VOTING AGREEMENT
Exhibit 1
Execution Version
AGREEMENT (this “Agreement”), dated as of February 8, 2011 among PAETEC Holding Corp., a
Delaware corporation (“Parent”), and the individual or entity listed on Schedule 1.01 hereto
(“Shareholder”).
WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, XETA
Technologies, Inc., an Oklahoma corporation (“XETA”), and Hera Corporation, an Oklahoma corporation
(“Sub”), are entering into an Agreement and Plan of Merger (as amended or modified from time to
time, the “Merger Agreement”) pursuant to which Sub will be merged with and into XETA, with XETA
continuing as the surviving corporation and an indirect wholly-owned, indirect subsidiary of
Parent;
WHEREAS, as of the date hereof, Shareholder is a beneficial owner of the shares of common
stock, par value $0.001 per share, of XETA (XETA’s shares of common stock are hereinafter referred
to as the “Shares”) or has the right to vote those Shares set forth opposite his or its name under
the heading “Existing Shares” on Schedule 1.01 (all such shares, except as noted on Schedule 1.01,
being referred to as Shareholder’s “Existing Shares”); and
WHEREAS, in order to induce Parent and Sub to enter into the Merger Agreement, Shareholder has
agreed to enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
Section 1.01 Voting Agreement. Until the termination of this Agreement in accordance with
Section 5.04:
(a) Shareholder hereby agrees that at any meeting (whether annual or special and whether or
not adjourned or postponed) of XETA’s shareholders, however called, or in connection with any
written consent of XETA’s shareholders, Shareholder shall vote (or cause to be voted) or deliver a
consent (or cause a consent to be delivered) with respect to (x) Shareholder’s Existing Shares and
(y) all Shares of which Shareholder acquires beneficial ownership during the term of this Agreement
(such Shares referred to in the foregoing clauses (x) and (y) being referred to as Shareholder’s
“Covered Shares”) to the fullest extent:
(i) in favor of the approval and adoption of the Merger Agreement;
(ii) without limitation of the preceding clause (i), in favor of any proposal to adjourn or
postpone any meeting of the shareholders of XETA at which the matters described in the preceding
clause (i) are submitted for the consideration and vote of the shareholders of XETA to a later date
if there are not sufficient votes for approval of such matters on the date on which the meeting is
held; and
(iii) against any (A) Acquisition Proposal, (B) reorganization, recapitalization, liquidation
or winding-up of XETA or any other extraordinary transaction involving XETA or (C) corporate action
requiring the approval of XETA’s shareholders, the consummation of which would frustrate the
purposes, prevent, postpone or delay, or adversely affect the consummation of the transactions
contemplated by the Merger Agreement.
(b) Shareholder agrees to take all steps reasonably necessary such that all of his or its
Covered Shares are counted as present for purposes of any quorum requirement at any duly called
meeting of the shareholders of XETA (or any adjournment or postponement thereof).
(c) Notwithstanding the foregoing, Shareholder shall remain free to vote (or execute consents
or proxies with respect to) the Covered Shares with respect to any matter not covered by this
Section 1.01 in any manner that Shareholder deems appropriate, provided that such vote (or
execution of consents or proxies with respect thereto) would not reasonably be expected to
frustrate the purposes, prevent, postpone or delay, or adversely affect the consummation of the
transactions contemplated by the Merger Agreement.
For purposes of this Agreement, “beneficial ownership” of any security by any Person means
“beneficial ownership” of such security as determined pursuant to Rule 13d-3 under the 1934 Act,
including all securities as to which such Person has the right to acquire, without regard to the
60-day period set forth in such rule. The terms “beneficially owned” and “beneficial owner” shall
have correlative meanings.
Section 1.02 Revocation of Proxies. Shareholder hereby revokes (or causes to be revoked) any
and all previous voting proxies granted with respect to the voting of any of his or its Covered
Shares.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to Parent that:
Section 2.01 Organization. Shareholder, if it is a corporation, partnership, limited liability
company, trust or other entity, is duly organized and validly existing and in good standing under
the laws of the jurisdiction of its organization.
Section 2.02 Authorization. If Shareholder is not an individual, the execution, delivery and
performance by Shareholder of this Agreement and the consummation by Shareholder of the
transactions contemplated hereby are within the powers of Shareholder and have been duly authorized
by all necessary action. If Shareholder is an individual, he has full legal capacity, right and
authority to execute and deliver this Agreement and to perform his obligations hereunder. This
Agreement constitutes a valid and binding Agreement of Shareholder (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting
creditors’ rights generally and general principles of equity).
