Exhibit 10.1
VOTING
AGREEMENT
This VOTING AGREEMENT (the “
Agreement ”) is made by and between the undersigned
signatory hereto (the “ Stockholder ”) and
Corvis Corporation, a Delaware corporation (“ Corvis
”) as of the date set forth below.
Recitals
A. WHEREAS, the Stockholder is the
holder of record of the number of shares of the Series A Redeemable
Voting Convertible Preferred Stock, par value $0.01 per share (the
“Series A Preferred Stock”), of Focal Communications
Corporation (“ Focal ”) set forth on the
signature page hereto. The Stockholder has executed a
Stockholders’ Consent in Lieu of a Special Meeting of the
Stockholders of Focal (the “ Written Consent ”)
authorizing Focal to consummate a merger (the “ Merger
”) with and into Corvis Acquisition Company, Inc. (“
Sub ”) pursuant to that certain Agreement and Plan of
Merger, dated as of March 3, 2004, by and between Focal, Corvis and
Sub (as in effect on the date hereof, the “ Merger
Agreement ”). A copy of the Merger Agreement was attached
as an exhibit to the Written Consent.
B. WHEREAS, the Merger Agreement
requires Focal to obtain executed Voting Agreements in the form of
this Agreement from the holders of at least sixty-seven percent
(67%) of the issued and outstanding Series A Preferred Stock and
fifty one (51%) percent of the Company’s Common Stock (with
the Series A Preferred Stock voting on an as-if-converted basis) as
a condition precedent to the consummation of the Merger, and, for
that reason, the Stockholder has agreed, solely in its capacity as
a stockholder of Focal, to the terms and conditions set forth below
relating to the voting of its shares of Focal capital
stock.
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Stockholder agrees as follows:
1. Voting Rights . The
Stockholder hereby agrees as follows: (a) to appear, in person or
by proxy, on any applicable record da
