is hereby appointed, as the
agent, proxy and attorney-in-fact for the Seller Stockholder, with
full power of substitution and resubstitution, solely to cause the
Eligible Shares to be counted as present and to vote the Eligible
Shares prior to the termination of this Agreement in accordance
with clause (a) above. With respect to the proxy and power of
attorney granted by the Seller Stockholder under clause
(c) above: (i) the Seller Stockholder shall take such
further action or execute such other instruments, at Buyer’s
sole cost and expense, as may be reasonably necessary to effectuate
the intent of such proxy; (ii) such proxy and power of
attorney shall be irrevocable during the term of this Agreement,
shall be deemed to be coupled with an interest sufficient in law to
support an irrevocable proxy and shall revoke any and all prior
proxies granted by the Seller Stockholder inconsistent with such
proxy; (iii) such power of attorney is a durable power of
attorney; and (iv) such proxy and power of attorney shall
terminate upon the termination of this Agreement.
2.
Agreement to Retain . Unless and until this Agreement shall
be terminated pursuant to paragraph 4, unless authorized in advance
by Buyer’s Board of Directors, the Seller Stockholder, solely
in its capacity as a stockholder of Seller, agrees (a) not to
sell or otherwise transfer any of the Covered Shares or any
economic, voting or other direct or indirect interest therein and
(b) not to grant a proxy or enter into any voting agreement
concerning any of the Covered Shares (except, in each case, for the
voting agreement and appointment of proxy under paragraph 1 and the
fulfillment of all other agreements and obligations of the Seller
Stockholder hereunder).
3.
Representations and Warrant
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