2
Section 2.03 Non-Contravention. The execution, delivery and performance by Shareholder of this
Agreement do not and will not (i) if Shareholder is not an individual, violate
the certificate of formation, agreement of limited partnership, certificate of incorporation
or similar organizational documents of Shareholder, (ii) violate any Applicable Law to which
Shareholder is subject, (iii) require any consent or other action by any Person under, constitute a
default under, or give rise to any right of termination, cancellation or acceleration or to a loss
of any benefit to which Shareholder is entitled under any provision of any agreement or other
instrument binding on Shareholder and (iv) result in the imposition of any Lien on any Covered
Shares.
Section 2.04 Ownership of Shares. As of the date hereof, Shareholder is the beneficial owner
of or has the unilateral right to vote Shareholder’s Existing Shares, free and clear of any Lien
and any other limitation or restriction (including any restriction on the right to vote or
otherwise dispose of any such Existing Shares) other than those created by this Agreement and
except as set forth on Schedule 1.01. None of Shareholder’s Existing Shares is, and at no time
during the term of this Agreement will Shareholder’s Existing Shares and the Shares that
Shareholder acquires beneficial ownership of during the term of this Agreement be, subject to any
voting trust or other agreement or arrangement with respect to the voting of such Shares, other
than this Agreement. Shareholder has, and at all times during the term of this Agreement will have,
with respect to Shareholder’s Covered Shares the sole power, directly or indirectly, to vote such
Covered Shares and agree to all matters set forth in this Agreement.
Section 2.05 Total Shares. As of the date hereof, except as set forth on Schedule 1.01,
Shareholder’s Covered Shares constitute all of the Shares beneficially owned by Shareholder or with
respect to which the Shareholder has the right to vote.
Section 2.06 Finder’s Fees. No investment banker, broker, finder or other intermediary is
entitled to a fee or commission from Parent or XETA in respect of this Agreement based upon any
arrangement or agreement made by or, to the knowledge of Shareholder, on behalf of Shareholder.
Section 2.07 Opportunity to Review; Reliance. Shareholder has had the opportunity to review
this Agreement and the Merger Agreement with counsel of his or its own choosing. Shareholder
understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon
Shareholder’s execution, delivery and performance of this Agreement. Shareholder understands and
acknowledges that the Merger Agreement governs the terms of the Merger and the other transactions
contemplated thereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to Shareholder:
Section 3.01 Corporation Authorization. The execution, delivery and performance by Parent of
this Agreement and the consummation by Parent of the transactions contemplated hereby are within
the corporate powers of Parent and have been duly authorized by all necessary corporate action.
This Agreement constitutes a valid and binding agreement of Parent.
3
ARTICLE IV.
COVENANTS OF SHAREHOLDER
Shareholder hereby covenants and agrees that:
Section 4.01 No Proxies for or Encumbrances on Covered Shares. Except pursuant to the terms of
this Agreement or the Merger Agreement, Shareholder shall not, without the prior written consent of
Parent, directly or indirectly (except, if Shareholder is an individual, as a result of the death
of Shareholder), (a) grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Covered Shares, (b) sell, assign, transfer, encumber
or otherwise dispose of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition
of, any Covered Shares during the term of this Agreement, or (c) attempt to execute any statutory
appraisal, dissenters or other similar rights they may have. Shareholder shall not seek or solicit
any such sale, assignment, transfer, encumbrance or other disposition or any such contract, option
or other arrangement or understanding. Notwithstanding the foregoing, the preceding sentence shall
not prohibit a transfer of Covered Shares by a Shareholder: (A) if Shareholder is an individual, to
any member of Shareholder’s immediate family, or to a trust or foundation established for the
benefit of Shareholder and/or for the benefit of one or more members of Shareholder’s immediate
family or established for charitable purposes, or upon the death of Shareholder, or (B) if
Shareholder is a partnership, limited liability company or trust, to one or more partners or
members of Shareholder or to an affiliated corporation under common control with Shareholder or to
any trustee or beneficiary of the trust, provided that any Transfer permitted pursuant to (A) or
(B) above shall be permitted only if, as a precondition to such transfer, the transferee of such
Covered Shares agrees in writing with Parent and Sub to be bound by the terms and conditions of
this Agreement.
Section 4.02 Other Offers. Shareholder shall not knowingly (i) take any action to solicit or
initiate any Acquisition Proposal or (ii) engage in negotiations with, or disclose any nonpublic
information relating to XETA or any of its Subsidiaries or afford access to the properties, books
or records of XETA or any of its Subsidiaries to, any Person that Shareholder knows is considering
making, or has made, an Acquisition Proposal or has agreed to endorse an Acquisition Proposal.
ARTICLE V.
MISCELLANEOUS
Section 5.01 Notices. All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission) and shall be given,
4
if to Parent:
PAETEC Holding Corp.
000 Xxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (585) (000) 000-0000
Fax: (000) 000-0000
000 Xxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (585) (000) 000-0000
Fax: (000) 000-0000
with a copy, which shall not constitute notice, to:
Xxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
0000 Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to a Shareholder, to Shareholder with a copy to its counsel at their respective addresses,
facsimile numbers set forth on the applicable signature page hereof, or to such other address or
facsimile number as such party may hereafter specify for the purpose by notice to the other parties
hereto. All such notices, requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. on a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed to have been received
on the next succeeding business day in the place of receipt.
Section 5.02 Other Definitional and Interpretative Provisions.
(a) Notwithstanding anything to the contrary in this Agreement, the obligations,
representations, warranties and covenants of any party hereto are several (with respect to itself)
and not joint and several, and in no event shall any party hereto have any liability for the
obligations, representations, warranties or covenants of any other party hereto. The words
“hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement. The captions
herein are included for convenience of reference only and shall be ignored in the construction or
interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles,
Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and
Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Any capitalized terms used in this Agreement but not
otherwise defined herein shall have the meaning assigned to such term in the Merger Agreement. Any
capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the
meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the words “include”, “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by the words “without
limitation”, whether or not they are in fact followed by those words or words of like import.
“Writing”, “written” and comparable terms refer to printing, typing and other means
of reproducing words (including electronic media) in a visible form. References to any
agreement or contract are to that agreement or contract as amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof. References to any Person include the
successors and permitted assigns of that Person. References from or through any date mean, unless
otherwise specified, from and including or through and including, respectively.
5
(b) In this Agreement, the Shareholder of any Covered Shares held in trust shall be deemed to
be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in
each case as the context may require to be most protective of Parent, including for purposes of
such trustees’ representations and warranties as to the proper organization of the trust, their
power and authority as trustees and the non-contravention of the trust’s governing instruments.
Section 5.03 Further Assurances. Shareholder, to the extent reasonably requested by Parent,
will each execute and deliver, or cause to be executed and delivered, all further documents and
instruments and use its reasonable best efforts to take, or cause to actions, all actions necessary
to comply with its obligations under this Agreement.
Section 5.04 Amendments; Termination. Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment,
by each party to this Agreement or in the case of a waiver, by the party against whom the waiver is
to be effective. This Agreement shall terminate and be of no further force or effect whatsoever as
of the earliest of (a) the Effective Time or (b) the termination of the Merger Agreement in
accordance with its terms.
Section 5.05 Documentation and Information. Shareholder (a) consents to and authorizes the
publication and disclosure by Parent of Shareholder’s identity and holding of Covered Shares, the
nature of Shareholder’s commitments, arrangements and understandings under this Agreement
(including, for the avoidance of doubt, the disclosure of this Agreement) and any other
information, in each case, that Parent reasonably determines is required to be disclosed by
Applicable Law in any press release, any Current Report on Form 8-K, any statement on Schedule 13D,
the Proxy Statement, any other disclosure document in connection with the Merger Agreement and any
filings with or notices to Governmental Authorities in connection with the Merger Agreement and (b)
agrees promptly to give to Parent any information it may reasonably request for the preparation of
any such documents. Parent (i) consents to and authorizes the publication and disclosure by
Shareholder of Parent’s identity, the nature of Parent’s and Shareholder’s commitments,
arrangements and understandings under this Agreement (including, for the avoidance of doubt, the
disclosure of this Agreement) and any other information, in each case, that Shareholder reasonably
determines is required to be disclosed by Applicable Law in any statement on Schedule 13D or 13G
(or amendments thereto) and any other filings with or notices to Governmental Authorities and (ii)
agrees promptly to give to Shareholder any information it may reasonably request for the
preparation of any such documents. Each party hereto agrees to promptly notify the other parties of
any required corrections with respect to any information supplied by such party specifically for
use in any such document, if and to the extent that any such information shall have become false or
misleading in any material respect.
6
Section 5.06 Expenses. All costs and expenses incurred in connection with this Agreement shall
be paid by the party incurring such cost or expense. Notwithstanding the foregoing, a party
that is successful in any action brought against the other for any breach of this Agreement
shall, in addition to any other damages awarded to it in such action, will also receive all
reasonable expenses incurred by that party in connection with such action, including without
limitation, reasonable attorneys’ fees.
Section 5.07 Shareholder Capacity. No person executing this Agreement who is or becomes during
the term hereof a director or officer of XETA makes any agreement or understanding herein in his or
her capacity as a director or officer. Shareholder signs solely in its capacity as the beneficial
owner of or person with the right to vote Covered Shares and nothing in this Agreement shall limit
or affect any actions required to be taken by such individual solely in his or her capacity as an
officer or director of XETA to fulfill such person’s fiduciary obligations under Applicable Law
based on the advice of legal counsel, including any vote that such individual may make as a
director of XETA with respect to any matter presented to the XETA Board of Directors. Parent agrees
that no such action taken in such individual’s capacity as an officer of XETA or as a member of the
XETA Board of Directors; provided, however, that no such actions will be deemed to waive or
supersede any obligations of Shareholder under this Agreement in his or its capacity as a
shareholder of XETA. This Section 5.07 shall survive any termination of this Agreement.
Section 5.08 Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns;
provided that no party may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto. Notwithstanding the
foregoing, Parent may assign this Agreement to any Person to whom it assigns the Merger Agreement,
but no such assignment shall relieve Parent of any of its obligations hereunder.
Section 5.09 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to contracts executed in
and to be performed in that State, without giving effect to any choice or conflict of law
provisions or rule (whether of the State of Delaware or any other jurisdiction) that would cause
the application of laws of any jurisdiction other than those of the State of Delaware; provided
however that provisions that are required pursuant to the internal laws of the State of Oklahoma to
be governed by the laws of the State of Oklahoma shall be governed by the applicable laws of the
State of Oklahoma. All actions and proceedings arising out of or relating to this Agreement shall
be heard and determined exclusively in any federal court sitting in Delaware or if such court
declines to accept jurisdiction, the state courts located in Delaware, and each of Shareholder and
Parent hereby irrevocably and unconditionally (i) consents to submit to the jurisdiction of such
courts for any litigation arising out of or relating to this Agreement and the Transactions (and
agrees not to commence any litigation relating thereto except in such court), (ii) waives any
objection to the laying of venue of any such litigation in such courts and (iii) agrees not to
plead or claim that such litigation brought therein has been brought in any inconvenient forum.
Each party irrevocably consents to the service of process outside the territorial jurisdiction of
the courts referred to in this Section 5.09 in any such action or proceeding by mailing copies
thereof by registered United States mail, postage prepaid, return
receipt requested, to its address as specified in or pursuant to Section 5.01 hereof.
However, the foregoing shall not limit the right of a party to effect service of process on the
other party by any other legally available method
7
Section 5.10 Counterparts; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other parties hereto. Until and
unless each party has received a counterpart hereof signed by the other party hereto, this
Agreement shall have no effect and no party shall have any right or obligation hereunder (whether
by virtue of any other oral or written agreement or other communication).
Section 5.11 Severability. If any term, provision or covenant of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 5.12 Specific Performance. The parties hereto agree that irreparable damage would
occur in the event any provision of this Agreement is not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the terms hereof in
addition to any other remedy to which they are entitled at law or in equity.
Section 5.13 No Ownership Interest. All rights, ownership and economic benefits of and
relating to the Covered Shares shall remain vested in and belong to Shareholder, and Parent shall
have no authority to exercise any power or authority to direct Shareholder in the voting of any of
the Covered Shares, except as otherwise specifically provided herein, or in the performance of
Shareholder’s duties or responsibilities as a shareholder of XETA.
Section 5.14 Survival of Representations and Warranties. The representations, warranties,
covenants and agreements contained herein shall not survive the termination of this Agreement.
Section 5.15 Capitalized Terms. Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Merger Agreement.
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
| PAETEC Holding Corp. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[Signature Page — Voting Agreement]
9
| /s/ Xxxxxx X. Xxxxxxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxxxxxx | ||||
| Address for notices: 0000 Xxxxx 00xx Xxxx Xxxxxx Xxxxx, Xxxxxxxx 00000 |
||||
10
Schedule 1.01
| Name | Shares | |
Xxxxxx X. Xxxxxxxxxxxx 0000 Xxxxx 00xx, Xxxx Xxxxxx Xxxxx, Xxxxxxxx 00000 |
1,109,003. This number does not include options to purchase 8,000 shares granted to the Shareholder, which do not vote until exercised. |
11
